By the. Court
Berry, J.-
-In this case the court below lias found the following conclusions of fact and law, viz.:
“ That during the time from the month of August, A. D. 1866, up to the month of July, A. D. 1867, the defendant, J. G-. Swart, was a general warehouseman, engaged, among other things, in receiving grain in store for others for hire, doing business as such warehouseman, at Minneiska, in the State of Minnesota; that during the months of September and October, A. D. 1866, one A. P. Poster was the owner of, and delivered to said defendant as such warehouseman, nine hundred and twenty-seven bushels of wheat in store, at the warehouse of said defendant, in Minneiska; that said [380]*380defendant recived said 'wheat, and tor a valuable consideration agreed to be paid to him by said Foster, agreed to safely store and keep the said wheat in his said warehouse, until a return thereof should be demanded by said Foster or his assigns; that said wheat was delivered to said defendant in small quantities from farmers’ wagons; that upon receipt of each load of said wheat, said defendant issued to said Foster a memoranda, partly printed and partly written, all in the words and figures following, except date, amount, and name of person delivering the same, and number:
No. 111.
Account A. P. Foster. •
41.25 bushels..'.No. 2 wheat.
20 sacks.
Pyee. J. G. Swaet.
Minneiska, Sept. 29, 1866.
That all of said wheat was placed in a bin and kept by itself, ancl not mixed with other wheat; that by £ number two wheat ’ was meant good, merchantable wheat, weighing not less than fifty-iour pounds to the bushel; that after-wards said Foster sold said wheat to Messrs. Seavey and Langley, and at the time of such sale, delivered to said Seavey.and Langley said memoranda or receipts; that after-wards said Seavey and Langley sold said wheat to Messrs. Kellogg and Mann, who afterwards sold the same to the plaintiff herein, John Hobson ; that at each of such sales, said ‘ memoranda ’ were transferred and delivered to the purchaser, with a written order from said Foster to said defendant, directing said defendant to deliver said amount of wheat to the bearer ; that at the time of such purchase by the plaintiff, he had no other knowledge of the amount and quality of wheat purchased, than what appeared upon said [381]*381memoranda; that afterward and on the 14th day of May, A. D. 1867, said plaintiff at Minneiska, aforesaid, tendered to said defendant said memoranda or receipts, and the defendant’s charges for storing said wheat, and demanded a return of said wheat to the plaintiff; that thereupon the defendant tendered to, and offered to deliver to the plaintiff the identical wheat delivered to the defendant by said Poster, and for which said memoranda or receipts were given; that the plaintiff refused to receive said wheat; that the wheat so delivered to and stored with defendant by said Foster, was not ‘ number two wheat,” but was wheat of an inferior grade; that at the time of such demand by the plaintiff, ‘ number two wheat’ at Minneiska, was worth .two dollars and fifty cents per bushel.
“ As a conclusion of law, I find that the defendant has not converted said wheat to his own use; that the plaintiff is not entitled to recover from the defendant the value of said wheat, and that the defendant is entitled to judgment in his favor in this action, and for his costs and disbursements.”
We have only to inquire whether the conclusion of law is correct. The memoranda taken alone do not express the terms of any contract. They are a part only of the transactions between the original parties, and their significance is only made apparent by the further facts found, showing the circumstances under which, and the purposes for which they were issued. The contract between Foster and the defendant is not then embodied in the memoranda, and it is not from a consideration of them alone that we are to determine the rights and obligations of the parties to this action.
The court below has found as a conclusion of fact, that Foster was the owner of, and delivered to the defendant, a '
' [382]*382general warehouseman, 927 bushels of wheat'in store, which was of a grade inferior to No. 2 ; that the defendant received the same and “ agreed to safely store and keep the said wheat in his warehouse, until a return thereof should bo demanded by said Foster or his assigns.”
The contract then was to keep and return to Foster or his assigns the identical wheat left in store. Even if the memoranda were formal warehouse receipts, fully expressing the terms upon which the wheat was delivered to and accepted by the defendant, they would not estop the defendant, as against.- Foster, from showing that the wheat' received was really of a grade inferior to number two, nor would they bind the defendant to return any other or bettor wheat than that which he had received. As between the original parties to a bill of lading the rule is the same; and it proceeds upon the ground that the description of the quantity or quality of the goods received is part of a receipt, and therefore open to explanation. It is not regarded as part of a contract, unless perhaps upon express stipulation that it shall be so regarded. 1 Gr. Ev. (12th Ed.) § 305 and notes; Angell on Carriers, (4th Ed.) §231 and notes; Sears vs. Wingate, 3 Allen, 103 ; Ellis vs. Willard, 5 Selden, 529; Meyer vs. Peck, 28 N. Y., 596; Blanchard vs. Page, 8 Gray, 287.
