b. Delivery of particular goods. As to what goods the purchaser is entitled to have delivered to him by the warehouseman on presentation of the receipt, it was held in Millhiser Mfg. Co. v. Gallego Mills Co. (1903) 101 Va. 579, 44 S. E. 760, that he was entitled to the property described in the receipt, or its value. See also Whitlock v. Hay (1874) 58 N. Y. 484. And it has been held that the purchaser is entitled to delivery of the identical goods originally deposited, and for which the receipt was issued, regardless of the description in the receipt, or of custom and usage. Citizens & S. Bank v. Union Warehouse & Compress Co. (1924) 157 Ga. 434, 122 S. E. 327, (1924) 32 Ga. App. 85, 122 S. E. 652; Robson v. Swart (1869) 14 Minn. 371, Gil. 287, 100 Am. Dec. 238. In Citizens & S. Bank v. Union Warehouse & Compress Co. (Ga.) supra, it appeared that the plaintiff had purchased certain warehouse receipts for baled cotton, in the belief that each bale would be of certain weight, as governed by the general custom and usage. On demanding delivery of the defendant warehouseman the plaintiff found that the bales were not of the customary weight, and thereupon brought suit to recover the difference between the actual value and the value they would have had, if conforming to the customary weight and grade. The court denied the plaintiff a recovery, holding that the warehouseman obligated himself only to deliver the articles stored in his warehouse, and, in the absence of misrepresentation in the receipts, the purchaser of the receipts could expect no more than that, irrespective of custom and usage. In Robson v. Swart (Minn.) supra, it appeared that the defendant, a warehouseman, stored wheat, and issued receipts therefor which finally came into the hands of the plaintiff by purchase. The plaintiff, claiming that the warehouseman refuse to deliver to him the quality of wheat described in the receipts, brought suit against him for conversion. It was held that the defendant, having stored separately the wheat which had been received by him, and having offered to deliver the same wheat to the purchaser who had tendered the receipts and storage charges, was not guilty of conversion, and was not estopped by the receipts from showing that he was entitled to discharge his contract by returning the same wheat which he had received. c. Delivery free from claim of ware. houseman. It appears that ordinarily the purchaser is entitled to the goods for which the receipt was issued, free from the warehouseman's claims against the original depositor, either for the purchase price, or for storage charges. Winston v. Moseley (1829) 2 Stew. (Ala.) 137; Collins v. Rosenham (1897) 19 Ky. L. Rep. 1445, 43 S. W. 726; Shingleur-Johnson & Co. v. Canton Cotton Warehouse Co. (1901) 78 Miss. 875, 84 Am. St. Rep. 655, 29 So. 770. Winston v. Moseley (Ala.) supra, was an action in assumpsit on a warehouse receipt, purchased in good faith by the plaintiff from the depositor of certain cotton in the defendant's warehouse. On the defendant's attempt to interpose a set-off on account of a claim he had against the original depositor, the court said: "It does not appear that the plaintiff had notice, before the transfer to him of the cotton receipt, of the claim of the defendant to any set-off. According to mercantile law, the indorsee of a bill, indorsed before due, receives it on its own intrinsic credit. It is immaterial to him what may have been the state of accounts between his indorser and any of the other parties to it. If he is not cognizant of them, he takes it devested of all right of discount or set-off which it was subject to in the hands of his indorser." In Collins v. Rosenham (1897) 19 Ky. L. Rep. 1445, 43 S. W. 726, it appeared that the defendants, whisky dealers and warehousemen, sold several barrels of whisky for which they issued warehouse receipts to the purchaser. The original purchaser sold the whisky to the plaintiff, delivering the receipts to him. The plaintiff presented the receipts, with money for storage charges and taxes, to the de fendants, and demanded delivery of the whisky. The defendants refused to deliver the whisky unless the plaintiff would also pay the purchase price for which it had been sold to the original purchaser, whereupon the plaintiff brought an action for conversion. The court held that a warehouse receipt was valid in the hands of an innocent purchaser