Opinion
Rehearing Granted March 3, 1930
Appeal from Superior Court, Ventura County; T.A. Norton, Judge.
Action by the McGaffey Canning Company, Incorporated, against the Bank of America and others. Judgment for defendants, and plaintiff appeals. Affirmed in part and reversed in part. COUNSEL
Meserve, Mumper, Hughes & Robertson and Baldwin Robertson, all of Los Angeles, for appellant.
James C. Hollingsworth, of Ventura, for respondents Robert E. Clark and National Surety Co.
Frank M. Bering, of Los Angeles, for respondents Bank of America and Lawrence Warehouse Co.
OPINION
JOHNSON, Justice pro tem.
This action, begun in Los Angeles county and afterwards transferred for trial to Ventura county, sounds in conversion. A jury was impaneled for the trial of the case; but the court having granted a motion for a nonsuit, the plaintiff appeals from the judgment thereupon entered in favor of defendants.
This action is a sequel to an action brought by the same plaintiff in Los Angeles county against William F. Gasman, in which judgment for $10,240 went in favor of plaintiff on May 2, 1924. In that action plaintiff had caused a writ of attachment to issue on August 20, 1923, to the sheriff of Ventura county. The writ was accompanied by instructions to attach certain canned goods in a canning establishment located at Camarillo, in Ventura county, and operated in the name of the Ventura County Canning Company, a copartnership composed of Gasman and two others, William Heck and W.A. Clarke.
Acting under the writ, the sheriff levied upon 12,000 cases of canned apricots, valued at about $30,000, also upon other personal property, and placed a keeper in charge. Thereupon a third-party claim was made by the Bank of America through its vice president. In the claim the bank averred that it had made certain loans to the Ventura County Canning Company on the security of the attached property, which it held in pledge by virtue of warehouse receipts issued by the Lawrence Warehouse Company in favor of the bank, and delivered into the bank’s possession before the attachment. The Lawrence Warehouse Company is a corporation with its office and principal place of business in Los Angeles.
Upon receipt of this claim the sheriff duly notified the plaintiff. After some hesitation, the plaintiff refused to furnish an indemnity bond to the sheriff upon the ground that the claim was legally insufficient, and that there had not been the change of possession required by law for consummation of a pledge. Left without the protection of an indemnity bond, the sheriff withdrew his keeper; and the goods were ultimately released by the warehouse company to the bank and sold by the bank for its own account, the entire proceeds being applied toward satisfaction of its loans.
The judgment obtained later by plaintiff against Gasman remaining wholly unsatisfied, plaintiff began this action on December 8, 1924, against the bank, the warehouse company, the sheriff, and the surety on the sheriff’s official bond to recover damages for conversion.
So far as the sheriff and his surety are concerned, the chief point presented by plaintiff relates to the sufficiency of the third-party claim. It was made on behalf of the bank by the vice president in the form of an affidavit to which the affiant took oath before a notary public. Plaintiff contends that an oath so taken by a claimant, without addition of the phraseology used in verifying a pleading, is not a "claim verified by his oath" within the meaning of section 689, Code of Civil Procedure. Such a claim, however, is not a pleading, and may frequently have to be drawn by persons unfamiliar with legal jargon. The affidavit criticized conforms to the usual practice; and in such matters technical niceties should not overshadow the rights of a claimant to legal possession. One of the definitions of the word "verify" in the Standard Dictionary is "to affirm under oath"; and in the new English Dictionary one of the meanings given is "to testify or affirm formally or upon oath." In our opinion an affidavit setting out the facts and sworn to before an authorized officer meets fully the demands of the law; and puts the attaching creditor to his election either to protect the sheriff with a sufficient indemnity bond, or to submit to release of the property seized.
The plaintiff argues that the sheriff’s liability is governed by the decision in Arena v. Bank of Italy, 194 Cal. 195, 228 P. 441. In that case, however, there was first filed a claim clearly insufficient on its face; and hence it furnished no basis for the demand for indemnity made by the sheriff. An amended claim was then filed, and upon the strength of the amended claim, the sheriff without any further demand released the attached property. Such release without notice to the attaching creditor or renewal of the demand for indemnification was held to be contrary to law. The case has no similarity to the case before us.
