Miller, J.:
The facts in this case are undisputed. The plaintiff loaned to Archer & Co. $5,500, taking the latter’s promissory note therefor, dated May 9, 1907, and as security therefor a bill of sale of an automobile chassis, and giving back an agreement to resell it to the borrower for the amount of the loan at the maturity of the note. The defendant is engaged in the business of manufacturing bodies for automobiles and of storing automobiles and carriages for hire. With the consent of the plaintiff, Archer & Co. delivered the chassis to the defendant to have a body put on it. Such consent, however, was conditioned upon Archer & Co. obtaining from the defendant and delivering to the plaintiff a receipt. The defendant received the chassis on May 15, 1907, and gave the following receipt therefor :l
“ May 15, 1907;
“ Received from Archer &■ Company Hotchkiss Chassis Ho. 1011, to be delivered only on return of this receipt properly endorsed.
“ (Signed)
“ FLAHDRAU & COMPANY,
“ KEYES & WILSON.”
Archer & Co. indorsed said receipt as follows:
“ Deliver to the order of “ Walter .B. Manny
“ (Signed) ARCHER & CO.”
and delivered it to the plaintiff. Two days after the receipt of the chassis the defendant returned it to Archer & Co. with the body thereon, but without requiring the surrender of the receipt. On December 27, 1907, relying upon the receipt, the plaintiff extended the time of payment of his loan to Archer & Co: On February 10, 1908, the plaintiff presented the receipt to the defendant and demanded delivery of the chassis. Having exhausted his remedies against Archer & Co. the plaintiff seeks in this action to compel the defendant to make good his loss. The' complaint alleged substantially all the facts above recited, except the return of the chassis to Archer & Co. by the defendant, and that the “ defendant refused and failed to deliver said automobile chassis to the plaintiff, and still fails and neglects to deliver, but has wrongfully and negligently [142]*142converted the same to his own use. * * * That the failure of the defendant to deliver said chassis to the plaintiff on demand, and according to the terms of the receipt set forth in paragraph Fifth hereof, and his continued failure to deliver said automobile chassis to plaintiff, and his wrongful conversion thereof, has deprived the' plaintiff of his security for the said loan, and has damaged the plaintiff in the sum of Five Thousand ($5,000) dollars.” The trial court held that the defendant was not guilty of conversion; that the receipt delivered by the defendant. to Archer & Co. was non-negotiable, but directed a verdict in favor of the plaintiff on the authority of Mairs v. Baltimore & Ohio R. R. Co. (175 N. Y. 409), on the ground that the defendant had delivered the chassis to Archer & Co. without requiring the surrender of the receipt, although it did not have the words “ not negotiable ” plainly written or stamped thereon, in violation of section 633 of the Penal Code, in force at the time. The defendant had no knowledge or notice of the transactions between the plaintiff and Archer & Co., or that the plaintiff had .any claim on the chassis.-
Unless the receipt was negotiable there can be no doubt that the defendant was not guilty of conversion. The defendant never asserted any claim or right of possession in hostility to the plaintiff. He merely received an article from the person in possession thereof for the purpose of doing work upon it, and when that was done returned it to the one from whom he received it. The demand by the plaintiff was made long after, and it seems unnecessary to cite authority upon the proposition that conversion cannot be based upon inability to comply with a demand under those circumstances. The learned trial court correctly held that the receipt was non-negotiable. Negotiable instruments are written promises or requests for the. payment of money to order, or bearer. Bills of' lading bid warehouse receipts have come to possess attributes of negotiability from the custom to transfer them in place of actually delivering the property. For convenience a symbolical delivery is made. But it has not become customary thus to deal with receipts like that involved in this suit. The respondent cites many cases dealing with negotiable instruments, bills of lading and warehouse receipts to show that the words “ to be delivered only on return of this receipt . properly endorsed ” made the receipt in this case negotiable; but [143]*143obviously such cases have no application. This receipt does not purport to be a warehouse receipt. For what purpose the defendant received the chassis, or to whom he was to return it, is not stated. Presumptively, he was to return it to the one from whom he had received it; but, according to the terms of the receipt, he was only to do that upon the return of the receipt properly indorsed. The delivery of the indorsed' receipt was to constitute the defendant’s proof of delivery of the chassis. The word “endorsed” as thus used cannot be construed as it would be if used with reference to commercial paper. If the receipt be treated as an executory contract, then it was competent for the parties to the contract to varyit or to dispense with the condition of delivery. I think that no one issuing such a receipt under the circumstances disclosed in this case, would ever imagine that he had put a negotiable instrument in circulation. The usual words of negotiability “ to order or bearer ” are not found in this receijit. To be sure, in the case of negotiable or so-called quasi-negotiable instruments, any words importing an intention that the instrument shall be negotiable, suffice. But in the casé of a mere receipt, given by one who receives an article to do work upon it, there should be at least plain words of negotiability to makefile receipt negotiable, even assuming that such words would have that effect, which we by no means decide.