for value, and the innocent purchaser could not be charged with the liabilities of the original purchaser or bailor, the warehouseman being liable to the innocent purchaser. Shingleur-Johnson & Co. v. Canton Cotton Warehouse Co. (1901) 78 Miss. 875, 84 Am. St. Rep. 655, 29 So. 770, was an action in replevin by a purchaser of warehouse receipts against a warehouseman, for several bales of cotton which the warehouseman had refused to deliver, although the rereceipts were presented and the storage charges were offered. It appeared that the warehouseman claimed a lien on the cotton for storage charges due on other cotton, since delivered to the plaintiff. The court held that the plaintiff could recover the cotton, the lien being a commonlaw lien attaching to each article, and lost when that article was parted with by the warehouseman. But where the terms of the receipt are such as to put the purchaser on notice that there are other charges besides the usual storage charges, he cannot obtain the goods for which the receipts were issued without paying those charges. Merchants & M. Bank v. Hewitt (1856) 3 Iowa, 93, 66 Am. Dec. 49; Stein v. Rheinstrom (1891) 47 Minn. 476, 50 N. W. 827; Security Bank v. Minneapolis, Cold Storage Co. (1893) 55 Minn. 107, 56 N. W. 582. In Stein v. Rheinstrom (1891) 47 Minn. 476, 50 N. W. 827, it appeared that the plaintiff was the purchaser of certain receipts in which the warehouseman agreed to deliver a certain amount of whisky on return of the receipts any "payment of the whisky, the U. S. government and state tax, interest, and charges." When the plaintiff presented the receipts and demanded delivery, the warehouseman refused to deliver until the purchase price of the whisky had been paid him. The plaintiff brought suit to recover the value of the whisky, alleging that he was a bona fide purchaser and could not be charged with a claim against the depositor. The court held that he was put on notice by the terms of the receipts that there was an infirmity which would affect him, and that he was not entitled to the whisky until he paid the purchase price. See also Security Bank v. Minneapolis Cold Storage Co. (Minn.) supra. d. Delivery free from secret agreement between warehouseman and depositor. A warehouseman cannot defeat the right of an innocent purchaser to have delivery, by the terms of any secret agreement between the warehouseman and the depositor. McNeill v. Hill (1865) Woolw. 96, Fed. Cas. No. 8,914; National Union Bank V. Shearer (1909) 225 Pa. 470, 74 Atl. 351, 17 Ann. Cas. 664. In McNeil v. Hill (Fed.) supra, it appeared that the defendants had issued to Upham & Company, a receipt for 800 bushels of wheat, as security for a loan. Upham & Company, sold the receipt to the plaintiffs, who presented it to the defendants, demanding delivery of the wheat described therein. On the refusal of the defendants to make delivery, the plaintiffs brought an action for damages. The court held that the transaction between the original parties could not affect the purchasers of the receipt in good faith, and that, having made certain statements and promises in the receipt, the warehouseman was thereby estopped to deny that he had the articles mentioned therein, as against purchasers of the receipt in good faith. ASYLUM OF ST. VINCENT DE PAUL V. EDWARD J. MCGUIRE, Trustee, etc., of Lewis H. Amy et al., Copartners, Doing Business as H. Amy & Company et al. and KATHERINE SPENCER CRAMER, Exrx., etc., of Kate Spencer, Deceased, et al. Contribution, § 1 between owners of stock wrongfully pledged. 1. Where the stock of different owners is wrongfully pledged by brokers as security for their own debts, those whose stock is not actually sold for satisfaction of the debt must contribute to the loss of those whose stock was so sold, although there was no original relationship between the different owners, and the pledge of each lot of securities was a separate and distinct transaction. [See note on this question beginning on page 1219.] CROSS APPEALS from a judgment of the Appellate Division of the Supreme Court, First Department, reversing a judgment of a Special Term for New York County in favor of certain defendants in an action brought to determine the rights of the parties to certain cash and securities; defendants Cramer et al. appealing from so much of the judgment as imposed a lien for contribution upon certain securities, and plaintiff