BROOKS V. HANOVER NAT. BANK.
show that the agents of the defendant had been engaged during the year 1884 in any actual business transactions for the defendant. On the other hand, it would seem that the defendant still maintained its office at No. 71 Broadway. Although it asserts in its affidavits that it had 'no office here, this is merely a general statement of a conclusion, unsupported by any proof that it has canceled its lease, or surrendered actual possession of the premises. The statement may be true in the same sense that the accompanying statement is true that it has no officers within this state. If it keeps an office here, the implication is that the office is needed for the transaction of business. If it has its office here, and has one nowhere else; if all those who are competent to represent it are here, and nowhere else,-it must transact here whatever affairs may arise in the exigencies of a moribund concern. Upon the whole, it would seem that the defendant is found here. The motion is therefore denied.
BROOKS '11. HANOVER NAT. BANK.
(C!ircuit Court. S. D. NelIJ York. January 28,1886.)
FACTOR-PLEDGE OF MERCHANDISE-VALIDITY.
By the statute, the factor is to be deemed the true owner of the merchandise, so far as to give validity to a pledge thereof in security for a loan, if he has been intrusted with the possession of the property for the purpose of sale, or as security for advances to be made or obtained upon it.
Warehouse receipts, by statute, in New York, are negotiable instruments, and by indorsements transfer the merchandise for which they are given, upon surrender of the receipt.
At Law. Roger A. Pryor, for plaintiff. Moore, Low et Wallace, for defendant. WALLACE, J. In October, 1881, the defendant sold certain cases of opium, of the value of $4,412.06, which had been pledged to it by Davis & Co. in May, 1879, as security for loans made and to be made by the defendant to that firm. New loans were made after the pledge, from time to time, by the defendant to Davis & Co., upon the security of the opium, and at the time of the sale, which was made to satisfy the pledge, Davis & Co. were indebted to the defendant upon one loan of $2,000 made February 19, 1881, and upon another loan of $3,000 made January 4, 1881, for which the defendant also held additional security. At the time of the original pledge, the opium was the property of one Hatch, (under whom the plaintiff makes title,) and had been in the possession of Davis & Co. as his faetorsfor sale.
They had stored it with a warehouseman, and had taken a warehouse receipt, in the usual form, by which the opium was deliverable to them or their order upon surrender of the receipt. Davis & Co. pledged the opium to defendant by the indorsement and delivery of this receipt. This is an action of trover for the conversion of the opium, and the only question is whether the defendant acquired a good title to it under the factors' act. If, after applying the avails of the additional security taken by the defendant upon the $3,000 loan, the defendant received from the· proceeds of the sale of the opium any sum in excess of its debt against Davis & Co., the plaintiff is doubtless entitled to that sum, and can recover it in an appropriate action; but here the only question is whether the act of the defendant in selling it to satisfy the pledge was a conversion. Manifestly, the loans were made and carried by the defendant for Davis & Co. upon the faith of the merchandise describe.d in the warehouse receipt, and this being so the pledge made by the factors was as valid, under the provisions of the factors' act of this state. as a pledge by the owner would have been. By the statute the factor is to be deemed the true owner of the merchandise, so far as to give validity to such a contract, if he has been intrusted with certain documents of title mentioned in the statute by the owner, or if he has been intrusted with the possession of the property for the purpose of sale, or as security for advances to be made or obtained upon it. The case for the plaintiff has been placed upon the theory that the evidencedoes not show that Davis & Co. had ever been intrusted with the documents of title by the owner. If they had made a pledge of merchandise consigned to them which had not come to their possession, proof that they had been intrusted with such documents of title would have been essential, because these, under such circumstances, and according to the established usages of trade, give the exclusive control of the delivery of the property to the factor, and are the only evidence of title upon which third persons dealing with him have a right to rely. But where the merchandise has come to the factor's possession, actual or legal, no evidence of title is required. The purpose of the statute is to protect those who advance money to the factor upon the faith of the merchandise and his apparent ownership, as evinced either by the possession of the property or by the documentary evidence of title with which he bas been intrusted by the owner. Oa'T'twright v. Wilmerding, 24 N. Y. 521; Howland v.Wood. ruff, 60 N. Y.n, 81. Warehouse receipts, by statute, in this state, are negotiable instruments, and by indorsemen,t transfer the merchandise for which they are given upon surrender ,of the receipt. If Davis & Co. had not delivered" the opium to the warehouseman, or been at any time in actual ,possession of the merchandise,. the possession was theirs in law when . the warehouseman gave them the receipt. Thenceforth he recog-
GREENLEAF '11. WORTHINGTON.
nized their right of dominion, and his possession was theirs, in contemplation of law, and he held it merely as their bailee. Judgment is ordered for the defendant.
GREENLEUand others v. WORTHINGTON, Collector.
«(fil'cuit Oourt, D. Jfa88achuscti8. December 2,1885.)
CuSTOMS DUTIES-MERINO SHIRTS, ETC.-UNDER WHAT LAW DUTIABLE.
Shirts, drawers, and stockings composed in part of wool and in part of. cot· ton, and known commercially as merlllo goods, are liable to an assessment of 85 per cent. ad 'lJalorem, under the act of August 7, 1882, (22 St. 301,) in amllnd· ment of Rev. St. § 2504, irrespective of the proportions in which the wool and cotton are combined, or the comparative value of the wool in the fabric.
Rescript. O. L. Woodbury, for plaintiff. Geo. P. Sanger, U. S. Atty., for defendant. COLT, J. Under the agreed statement of facts it appears that the importations were known in trade in 1874 as merino shirts, drawers, socks, and stockings, and that the yarn was known in trade. as merino yarn, and that this yarn was produced by carding together wool and cotton, and spinning, by which process a distinct article of commerce from either wool or cotton is produced, which is known and described as merino. The importations being composed in part of wool and in part of cotton, and known commercially as "merino," we do not think they should be assessed under section 2504, Schedule L, of the Revised Statutes, but that they clearly come under section 2504, Schedule M, of the Revised Statutes, amended August 7,1882, (22 St. 301,) and are liable to an assessment of 35 per cent. ad valorem. Upon the facta as presented we deem the proportions in which the wool and cotton are combined, or the comparative value of the wool in the fabric produced, immaterial and not affecting the question.