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"The reason for this rule is very apparent. In such cases the property itself is in the hands of a third person or corporation instead of in the possession of the vendor or pledgor. Consequently it does not furnish any false basis of credit, nor is any creditor deceived, because it is well understood that goods in the hands of warehousemen or carriers are, or may be, the property of others, and by the long usage of trade, subject to just this mode of transfer. No such considerations, however, apply in the case of goods in the possession of the vendor or pledgor, or in some third person who is not a warehouseman or wharfinger; and we know of no rule which makes the mere delivery of a receipt a constructive delivery of the property in pledge in such a

case."

An exception to the rule, however, obtains where the bailee has been notified of the assignment by both of the parties and has assented thereto, even though no manual transfer of the property has taken place. In one case, indeed, such a notification and assent were deemed sufficient even though the assent was within the mind of the bailee. alone and had not been communicated to either of the parties, and was evidenced by silence alone.1 The receipt, on the other hand, of one who is openly and notoriously engaged in the business of a warehouseman, and the receipts and bills of lading of common carriers, are looked upon very differently from those of the occasional storer, or locatio custodia. As between the original parties thereto, a receipt, and the receipt portion of a bill of lading (for a bill of lading usually contains both a receipt and a contract), is only prima facie evidence of the quantity and quality of the goods received and may be varied and explained by parol evidence. As between the warehouseman or the carrier and an innocent purchaser for value or assignee of the receipt or bill of lading, a different rule applies and the former will generally be deemed estopped from denying the truth of the statements to which they have given credit by their signatures in so far as these statements relate to matters which are, or ought to be, 1 Tuxworth v. More, 9 Pick. 346.

within their knowledge, or the knowledge of their agents. In respect to things not open and visible, however, like the contents of pork barrels, they will not generally be concluded by the description of the property in the receipt. The Supreme Court of Wisconsin says:

"The receipt of a warehouseman or wharfinger and the receipt or bill of lading of a common carrier are contracts of precisely the same general nature and effect, and should obviously be governed by the same rules and principles as to the application of the doctrine of estoppel or negotiability, which, with respect to such contracts, mean one and the same thing. They are, or may be said to be, negotiable or conclusive in the hands of a bona fide assignee or holder for value, so far as the party executing them, warehouseman or carrier, has made, or is bound by, the representations contained in them. They are negotiable, or conclusive and valid in the hands of such a holder, because the signer, or party by whom they are executed, is estopped or not permitted to deny the existence of the facts represented in or by them, and which are presumed to have been within his knowledge at the time of their execution. Negotiability, or quasi-negotiability, as it has sometimes been more properly called, and estoppel, when spoken of with respect to such instruments, mean, therefore, one and the same thing.'

992

This is the general rule. To it, some, but not the better, decisions recognize an exception in those cases where the bill of lading, or receipt, is issued and circulated by an agent of the warehouseman or carrier, both in fraud of his employers and of the public, and for goods which in fact have not been received at all, as where the agent of a railway company or warehouseman gives to an accomplice a bill of lading, or a receipt for cotton which has never been delivered to him, and the accomplice takes the bill of lading or receipt and either transfers it for a valuable consideration, or pledges it with a bank for the security of a loan. The courts which hold to the doctrine of nonliability in such cases do so on the theory that the goods 2 Hale v. Milwaukee Dock Co., 29 Wis. 482.

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were not in fact received, and that since the agent is acting in fraud both of his employer and of the third party, his act is one which is entirely outside of the scope of his authority, and being unauthorized by, should not be binding upon, his principal. Those who hold the warehouseman or carrier liable in such cases, do so on the theory of estoppel, and assert that one who puts an agent or servant in a position to defraud the public should be bound by his acts no matter whether they are authorized or not.*

§ 45. The Warehouse as a Public Agency. The business of the warehouseman is so far public in its nature that the right of the State reasonably to regulate his charges by statute and to require him to accept the goods of all indiscriminately as long as he has room, seems, especially in the case of grain and cotton and tobacco storehouses and elevators, to be now generally conceded. The ground for this regulation is, of course, that such houses possess the power of creating a monopoly, or, as is usually the case with terminal elevators, are such in fact. Where there is no statute, however, the general opinion seems to be that a warehouse or elevator should not be considered as public, nor be either required to accommodate all who may apply, nor to charge any other rate than it may desire to fix upon, unless it is in fact in the possession of an actual and necessary monopoly and that monopoly is itself created by statute. Even in the latter case the right of a judicial, as distinguished from a legislative, control is argued and maintained in but few adjudicated cases, and even in these the monopoly was of legislative creation."

§ 46.

The Lien of the Warehouseman. A custom which has been crystallized into law, has however, given the warehouseman, unlike the ordinary bailee for hire of the locatio operis class, a lien for his charges upon the goods stored, irrespective of any addition to the value thereof, or of any

3 Friedlander v. Texas & Pacific Ry. Co., 130 U. S. 416.

4 Bank of Batavia v. New York L. E. & W. R. Co., 106 N. Y. 195.

5 Bogert v. Haight, 20 Barb. (N. Y.) 251: but see opinion in Low v. Martin, 18 Ill. 286, and § 58 post.

6 Allnut v. Inglis, 12 East. 527.

statutory exercise of the right of regulation, although the fact that "warehousemen as a rule, like common carriers, hold themselves out as publicans (so to speak), ready and willing to the extent of their ability to accommodate all in the safe-keeping of the property," evidently had much to do in the creation of the rule. The lien is, as a rule, specific, and individual property can only be burdened with the charges which are directly incurred in relation to it. An exception, however, is recognized where goods, such as grain, are, by custom or agreement, shipped out or sold or delivered without the storage thereon being paid at the time; and in such cases that which remains can be held for the back charges which are unpaid.s

7 See opinion in Low v. Martin, 18 Ill. 286. 8 Lawson on Bail., § 27.

CHAPTER V

THE FACTOR

§ 47. The Factor and His Lien. A factor has been defined as an agent who, in the pursuit of an independent calling, is employed by another to sell property for him and is vested by the latter with the possession or control of the property. Unlike the broker, he has the care and custody of the article which he is authorized to sell. His duties and liabilities are similar to those of other locatio operis bailees. He agrees both to keep safely and to sell. He is both an agent and a trustee, or bailee. He is bound to the exercise of ordinary diligence in the care and custody of the goods which are entrusted to him and to the exercise of that degree of commercial and professional skill which those of his class generally possess and exercise. He is compensated for his services, and although he does not agree to redeliver to his employer or to any one who has been specifically mentioned at the time of the entrusting of the goods to him, he does agree to sell and deliver to the purchaser, and to do this he is impliedly, if not expressly, directed by the owner. He is, therefore, now generally looked upon as a bailee for hire,1 though some of the earlier authorities took a contrary view. He has no right to use the property which is entrusted to him except when that use is necessary to its preservation. Before he has incurred expenses in relation to the goods or made advances thereon, his bailment can be terminated at any time by the bailor and is terminated as a matter of course by the death of the latter, as the agency is not then coupled with an interest. He has a lien on the goods, however, both for his charges and for money which he may have expended or advanced in relation to the goods and for the benefit of the owner or 1 Morss v. Stone, 5 Barb. 516. 2 Kent Com., § 40, 558.

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