I think that no one, reading this complaint, would suppose that the defendant was sued for delivering merchandise, for which a receipt had been issued, without the words “ not negotiable ” plainly written or stamped thereon. To be sure the facts are pleaded, but there is no averment of the delivery of the chassis by the defendant. The defendant is sued for refusing to deliver on demand, not for delivering to the wrong person. The pleader characterized the action in unmistakable terms as one for conversion. In such an action the plaintiff is entitled to certain provisional remedies. After judgment he may have an execution against the person. If the rule that the judgment must be secundum allegata et probata still has any vitality, the plaintiff should not be permitted to recover upon such a complaint without proving a conversion.
Moreover, the case is not within section 633 of the Penal Code in force at the time of the transaction' in suit. That section provides : “ A person mentioned in section 629, who delivers to another [144]*144any merchandise for which a bill of lading, receipt or vouchor has been issued, unless such receipt or voucher bears upon its face, the words ‘
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Miller, J.:
The facts in this case are undisputed. The plaintiff loaned to Archer & Co. $5,500, taking the latter’s promissory note therefor, dated May 9, 1907, and as security therefor a bill of sale of an automobile chassis, and giving back an agreement to resell it to the borrower for the amount of the loan at the maturity of the note. The defendant is engaged in the business of manufacturing bodies for automobiles and of storing automobiles and carriages for hire. With the consent of the plaintiff, Archer & Co. delivered the chassis to the defendant to have a body put on it. Such consent, however, was conditioned upon Archer & Co. obtaining from the defendant and delivering to the plaintiff a receipt. The defendant received the chassis on May 15, 1907, and gave the following receipt therefor :l
“ May 15, 1907;
“ Received from Archer &■ Company Hotchkiss Chassis Ho. 1011, to be delivered only on return of this receipt properly endorsed.
“ (Signed)
“ FLAHDRAU & COMPANY,
“ KEYES & WILSON.”
Archer & Co. indorsed said receipt as follows:
“ Deliver to the order of “ Walter .B. Manny
“ (Signed) ARCHER & CO.”
and delivered it to the plaintiff. Two days after the receipt of the chassis the defendant returned it to Archer & Co. with the body thereon, but without requiring the surrender of the receipt. On December 27, 1907, relying upon the receipt, the plaintiff extended the time of payment of his loan to Archer & Co: On February 10, 1908, the plaintiff presented the receipt to the defendant and demanded delivery of the chassis. Having exhausted his remedies against Archer & Co. the plaintiff seeks in this action to compel the defendant to make good his loss. The' complaint alleged substantially all the facts above recited, except the return of the chassis to Archer & Co. by the defendant, and that the “ defendant refused and failed to deliver said automobile chassis to the plaintiff, and still fails and neglects to deliver, but has wrongfully and negligently [142]*142converted the same to his own use. * * * That the failure of the defendant to deliver said chassis to the plaintiff on demand, and according to the terms of the receipt set forth in paragraph Fifth hereof, and his continued failure to deliver said automobile chassis to plaintiff, and his wrongful conversion thereof, has deprived the' plaintiff of his security for the said loan, and has damaged the plaintiff in the sum of Five Thousand ($5,000) dollars.” The trial court held that the defendant was not guilty of conversion; that the receipt delivered by the defendant. to Archer & Co. was non-negotiable, but directed a verdict in favor of the plaintiff on the authority of Mairs v. Baltimore & Ohio R. R. Co. (175 N. Y. 409), on the ground that the defendant had delivered the chassis to Archer & Co. without requiring the surrender of the receipt, although it did not have the words “ not negotiable ” plainly written or stamped thereon, in violation of section 633 of the Penal Code, in force at the time. The defendant had no knowledge or notice of the transactions between the plaintiff and Archer & Co., or that the plaintiff had .any claim on the chassis.-
Unless the receipt was negotiable there can be no doubt that the defendant was not guilty of conversion. The defendant never asserted any claim or right of possession in hostility to the plaintiff. He merely received an article from the person in possession thereof for the purpose of doing work upon it, and when that was done returned it to the one from whom he received it. The demand by the plaintiff was made long after, and it seems unnecessary to cite authority upon the proposition that conversion cannot be based upon inability to comply with a demand under those circumstances. The learned trial court correctly held that the receipt was non-negotiable. Negotiable instruments are written promises or requests for the. payment of money to order, or bearer. Bills of' lading bid warehouse receipts have come to possess attributes of negotiability from the custom to transfer them in place of actually delivering the property. For convenience a symbolical delivery is made. But it has not become customary thus to deal with receipts like that involved in this suit. The respondent cites many cases dealing with negotiable instruments, bills of lading and warehouse receipts to show that the words “ to be delivered only on return of this receipt . properly endorsed ” made the receipt in this case negotiable; but [143]*143obviously such cases have no application. This receipt does not purport to be a warehouse receipt. For what purpose the defendant received the chassis, or to whom he was to return it, is not stated. Presumptively, he was to return it to the one from whom he had received it; but, according to the terms of the receipt, he was only to do that upon the return of the receipt properly indorsed. The delivery of the indorsed' receipt was to constitute the defendant’s proof of delivery of the chassis. The word “endorsed” as thus used cannot be construed as it would be if used with reference to commercial paper. If the receipt be treated as an executory contract, then it was competent for the parties to the contract to varyit or to dispense with the condition of delivery. I think that no one issuing such a receipt under the circumstances disclosed in this case, would ever imagine that he had put a negotiable instrument in circulation. The usual words of negotiability “ to order or bearer ” are not found in this receijit. To be sure, in the case of negotiable or so-called quasi-negotiable instruments, any words importing an intention that the instrument shall be negotiable, suffice. But in the casé of a mere receipt, given by one who receives an article to do work upon it, there should be at least plain words of negotiability to makefile receipt negotiable, even assuming that such words would have that effect, which we by no means decide.
