« AnteriorContinuar »
the risks arising therefrom. These requests, making of the contract of sale. It further rightly were refused. The acceptance of the is provided by § 22 of the sales act that wool on storage for hire involved the obli- such goods are at the buyer's risk whether gation on the part of the defendant to use delivery has been made or not. Thus, the due care for its safety and protection. That difficulties as to change of possession and was implied from the relation it assumed as assent suggested in Hallgarten v. Oldham, warehouseman. Mere knowledge and ac- 135 Mass. 1, 9, 46 Am. Rep. 443, and Sel. quiescence by the owner as to the place of liger v. Kentucky, 213 U. S. 200, 205, 53 storage are not enough to modify that con- L. ed. 761, 764, 29 Sup. Ct. Rep. 449, are tractual obligation. Essential elements as eliminated. The plaintiff's do not contend to the care required by the contract of stor- that they had suffered loss on account of age in the cases at bar lie outside the mere these bags, but they ask to recover damplace of storage. Nothing as to waiver of ages, and to hold the proceeds as trustees that obligation respecting protection of the for the true owners. See Boyden v. Hill, goods from the danger of injury from tides 198 Mass. 477, 487, 85 N. E. 413. The was tacitly inferable from such knowledge owner of goods, or one having some general and acquiescence as was attributable on the or special interest in them, commonly is evidence to the plaintiffs. Conway Bank v. the one to bring action for damage to American Exp. Co. 8 Allen, 512; Mooers v. them. See Commercial Nat. Bank v. Bemis, Larry, 15 Gray, 451; Brabant v. King 177 Mass. 95, 58 N. E. 476. Plainly the  A. C. 632, 641, 64 L. J. C. P. N. S. plaintiffs are not the owners, and they do 161, 11 Reports, 517, 72 L. T. N. S. 785, 44 not contend that they are. They seek to Week. Rep. 157; Searle v. Laverick, L. R. maintain these actions only on the author9 Q. B. 122, 43 L. J. Q. B. N. S. 43, 30 | ity of Blanchard v. Page, 8 Gray, 281, and L. T. N. S. 89, 22 Week. Rep. 367. The Finn v. Western R. Corp. 112 Mass. 524, decisions relied on by the defendant upon 17 Am. Rep. 128. These have been recog. this point are distinguishable. Knowles v. nized generally as leading decisions, and Atlantic & St. L. R. Co. 38 Me. 55, 61 would be followed implicitly in similar Am. Dec. 234, arose out of gratuitous bail-cases. But the principles there declared are ment. Brown v. Hitchcock, 28 Vt. 452, 458, not applicable to the facts in the cases at and Parker v. Union Ice & Salt Co. 59 Kan. bar. In the former of these two cases, 626, 68 Am. St. Rep. 383, 54 Pac. 672, rest the shipper, the agent for an undisclosed upon peculiar facts which showed such in principal who was not the consignee, was timate familiarity with all the attendant permitted to recover of a shipowner for conditions or personal directions touching breach of the contract of carriage. In the the storage as to amount to a waiver of the latter case the consignor, who delivered usual terms of the contract of bailment. goods to a common carrier, was permitted No such circumstances are to be found in to recover damages for breach of the conthe cases at bar.
