The opinion
Swing, J.,
(charging jwry.) Upon a demurrer to the evidence we have already determined that this action is in the nature of an action of trover, to recover for a wrongful conversion of the property described in the warehouse receipts. It is therefore unnecessary to determine the negotiable properties of warehouse receipts. We may remark, however, that in the commercial sense of the term they are not negotiable *710 instruments. But it is the well settled law that they are assignable.
' In this view we are required to ascertain, therefore, what rights of property and possession vested in the assignee by the assignment of these warehouse receipts; but in doing this we shall not attempt a review of the numerous authorities cited by learned counsel, or perhaps the more difficult task of reconciling them, as the supreme court of the United States, in Gibson v. Stevens, 3 How. 399 , has declared the law upon this subject, and by this we are governed.
In that case McQueen & McKay had purchased of certain parties a quantity of pork and flour, which was then in the warehouse of the vendors, and had taken from them a written memorandum, of the sale, with a receipt for the money, and an engagement to deliver it in canal boats soon after the opening of canal navigation.
There was also a written guaranty that the articles should bear inspection. Afterwards McQueen & McKay, in cbnsidsideration of advancements made to them by a commission merchant, indorsed and delivered these papers to the merchant, and the question determined by the court was the legal effect of such indorsement and delivery.
Chief Justice Taney, in delivering the opinion of the court, says: “In the opinion of the court it transferred to him the legal title and constructive possession of the property; and the warehouseman, from the time of this transfer, became his bailee, and held the pork and flour for him; the delivery of the evidence of title and the orders indorsed upon them was equivalent to the'delivery of the property itself.”
The principle of that case applies to the assignment and delivery of warehouse receipts, and was so recognized by Judge Dillon in Harris v. Bradley, 2 Dillon, 285, and by Justice Miller, of the supreme court, in McNeil v. Hill, 1 Woolworth, 96 .
The legal title and constructive possession of the property being vested in the assignee of the warehouse receipts, he has the right to maintain an action for its conversion.
*711 if, therefore, the jury shall find from the evidence in the case that the warehouse receipts in controversy were assigned and delivered by Grant to the plaintiff in pledge as collateral security for any general indebtedness which then or might thereafter exist from Grant to the plaintiff, and said Grant was then indebted, or afterwards became indebted, upon the faith and credit of these papers to the plaintiff, and such indebtedness remains unpaid, and the defendant, without the knowledge and consent of the plaintiff, surrendered the lard to Grant, the plaintiff will be entitled to your verdict for the value of the property, not exceeding Uao ra-Humt of the indebtedness by Grant to the bank, vab ic tins the jury may add a sum equal to 6 per cent, m' v !; the first day of the term.
The defendant, haijvg w,. mvured to Grant these receipts, placed .it in his power in treat with the plaintiff upon the faith of them, and h.^ statement in them that the lard was to be delivered upon the order of Grant, upon the return of the rece’uti ./was a representation upon which the plaintiff liad a. iy/iiii to rely; and if, without the .return of such reeei/ri, w delivered this lard to Grant, it will not protect Inri, í o, has case.
Í' ibid jury find from the evidence in the case that all of th urehouse receipts in controversy were not pledged as ?y ii; ral collaterals for general indebtedness of Grant to the j/hintiff, but- were pledged as special collaterals to secure specific loans, and the loans for which they were pledged have all been paid, then your verdict will he in favor of the defendant; or, if a portion of them were so specifically pledged, the plaintiff would not be entitled to a recovery for those so pledged.
'Verdict for plaintiff in the sum of $8,955.20.