DEVEREUX v. FLEMING, (DEVEREUX, Intervener.) (Circuit Court, D. South Carolina. December 30, 1892.)
WAREHOUSEMEN-IMPLIED CONTRACT OF STORAGE-EVIDENCE.
'.rhe. father of a resident member of a firm, presumably from the personal interest which he took in the firm's success on account of his son's connection therewith, <Jaused a warehouse to be built at his own expense, in immediate connection with ll. system of railroads, thus facilitating the hand· ling, delivery, and storage of the bulky and heavy articles which the firm dealt in. During the building of the warehouse the son wrote numerous letters to his partner, using expressions which would indicate that the warehouse was being built by the firm, and was of 'an inexpensive character, and that it would reduce the expense of the goods stored therein to the cost of handling only. The father, however, had no financial interest in the firm, never authorized such statements, and was ignorant of them. He made his son superintendent of the warehouse, and, the firm having stored large quantities of goods therein, the business. of the two became somewhat mixed. No contract was made as to the terms of the storage, and, although the father had several settlements with. the firm as to other matters, he never said anything in regard to the charges for storage, but he regularly entered such charges on his own books. A receiver, having been appointed for the firm, attempted to remove the stored goods, whereupon the father claimed a lien for storage. Held, ,that thl'! presumption that a man intends to ohtain reu,uneration for the use of his property was not overcome by the'le facts, and it must be herd' that there was an implied contract of storage. Under the circumstances the firm should be allowed the best rates given by other warehouses of equal capacity and facilities.
SAME-LIEN FOR GENERAL BALANCE DUE FOR STORAGE.
The father as warehouseman was entitled to a lien on goods remaining in the war<>house for a general balance of due on all goods stored under the implied contract, for a warehouseman is entitled to a lien for llllCh general balance for all goods stored nuder a single contract. A warehouseman who retains !!oods for a general balance of storage un· .der a single contract is entitled to storage at the same rate after the of asserting his lien until payment is made, and he cannot be deprived of the same on the theory t.hat the storage from that t.ime on is for his own benefit. Somes v. Shipping Co., 8 H, L. Cas. 338, distinguished.
SAME-LIEN-GOODS RETAINED-CONTINUANCE OF STORAGE.
In Equity. Suit by John II. Deyereux, Jr., against Howard Fleming, for the dissolution of the firm of Devereux & Fleming. A receiver was appointed, an accounting ordered, and creditors called in. J. H. Devereux, Sr., intervened by petition, setting up the claim foran unpaid balance on a storage contract. Subsequently, on defendant's (Fleming's) application, the assets of the concern were ordered transferred to him by the receiver, the former giving bond for the and satisfaction in full of all creditors holding properclaim!! against the firm. See 47 :b'ed. Rep. 177. Intervener's claim !!ustained. F. J. Devereux, for petitioner. J. N. Nathans, for defendant, I<1eming.
for the dissolution of the firm of Fleming & Devereux, a copartner-
SfMONTON, Dllitrict Judge.
The bill in the main cause was filed
ship account, and the appointment of a receiver. v.53F.noA-26
The receiver· was
appointed., the taking of the account was ordered, and creditors were called in. (Thebusihess6f'th.erfirm wasaa dealerain 'building material, lime, cement, plaster, and of like natJll'e. . Their warehouses were at 276 East Bay, and on Palmetto whatf, in the city of 'The raUr6ads"eniering that city not having at that accesS 0 ,the water front, J. H. the elder, est8iblished .wharves aJ;ld a' warehouse on land' of hIS property on Asb.leyrrlver; By personal influence and effort, he obtained a connectiOn",Wi1Jl1, the South Cal'Ollna. Railway track, and in this way put his within the "system of railroads ,meeting at Oharles· ton. He, named his wharVes liIDd warehouse the f'West Shore Terminall'"When this enterprise ,was nearly, if not altogether, com& Devereux,'ttn\.de use of the West Shore Terminal by stoiliilg: la,rge part of in the and by using the wba:rves for the receipt delivery ofcarg6eS. Thus they saved on shipments into the interior the cost of drayage on goods to the ,In all, fhere were shipped to the 'West Shore.Tel.'fil'Jn which 19,230 went.into the warewere delivereda.nd shipped from the house,and the ;remainder, wharf·. , When. the receiver was appointed in thema,in case, he" u,nder an. OJ:der court, attempted to remove the 'goods from this warehouse: "lleremoveda 'part of but Mr. ''Devereux, the elder, refused to permit the removal of some !j96 barrels,claiming that there was duew ,Ildmra,. general. bal.ance of warehQllSe' ,charges. He thus set up and enforced his lien. No further steps were taken by the receiver, by way'of payi.ng this balance, or admitting and ·tenthereof, ,l>r to remove the goods. Mr. then.inte;rvened in this cause, by filing his petition setting np his lien, stating his account, and praying its payment. This was rtlferred to a special master"To taka!.M\, a(JCount of the dealings and transactlonsof, and between, the said John itt the elder, as warehouseman, and the tirm of Fleming & PevereWc. and to state what upon the balauee of' account between thCU'l shall appear to due; and the said master is autllorized to report and to the court any special circumstances needful for explalmng said account in his repor,t"tb.erllof."