I think that no one, reading this complaint, would suppose that the defendant was sued for delivering merchandise, for which a receipt had been issued, without the words “ not negotiable ” plainly written or stamped thereon. To be sure the facts are pleaded, but there is no averment of the delivery of the chassis by the defendant. The defendant is sued for refusing to deliver on demand, not for delivering to the wrong person. The pleader characterized the action in unmistakable terms as one for conversion. In such an action the plaintiff is entitled to certain provisional remedies. After judgment he may have an execution against the person. If the rule that the judgment must be secundum allegata et probata still has any vitality, the plaintiff should not be permitted to recover upon such a complaint without proving a conversion.
Moreover, the case is not within section 633 of the Penal Code in force at the time of the transaction' in suit. That section provides : “ A person mentioned in section 629, who delivers to another [144]*144any merchandise for which a bill of lading, receipt or vouchor has been issued, unless such receipt or voucher bears upon its face, the words ‘ not negotiable,’ plainly written or stamped, or unless such receipt is surrendered to be canceled at the time of such delivery, * * * is punishable by imprisonment not exceeding one yeai‘, or by a line not exceeding one thousand dollars,' or by both.” The person mentioned in said section 629, so far as applicable to this case, is one “ carrying on the business of a warehouseman, wharfinger or other depository (sic) of property, who issues any receipt, bill of Jading or other voucher,” etc. (See Laws of 1892, chap. 692.) .The trial court ruled, and the respondent contends, that the defendant was á depositary within the meaning of the statute. The fact that thé defendant engaged in the business of storing automobiles for hire is immaterial. The plaintiff knew that the chassis was not deposited witlr the defendant for storage, and there was nothing in the receipt indicating that it was. He received it for the sole purpose of putting a body upon it. He did not become a warehouseman with respect to it, and the fact that in addition to his business as a manufacturer of automobile bodies, he was also in the business of storing automobiles for hire, is immaterial. The rights and obligations of the parties with respect to' this particular transaction must be decided according to what the transaction actually "was, not what it might have been. The defendant was not the depositary of the chassis within the meaning of the statute. In the first place the statute shows upon its face that it was intended to reach a particular evil, to wit, frauds perpetrated by the holders of bills of lading, warehouse receipts, and the like. Under the 1st subdivision of section 629 particular agents or officers of specified transportation companies'are enumerated. The 2d subdivision specifies warehousemen and wharfingers, followed by the general term “other depository.” All the internal evidence tends to show that the words “ other depository ” were intended to mean “ other like depositary,” there is nothing to show'the contrary and of course the general rule of construction should be followed. The one who receives an article of merchandise for the sole purpose of doing work upon it is not a depositary like unto a warehouseman or wharfinger.
Eesearch of counsel, supplemented by our own, has failed to disclose an authority decisive of- this case. Bucher v. Commonwealth [145]*145(103 Penn. St. 528), cited by the appellant, supports the conclusion we have reached. The defendant is liable, if at all, in this case for committing a crime which has resulted in injury to the plaintiff. The case cited is direct authority, for the proposition that no crime was committed; and if, instead of the judgment for damages, we had before us for review a judgment, convicting the defendant of the crime, we should have no hesitation in declaring that the penal statute alleged to have been violated could not be so construed as to embrace the defendant within its terms. In relying upon the receipt the plaintiff made a mistake of law, but he cannot hold the defendant responsible for that.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., Lattghlin and Scott, JJ., concurred; Clarke, J., dissented.