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 Selquiescence 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 plaintiffs 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 [1895] 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 recogthis 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 therefor. The ruling of the superior court that these plaintiffs could not recover damages for injury to the wool thus sold was right. The liability of the defendant is to be determined according to the principles of the common law, for the bill of exceptions contains no reference to the warehouse receipts act, nor to the kind of receipts, if any, issued by the defendant. It simply is stated that the defendant was a public warehouseman. It may be assumed under all the circumstances that it assented to the sale, if that affects favorably its liability. The title to this wool had passed from the plaintiff's to their customers. Each bag was identified by definite marks. The wool, therefore, was "specific goods in a deliverable state," and under the sales act (Stat. 1908, chap. 237, § 19, rule 1) the title vested in the purchaser upon the

consignor. But the relation between a depositor of goods and a warehouseman, the owner and agister, and generally of a bailor and bailee, is not the same as that of a shipper and common carrier. The obligation of the carrier is to perform its contract for transportation, generally set forth in a bill of lading to which the consignor is a principal party. The duty of the bailee is commonly to deliver to the owner when he is known, in instances where there has been transfer of title during bailment, and not to the depositor. The obligations respectively resting upon the parties (apart from statute) are not in kind like those arising out of the issuance of a bill of lading by a common carrier. Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Merchants' Despatch Co. v. Smith. 76 Ill. 542; Dawes v. Peck, 8 T. R. 330, 3 Esp. 12, 4 Revised Rep. 675. The relation between a bailor who

has sold the goods bailed, and the purchaser, R

is not naturally one of trust and confidence.
They are at arm's length as to each other.
Therefore the bailor shows no right to re-
cover the value of the goods bailed if he
has parted with all title.

Let the entry in each case be-
Defendant's exceptions overruled.
Plaintiffs' exceptions overruled.

(March 8, 1915.)

ESERVATION by the Supreme Judicial Court for Middlesex County for consideration of the full court of a question arising upon appeal by respondent from a decree of the Probate Court on petition by the executor of Adeline L. Nickerson, deceased, for instructions as to the disposition to be made by him of a certificate for 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. Messrs. Robert W. Nason and Thomas W. Proctor, for respondent Simson:

An effectual gift of the stock was made by testatrix to respondent. There were present all the essential elements of a gift.

Field v. Pierce, 102 Mass. 253, 3 Mor. Min. Rep. 535; Hutchins v. State Bank, 12 Met. 421; Spaulding v. Paine, 81 Ky. 416; First Nat. Bank v. Holland, 99 Va. 495, 55 L.R.A. 155, 86 Am. St. Rep. 898, 39 S. E. 126; Allen-West Commission Co. v. Grumbles, 63 C. C. A. 401, 129 Fed. 287; Com. v. Crompton, 137 Pa. 138, 20 Atl. 417; Brigham v. Mead, 10 Allen, 245; Grover v. Grover, 24 Pick. 261, 35 Am. Dec. 319; Sessions v. Moseley, 4 Cush. 87; Rockwood v. 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.

This note is supplemental to the note to French v. White, 2 L.R.A. (N.S.) 806 (so far as gifts are concerned), where the earlier cases are collected.

For necessity of actual delivery of certificate to complete gift of shares of stock, see note to Dewey v. Barnhouse, 29 L.R.A. (N.S.) 166.

As may be seen by the earlier note, the court in HERBERT V. SIMSON, in sustaining a gift of a delivered certificate of stock without formal assignment or transfer, follows the general rule, and this rule is also sustained by other recent cases.

certificate of stock with a separate deed of
assignment to one of several trustees, the
deed not identifying the particular certifi-
cate, was a valid gift inter vivos in præsenti,
said: "We are of the opinion that the
principle
that the delivery of the
instrument which is the evidence represent-
ing a chose in action constitutes a valid
gift should be applied to the delivery of a
certificate of stock. Although the question
has not heretofore been determined in Rhode
Island, the decisions in other jurisdictions of
this country are almost unanimous in hold-
ing that such delivery, either with or with-
out written assignment or indorsement, and
without registration on the books of the cor-
poration as required by its by-laws and cer-
tificates, constitutes a valid gift,-whether
it be to trustees or directly to the beneficia-
ries, and whether it be inter vivos or mortis

Thus, where a father handed certificates of stock to his son with a statement that the son was to have them on a condition imposed that after the father's death the son should pay certain sums to two certain grandchild-causa." 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, where the donor died about a year after the gift, and it does not appear that it was other than a gift inter vivos.

148

was defeated on the ground that there had been no delivery, it seems to be suggested by the opinion that the certificate was unindorsed, and there is possibly an implication that if there had been a delivery the gift would have been good.

In Grimes v. Barndollar, Colo. Pac. 256, it was considered that a good gift inter vivos 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 on the terms
Sav. Bank, 129 Mass. 425, 37 Am. Rep. 371;
Westerlo v. De Witt, 36 N. Y. 340, 93 Am.
Dec. 517; Snellgrove v. Bailey, 3 Atk. 214;
McGlynn v. Curry, 82 App. Div. 431, 81
N. Y. Supp. 855; Campbell v. New England
Mut. L. Ins. Co. 98 Mass. 381; Stevens v.
Palmer, 15 Gray, 505.

