James C. Taylor, Respondent, v. Jeremiah V. Spader, Appellant

James C. Taylor, Respondent, v. Jeremiah V. Spader, Appellant. (Argued September 21, 1871; decided January term, 1872.) Action to recover damages for the conversion of 100 barrels of flour deposited with defendant, a warehouseman in the city of New York, by one Walter S. Hicks, who took a warehouse receipt therefor, acknowledging the receipt of the flour, on account of and subject to the order of S. F. Taylor, plaintiff's agent, who assigned and transferred the receipt to plaintiff. Defendant refused to deliver the flour on demand. Subsequently John W. Padden commenced an action of replevin against Hicks and defendant, claiming that Hicks had purchased the flour of him fraudulently. The sheriff took the flour, but redelivered the same to defendant, upon his giving security. That action was pending at the time of the commencement of the present one. The defendant herein set up, in his answer, the claim of Padden and the pendency of the replevin suit. Padden then commenced an action against plaintiff, claiming title to the flour and praying that the warehouse receipt be canceled, and plaintiff be restrained from prosecuting this action. Plaintiff set up his title in his answer; that action was tried and resulted in favor of plaintiff (the defendant therein). The judgment was sustained upon appeal. (44 N. Y., 371.) Padden indemnified the defendant in this action, and assumed and conducted the defense. Held, that the judgment in the case of Padden v. Taylor, was conclusive upon the defendant herein. Also, held, that defendant, not having based his refusel to deliver up the property upon the ground that the warehouse charges were not paid, and not having placed his defense upon that ground, could not avail himself of that objection upon trial. F. N. Bangs for the appellant. L. A. Fuller for the respondent. [MAJORITY] Earl and Leonard, CC., read for affirmance. All concur. Judgment affirmed, with costs.