Anderson v. Farmers' Co-operative Shipping & Elevator Co.

136 N.W. 1123, 29 S.D. 450, 1912 S.D. LEXIS 172

• Court: South Dakota Supreme Court
• Decided: June 25, 1912
• Status: Published

Opinion

McCOY, P. J.

This is an action in replevin brought by plaintiff to recover from defendant the possession of 63,460 pounds of wheat claimed to have been wrongfully detained from plaintiff by defendant. Verdict was directed for plaintiff and judgment thereon, from which defendant apueals, assigning various errors.

Defendant is a corporation operating a public grain warehouse or elevator at Armour. Plaintiff is a -stockholder -of defendant. Between August 25 and October 15, 1909, plaintiff delivered to defendant at its elevator 63,460 pounds of wheat, consisting of '14 wagon loads. At the -time of the delivery of each load, defendant delivered to plaintiff a -ticket or paper, indicating the number of pounds delivered, one o-f which tickets is as follows :

Weighed on Fairbank Scales.

8|28, 1909.

Load of B. S. Wheat.

From G. Anderson. :

To---.

Gross, 5,480 lbs.

Tare, 1,340 lbs.

Net, 4,140 lbs.

P. R. Judge, Weigher.

All said tickets were substantially -the same in form. It was the contention -of plaintiff on the -trial that he delivered said wheat to defendant to be stored; while defendant, on the other hand, contended that it purchased said wheat, that said wheat was delivered to defendant for the purpose of sale and not for storage. Plaintiff testified that during the time he was delivering said wheat he had a conversation with the manager of defendant, and asked him what wheat was worth, and that said manager replied, “I can give you 91 cents for the wheat,” and “I told him it was all right, but I did not want to sell until I got it all drawn in, and then, whatever the market was, whether higher, or lower, I would take the price at what it was.” About October 30th following plaintiff appeared at the elevator for settlement, and defendant’s manager told him he would give him 91 cents for the wheat. Plaintiff told him he would not take 91 cents; that the market was better than that, and that he could get 93 cents for it; that, if he could not get what his wheat was worth, he would take it out. Defendant’s manager refused to pay more than 91 cents, and also refused to permit plaintiff to take the same number of pounds of wheat from defendant’s elevator. Defendant’s manager testified that plaintiff sold him said wheat.

[1] While on the witness stand as a witness for defendant the manager was asked the following questions: “Tell the jury whether or not the Farmers’ Elevator Company at Armour stored wheat for anybody? Was the Farmers' Elevator, the defendant in this case, in the business of storing grain for anjhody at any time?” Both these questions were objected to as immaterial, and both objections sustained.

[2] In relation to the 14 tickets showing the weights, the ■same witness, on direct examination, was asked: “What function are they supposed to perform? What are they for?” This question was objected to as incompetent and calling for the conclusion of the witness, and -the objection was sustained. To all said rulings of the court and to many others of the same import defendant duly excepted, and now urges such rulings as error. We are of the opinion that appellant is right in this contention. It will be observed that the tickets delivered to plaintiff showing the weights were not storage receipts such as are required .to be issued and delivered under section 494, Pol. Code. The tickets issued and- delivered to plaintiff are silent as to whether or not the grain was delivered for the purpose of sale or storage. These tickets, if they indicate anything in that respect, indicate a sale rather than storage. It is a matter of common knowledge that such tickets are used as memoranda to keep track of the amounts, and the times when delivered, of grain sold. The testimony of plaintiff would seem to indicate he delivered the grain for the purposes of sale, the price to be fixed as of the date when he completed the delivery, and that he did not change his mind until defendant’s manager refused to give 'him 93 cents per bushel on October 30th, some 15 days after he completed his delivery. If defendant had issued and delivered to plaintiff storage receipts providing for a delivery of a like kind, amount, and grade to the holder thereof in return for such receipts, as is provided by section 494, Pol. Code, then the contract and relationship of bailment would have been created, and defendant would not be permitted to deny such bailment; but we are inclined to the view that such conclusive bailment cannot be created in any other manner than as provided -by- this section of the Code. We do not desire to be understood as holding that the use of such tickets, as used in this case, would conclusively show a sale, or that ordinary rebuttable bailment arises or could not be created by the use of such tickets, but we are of the opinion, under circumstances like those in this case, that whether or not the delivery of grain to an elevator for the purposes 'of sale or storage must be determined from all the surrounding cirmustances and from the intention of the parties at the time the delivery was made, and that -it cannot be conclusively presumed there was a bailment under the circumstances of this case. Whether or not defendant stored wheat generally for its’ patrons and stockholders was a circumstance that might properly have been taken into consideration by the jury in determining the reasonableness of the claims of the contending parties, and also as affecting credibility and weight to be given to the testimony of the opposing witness on the question as to whether or not the wheat was delivered for storage or sale.

It was proper for the manager to explain, as a -part of the surrounding circumstances, the use or purpose of the tickets. Under the view we take of the admissibility of the above referred to evidence it is not necessary to refer to or consider other assignments of error.

The judgment and order denying a new trial are reversed,. a new tidal ordered, and the cause remanded.