The gift was valid on authority and on principle.

Brown v. Crafts, 98 Me. 40, 56 Atl. 213; Reed v. Copeland, 50 Conn. 472, 47 Am. Rep. 663; Talbot v. Talbot, 32 R. I. 72, 78 Atl. 535, Ann. Cas. 1912C, 1221; Blazo v. Cochrane, 71 N. H. 585, 53 Atl. 1026; Bond v. Bean, 72 N. H. 444, 101 Am. St. Rep. 686, 57 Atl. 340; Watson v. Watson, 69 Vt. 243, 39 Atl. 201; Walsh v. Sexton, 55 Barb. 251; Allerton v. Lang, 10 Bosw. 362; Com. v. Crompton, 137 Pa. 138, 20 Atl. 417; Denunzio v. Scholtz, 117 Ky. 182, 77 S. W. 715, 4 Ann. Cas. 529; First Nat. Bank v. Holland, 99 Va. 495, 55 L.R.A. 155, 86 Am. St. Rep. 898, 39 S. E. 126; Leyson v. Davis, 17 Mont. 220, 31 L.R.A. 429, 42 Pac. 775; Smith v. Meeker, 153 Iowa, 655, 133 N. W. 1058; Morse v. Meston, 152 Mass. 5, 24 N. E. 916; Bone v. Holmes, 195 Mass. 495, 81 N. E. 290.

on which it Thereafter

had been delivered to her.
it was kept by Mrs. Simson in her trunk
in her own room. The question before us
is whether the alleged gift was incomplete,
and therefore ineffectual, because of the
failure on Mrs. Nickerson's part to assign
the certificate by signing the form on the
back thereof, or by executing some other
written instrument.

The charter and by-laws of the corpora-
tion contain no provision concerning the
transfer of certificates of shares; and no
statute of the state of its incorporation has
been called to our attention that affects the
question. No rights of creditors or other
third parties are involved, but only those
It should be added
of donor and donee.
that Stat. 1910, chap. 171, § 9, which pro-
vides for such a case as this, was passed
after the gift in controversy.

The failure of Mrs. Nickerson to indorse the share certificate was important evidence bearing on the intention with which the delivery was made; but it is settled by the finding of the single justice that she did in fact intend to make a completed gift, and irrevocably to renounce dominion and control of the stock, and that Mrs. Simson ac

Mr. 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:

It is settled by the finding of the single justice that on the 5th day of December, 1908, for the reasons set forth in the reservation, Mrs. Nickerson undertook to make a gift to Mrs. Simson of ten shares to the preferred stock of the American Agricultural Chemical Company; that pursuant thereto she delivered the unindorsed certificate for the shares to Mrs. Simson, who then dividends thereon until his death, and it was held that the facts were consistent with a finding that he delivered the stock to her for safe-keeping, against her claim that it was given to her to be held in trust for the benefit of her children and the children of her sister.

It may be noted that it has been held that a delivery of a certificate without the transfer tax stamps is insufficient to effect a gift. Thus, in Re Raleigh, 75 Misc. 55, 134 N. Y. Supp. 684, where it does not appear whether the certificate was indorsed or not, it was held that there could be no valid gift of a certificate of stock which did not bear the tax transfer stamp when delivered by the donor to the donee, if the question was properly pleaded, although the donor delivered the certificate to the donee a day or two before his death, when stricken with a fatal illness. The statute provided that "no transfer of stock . . on which a tax is

fect her right. Fisher v. Essex Bank, 5 Gray, 373; Stone v. Hackett, 12 Gray, 227; note to Milroy v. Lord, 1 Ames, Cases on Trusts, 149. What she did acquire was, as between herself and the donor, the equi table title to the shares and some legal as well as equitable rights. The gift was complete, and not inchoate; and a court of equity has jurisdiction to compel a formal assignment by the executor of the imposed by this article, and which tax is not paid at the time of such transfer, shall be made the basis of an action or legal proceedings, nor shall proof thereof be offered or received in evidence in any court in this state."

In view of the decision in Matthews v. Hoatland, 48 N. J. Eq. 455, 21 Atl. 1054, cited in HERBERT V. SIMSON, and discussed in the earlier note, holding that a valid gift inter vivos of a certificate of stock could not be made by its delivery without formal transfer or assignment, it may be noted that in Farrell v. Passaic Water Co. 82 N. J. Eq. 97, 88 Atl. 627, it was held that there was a good gift inter viros of a delivered corporate coupon bond, registered as to principal, without written assignment or transfer on the books of the company, followed by many years of collection of interest by the donee. B. B. B.

donor, and a transfer on the books of the Ave. R. Co. 47 App. Div. 472, 63 N. Y. Supp. corporation.