appealing from so much of the judgment as disallowed its claim to a prior lien on any fund. Affirmed. The facts are stated in the opinion Messrs. A. L. Humes and B. L. Stowell, with Messrs. Humes, Buck, Smith, & Tweed, for defendant Cramer: The owners of wrongfully pledged (stolen) securities which did not survive the pledge, and consequently were not recovered from the thieves, are not entitled to contribution from those whose securities survived and were recovered from the thieves. Newton v. Porter, 69 N. Y. 133, 25 Am. Rep. 152; Knox v. Eden Musee of the court. American Co. 148 N. Y. 441, 31 L.R.A. 779, 51 Am. St. Rep. 700, 42 N. W. 988; Iowa Securities Corp. v. Ridgewood Nat. Bank, 106 Misc. 335, 175 N. Y. Supp. 776; Tompkins v. Morton Trust Co. 91 App. Div. 274, 86 N. Y. Supp. 520, affirmed in 181 N. Y. 578, 74 N. E. 1126; Thomas v. Taggart, 209 U. S. 385, 52 L. ed. 845, 28 Sup. Ct. Rep. 519; Re McIntyre (Pippey's Case) 104 C. C. A. 419, 181 Fed. 955; Re McIntyre (Loeser's Case) 110 C. C. A. 610, 189 Fed. 46; Johnson v. Bixby, 1 A.L.R. (239 N. Y. 375, 146 N. E. 632.) 660, 164 C. C. A. 215, 252 Fed. 103; Re Mills, 125 App. Div. 730, 110 N. Y. Supp. 314, affirmed in 193 N. Y. 626, 86 N. E. 1128; Gouert v. Mechanics & Metals Nat. Bank, 176 App. Div. 507, 163 N. Y. Supp. 311. The trial court and the appellate division were right in denying the plaintiff's claim to a prior equitable lien on the fund. Manhattan Sav. Inst. v. New York Nat. Bank, 42 App. Div. 147, 59 N. Y. Supp. 51; Knox v. Eden Musee Amėrican Co. 148 N. Y. 441, 31 L.R.A. 779, 51 Am. St. Rep. 700, 42 N. W. 988. Messrs. William Campbell Armstrong and Beckman, Menken, & Griscom for defendants Monneron et al. Messrs. William F. Unger and Samuel Rubin for plaintiff. Messrs. Edward J. McGuire and James F. McNaboe for defendant McGuire. Hiscock, Ch. J., delivered the opinion of the court: The important and controlling question on this appeal is the one whether an owner of securities criminally but effectively pledged by a depositary for his own debt, and which have survived sales by the pledgee to satisfy the debt, must make contribution to another owner of securities similarly pledged, but which have been sold to pay the common debt. Plaintiff was the owner of bonds of the par value of $64,000. One Amy was its treasurer, and he was also a member of the firm of H. Amy & Company, stockbrokers. He pledged plaintiff's securities, which had come into his possession as such treasurer, with the Chase National Bank as security for a firm loan of $250,000. The appellant Cramer and one Spencer, of whom the former is executrix, and the appellants Monneron & Guye, each owned securities which had been left with the said firm of Amy & Company for safe-keeping, and said firm also pledged these securities with said bank as security for the same loan. The securities of other individuals who are parties to this action were also wrongfully pledged by said firm with said bank, but they are not present either as appellants or re spondents on this appeal. It is found and conceded that in each case the pledge of these securities with the bank amounted to larceny, but that the bank, acting in good faith, acquired a lien as security for its loan. The firm of Amy & Company became insolvent. It made an assignment March 5, 1919, and the respondent McGuire was appointed its trustee in bankruptcy June 9, 1919, on a petition filed March 19, 1919. On March 13, 1919, the bank sold a large portion of securities pledged with it, including most of those above referred to, in order to secure payment of its loan, and realizing from the sale sufficient for that purpose. Among the securities which it sold were 100 shares of Western Union stock belonging to the appellant Cramer's testatrix, Mrs. Spencer, and from which sale there was realized the sum of $8,885.50. the day of the sale, however, Mrs. Spencer notified the bank of her rights in respect of this stock, and, as found by the trial court, the bank did not apply said proceeds to the liquidation of its debt, but put the same in the form of a cashier's check, which it is still holding to abide the judgment of the court. On Out of all of these transactions the result has come that the bank realized a small amount of money in excess of the amount of its indebtedness which has been turned over to the trustee in bankruptcy, and that there are still on hand in the possession of