In this instance the contents of the claim were sufficient to state an apparent right to possession by the bank as a pledgee; and the sheriff was not required to assume a judicial pose, and determine, at his peril, whether or not the circumstances connected with the issuance of the warehouse receipts and their delivery to the bank satisfied the provisions of section 3440 of the Civil Code. Where a litigant’s courage oozes under the pressure of a demand for indemnification against a third-party claim sufficient on its face, the law will not make the sheriff the scapegoat. Taylor v. Bernheim, 58 Cal.App. 404, 408, 209 P. 55. The motion for nonsuit in behalf of the sheriff and his surety was properly granted.
The really vital question in the case, between the plaintiff on the one hand and the bank and the warehouse company on the other, is whether there had been a change of possession of the seized property sufficient to protect the bank as a pledgee.
The circumstances surrounding the dealings between the parties were as follows: The canning business of the Ventura County Canning Company was carried on in a workshop or factory at Camarillo rented from the California Fruit Confection Company, which conducted its business on the other side of a wooden partition. The rent payable by the canning company was 12½ cents per case; and its output for the canning season was about 50,000 cases. A man named Pace, employed by the canning company, served as its cookroom foreman and superintended the canning operations at a salary of $60 per week.
With the consent of its landlord, the canning company on June 28, 1923, sublet its entire shop on a month to month tenancy to the Lawrence Warehouse Company at a rent of $1 per month for warehouse purposes. This lease was recorded July 28, 1923.
Notwithstanding this sublease, the canning company continued to conduct its business in the shop as before, using during the apricot season 150 to 200 employees. Pace continued to act as cookroom foreman, and at the same time he acted also as the sole representative of the Lawrence Warehouse Company on the premises. In fact, he drew his salary of $60 a week from the Warehouse Company, and that company then rendered a bill for the amount to the canning company. Practically all Pace’s time was given to superintendence of the canning processes. At night an employee of the canning company slept on a cot in a cubby-hole above a small office partitioned off from the shop; and during the night the premises with its contents were in his care.
When the cans had been filled and were ready for stacking, they were moved on trucks to another part of the shop, and stacked by skilled employees of the canning company in rows set about 4½ feet apart, and reaching to the ceiling. At the time of the attachment there were three or four such stacks in place. Frames made of slats were placed around the several stacks for the purpose of separating them and simplifying the count. The canning was done at the north end of the shop, and the storage at the south end. There was nothing to separate the canning department from the storage department except an intervening space about 15 feet in width.
As the cans were stacked they were inventoried by Pace, who kept the records. He then issued nonnegotiable warehouse receipts for the Lawrence Warehouse Company. The form used was an acknowledgment of receipt for storage "for account of, and to be delivered upon written order, without surrender of this receipt, to Bank of America, Los Angeles."
Referring to these receipts, Heck, one of the partners interested in the cannery, said in his testimony: "We jumped in the car as soon as we got them, and went to Los Angeles, and to the Bank of America, and got all the money we could."
As receipts were issued, stack cards of the Lawrence Warehouse Company were placed on the stacks about 6 feet from the floor, each specifying the aisle, stack, and mark, and giving the date, lot number, and quantity. These cards bore also the statement, "Warehoused to Bank of America."
When fruit was to be marketed, a release was issued from the Los Angeles office of the Lawrence Warehouse Company on order of the Bank of America; and upon delivery of the release to Pace, withdrawal of the quantity designated followed. The cans were then labeled, packed in cases, and shipped by the canning company to fill orders obtained through brokers, who appear to have assumed responsibility to the bank for the proceeds of sale.
The canning company really paid Pace’s salary; and though the warehouse company, according to the sublease, was charged the nominal rent of $1 per month, there was an accompanying agreement obligating the canning company to pay the warehouse company for issuing receipts 3 cents per case for the first 50,000 cases and lesser amounts for additional quantities.
No sign of the Ventura County Canning Company seems to have been displayed on the building. There was a sign of the California Fruit Confection Company on the outside, and a sign of the Lawrence Warehouse Company inside the shop near the south end. While Mr. Heck said the warehouse company had two of its signs on the outside, his co-partner, Mr. Clarke, said there was none on the outside to his knowledge. For purposes of nonsuit the testimony of Heck on this point must be disregarded.
The question now before us is whether, under the circumstances recited, there was error in granting the motions of the bank and the warehouse company for a nonsuit instead of letting the case go to the jury as to them.
When there is actual delivery of merchandise to a warehouseman, with actual and explicit change of possession, and a warehouse receipt is issued and delivered to one lending money on the security of the merchandise in store, the delivery of the warehouse receipt is the legal equivalent of the delivery of the merchandise itself; but such symbolic possession by the pledgee is dependent for its efficacy upon complete and actual, as distinguished from merely formal or colorable, relinquishment of possession and control by the pledgor.
