Statement of case.

John A. Mapes, for appellant. Plaintiff had no lien on the malt derived from the barley mentioned in the two receipts, except for his charges for malting those two specific lots. (Lenckhardt v. Cooper, 2 Hodg., 160; 3 Bing. N. C., 99; Houghton v. Mathews, 3 Bos. & P., 494; Rushforth v. Hatfield, 6 East, 528; 2 Kent's Com., 634, 636; Edward on Bailment, 308, 548; Schmidt v. Blood, 9 Wend., 268; Stemmen v. Wilkins, 7 Watts & Serg. [Pa.] R., 466; Scott v. Jester, 8 Eng. [Ark.] R., 437; Hale v. Barrett, 26 Ill., 195; Morgan v. Congdon, 4 N. Y., 552.) The contract, if an entirety, was effectually severed by plaintiff's issuing the two receipts for the two lots in question, by their transfer to defendants, and notice thereof to plaintiff before he delivered any of the other lots to Gordon & Son. (McCombie v. Spader, 1 Hun, 196; Lickbarrow v. Mason, 3 T. R., 63; Gibson v. Stevens, 8 How. [U. S.], R., 384; Spear v. Travis, 4 Camp., 251; Bunney v. Poyntz, 4 Barn. & Ad., 568; Bk. of Rochester v. Jones, 4 N. Y., 503, 507; Schmidt v. Blood, 9 Wend., 268; Stemmen v. Wilkins, 7 Watts & Ser., 466; Morgan v. Congdon, 4 N. Y., 552; Hale v. Barrett, 26 Ill., 195; Crawshay v. Homfray, 4 B. & Ald., 50; Kruger v. Wilcox, Ambl., 252.) By the delivery of the two lots of malt to defendants plaintiff relinquished his lien, and thenceforth his claim was limited to his special contract with defendants. (Cowell v. Simpson, 16 Ves. Jr., 280;. Walker v. Birch, 6 T. R., 258; Bk. of Rochester v. Jones, 4 N. Y., 497; Holly v. Hungerford, 8 Pick., 13; Baker v. Fuller, 21 id., 318; King v. Indian Co., 11 Cush., 231; Elliott v. Bradbury, 23 Vt., 217.) The lien on defendants malt furnished no consideration for any promise to pay for malting other barley. (Leonard v. Vredenburg, 8 J. R., 29; Danforth v. Pratt, 42 Me., 50; Mallory v. Gillett, 21 N. Y., 412, 414.)

Frank D. Harmon, for respondent. Where the language of a promissor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to

Opinion of the Court, per ALLEN, J.

suppose it was understood by the promisee. (Hoffman v. Etna F. Ins. Co., 32 N. Y., 413; Johnson v. Hathorn, 42 id., 132; Barlow v. Scott, 24 id., 40; Mowatt v. Ld. Londonsborough, 3 El. & Bl., 334; Potter v. Ont. Ins. Co., 5 Hill, 144.)

ALLEN, J. It is very doubtful whether the exceptions to the rulings and decisions of the court upon the trial, and in the submission of the case to the jury were so taken as to present any question for review upon this appeal. But without considering the sufficiency of the exceptions, we will examine the merits of the case so far as necessary to give judgment, as if the questions we consider were before us. The plaintiff, upon the assurance that Gordon & Son would furnish for malting 20,000 bushels of barley, agreed to malt the same at a reduced price, and the several parcels or lots of barley were delivered to be malted, under that agreement. A part of the malt was delivered to Gordon & Son, who made a payment of $1,000 on the general account, and not for the malting of any specific parcel. It did not pay the charges on all the malt delivered to them.

As between the plaintiff and Gordon & Son, a claim by the former of a lien upon the malt remaining in his possession for the balance due him for malting and storing the entire quantity of barley would have been, at least, plausible. The plaintiff would have had a colorable claim to his lien for a general balance, and it is not necessary to determine whether it would have been certainly sustained at law. (McFarland v. Wheeler, 26 Wend., 467.) The same claim and color of title would have attached to the malt upon its sale to a stranger while in possession of the plaintiff, except the transfer had been effected by an indorsement of a negotiable ware house or storage receipt, and in that case whatever rights or equities, by way of lien or otherwise, the plaintiff had to the barley or its products, would have continued, except as against an indorsee in good faith and for value. The bona fides and consideration of any such transfer, if challenged, would be the subject of investigation.

Opinion of the Court, per ALLEN, J.