the bank, or of the trustee, the proceeds of the Western Union stock, and securities belonging to each of the appellants, and also other individuals similarly situated, who are not parties to this appeal. Under these circumstances, the appellate division, reversing the judgment of the trial court, held that all of the securities of the appellants, both plaintiff and defendants, and of other individuals similarly situated, which had been larcenously pledged with the bank, but had survived the sale by the latter of pledged securities, should be sold; that to the fund thus produced there should be added any surplus cash in the hands of the bank or of the trustee in bankruptcy, including the proceeds of dividends, coupons, etc., and also the proceeds of the Western Union stock hereinbefore referred to; that the parties whose securities were thus sold, or which had been sold by the bank, should, after the payment of certain expenses and costs, have a lien upon said fund for reimbursement for the value of their securities which had been sold in either way, in the proportion in the judgment specified. This judgment thus results in imposing upon the securities surviving sales by the pledgee a lien for contribution in favor of those whose securities were sold by the pledgee, and there is no question about the method or proportion of contribution which has been adjudged, if such contribution is proper. As the result of this judgment several questions are argued upon the appeal, but we find it necessary to consider only two. The plaintiff contends that, if the doctrine of contribution is to prevail, its equities are greater than those of the other appellants, because its securities were wrongfully turned into the possession of the firm of Amy & Company by one of its members, who, as treasurer of plaintiff, had possession of such securities, whereas the other owners voluntarily deposited their securities with said firm, although only for safe-keeping, and not as security for the payment of any indebtedness, and that, therefore, it ought to have a prior lien on any fund. We do not agree with this claim. From an ethical or moral standpoint, perhaps, it might be said that plaintiff was the victim of a greater breach of trust when its treasurer put its securities in the way of being criminally pledged with the bank, than the other parties who had voluntarily deposited their securities with Brokersinsolvencypriority in converted assets. the stockbrokers for safe-keeping. From a legal or equitable standpoint, however, we do not think that this difference in circumstances can be made the basis of any differentiation in the rights of the different parties. In each case the owner of the securities has suffered from the criminal act of the stockbrokers in wrongfully pledging securities with the bank. That is the basis for the claim for equitable relief, and in each case it is the same, and leads to the same rights. This brings us to the main question of contribution, and we think that the views entertained by the appellate division are the correct ones. While the acts of the brokers in pledging these securities were larcenous as to the owners, nevertheless the acts were effective and binding in favor of the pledgee, which secured a valid lien thereon for the payment of its indebtedness, and the securities thus became subject to a common burden. Thus, the final result, which becomes the basis of our action, was that by the action of those having possession thereof, as governed by the law applicable to a bona fide pledgee, the respective securities of all of these owners were validly pledged for the payment of the same debt. All of them were brought into precisely the same situation, and their respective securities had become subjected to a common burden. In our opinion it between owners makes no difference of stock wrongfully pledged. here that the process which ended in this result commenced with a criminal act, or that there was no original relationship between the different owners, and that the pledge of each lot of securities was a separate and distinct transaction. Armitage v. Pulver, 37 N. Y. 494; Robinson v. Boyd, 60 Ohio St. 57, 67, 53 N. E. 494; Chaffee v. Jones, 19 Pick. 260. The controlling circumstances are that, even though by wrongful and separate routes, the different lots of securities, through the acts of a common pledgeor, reached the same des Contribution |