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The teEilli:nphy was takenl;>efore the master under this ordel',and is befote thE! court; .John JI. Devereux, the younger, a member of the :firm of Fleming &; Deverellx,is'the only son of ]).Ir.Devereux, the'eldel·. He was quite a YOUIigtr\.l:ln. when he went, illto the firm,-brightand energetic. His entran,ceinto this firm. ,was an important'and valuable event in his life. NeceSsarily and naturally his father whs proud of this promotion of his only son,andtook a deep personal in the'wel· fare and businE>,ss of the firm. When he conceived and projected the scheme of the West Shore Terminal, one of the promoting, if not the inducing, reasons for the was the .great facility and advantage a warehouse in immediate contact with the whole railroad system would gi,ve to this firm, dealing, as it did, in heavy and bulky articles. In ,this day of fierce relentless competition, the sa,iug of dr,a,yage the city on goods shipped may saved a profit
DEVEREUX 'V. FLEMING.
on .sales. ·13efore the inceptiQn and during the· progress of the work he with both .Dlembers of the firm.' His son took a deep and active interest in the cons,truction of the terminal, and when the warehmlsewas completed his father made him the superintendent. While the construction was going on, young Devereux wrote many letters to his copartner, who is a nonresident. The evidence does not disclose any knowledge on the part of the elder Devereux of the contents of these letters. He did know that the correspondence was constant. The tone and tenor of these letters would justify the opinion that the firm was building the warehouse, which was to be of an inexpensive character. From expressions used in his one could believe that young Devereux supposed it was exclusively for the firm's use, and that it would reduce the expense on the goods stored therein only to the cost of handling. On this COI'respondence,· Mr. Fleming, to whom tht1 property and assets of the firm have been delivered, who must pay its debts, insists that John H. Devereux, the elder, has no claim for storage; that it never was his in-oontion to charge storage; and that this correspondence written by his son and superintendent prove this. The facts are that John H. Devereux, the elder, was at the whole cost of the wharves and warehouse; that the only thing furnished by the firm was the tin which covered the warehouse, and that for this he· promptly paid them; that the warehouse is a substantial structure, on a large wharf, the whole covering over two acres of valuable land, having a railway connection over his farm, granted gratuitiously. The cost has been $20,000. The elder Devereux had no business interest in or connection with the firm, and shared no part of its profits. He had an interest in its successful conduct and well being; but this was entirely sentimental. When one has the use of the property of another under no express contract or agreement, the law presumes a contract for hire 'luantum valebat. This legal presumption must be rebutted by proof. There is no evidence that the elder Devereux ever stated or authorized the statement that no charge would be made for stora,ge to Fleming & Devereux; none whatever that he ever contracted to make no charge, 01' offered special i11ducements for the removal of their goods to, or the storage of them in, the warehouse. Mr. Fleming is a man of business, of New Yorkcity, of large experience, and, as his testimony discloses, of no ordinary ability. He knows that to give somet,hing for nothing is not the usage of the business world. If from expressions in the letter of his young partner he saw an indication that perhaps his father would allow the firm the use of the warehouse gratis, his experience and educated commercial instinct would have impelled him to have this important concession "in black and white." It appears now that there never was any bill presented for storage; but the charges were duly entered by the agent of Mr. Devereux, the elder, not by his son. It also appears that in one or more settleme;ntsmade by the elder Devereux with the firm for moneys borrowed and for goods purchased, no allusion was made by him to any set·off by him of the storag.e account; and also it seems that, from the dualposition young Devereux ,occupied, the business of the warehouse and
thai of the firm were a good deal mixed. It j,q impossible, after read· ing·'tb:e. evidence in this case, to'come to an,V' other conclusion than th'at·the wal'ehouse·business was' conducted in an' unbusinesslike way. Reside this, young lJevereux,inhis firm's affairs,seemed always to be liard pressed. He had note.":Ito meet and goods to sell and collections to make, and was always anxious, hard up, and embarrassed. Under these cU'cnmsmnces, it is reasonable to suppose that his father ,'Would not add to his eIi1barl'assment b;ypressing his claim for storage; and that, on the Mntrary, he would suffer inconveniencfl himself; and, further, would aid him with money when he could. It will requfremol'e than the evidence in this record to rebut and reo move the presumption that a man is entitled to be paid for the use of' his property. There is no direct evidence of the terms upon which the goods were to be stored. 