Negotiable warehouse receipts were issued to Gordon & Son by the plaintiff for two lots or parcels of the barley to be manufactured into malt, and the product thereof deliverable to their order, on payment of the charges accrued thereon." Upon the negotiation and indorsement for value of these receipts to a third person having no notice of any general lien, the indorsee would doubtless acquire a valid title to the malt, subject only to the payment of the charges thereon. The malt in the hands of an innocent indorsee of the receipts for value would have been severed from the residue of the malt, and discharged of any general lien. The defendants became the indorsees of these two receipts, not upon a purchase of the barley or the product, but as I infer either as pledgees or as factors of Gordon & Son for sale, and made an advance to Gordon & Son upon them, and as one of the defendants testified, to the full value, and what proved to be afterwards more than the value. I do not understand that the defendants became the owners of the property but they were, nevertheless transferees for value to the amount of their advances, and had all the rights of purchasers to that extent. The amount of the advances does not appear, and it does not appear that the plaintiff at any time had notice of the amount, or of the particular relations between Gordon & Son and the defendants. He was told by Gordon that the defendants would pay the balance due upon the account for malting all the barley, and the defendants by their actions gave color to the truth of this statement.

After the failure in business of Gordon & Son, and when the defendants sought to remove the malt, the plaintiff aserted a lien upon all the malt then in his possession, including the product of the barley mentioned in the two receipts for the general balance due him, and the defendants had knowledge of the claim, and that the plaintiff refused to deliver any part of the malt, except upon the payment of that balance, or the assumption thereof by the defendants. All the negotiations, correspondence, and promises were had and made upon the basis of this claim, and with reference to

Opinion of the Court, per ALLEN, J.

it, and all acts and declarations of the parties must be interpreted in view of the claim as made, and the relation of the parties in respect to it.

When the defendants sent to sample the malt they also requested a statement of the charges on each of the parcels or lots of barley specified in the receipts held by them, and a memorandum of the amount was given them in pencil, the plaintiff's clerk at the same time saying to the defendants' messenger that, although that was the amount of the charges on those two lots, the plaintiff held the malt subject to additional charges, and this was communicated to the defendants, with the amount of the additional claim, as is proved by Mr. Husted, one of the defendants. Subsquently the measurer, sent by the defendants with an order for the delivery of the malt, was told that it could not be delivered until the plaintiff had some guarantee from the defendants that they would pay the charges, and the claim was specifically made by a letter from the plaintiff to the defendants of the 28th June, 1873, stating that he was ready to deliver the malt, but would like to have the storehouse receipts returned, and to "know that you (the defendants) guarantee the claim I have against the malt." The defendants could not have understood this as meaning anything less than the balance due for malting all the barley of Gordon & Son. This had been the claim distinctly made and assigned, as the reason for non-delivery, until the assurance was given. The defendants had made advances on the barley mentioned in the receipts, subject to the charges thereon, and would have been liable for such charges without an express promise. The defendants knew that the plaintiff's only purpose in withholding the delivery was in respect to charges for malting barley other than that covered by the receipts. To this the defendants replied, in writing, the same day, returning the receipt for the parcel then called for, and saying, "of course, we consider ourselves bound for the payment of the charges on this malt." The answer was equivocal; but the plaintiff had reason to believe that the defendants complied with his

Opinion of the Court, per Allen, J.

demand, and that the promise was as broad as his claim. "This barley" may be construed as restricted to the barley mentioned in the particular receipt returned; but it is capa ble of being understood in a more enlarged sense, and as covering all the barley malted for Gordon & Son, and for which the plaintiff claimed a lien on the malt still in his pos session; and such should be its meaning when viewed in the light of the circumstances, and in connection with the note to which it was a reply. It was so understood and acted upon by the plaintiff, and the defendants intended that it should be so understood. Up to this time there had been no denial by the defendants of the lien of the plaintiff, as claimed, or their liability to pay the full claim, and when this reply, assenting as "of course," to the requirements of the plaintiff was received, it would have been an imputation upon the good faith of the defendants had the plaintiff criticised the phraseology of the informal note, and required a more formal or technical acknowledgment. If the words of the promise may have been used in an enlarged or restricted sense, they will, in the absence of circumstances calling for a different interpretation, be construed in the sense most beneficial to the promisee. (Hoffman v. Etna Fire Ins. Co., 32 N. Y., 405.)

The rule in ethics is, that "when the terms of a promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it," and this is the established rule at law, as well as in morals. In the language of the books, it is to be interpeted in the sense in which the promisor had reason to suppose it was understood by the promisee. (Hoffman v. Etna F. Ins. Co., supra; Johnson v. Hathorn, 2 Abb. Ct. of App. Dec., 465; Barlow v. Scott, 24 N. Y., 40; Mowatt v. Lord Londesborough, 3 E. & B., 307; Potter v. Ontario Ins. Co., 5 Hill, 147.) Perhaps it would have been within the province of the court to have interpreted the letter of the defendants in the light of surrounding circumstances, and the application of the rule.