is provided by § 22 of the sales act that such goods are at the buyer's risk whether delivery has been made or not. Thus, the difficulties as to change of possession and assent suggested in Hallgarten v. Oldham, 135 Mass. 1, 9, 46 Am. Rep. 443, and Selliger v. Kentucky, 213 U. S. 200, 205, 53 L. ed. 761, 764, 29 Sup. Ct. Rep. 449, are eliminated. The plaintiffs do not contend that they had suffered loss on account of these bags, but they ask to recover damages, and to hold the proceeds as trustees for the true owners. See Boyden v. Hill, 198 Mass. 477, 487, 85 N. E. 413. The owner of goods, or one having some general or special interest in them, commonly is the one to bring action for damage to them. See Commercial Nat. Bank v. Bemis, 177 Mass. 95, 58 N. E. 476. Plainly the plaintiffs are not the owners, and they do not contend that they are. They seek to maintain these actions only on the authority of Blanchard v. Page, 8 Gray, 281, and Finn v. Western R. Corp. 112 Mass. 524, 17 Am. Rep. 128. These have been recognized generally as leading decisions, and would be followed implicitly in similar the risks arising therefrom. These requests | making of the contract of sale. It further rightly were refused. The acceptance of the wool on storage for hire involved the obligation on the part of the defendant to use due care for its safety and protection. That was implied from the relation it assumed as warehouseman. Mere knowledge and acquiescence by the owner as to the place of storage are not enough to modify that contractual obligation. Essential elements as to the care required by the contract of storage in the cases at bar lie outside the mere place of storage. Nothing as to waiver of that obligation respecting protection of the goods from the danger of injury from tides was tacitly inferable from such knowledge and acquiescence as was attributable on the evidence to the plaintiffs. Conway Bank v. American Exp. Co. 8 Allen, 512; Mooers v. Larry, 15 Gray, 451; Brabant v. King [1895] A. C. 632, 641, 64 L. J. C. P. N. S. 161, 11 Reports, 517, 72 L. T. N. S. 785, 44 Week. Rep. 157; Searle v. Laverick, L. R. 9 Q. B. 122, 43 L. J. Q. B. N. S. 43, 30 L. T. N. S. 89, 22 Week. Rep. 367. The decisions relied on by the defendant upon this point are distinguishable. Knowles v. Atlantic & St. L. R. Co. 38 Me. 55, 61 Am. Dec. 234, arose out of gratuitous bail-cases. But the principles there declared are ment. Brown v. Hitchcock, 28 Vt. 452, 458, and Parker v. Union Ice & Salt Co. 59 Kan. 626, 68 Am. St. Rep. 383, 54 Pac. 672, rest upon peculiar facts which showed such intimate familiarity with all the attendant conditions or personal directions touching the storage as to amount to a waiver of the usual terms of the contract of bailment. No such circumstances are to be found in the cases at bar. not applicable to the facts in the cases at bar. In the former of these two cases, the shipper, the agent for an undisclosed principal who was not the consignee, was permitted to recover of a shipowner for breach of the contract of carriage. In the latter case the consignor, who delivered goods to a common carrier, was permitted to recover damages for breach of the contract 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 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 plaintiffs 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 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 ESERVATION by the Supreme Judicial has sold the goods bailed, and the purchaser, RECourt for Middlesex County for con 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 recover the value of the goods bailed if he has parted with all title. Let the entry in each case be— 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. 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 grandchildren of the father (not his own children), it was held that this was a completed gift and the title vested in the son. Smith v. 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 | sideration 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. Grum bles, 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, 7 535, Ann. Cas. 1912C, 1221, the court, in holding that a delivery of an unindorsed certificate of stock with a separate deed of assignment to one of several trustees, the deed not identifying the particular certificate, 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 representing 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 holding that such delivery, either with or without written assignment or indorsement, and without registration on the books of the corporation as required by its by-laws and certificates, constitutes a valid gift,-whether it be to trustees or directly to the beneficiaries, and whether it be inter vivos or mortis causa." In Apache State Bank v. Daniels, 32 Okla. 121, 40 L.R.A. (N.S.) 901, 121 Pac. 237. Ann. Cas. 1914A, 520, where a gift causa mortis 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 on the terms on which it been delivered to her. Thereafter Gray, 382; Pierce v. Boston Five Cents | accepted it Dec. 517; Snellgrove v. Bailey, 3 Atk. 214; 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; Plazo 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. 