If, under the facts of this case, there was a transfer of possession from the canning company to the warehouse company, of such exclusive character that it must be declared as a matter of law that there was indisputable compliance with the requirements of section 3440, Civil Code, then the judgment of nonsuit was properly entered; but if a contrary conclusion was reasonably deducible from the evidence, the case should have been allowed to go to the jury as the triers of the facts.
It is contended by the defendants that the warehouse company used the premises as a so-called field warehouse; and cases from other jurisdictions are cited in support of such a system and as authority for the order of nonsuit.
Union Trust Co. v. Wilson, 198 U.S. 530, 25 S.Ct. 766, 49 L.Ed. 1154, certifies answers to certain questions propounded by the Circuit Court of Appeals in a case arising in Illinois. A leather dealer named Flanders walled off a part of his basement and let it at a nominal rental to the Security Warehouse Company. The compartment had doors fastened with padlocks, bearing the name of the company; and the warehouse company had the only keys. It had also a key to the building so as to have access both day and night. There were two signs on the outside, stating in large letters that the premises were occupied by the company as a public warehouseman. The company received leather from Flanders, stored it in the locked compartment, and issued warehouse receipts which were indorsed by Flanders to the Union Trust Company as security for loans. Flanders became bankrupt, and the trustee for creditors filed a bill claiming the leather in storage. The court said that no question under the statutes of Illinois was suggested; and that since the warehouse company had the leather under lock and key in a place not visible to Flanders’ patrons, to which the company had legal title and right of free access, and since there was no reason to doubt the good faith of the transaction, there was a sufficient delivery to validate the pledge. In so ruling the court is careful, however, to say (page 537 of 198 U.S., 25 S.Ct. 768): "We deal with the case before us only. No doubt there are other cases in which the exclusive power of the so-called bailee gradually tapers away until we reach those in which the courts have held as matter of law that there was no adequate bailment."
Manufacturers’ & Traders’ Bank v. Gilman (C.C.A.) 7 F.2d 94, is a similar case. There engines and engine parts were kept in a locked room for the bank as a pledgee. There was a written indenture of trust, whereby the general manager of the pledgor was named as trustee for the bank. He had the key to the room, which was rented to the bank; and the stored material was tagged so as to state that it was "property of N.B. Gladwin Trustee." In a proceeding instituted by the receiver in bankruptcy against the bank, it was held that there was a valid pledge.
Sexton v. Kessler & Co., 225 U.S. 90, 32 S.Ct. 657, 56 L.Ed. 995, is a case brought by a trustee in bankruptcy to set aside a certain alleged illegal preference in the transfer of securities. The New York house of Kessler & Co. was indebted to the English house of the same name, and for the protection of that creditor set apart certain earmarked securities, which were kept on a separate shelf in the firm’s vault and listed in a document transmitted to the English house. In the panic of 1907 the New York house became embarrassed, and filed a petition in bankruptcy. Before doing so, however, it delivered the earmarked securities to an agent of the English house, then in New York. It was held that the English house had an equitable lien superior to the rights of the trustee. This case can hardly be said to have a bearing on the case before us, especially since such securities are not in the same class with goods and chattels.
The remaining cases cited by defendants were either heard upon appeal after a decision in the trial court upon the facts, or were decisions rendered by the trial judge after taking the evidence himself, or upon a hearing after reference to a master to take testimony and report his conclusions. Thus, in Dunn v. Train (C.C.A.) 125 F. 221, 222, the court said: "It being a question of intention, and a question whether the change in the situation of the property was such as to be notice of a change of possession, it was, under the circumstances, largely a question of fact, to be determined under rules of law." And the findings of the trial judge in favor of the pledgee were sustained. A similar situation existed in Love v. Export Storage Co. (C.C.A.) 143 F. 1.