The general rule is now well established that choses in action, of which the legal or equitable title can pass by delivery, may be the subject of a valid gift. And the delivery of the chose in action, without formal indorsement or assignment, is sufficient to effectuate the gift where it is the intent and purpose of the donor to transfer the ownership at once. The principle has been applied by this court to the gift of a promissory note payable to the order of the donor, and not indorsed. Grover v. Grover, 24 Pick. 261, 35 Am. Dec. 319. It was held in Pierce v. Boston Five Cents Sav. Bank, 129 Mass. 425, 37 Am. Rep. 371, that the delivery of a savings bank book (which is analogous to a stock certificate in many respects), without a written assignment or order, was sufficient to constitute a valid gift. A share of capital stock is property of a peculiar kind. Accurately speaking, it does not consist in an interest either legal or equitable in the property of the company. It is personalty, although the corporation may own real estate. If not a chose in action it is in the

792; Com. v. Crompton, 137 Pa. 138, 20 Atl. 417; First Nat. Bank v. Holland, 99 Va. 495, 55 L.R.A. 155, 86 Am. St. Rep. 898, 39 S. E. 126; Smith v. Meeker, 153 Iowa, 655, 133 N. W. 1058; Leyson v. Davis, 17 Mont. 220, 31 L.R.A. 429, 42 Pac. 775, Id. 170 U. S. 36, 42 L. ed. 939, 18 Sup. Ct. Rep. 500. And see Burnsville Turnp. Co. v. State, 119 Ind. 382, 385, 3 L.R.A. 265, 20 N. E. 421; Ridden v. Thrall, 125 N. Y. 572, 11 L.R.A. 684, 21 Am. St. Rep. 758, 26 N. E. 627; Talbot v. Talbot, 32 R. I. 72, 78 Atl. 535, Ann. Cas. 1912C, 1221; Watson v. Watson, 69 Vt. 243, 39 Atl. 201. Contra, Matthews v. Hoagland, 48 N. J. Eq. 455, 21 Atl. 1054; Baltimore Retort & Fire Brick Co. v. Mali, 65 Md. 93, 57 Am. Rep. 304, 3

Atl. 286.

The injustice of a contrary conclusion is well expressed by Dean Ames in his note to Milroy v. Lord, ubi supra (page 156): "Even in jurisdictions where the gift is ineffectual unless the shares or deposits are transferred on the books of the company or savings bank, the donor would not be allowed to recover the certificate or bank book

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, rather than other non-complete; the donor equally helpless, because negotiable choses in action. As was said by Rugg, Ch. J., in Kennedy v. Hodges, 215 Mass. 112, 115, 102 N. E. 432, 434: "Modern commercial usage treats certificates of stock as possessing some of the attributes of property. They are generally bought and sold and pass by delivery when properly indorsed like ordinary chattels."

he cannot produce the certificate or bank book; the company or bank, on the other hand, in a position capriciously to recog nize the donor or the donee as dominus of the claim, or indeed, unless they come to some compromise, to refuse with safety to recognize either."

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 certificate, that the shares are "transferable only on the books of the company," affects the shareholder's relation to the corporation only, and not her relation to a third party who has become equitably possessed of the stock. See cases cited in Talbot v. Talbot, Ann. Cas. 1912C, 1235, note.

The question now before us has not been decided in this commonwealth, although it arose in Morse v. Meston, 152 Mass. 5, 24 N. E. 916. But in the large majority of cases where it has arisen in other jurisdictions in this country, it has been decided that the delivery of the share certificate, with the intention of passing title to the donee at the time, but without formal assignment, will constitute a valid gift. Brown v. Crafts. 98 Me. 40, 44, 56 Atl. 213; Bond v. Bean, 72 N. H. 444, 101 Am. St. Rep. 686, 57 Atl. 340; Reed v. Copeland, 50 Conn. 472, 47 Am. Rep. 663; Walsh v. Sexton, 55 Barb. 251; Gilkinson v. Third

The decree of the Probate Court is reversed, and a decree is to be entered instructing the executor that the certificate for ten shares of the preferred stock of the American Agricultural Chemical Company is the property of the respondent Malvina J. Simson, and directing him to assign the same to her.

Messrs. Pailthorp & Hackney for ap-ditions therein stated; the charter and bypellee.

laws of this company, or as may be amended hereafter, or as amended since the application for insurance was first taken, and all the conditions hereto or thereto annexed and

appended, which form a part of this agreement, and are to be resorted to in order to settle and explain the rights and obligations of the assured and of this company, in all cases not herein specifically provided for.”

By the terms of the application, such insurance was expressly made "subject to the condition of the charter, by-laws, and policies on the property specially described 210 in this application and schedule." In 60 the application, among other questions and answers, there appears the following: 700 "Q. Are your chimneys all secure?

Yes." Article 4 of defendant's charter provides, among other things: "No dwelling 400 shall be insured unless provided with suitable brick or tile chimneys." In by-law No. 8 the following appears: "This company may insure all farm buildings without 70 special reference to the distance of each to 60 the other, provided all buildings in which fire is used shall be provided with good and safe tile and brick chimneys," etc. The policy of insurance contains the following clause: "And it is hereby declared and mutually agreed between the assured and this company that this policy of insurance is