The same rule must apply to these memoranda, for they are certainly nothing more than receipts. As against Foster, then, the defendant having kept the wheat which Foster had stored with him by itself, so that he was able to return it m specie, and Having tendered, and offered to deliver the same when it was demanded, is in no default. He has been guilty of no conversion of the wheat, nor of any other act or omission by which he would have made himself liable to Foster, had Foster retained his ownership of the wheat. If [383]*383Poster had not sold the wheat, the defendant, upon making the same tender and offer to him, would be held to have done that, which, so far as an action like the present is concerned, is equivalent to the full performance of his contract obligations. This brings us to the other question in the case. Poster sold the wheat to Seavey and Langley, they to Kellogg and Mann, and Kellogg and Mann to the plaintiff. At each of these sales the memoranda were transferred and delivered to the purchaser, with a written order from Poster, directing the defendant to deliver said amount of wheat to the bearer. At the time of his purchase, the plaintiff had no knowledge of the amount or quality of the wheat, except what appeared upon the memoranda.
If the plaintiff only acquired the rights which Poster had, then it is obvious that the defendant, under the facts found, is no more liable to the plaintiff in this action, than he would have been to Poster in a similar action, if Poster had remained owner of the wheat.
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By the. Court
Berry, J.-
-In this case the court below lias found the following conclusions of fact and law, viz.:
“ That during the time from the month of August, A. D. 1866, up to the month of July, A. D. 1867, the defendant, J. G-. Swart, was a general warehouseman, engaged, among other things, in receiving grain in store for others for hire, doing business as such warehouseman, at Minneiska, in the State of Minnesota; that during the months of September and October, A. D. 1866, one A. P. Poster was the owner of, and delivered to said defendant as such warehouseman, nine hundred and twenty-seven bushels of wheat in store, at the warehouse of said defendant, in Minneiska; that said [380]*380defendant recived said 'wheat, and tor a valuable consideration agreed to be paid to him by said Foster, agreed to safely store and keep the said wheat in his said warehouse, until a return thereof should be demanded by said Foster or his assigns; that said wheat was delivered to said defendant in small quantities from farmers’ wagons; that upon receipt of each load of said wheat, said defendant issued to said Foster a memoranda, partly printed and partly written, all in the words and figures following, except date, amount, and name of person delivering the same, and number:
No. 111.
Account A. P. Foster. •
41.25 bushels..'.No. 2 wheat.
20 sacks.
Pyee. J. G. Swaet.
Minneiska, Sept. 29, 1866.
That all of said wheat was placed in a bin and kept by itself, ancl not mixed with other wheat; that by £ number two wheat ’ was meant good, merchantable wheat, weighing not less than fifty-iour pounds to the bushel; that after-wards said Foster sold said wheat to Messrs. Seavey and Langley, and at the time of such sale, delivered to said Seavey.and Langley said memoranda or receipts; that after-wards said Seavey and Langley sold said wheat to Messrs. Kellogg and Mann, who afterwards sold the same to the plaintiff herein, John Hobson ; that at each of such sales, said ‘ memoranda ’ were transferred and delivered to the purchaser, with a written order from said Foster to said defendant, directing said defendant to deliver said amount of wheat to the bearer ; that at the time of such purchase by the plaintiff, he had no other knowledge of the amount and quality of wheat purchased, than what appeared upon said [381]*381memoranda; that afterward and on the 14th day of May, A. D. 1867, said plaintiff at Minneiska, aforesaid, tendered to said defendant said memoranda or receipts, and the defendant’s charges for storing said wheat, and demanded a return of said wheat to the plaintiff; that thereupon the defendant tendered to, and offered to deliver to the plaintiff the identical wheat delivered to the defendant by said Poster, and for which said memoranda or receipts were given; that the plaintiff refused to receive said wheat; that the wheat so delivered to and stored with defendant by said Foster, was not ‘ number two wheat,” but was wheat of an inferior grade; that at the time of such demand by the plaintiff, ‘ number two wheat’ at Minneiska, was worth .two dollars and fifty cents per bushel.
“ As a conclusion of law, I find that the defendant has not converted said wheat to his own use; that the plaintiff is not entitled to recover from the defendant the value of said wheat, and that the defendant is entitled to judgment in his favor in this action, and for his costs and disbursements.”
We have only to inquire whether the conclusion of law is correct. The memoranda taken alone do not express the terms of any contract. They are a part only of the transactions between the original parties, and their significance is only made apparent by the further facts found, showing the circumstances under which, and the purposes for which they were issued. The contract between Foster and the defendant is not then embodied in the memoranda, and it is not from a consideration of them alone that we are to determine the rights and obligations of the parties to this action.
The court below has found as a conclusion of fact, that Foster was the owner of, and delivered to the defendant, a '
' [382]*382general warehouseman, 927 bushels of wheat'in store, which was of a grade inferior to No. 2 ; that the defendant received the same and “ agreed to safely store and keep the said wheat in his warehouse, until a return thereof should bo demanded by said Foster or his assigns.”