Bush v. Export Storage Co. (C.C.) 136 F. 918, and Evans v. New York & P.S.S. Co. (D.C.) 163 F. 405, were decisions by the trial judge after submission of the cause upon the evidence taken before him. Again, Philadelphia Warehouse Co. v. Winchester (C.C.) 156 F. 600, and American Can Co. v. Erie Preserving Co. (C.C.) 171 F. 548, were decisions confirming the master’s report. Israel v. Woodruff (C.C.A.) 299 F. 454, falls into the same category, being an appeal from a decree confirming the report of the master. The appellate court there said (page 456 of 299 F.): "The experienced trial judge having approved the master’s report, it will be permitted to stand, unless an obvious error has intervened in the application of the law, or some serious or important mistake appears to have been made in the consideration of the evidence." National Union Bank v. Shearer, 225 Pa.St. 470, 74 A. 351, 17 Ann.Cas. 664, and State v. Robb-Lawrence Co., 17 N.D. 257, 115 N.W. 846, 16 L.R.A.(N.S.) 227, have but a remote application to the present case; but each came up for review of a judgment entered upon the verdict of a jury, and the judgment was affirmed.
While in American Can Co. v. Erie Preserving Co. (C.C.) reported in 171 F. at page 548, the trial judge approved the master’s report to the effect that the goods pledged were conspicuously marked and set apart in a way to give the pledgee exclusive dominion, yet in a companion case, bearing the same title and reported in the same volume, at page 540, the same judge, dealing with other goods, found that there was only a semblance of an attempt to warehouse those goods in the premises of the pledgor. Accordingly, in that case he held that there was no such change of possession as to validiate the receipts in the hands of the pledgee. The judgments in both these cases were affirmed on appeal in American Can Co. v. Erie Preserving Co. (C.C.A.) 183 F. 96, 98; the court, as to the case reported in 171 F. 540, saying: "Warehouse receipts would give constructive possession of goods actually warehoused; but it is plain that the warehousing company did not maintain a warehouse in any proper sense, because it had no exclusive and unequivocal possession."
In Macdonald v. AEtna Indemnity Co., 90 Conn. 415, 97 A. 332, cited also by defendants, one Rodebaugh, a grain dealer at Buffalo, entered into a written contract with the American Warehousing Company, whereby he leased to the warehouse company as a "field storage warehouse" the property on which his grain business was conducted. The plot of ground was marked at the corners by stakes bearing the initials of the warehouse company; and one of Rodebaugh’s employees acted as custodian for the warehouse company. Warehouse receipts were issued to the Bank of Buffalo as collateral security for loans to Rodebaugh. The bank was further protected by bonds given by the AEtna Indemnity Company to indemnify against any loss "through the negligence or dishonesty" of the warehouse company or its custodian. After the lease to the warehouse company, and before the issuance of receipts to the bank, Rodebaugh transferred his business to the Niagara Company of which he became president, and upon Rodebaugh’s death a few months later, the Niagara Company filed a petition in bankruptcy, and a receiver was appointed, who took the grain into his possession. Immediately after Rodebaugh’s death, however, the warehouse company had asserted its right to possession of the grain, and placarded the interior of the mill, the elevator, the bins, and bags with conspicuous signs declaring its interest in the property, and maintained possession until ousted by the receiver. The receiver having taken and sold the grain, the bank caused suit to be brought by the insurance commissioner on the indemnity bond furnished by the warehouse company, charging negligence by that company. In the trial court the judgment sustained the claim of the Bank of Buffalo under the bond. This judgment was reversed on appeal, but the court said that up to the time of Rodebaugh’s death there had been no such change of possession as to validate a pledge; that the marking of corner stakes was not adequate notice, and any possession of the custodian, who remained in the employ of the pledgor, was really the possession of his employer. The case turned on what was done by the warehouse company the day following Rodebaugh’s death and two weeks before the appointment of the receiver. The court ruled that possession was then actually taken before any specific lien had been acquired by any creditor, and that there had been no illegal preference under the bankruptcy law. In its decision the court took into consideration the statute of New York. At the time of the transactions, which occurred between January, 1906, and August, 1907, the statute had a qualification not embodied in section 3440 of our Civil Code. The statute then in force in New York declared transfers without actual change of possession fraudulent, "unless it appear on the part of the person claiming under the sale or assignment that it was made in good faith and without intent to defraud such creditors or purchasers." 4 Birdseye’s Cons.Laws of N.Y., § 36. Under our law good faith, without good works, supplies no saving grace.
In Union Trust Co. v. Wilson, 198 U.S. 530, 537, 25 S.Ct. 766, 768, 49 L.Ed. 1154, the general principle applicable in cases of questioned change of possession was couched by Judge Holmes in this form: "When there is conscious control, the intent to exclude and the exclusion of others, with access to the place of custody as of right, there are all the elements of possession in the fullest sense." At the same time he added a word of caution about cases where the exclusive power of control "tapers away."
