George Urban et al., Appellants, v. Solomon G. Guthrie, et al., Respondents

George Urban et al., Appellants, v. Solomon G. Guthrie, et al., Respondents. (Submitted October 4, 1872 ; decided January term, 1873.) This action was brought to recover the possession of twenty-seven barrels of Prairie State flour, bought by plaintiff of John C. Cittel, a retail dealer of flour in Buffalo, October 1st, 1867. Defendant, Guthrie, received the flour in question of Cittel for storage, September 17, 1867, giving a warehouse receipt therefor. Cittel made his note for $2,000, payable to the order of defendant, Bucldand, which was indorsed by the latter and procured to be discounted for the accommodation of Cittel, with the warehouse receipt indorsed by Cittel attached as collateral. The receipt and note were outstanding October 13th, at the time plaintiff made demand of the flour of defendants. On the same day, after such demand, Buekland took up the note and receipt. On the 11th October, plaintiffs paid to Cittel’s clerk $502.25, balance of their indebtedness, in the presence of Buekland, and it was paid over by the clerk to Buekland upon over drafts. Urban, one of plaintiffs, testified that he stated at the time it was paid for Prairie State flour. Buekland testified he did not know for what it was paid by plaintiffs, and did not hear Urban; that he did not know Cittel was selling any flour covered by the receipt, and gave him no permission so to do. The court nonsuited the plaintiffs. Held, no error; that although plaintiffs were purchasers in good faith, there was nothing in the evidence to warrant the jury in finding that the flour was left under Cit-tel’s control, and that the receipt gave to the holder a superior title to the flour. (Chap. 326, Laws of 1858.) That the payment of the money for the flour in Buekland’s presence, and his receipt thereof from Cittel’s clerk, did not estop him from claiming under the receipt. That all plaintiff was entitled to, upon the conflicting evidence of Urban and Buekland, was to have the issue between them submitted to the jury, and not having requested such submission, it cannot be claimed as error upon this appeal that it was not submitted. Greene & Bryant for the appellants. Charles B. Guthrie & L. Le Clear for the respondents. [MAJORITY — Lott, Ch. C.,] Lott, Ch. C., reads for affirmance. All concur. Judgment affirmed.