tract of carriage in the absence of eviThe plaintiffs Hecht and others, and dence to the effect that the consignee was Brown and others, sold certain bags of wool the owner and did not acquiesce in recovstored with the defendant, before Decem. ery of the full value of the goods by the ber 26, 1909, and received full payment consignor. But the relation between a detherefor. The ruling of the superior court positor of goods and a warehouseman, the that these plaintiffs could not recover dam- owner and agister, and generally of a bailor ages for injury to the wool thus sold was and bailee, is not the same as that of a right. The liability of the defendant is to shipper and common carrier. The obligabe determined according to the principles of tion of the carrier is to perform its contract the common law, for the bill of exceptions for transportation, generally set forth in a contains no reference to the warehouse re- bill of lading to which the consignor is a ceipts act, nor to the kind of receipts, if principal party. The duty of the bailee is any, issued by the defendant. It simply is commonly to deliver to the owner when he stated that the defendant was a public is known, in instances where there has been warehouseman. It may be assumed under transfer of title during bailment, and not all the circumstances that it assented to to the depositor. The obligations respecthe sale, if that affects favorably its lia- tively resting upon the parties (apart from bility. The title to this wool had passed statute) are not in kind like those arising from the plaintiffs to their customers. out of the issuance of a bill of lading by a Each bag was identified by definite marks. common carrier. Krulder v. Ellison, 47 The wool, therefore, was “specific goods in N. Y. 36, 7 Am. Rep. 402; Merchants' Dea deliverable state," and under the sales spatch Co.. v. Smith, 76 Ill. 542; Dawes v. act (Stat. 1908, chap. 237, § 19, rule 1) Peck, 8 T. R. 330, 3 Esp. 12, 4 Revised Rep. the title vested in the purchaser upon the 675. The relation between a bailor who
lias sold the goods bailed, and the purchaser, R Court for Midàlesex County for con
ESERVATION by the Supreme Judicial is not naturally one of trust and confidence. They are at arm's length as to each other. sideration of the full court of a question Therefore the bailor shows no right to re- arising upon appeal by respondent from a cover the value of the goods bailed if he decree of the Probate Court on petition by has parted with all title.
the executor of Adeline L. Nickerson, deLet the entry in each case be
ceased, for instructions as to the disposiDefendant's exceptions overruled.
tion to be made by him of a certificate for Plaintiffs' exceptions overruled.
corporate stock held by him as executor, and claimed by respondent as an alleged gift from the testatrix. Reversed.
The facts are stated in the opinion. MASSACHUSETTS SUPREME JUDI.
Messrs. Robert W. Nason and Thomas CIAL COURT.
W. Proctor, for respondent Simson: JOHN HERBERT, Exr., etc., of Adeline L.
An effectual gift of the stock was made Nickerson, Deceased,
by testatrix to respondent. There were
present all the essential elements of a gift. MALVINA J. SIMSON et al.
Field v. Pierce, 102 Mass. 253, 3 Mor.
Min. Rep. 535; Hutchins v. State Bank, 12 (220 Mass. 480, 108 N. E. 65.) Met. 421; Spaulding v. Paine, 81 Ky. 416;
First Nat. Bank v. Holland, 99 Va. 495, 55 Gift delivery of certificate of stock.
L.R.A. 155, 86 Am. St. Rep. 898, 39 S. E. A valid gift so as to pass the equitable title is effected by the delivery and accept- 126; Allen-West Commission Co. v. Grumance of a certificate of stock in a corpora- bles, 63 C. C. A. 401, 129 Fed. 287; Com. tion with intent to pass title, but without v. Crompton, 137 Pa. 138, 20 Atl. 417; any written assignment or indorsement, al. Brigham v. Mead, 10 Allen, 245; Grover v. though the certificate is made transferable Grover, 24 Pick. 261, 35 Am. Dec. 319; Ses. only on the books of the corporation.
sions v. Moseley, 4 Cush. 87; Rockwood v. (March 8, 1915.)
Brown, 1 Gray, 261; Bates v. Kempton, 7 Note. Gifts: delivery of certificate of 535, Ann. Cas. 1912C, 1221, the court, in
stock without indorsement or trans- holding that a delivery of an unindorsed fer on books.
certificate of stock with a separate deed of
assignment to one of several trustees, the This note is supplemental to the note to deed not identifying the particular certifiFrench v. White, 2 L.R.A. (N.S.) 806 (so cate, was a valid gift inter vivos in presenti, far as gifts are concerned), where the earlier said: “We are of the opinion that the cases are collected.
that the delivery of the For necessity of actual delivery of cer- instrument which is the evidence representtificate to complete gift of shares of stock, ing a chose in action constitutes à valid see note to Dewey v. Barnhouse, 29 L.R.A. gift should be applied to the delivery of a (N.S.) 166.
