Jackson v. Ayer,
55 U.S. 525 (1852)

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U.S. Supreme Court

Jackson v. Ayer, 55 U.S. 14 How. 525 525 (1852)

Jackson v. Ayer

55 U.S. (14 How.) 525




Where a warehouseman gave a receipt for wheat which he did not receive, and afterwards the quantity which he actually had was divided amongst the respective depositors, an action of replevin, brought by the assignee of the fictitious receipt could not be maintained when, under it, one of these portions was seized.

Evidence offered to show that the wheat in question was assigned to the defendant was objected to by the plaintiff in the replevin, but such objection was properly overruled. The plaintiff had shown no title in himself.

So also, evidence was admissible to show that the receiver of the fictitious certificate had never deposited any wheat in the warehouse.

The defendants in this case were the assignees of the original warehouseman, and were not responsible, unless it could be shown that wheat was deposited which had come into their possession.

The facts are stated in the opinion of the Court.

Page 55 U. S. 526

MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.

It appears in this case that C. H. Hutchinson was a warehouseman at the City of Ranasho, formerly Southport, in Wisconsin, and in that character had received on deposit large quantities of wheat from different persons which, by common consent, was mingled in general mass.

On 22 February, 1850, Hale, Many, and Ayer, the defendants, succeeded Hutchinson in the business and possession of this warehouse, and at the time the possession was transferred, the portions of wheat to which the several depositors were respectively entitled were separated and put into different bins, and the old receipts given by Hutchinson surrendered.

In this division, 7,000 bushels which had been deposited at different times by Adams & Son were placed in a separate bin for them, and they as well as Hutchinson and Hale, Many, and Ayer were present when the division was made.

Previous to this, however, and while Hutchinson was still carrying on business at the warehouse, he gave the following receipt to Hubbard, Faulkner & Co.

"Received into store, Southport, January 19, 1850, for account of Messrs. Hubbard, Faulkner & Co., four thousand bushels of spring wheat, deliverable on board vessel free of charge on return of this receipt, and not insured against fire."

"4000 bushels of wheat. C. L. HUTCHINSON"

Hubbard, Faulkner & Co. never deposited any wheat at the warehouse, but paid Hutchinson $2,640 as the price of the quantity mentioned in the receipt, and afterwards sold it to John Jackson, the plaintiff in error, for $1,050, and endorsed and delivered to him the receipt.

The plaintiff, claiming to be entitled to this quantity of wheat under this assignment, sued out a writ of replevin against the defendants, and the marshal, under the direction of the agents of the plaintiff, replevied and delivered to him 4,000 bushels of wheat, part of the 7,000 bushels, placed in a bin for Adams & Son as hereinbefore mentioned.

The defendants appeared and pleaded sundry pleas, and among others, property in Adams & Son. And at the trial, the

Page 55 U. S. 527

jury found for the defendants, and that the wheat taken was the property of Adams & Son, and its value $2,640, and assessed damages for the detention at the sum of four hundred dollars.

Upon a motion made by the plaintiff for a new trial, the court, it seems, was of opinion that a new trial should be granted unless the defendant remitted all the damages assessed as aforesaid beyond the interest on the value of the wheat from the day it was taken under the replevin to the day of trial. And under this opinion of the court, the defendants remitted all of the damages except one hundred and one dollars, and the judgment was thereupon accordingly entered.

Upon this judgment the present writ of error is brought.

The facts above stated are set out in an exception taken by the plaintiff. The statement shows that Hubbard, Faulkner & Co., in whose favor the warehouse receipt was given by Hutchinson, never deposited any wheat in this warehouse, but paid for this receipt in money. And the plaintiff offers no evidence but the receipt itself to show that Hutchinson had any wheat of his own in this warehouse at the time it was given, or at any other time, and in the division which took place when the possession was transferred to the defendants, none was set apart as belonging to Hutchinson.

Upon such a state of facts it is difficult to see how any question of law could have arisen open to dispute. The plaintiff indeed objected to the evidence offered to prove that the wheat replevied was, in the division of the general mass, set apart in a bin as the property of Adams & Co. But if there was anything in the objection, and clearly there was not, it would not avail the plaintiff unless he could show that it belonged to him. For he could not maintain the replevin unless he proved that the wheat was his property. And if he had no wheat there, it was perfectly immaterial whether it was lawfully divided or remained in general mass. And if the want of a legal division among the owners prevented it from being specifically the property of Adams & Co., it would equally prevent it from being the separate property of the plaintiff, even if he was entitled to the quantity he claimed in the general mass.

So too he excepts to evidence offered to prove that Hubbard Faulkner & Co. had never deposited any wheat in the warehouse. The evidence was undoubtedly admissible. For whether they had done so or not, was the fact in dispute. Besides, the plaintiff himself had already proved the fact by his own witness, Faulkner, who stated that Hubbard, Faulkner & Co. paid money to Hutchinson for the wheat. They did not, therefore, deposit it themselves. And as regards the damages remitted,

Page 55 U. S. 528

certainly the plaintiff is not injured by having the judgment rendered against him for a smaller sum instead of a larger. If either party had a right to complain of the opinion of the court under which the remittitur was entered, it was the defendants, and not the plaintiff. For if a party uses the process of the law willfully and oppressively, his conduct may be considered by the jury in estimating the damages sustained by the injured party. And proof of the conduct of the agents of the plaintiff in this respect, and also of the damage sustained by the defendants by the loss of a favorable market, were properly submitted to the consideration of the jury.

The receipt of Hutchinson, upon which the plaintiff relied, did not prove or tend to prove that the wheat taken on the replevin was the wheat therein mentioned -- or that any wheat belonging to Hutchinson, or to Hubbard, Faulkner & Co., ever came to the hands of the defendants. It showed that Hutchinson held so much wheat for Hubbard, Faulkner & Co. But the defendants are not answerable for his contracts or his warehouse receipts unless it is shown that the property came into their possession. And there is not the slightest evidence to show that any wheat, belonging either to Hutchinson or to Hubbard, Faulkner & Co., was ever in the warehouse after it was transferred to the defendants.

The judgment of the district court is

Affirmed, with costs.


This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Wisconsin, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that the judgment of the said district court in this cause be and the same is hereby affirmed with costs and interest until the same is paid at the same rate per annum that similar judgments bear in the courts of the State of Wisconsin.

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