The contract then was to keep and return to Foster or his assigns the identical wheat left in store. Even if the memoranda were formal warehouse receipts, fully expressing the terms upon which the wheat was delivered to and accepted by the defendant, they would not estop the defendant, as against.- Foster, from showing that the wheat' received was really of a grade inferior to number two, nor would they bind the defendant to return any other or bettor wheat than that which he had received. As between the original parties to a bill of lading the rule is the same; and it proceeds upon the ground that the description of the quantity or quality of the goods received is part of a receipt, and therefore open to explanation. It is not regarded as part of a contract, unless perhaps upon express stipulation that it shall be so regarded. 1 Gr. Ev. (12th Ed.) § 305 and notes; Angell on Carriers, (4th Ed.) §231 and notes; Sears vs. Wingate, 3 Allen, 103 ; Ellis vs. Willard, 5 Selden, 529; Meyer vs. Peck, 28 N. Y., 596; Blanchard vs. Page, 8 Gray, 287.
The same rule must apply to these memoranda, for they are certainly nothing more than receipts. As against Foster, then, the defendant having kept the wheat which Foster had stored with him by itself, so that he was able to return it m specie, and Having tendered, and offered to deliver the same when it was demanded, is in no default. He has been guilty of no conversion of the wheat, nor of any other act or omission by which he would have made himself liable to Foster, had Foster retained his ownership of the wheat. If [383]*383Poster had not sold the wheat, the defendant, upon making the same tender and offer to him, would be held to have done that, which, so far as an action like the present is concerned, is equivalent to the full performance of his contract obligations. This brings us to the other question in the case. Poster sold the wheat to Seavey and Langley, they to Kellogg and Mann, and Kellogg and Mann to the plaintiff. At each of these sales the memoranda were transferred and delivered to the purchaser, with a written order from Poster, directing the defendant to deliver said amount of wheat to the bearer. At the time of his purchase, the plaintiff had no knowledge of the amount or quality of the wheat, except what appeared upon the memoranda.
If the plaintiff only acquired the rights which Poster had, then it is obvious that the defendant, under the facts found, is no more liable to the plaintiff in this action, than he would have been to Poster in a similar action, if Poster had remained owner of the wheat. It does not appear that there was any communication between the plaintiff and defendant prior to, or at the time when the plaintiff purchased the wheat, and received the memoranda and accompanying order : so that if he acquired any rights against the defendant greater, or other than Foster had, it was solely by virtue of the memoranda, solely because the defendant, having issued these memoranda, is, as against the plaintiff, estopped by the terms thereof to deny that the wheat which he received, and which he was bound to deliver was No. 2. This is the principal ground upon which the plaintiff relies to maintain this action. To constitute an estoppel in pais, , there must, among other things, be some admission, by ymrd or act, upon the truth of which, the party who seeks to set ■ up the estoppel has the right to rely. 2 Gr. Ev. (12th Ed.), sec. 207 ; Hunter vs. Trustees Sandy Hill, 4 Hill, 411.
[384]*384Bat in this case, as we have already seen, the “ memor-anda” do not contain, nor profess to contain the terms of the contract between the defendant and Foster. They contain no representation that the defendant had agreed to deliver to Foster or his assigns No. 2 wheat; and as they neither contain nor purport to contain any such representation, they contain nothing upon which the plaintiff had the right to rely for the purpose of estopping the defendant from showing what the real agreement in this respect was. To ascertain what the agreement was, it was necessary for the plaintiff to go outside of the memoranda, and to inquire for the other facts which appear in the finding of the Court; and this necessity was patent upon the face of the memor-anda themselves; so that, so far from containing a conclusive admission that the defendant was bound to deliver No. 2 wheat, they left the plaintiff to inquire for what purpose they were issued, and what obligations the defendant had assumed in reference to them. They are. not analogous to bills of lading, or to regular and formal- warehouse receipts, but so far as the point under consideration is concerned, they may more properly be likened to bills of parcels. Of these it is remarked by Mr. Justice Bigelow in Hazard vs. Loring, 10 Cushing, 268, that they are “ informal documents * * not used or designed to embody, or set out the terms and conditions of a contract of bargain and sale. They are in the nature of receipts, and are always open to evidence which proves.the real terms upon which the agreement of sale was made between the parties. ” See also, 1 Gr. Ev., (12th Ed.) Sec. 305 and notes. In our opinion, then, the defendant is not estopped by the memoranda from showing what was the grade of the wheat delivered to him, or from showing that he is entitled to discharge his contract by returning the- same wheat which he received. The [385]*385plaintiff by his purchase of the wheat, and by receiving the memoranda and order, under the circumstances appearing in this case, acquired, as against the defendant, the rights of Poster only. The conclusion of law arrived at by the court below, was therefore correct, and the judgment entered thereupon is accordingly affirmed.