certificate of stock. Although the question As may be seen by the earlier note, the has not heretofore been determined in Rhode court in HERDERT v. Simson, in sustaining Island, the decisions in other jurisdictions of a gift of a delivered certificate of stock this country are almost unanimous in holdwithout formal assignment or transfer, fol., ing that such delivery, either with or withlows the general rule, and this rule is also out written assignment or indorsement, and sustained by other recent cases.
without registration on the books of the corThus, where a father handed certificates poration as required by its by-laws and cerof stock to his son with a statement that the tificates, constitutes a valid gift,—whether son was to have them on a condition imposed it be to trustees or directly to the beneficiathat after the father's death the son should ries, and whether it be inter vivos or mortis pay certain sums to two certain grandchildcausa." ren of the father (not his own children), In Apache State Bank v. Daniels, 32 Okla. it was held that this was a completed gift 121, 40 L.R.A. (N.S.) 901, 121 Pac. 237. Ann. and the title vested in the son. Smith v. Cas. 1914A, 520, where a gift causa mortis Meeker, 153 Iowa,. 655, 133 N. W. 1058, was defeated on the ground that there had where the donor died about a year after the been no delivery, it seems to be suggested by gift, and it does not appear that it was other the opinion that the certificate was uninthan a gift inter vivos.
dorsed, and there is possibly an implication In Grimes v. Barndollar, Colo. 148 that if there had been a delivery the gift Pac. 256, it was considered that a good gift would have been good. inter viros was effected by the delivery of And perhaps there is a similar implicaunindorsed certificates of stock, but the par- tion in Sullivan v. Hess, 241 Pa. 407, 88 Atl. ties beneficially interested in the residuary 544, where a man, several years before his estate had agreed that the donee should have death, handed his sister certificates of stock the stock.
in his name without any written assignment In Talbot v. Talbot, 32 R. I. 72, 78 Atl. or transfer, and he continued to collect the
Gray, 382; Pierce v. Boston Five Cents, accepted it the terms on which it Sav. Bank, 129 Mass. 425, 37 Am. Rep. 371; had been delivered to her. Thereafter Westerlo v. De Witt, 36 N. Y. 340, 93 Am. it was kept by Mrs. Simson in her trunk Dec. 517; Snellgrove v. Bailey, 3 Atk. 214; in her own room. The question before us McGlynn v. Curry, 82 App. Div. 431, 81 is whether the alleged gift was incomplete, N. Y. Supp. 855; Campbell v. New England and therefore ineffectual, because of the Mut. L. Ins. Co. 98 Mass. 381; Stevens v. failure on Mrs. Nickerson's part to assign Palmer, 15 Gray, 505.
the certificate by signing the form on the The gift was valid on authority and on back thereof, or by executing some other principle.
written instrument. Brown v. Crafts, 98 Me. 40, 56 Atl. 213; The charter and by-laws of the corporaReed v. Copeland, 50 Conn. 472, 47 Am. tion contain no provision concerning the Rep. 663; Talbot v. Talbot, 32 R. I. 72, 78 transfer of certificates of shares; and no Atl. 535, Ann. Cas. 1912C, 1221; Plazo v. statute of the state of its incorporation has Cochrane, 71 N. H. 585, 53 Atl. 1026 ; Bond been called to our attention that affects the v. Bean, 72 N. H. 444, 101 Am. St. Rep. question. No rights of creditors or other 686, 57 Atl. 340; Watsor. v. Watson, 69 third parties are involved, but only those Vt. 243, 39 Atl. 201; Walsh v. Sexton, 55 of donor and donee. It should be added Barb. 251; Allerton v. Lang, 10 Bosw. 362; that Stat. 1910, chap. 171, § 9, which proCom. v. Crompton, 137 Pa. 138, 20 Atl. vides for such a case as this, was passed 417; Denunzio v. Scholtz, 117 Ky. 182, 77 after the gift in controversy. S. W. 715, 4 Ann. Cas. 529; First Nat. The failure of Mrs. Nickerson to indorse Bank v. Holland, 99 Va. 495, 55 L.R.A. 155, the share certificate was important evidence 86 Am. St. Rep. 898, 39 S. E. 126; Leyson bearing on the intention with which the dev. Davis, 17 Mont. 220, 31 L.R.A. 429, 42 livery was made; but it is settled by the Pac. 775; Smith v. Meeker, 153 Iowa, 655, finding of the single justice that she did in 133 V. W. 1058; Morse v. Meston, 152 Mass. fact intend to make a completed gift, and 5, 24 N. E. 916; Bone v. Holmes, 195 Mass. irrevocably to renounce dominion and con495, 81 N. E. 290.