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 corporation 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 provides 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. De Courcy, J., delivered the opinion of that no further the 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 less, without the written assignment Mrs. The gift was 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 vivos 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 nature of a chose in action. The share certificate is evidence of title, and for some purposes may possess some of the incidents 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 intention of vesting them in the donee. We should have, then, this extraorof 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." There is nothing in the nature of a share of stock to prevent the passing of the equitable title to the share, as between the donor and donee, by the delivery of the share certificate, where such is the manifest intent of the parties. 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 he cannot produce the certificate or bank book; the company or bank, on the other hand, in a position capriciously to recognize 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 Mrs. Nickerson to the respondent of the share certificate and its acceptance by the latter constituted a valid gift, and vested in the donee the equitable title to the property. The provision printed on the certifi cate, 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 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. MICHIGAN SUPREME COURT. GEORGE W. BENHAM V. FARMERS' MUTUAL FIRE INSURANCE (165 Mich. 406, 131 N. W. 87.) increase Insurance divisible policy RROR to the Circuit Court for Grand Traverse County to review a judgment permitting a partial recovery on a fire insurance policy alleged to be void for breach of warranties. Affirmed on condition. The facts are stated in the opinion. Messrs. Halstead & Halstead and Parm C. Gilbert for appellant. "Live stock insured against loss or damage by fire or lightning anywhere in Charlevoix, Emmet, and Cheboygan counties. "The said company agrees that it shall be held responsible, to make good and satisfy the assured, his heirs, executors, administrators, or assigns, all loss or damage by fire and lightning to the property hereby insured, as specified in articles 4 and 13 of the charter of this company; provided, this insurance is equal to that amount. Provided also, this insurance shall not be liable for any loss or damage occasioned by the violation of any of the requirements as expressed, either in the application for insurance, the charter, by-laws, or rules and regulations of this company; and it is further mutually agreed that in case the buildings hereby insured shall be used for other purposes than stated in the application for insurance, without the written consent of this company, whereby the risk is increased and rendered more hazardous, then this insurance shall not be liable for any loss or damage that may occur in consequence of such use. "And it is hereby declared and mutually agreed between the assured and this company, that this policy of insurance is made and accepted with special reference to the application for insurance, and all the con Messrs. Pailthorp & Hackney for ap- ditions therein stated; the charter and bypellee. Blair, J., delivered the opinion of the court: 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 settle and explain the rights and obligations of the assured and of this company, in all cases not herein specifically provided for." This is an action upon an insurance policy appended, which form a part of this agreeinsuring plaintiff "against loss or damagement, and are to be resorted to in order to by fire or lightning on the following described property, situate on section 32, in the township of Springvale, county of Emmet, and state of Michigan: On log dwelling No. 1 By the terms of the application, such in$ 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 60 the application, among other questions On frame dwelling No. 2 On frame barn and log barns No. 1 $500, No. 2, $100, No. 3, $100.... On hay, grains, wool, and farm products, while in said barns or on said premises On live stock, carriages, harnesses, and farm tools, while in said barns or on said premises and answers, there appears the following: 700 "Q. Are your chimneys all secure? A. 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 1,500 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 $3,100 For divisibility of insurance, see note to Joffe v. Niagara F. Ins. Co. 51 L.R.A. (N.S.) 1047. See later case, Fisher v. Sun F. Ins. Co. L.R.A. 1915C, 619. |