'In 'fact nothing was ever said about terms. The petition elahns full rates ofstorage. It appears from the printed rate 'of several warehousemen and from parol evidence that the charge' issn: cents pel'packltge for the first month, and four cent"! for ea,ch succeeding md1J.th or parts of a month;' It also clearly appears that in actual practice these are maximum rates, and that the usage is not to abiduby them if business can be secured by abatement of pl'iee.Thecfrculllstances of this case are special in their character. Fleming lived in .IS"ew York. Young Devereux was the resident, a.ctive, managing partuer. He was at the same time superintendent .of the warehouse. As lJltrtner, he was bound to get the best rates for his firm. Pull rates are never charged unless special rates are not made. It was his duty to get special rates. If he dealt with himself asrepresellting the warehouse, this made it still the more imperative on him to make special rates. If he dealt with his father, the latter, an honest man, never would consent that his son should not act on the line of his duty. If the subject had been mentioned between them, he certainly would have advised his son to seek and demand those terms which are invariably conceded to a large and valuable and steady customer. There being no express contract, the court must fix the charge, and will do so following this broad rule of equity. To Fleming & Devereux tho best terms should be conceded; that is to say, such terms as a warehouseman of equal capacity and equal facility would concede. We find that the rate of charge of the East Terminal, whose capacity and facilities rminal, charges six cents for al'e equal to those of the vVest Shote'T the first lllonth on each package, and two cents for each subsequent mnnthand parts of a month. This Ulnst be the rate allowed here. The charge of six cents ,for t.he first month is made up by two cents for whnl'fagt>, two cents for handling, and two cents for storage. Of the 23,432 packages delivered near the warehouse 19,230 went into it, ahd are subject to the rates hereinbefore fixed; 4,202 did not go into the warehousl:l, but were shipped. 'l'hey are liable only for the two cents Wharfage and two cents for handling. rhe next question is as to the period during which the charge for storage is to be allowed. The petitioner asserted his lien on 9th June, 1891, and under this lien withheld the delivery of 996 barrels. He
STATES 17. REED.
still holds them. He claims the amount due for general bala.noo on the 9th June, to wit, $1,795.12, and the storage on the packages held by him up to the present time. The contract of a warehouseman with his customer is to receive and keep and deliver to order goods placed in his custody on payment of the lawful charges therefor. He has a lien at common law; a specific, not a general, lien. The lien is upon the goods stored for the particular charge on such storage; but if the goods were received under one transaction, and form a part of the same bailment, he may deliver a part of the goods, and retain the residue for the price chargeable on all the goods received, provided the ownership of the wholeis in one person. Jones, Bailm. §§ 967, 974. This phrase "under one transaction" does not mean at the same time, but pursuant to one contract. In the present CMe we assume that the goods were warehoused under a contract and on teEms covering all bailments ot Fleming & Devereux. This brings the case within the rule stated allowing the detention of some of the goods for a balance due on all. It is contended with great earnestness and plausibility that, when a warehouseman enforces his lien and refuses to deiiver on demand, his custody thenceforward is not under his contract of warehouseman, and for the use and benefit of his customer, but his own protection and benefit. He then has no further right to charge storage. The text-book (Jones, Liens, § 972) and the cases quoted (especially Somes v. Shipping Co., 8 H. L. CM. 338) do not sustain thi:3 proposition so broadly stated. Where one is placed in possession of a chattel to do some work on it, and refuses to deliver it when completed until he is paid, he can: not charge storage of that chattel while he is enforcing his lien, because the original contract for repairing and the subsequent implied contract for storage are entirely distinct and separate; but in a case like the present, when the contract is that of storage, and the con· tract is for the delivery on payment of charges, the right to hold the goods under the original contract does not cease until those charges t1re paid, released, or tendered. This seems to be the law of this case. As no tender or offer to pay has been made, the warehouse charges still go on. The special master simply reported the testimony. This opinion fixes the rule upon which the accounts can be made up. Let the case be recommitted to the special master, for a statement of the account upon these principles, allowing all proper credits; and let him report the result.
UNiTED STATES v. REED et
(CirCUit Court, D. Minnesota. December 23, 1892.,
PUBLIC LANDS-CANCELLATION OF PATENT ISSUED BY MISTAKE:
Certain adjustmentl:l of land scrip loeutiouli, being contested, were ap· pealed to the senetary of the interior, by whom it was held that the ad· justments were invalid, and that the contesting claims must also be rejected, and the land disposed of under the public iand laws. Thereafter one R. entered said lands, and obtained a final certificate. On the same day several other persons attempted to. make entries or locations of the