trol of the stock, and that Mrs. Simson acMr. Harold W. Orcutt for respondents cepted it as her own property. NevertheFielding et al.
less, without the written assignment Mrs. Simson did not acquire the legal title to
the shares,—the ownership in the sense De Courcy, J., delivered the opinion of that no further act was required to perthe court:
fect her right. Fisher v. Essex Bank, 5 It is settled by the finding of the single Gray, 373; Stone v. Hackett, 12 Gray, 227; justice that on the 5th day of December, note to Milroy v. Lord, 1 Ames, Cases on 1908, for the reasons set forth in the reser- Trusts, 149. What she did acquire was, as vation, Mrs. Nickerson undertook to make between herself and the donor, the equia gift to Mrs. Simson of ten shares to the table title to the shares and some legal as preferred stock of the American Agricultur- well as equitable rights. The gift was al Chemical Company; that pursuant there complete, and not inchoate; and a court to she delivered the unindorsed certificate of equity has jurisdiction to compel a for the shares to Mrs. Simson, who then formal assignment by the executor of the dividends thereon until his death, and it, imposed by this article, and which tax is was held that the facts were consistent with not paid at the time of such transfer, shall a finding that he delivered the stock to her be made the basis of an action or legal profor safe-keeping, against her claim that it ceedings, nor shall proof thereof be offered was given to her to be held in trust for the or received in evidence in any court in this benefit of her children and the children of state." her sister.
In view of the decision in Matthews v. It may be noted that it has been held Hoatland, 48 N. J. Eq. 455, 21 Atl. 1054, that a delivery of a certificate without the cited in HERBERT V. SIMSON, and discussed transfer tax stamps is insuflicient to effect in the earlier note, holding that a valid a gift. Thus, in Re Raleigh, 75 Misc. 55, gift inter vivos of a certificate of stock could 134 N. Y. Supp. 684, where it does not ap- not be made by its delivery without formal pear whether the certificate was indorsed or transfer or assignment, it may be noted that not, it was held that there could be no valid in Farrell v. Passaic Water Co. 82 N. J. Eq. gift of a certificate of stock which did not 97, 88 Atl. 627, it was held that there was bear the tax transfer stamp when delivered a good gift inter vivos of a delivered corby the donor to the donee, if the question porate coupon bond, registered as to prinwas properly pleaded, although the donor de- cipal, without written assignment or translivered the certificate to the donee a day or fer on the books of the company, followed by two before his death, when stricken with a
many years of collection of interest by the fatal illness. The statute provided that "no donee.
B. B. B. transfer of stock
on which a tax is
donor, and a transfer on the books of the Ave. R. Co. 47 App. Div. 472, 63 N. Y. Supp. corporation.
792; Com. v. Crompton, 137 Pa. 138, 20 The general rule is well estab-i Atl. 417; First Nat. Bank v. Holland, 99 lished that choses in action, of which Va. 495, 55 L.R.A. 155, 86 Am. St. Rep. 898, the legal or equitable title can pass by de 39 S. E. 126; Smith v. Meeker, 153 Iowa, livery, may be the subject of a valid gift. 655, 133 N. W. 1058; Leyson v. Davis, 17 And the delivery of the chose in action, Mont. 220, 31 L.R.A. 429, 42 Pac. 775, Id. without formal indorsement or assignment, 170 U. S. 36, 42 L. ed. 939, 18 Sup. Ct. Rep. is sufficient to effectuate the gift where it
500. And see Burnsville Turnp. Co. v. is the intent and purpose of the donor to State, 119 Ind. 382, 385, 3 L.R.A. 265, 20 transfer the ownership at once. The prin- N. E. 421; Ridden v. Thrall, 125 N. Y. 572, ciple has been applied by this court to the 11 L.R.A. 684, 21 Am. St. Rep. 758, 26 N. gift of a promissory note payable to the E. 627; Talbot v. Talbot, 32 R. I. 72, 78 order of the donor, and not indorsed. Grover Atl. 535, Ann. Cas. 1912C, 1221; Watson v. Grover, 24 Pick. 261, 35 Am. Dec. 319.