Such a case is exhibited in Re Rodgers (C.C.A.) 125 F. 169. There, Rodgers, a dealer in seeds in Chicago, prior to his bankruptcy, had made certain written contracts with the National Storage Company, whereby Rodgers leased to the company part of his premises, and the storage company agreed to store his seeds therein and issue its receipts therefor. The receipts were used by Rodgers as collateral security for loans. The storage company had some signs inside the building, but not conspicuously placed; and its inspector visited the premises several times a week. The keys, however, were kept by Rodgers alone, access being obtainable only through him; and he continued to conduct his business on the premises as of old. Upon each pile of bags for which receipts were issued, there was placed a small tag; but Rodgers was left in a situation to deal with the seeds much as he pleased. In a controversy which arose between the trustee in bankruptcy and the holders of receipts, the court ruled upon appeal that there had never been a change of possession sufficient to validate the receipts, and consequently there existed no enforceable pledge.
In Security Warehousing Co. v. Hand, 206 U.S. 415, 421, 27 S.Ct. 720, 722, 51 L.Ed. 1117, 11 Ann.Cas. 789, affirming the decree of the Circuit Court of Appeals upon the facts recited in 143 F. 32, the court said in reference to certain warehouse receipts issued to the Racine Knitting Company and transferred to pledgees: "The general law of pledge requires possession, and it cannot exist without it. Casey v. Cavaroc, 96 U.S. 467, 24 L.Ed. 779. There was scarcely a semblance of an attempt at such change of possession from the hands of the knitting company to the hands of the warehousing company. Actual possession of the property in question was exercised by and existed with the knitting company substantially the same after the issuing of the receipts as before. It is a trifling with words to call the various transactions between the knitting company and the warehousing company a transfer of possession from the former to the latter. There was really no delivery, and no change of possession, continuous or otherwise. The alleged change was a mere pretense, a sham."
In that case the Racine Knitting Company had leased to the warehouse company certain portions of the knitting company’s premises, both at Racine and at Stevens Point, Wis. Employees of the knitting company, nominated by the warehouse company, acted as custodians for the latter. The stored goods were kept within slatted inclosures or fence-like palings, and the inclosures were provided with sliding doors with padlocks to which the appointed custodian had keys. These, however, were kept by the custodian in such way as to be accessible when desired by officers of the knitting company. There were some interior signs of the warehouse company, and some use was made of identification cards also. Nevertheless, it was held that the facts did not show the open, exclusive, unequivocal possession required by law.
Warehousing on the premises of the owner proposing to pledge his merchandise is effective when done in obedience to legal requirements; but when done only far enough to get the goods represented by documents without really getting them stored, the documents are but scraps of paper. The term "field warehousing" is not a talisman to give dominion by enchantment. Taking exclusiveness of possession and control as the criterion, we find now and then a case where it may be said as a matter of law that, through the field warehouse, open, exclusive, and unequivocal possession passed constructively to a pledgee; and then again in other cases we find that as a matter of law the possession of the warehouseman "tapers away" to nothingness. Between these two extremes lies the aggregation of cases in which the facts are such that different men may with reason reach opposing conclusions. Cases of that character, when tried by a jury, must be allowed to go under proper instructions to the jury for their determination of the facts in controversy.
Whether warehousing is called "field warehousing" or by any other name, it cannot be effectively conducted in this state without compliance with the law as declared in section 3440 of the Civil Code. Merely colorable or constructive change of possession accomplishes nothing in favor of a pledgee. There must be open, visible, unequivocal change of possession, manifested by such substantial outward signs as to make it evident to the world that the control of the owner has wholly ceased, and that another has acquired, and is openly exercising, the exclusive dominion over the property. Stevens v. Irwin, 15 Cal. 503, 506, 76 Am.Dec. 500; Cahoon v. Marshall, 25 Cal. 197, 201; Godchaux v. Mulford, 26 Cal. 316, 324, 85 Am.Dec. 178; Sequeira v. Collins, 153 Cal. 426, 431, 95 P. 876; Hassell v. Bunge, 167 Cal. 365, 366, 139 P. 800.
Actual change of possession means existing in act, and truly and absolutely carried out, as opposed to formal, potential, virtual, or theoretical change. Bunting v. Saltz, 84 Cal. 168, 170, 24 P. 167; Guthrie v. Carney, 19 Cal.App. 144, 150, 124 P. 1045. The proof required to show actual change of possession is not measured by any fixed set of rules. Dependence must be placed upon the facts and circumstances of each particular case; and usually the determination must rest upon the finding of the court or the jury after hearing the evidence adduced on both sides. Claudius v. Aguirre, 89 Cal. 501, 503, 26 P. 1077; Dubois v. Spinks, 114 Cal. 289, 293, 46 P. 95; Feeley v. Boyd, 143 Cal. 282, 285, 76 P. 1029, 65 L.R.A. 943; Jarvis v. Webber, 196 Cal. 86, 99, 236 P. 138; Bosbyshell v. Cline, 51 Cal.App. 109, 113, 196 P. 274; Gray v. Little (Cal.App.) 275 P. 870.
The appointment of the owner, or one of his staff, as a warehouseman’s custodian of goods stored, while not conclusively ineffectual, is nevertheless a circumstance to give pause, and must be carefully weighed in connection with the other facts in evidence. Goldstein v. Nunan, 66 Cal. 542, 544, 6 P. 451; Hickey v. Coschina, 133 Cal. 81, 84, 65 P. 313; Bucher v. Allen, 11 Cal.App. 650, 651, 105 P. 942; Vail v. Nichibei Bussan Co., 65 Cal.App. 60, 63, 223 P. 577; Gray v. Little (Cal.App.) 275 P. 870.
In this case a foreign element is introduced by the interjection of the warehouse company between the pledgor and the pledgee. If the loans had been made without resort to warehouse receipts, and the fruit had been stacked and kept on the premises as shown in the evidence, with Pace as custodian for the bank, there would then have been the simple question whether the pledgee had been placed in actual exclusive possession and control. Instead of actual possession, the bank claims to have obtained symbolic possession by virtue of the warehouse receipts; but those receipts can have no virtue, unless the warehouse company had the same actual and exclusive possession and dominion which would have been essential to the protection of the bank, if it had acted independently in reliance on the goods instead of on the receipts.
In re Spanish-American Cork Products Co. (C.C.A.) 2 F.2d 203, 204, the company, desiring to borrow money from a bank, leased a portion of its premises to one of its employees; and there, in care of the employee as agent for the bank, was stored under lock and key the cork intended to be pledged, the doors having a placard, reading, "Property of A.E. Nichol, Agent." The custodian had general instructions from the bank to receive payments in its behalf and released cork; and as payments were made he supervised removal of the quantity released. Upon the trial of an issue between the trustee in bankruptcy of the cork company and the bank, the District Court decided that the bank had not the possession necessary to a pledge, and the decree was affirmed on appeal. The court expressed its views in the following language: "All authorities agree that possession is necessary to the validity of a pledge. The necessary indication of possession varies, of course, according to the nature and bulk and situation of the property. The rule is the pledgee must either have actual exclusive possession of the property, or if it remains on the pledgor’s premises he must so separate and mark it as to give notice of his possession to the public, who might deal with the pledgor on the faith of it. In this case the cork was in the building occupied by the bankrupt, engaged in the cork business. Those who dealt with it had a right to assume in the absence of notice that the stock of cork carried in the building for use in the business was the property of the company which was using it. There was nothing on the outside to put anybody on inquiry. The public dealing with the cork company or interested in it could not be required to search for notice of some other ownership of the stock of cork by making an obtrusive and prying inspection of the inside of the cork company’s premises to find and inquire the meaning of the signs of agency of one of the bankrupt’s employees. There is no binding nor well-considered case that goes to that length. It is the duty of the pledgee to make such segregation and marks as will indicate his possession to business men of ordinary prudence dealing with the pledgor in the ordinary course of business."
What is there said concerning a transaction directly with a pledgee applies with equal force to a transaction through the medium of a "field warehouseman."
In the discussion in which we have indulged we are not to be understood as intimating any opinion upon the question whether the circumstances in evidence do or do not show a change of possession satisfying the law. As is said in Byrnes v. Moore, 93 Cal. 393, 394, 29 P. 70: "Every case of the kind here involved has its own peculiar features, and must be determined on the particular facts which surround the given transaction or transfer." We hold merely that the circumstances are not such that it can be said absolutely as a matter of law that there was an actual, open, visible, and unequivocal change of possession. The plaintiff was therefore entitled to the submission of the facts to the jury for their verdict under appropriate instructions as to the rules of law by which they should be guided.
The judgment in favor of the sheriff, Robert E. Clark, and his surety, National Surety Company, is affirmed; and that in favor of the defendants Bank of America and Lawrence Warehouse Company is reversed.
We concur: TYLER, P.J.; CASHIN, J.