v. Watson, 69 Vt. 243, 39 Atl. 201. Contra, It was held in Pierce v. Boston Five Cents Matthews v. Hoagland, 48 N. J. Eq. 455, 21 Sav. Bank, 129 Mass. 425, 37 Am. Rep. Atl. 1054; Baltimore Retort & Fire Brick 371, that the delivery of a savings bank Co. v. Mali, 65 Md. 93, 57 Am. Rep. 304, 3 book (which is analogous to a stock cer
Atl. 286. tificate in many respects), without a writ
The injustice of a contrary conclusion is ten assignment or order, was sufficient to well expressed by Dean Ames in his note constitute a valid gift. A share of capital to Milroy v. Lord, ubi supra (page 156): stock is property of a peculiar kind.
“Even in jurisdictions where the gift is incurately speaking, it does not consist in an effectual unless the shares or deposits are interest either legal or equitable in the transferred on the books of the company or property of the company. It is personalty, savings bank, the donor would not be alalthough the corpo-ation may own real
lowed to recover the certificate or bank book estate. If noi a chose in action it is in the after he had once delivered them with the nature of a chose in action. The share certificate is evidence of title, and for some
intention of vesting them in the donee.
We should have, then, this extraorpurposes may possess some of the incidents of property. While not negotiable, shares dinary condition of things: the donee unare freely assignable, and in this respect able to transfer the shares or collect the resemble negotiable choses in action and deposit, because the gift is not deemed tangible property, rathe: than other non-complete; the donor equally helpless, because negotiable choses in action. As was said he cannot produce the certificate or bank by Rugg, Ch. J., in Kennedy v. Hodges, 215 book; the company or bank, on the other Mass. 112, 115, 102 N. E. 432, 434: "Mod. hand, in a position capriciously to recog. ern commercial usage treats certificates of nize the donor or the donee as dominus of stock as possessing some of the attributes the claim, or indeed, unless they come to of property. They are generally bought some compromise, to refuse with safety to and sold and pass by delivery when prop. recognize either.” erly indorsed like ordinary chattels.”
We are of opinion that the delivery by There is nothing in the nature of a share Mrs. Nickerson to the respondent of the of stock to prevent the passing of the equi- share certificate and its acceptance by the table title to the share, as between the donor and donee, by the delivery of the latter constituted a valid gift, and vested share certificate, where such is the manifest in the donee the equitable title to the propintent of the parties.
erty. The provision printed on the certifiThe question now before us has not been cate, that the shares are "transferable only decided in this commonwealth, although it on the books of the company,” affects the arose in Morse v. Meston, 152 Mass. 5, 24 shareholder's relation to the corporation N. E. 916. But in the large majority of only, and not her relation to a third party cases where it has arisen in other juris. who has become equitably possessed of the dictions in this country, it has been de stock. See cases cited in Talbot v. Talbot, cided that the delivery of the share certifi- | Ann. Cas. 1912C, 1235, note.
The decree of the Probate Court is recate, with the intention of passing title to the donee at the time, but without formal versed, and a decree is to be entered inassignment, will constitute a valid gift. structing the executor that the certificate Brown v. Crafts. 98 Me. 40, 44, 56 Atl. 213; for ten shares of the preferred stock of the Bond v. Bean, 72 N. H. 444, 101 Am. St. | American Agricultural Chemical Company Rep. 686, 57 Atl. 340; Reed v. Copeland, is the property of the respondent Malvina 50 Conn. 472, 47 Am. Rep. 663; Walsh v. J. Simson, and directing him to assign the Sexton, 55 Barb. 251; Gilkinson v. Third ! same to her.
MICHIGAN SUPREME COURT. "Live stock insured against loss or dam
age by fire or lightning anywhere in CharleGEORGE W. BENHAM
voix, Emmet, and Cheboygan counties. FARMERS' MUTUAL FIRE INSURANCE
“The said company agrees that it shall be COMPANY, Piff, in Err.
held responsible, to make good and satisfy
the assured, his heirs, executors, adminis(165 Mich. 406, 131 N. W. 87.) trators, or assigns, all loss or damage by fire Insurance divisible policy
and lightning to the property hereby in
increase of risk partial recovery.
sured, as specified in articles 4 and 13 of the A policy insuring for a single premium charter of this company; provided, this inspecified sums on the dwellings on a farm surance is equal to that amount. Provided and its barns, sheds, furniture, products, also, this insurance shall not be liable for equipment on the premises, and live stock | any loss or damage occasioned by the violaanywhere in certain specified counties, is tion of any of the requirements as exdivisible
, and the insurance on the per: pressed, either in the application for insur: sonalty is not avoided by breach of warranty as to condition of chimneys on the dwellings ance, the charter, by-laws, or rules and and the placing of an encumbrance on the regulations of this company; and it is furrealty without authority, except so far as ther mutually agreed that in case the buildit is contained in the buildings as to which ings hereby insured shall be used for other the risk is increased.
purposes than stated in the application for (Hooker and McAlvay, JJ., dissent.)
insurance, without the written consent of
this company, whereby the risk is increased (May 8, 1911.)
and rendered more hazardous, then this inRROR to the Circuit Court for Grand surance shall not be liable for any loss or E
Traverse County to review a judgment damage that may occur in consequence of permitting a partial recovery on a fire in such use. surance policy alleged to be void for breach "And it is hereby declared and mutualof warranties. Affirmed on condition. ly agreed between the assured and this com
The facts are stated in the opinion. pany, that this policy of insurance is made
Messrs. Halstead & Halstead and Parm and accepted with special reference to the C. Gilbert for appellant.
application for insurance, and all the con. Messrs. Pailthorp & Hackney for ap- ditions therein stated; the charter and by. pellee.
laws of this company, or as may be amended
hereafter, or as amended since the applicaBlair, J., delivered the opinion of the tion for insurance was first taken, and all court:
the conditions hereto or thereto annexed and This is an action upon an insurance policy appended, which form a part of this agreeinsuring plaintiff “against loss or damage ment, and are to be resorted to in order to by fire or lightning on the following de- settle and explain the rights and obligations scribed property, situate on section 32, in of the assured and of this company, in all the township of Springvale, county of Em
cases not herein specifically provided for." met, and state of Michigan:
By the terms of the application, such inOn log dwelling No. 1
.$ 100 surance was expressly made “subject to On household furniture, bedding,
the condition of the charter, by-laws, and wearing apparel, and provisions policies on the property specially described therein
210 in this application and schedule.” In 0, frame dwelling No. 2
60 the application, among other questions On frame barn and log barns No. 1 and answers, there appears the following:
$500, No. 2, $100, No. 3, $100.... 700 / “Q. Are your chimneys all secure? A. On hay, grains, wool, and farm prod
Yes.” Article 4 of defendant's charter proucts, while in said barns or on said vides, among other things: “No dwelling premises
400 shall be insured unless provided with suit. On live stock, carriages, harnesses,
able brick or tile chimneys." In by-law No. and farm tools, while in said barns 8 the following appears: “This company or on said premises
1,500 may insure all farm buildings without Pigpen
70 special reference to the distance of each to On cow shed
60 | the other, provided all buildings in which
fire is used shall be provided with good and Total
- $3,100 safe tile and brick chimneys,” etc. The Note. For divisibility of insurance, see
policy of insurance contains the following note to Joffe v. Niagara F. Ins. Co. 51 L.R.A. clause: "And it is hereby declared and mu(N.S.) 1047. See later case, Fisher v. Sun tually agreed between the assured and this F. Ins. Co. L.R.A. 1915C, 619.
company that this policy of insurance is