
    AMANDA McN. STARR, Appellant, v. SAMUEL K. WINEGAR, Respondent.
    
      Confusion of goods—meamre of damages.
    
    In the case of a confusion of goods by act of defendant, when the action is for damages, they are to be given to the utmost value the article will bear.
    Where the defendant had mingled plaintiff’s wheat with his own, held, that he was bound to prove the true quantity belonging to the plaintiff, or stand the loss or risk of mistake in the calculation of the jury, resulting from such confusion.
    In cases where an express agreement is proved, it is not admissible for a jury to imply an agreement of the same nature and effect.
    
      Appeal from a judgment in favor of defendant.
    The action is in the nature of a trespass for the wrongful taking and conveying away and converting to his own use 1,000 bushels of wheat by the defendant, to the plaintiff’s damage of $2,000, as stated,, in the complaint. The cause was tried at the Livingston Circuit, in January, 1873, where a verdict was rendered for the defendant.
    It was proven that the plaintiff was the owner of certain premises in Livingston county, which, on the 30th of January, 1868, she leased to the defendant for one year from April 1st, 1868, with privilege of three, and he kept it three.
    His lease expired, and after its expiration he entered upon her premises, and harvested wheat from twenty-four or twenty-five acres, carried it away, threshed it, and mingled it with his own.
    The defendant claimed that he was entitled to a portion of the wheat that grew on fifteen or sixteen acres of the twenty-four or twenty-five, by virtue of an arrangement with the plaintiff, and that he rented or took the rest of the land on which the wheat grew under an agreement with the plaintiff, by which he was to pay seven dollars per acre for its use.
    The counsel for the plaintiff asked the judge to charge, that if the jury came to the conclusion that there was a contract by which Mr. Winegar was to have the privilege of putting in such an amount of wheat as was equivalent to what was on the ground when he took possession, and no agreement for the residuum, if Mr. Winegar has mingled the two," he must submit to any amount the jury may find. The court declined so to charge, and the counsel for the plaintiff duly excepted.
    The plaintiff’s counsel also excepted to that portion of the judge’s charge which allowed the jury to find the existencé of an implied agreement in this case. Plaintiff moved at Special Term for a new trial upon a case and exceptions, which was denied.
    
      G. F. Da/nforth, for the appellant.
    
      A. M. Bwigham, for the respondent.
   E. Darwin Smith, J.:

The chief exception discussed in this case was taken to .the ^ refusa^pf the circuit judge to accede to the request made by the defendant’s counsel at the close of the trial, to charge that if the jury came to the conclusion that there was a contract by which the defendant was to have the privilege of putting in a certain amount of wheat as was equivalent to what was on the ground when he took possession, and no agreement for the residue, if Winegar had mingled the two, he must submit to any amount the jury might find.” The argument of counsel in support of this request, is, that although the jury might find that there was an agreement between the parties, that the defendant should sow to wheat, as much land before the termination of his lease, and harvest it afterward, as had been sown before the commencement of his lease, and afterward harvested by the plaintiff, yet, as this agreement did not apply to all the wheat sown and harvested by the defendant, that the plaintiff was entitled to recover for all the residue taken off, in case the jury should find that it was not sown and taken off under a new and independent agreement, as claimed by defendant. The action was brought for the entire quantity of 1,000 bushels of wheat. The plaintiff had demanded payment for the whole crop of wheat taken off by the defendant, without distinguishing between any parcels, and denied on the trial and contested the defendant’s right to take off any of such wheat. The circuit judge held, in effect, that there was no basis in the evidence, to distinguish between the two parcels of wheat taken off by the defendant under the two contracts set up by him in his defense, and the plaintiff must consequently recover for all or none. It seems to me that this is a mistaken view of the evidence, and of the law applicable thereto. The defendant claimed to sow, under the agreement first made with the plaintiff, fifteen or sixteen acres of wheat, in lieu of the same quantity sown before he took his lease, and that all the land sown to wheat above said fifteen acres, he had rented at seven dollars per acre. The fields of wheat sown and harvested by the defendant, amounted to twenty-four or twenty-five acres. For all the wheat taken off these fields, except the fifteen acres, the defendant had no claim or title, unless he established such new and independent agreement therefor, to pay rent for said land at seven dollars per acre. The wheat taken off the land by the defendant, was all mingled by him, and he could not tell how much came from the fifteen acres, or any particular fifteen acres of said land, or how much from the residue; but he could not deprive the plaintiff of the right to recover for the wheat grown, on nine or ten acres of the rented land, because he had mingled it with his own. That was his fault, if he had no title to such wheat, and the request of the defendant’s counsel, in this view, was a sound and proper request.

The jury had several elements of evidence or data, upon which they could have apportioned the wheat, and determined how much damages the plaintiff was entitled to recover, provided they found that the defendant had established no agreement to sow more than fifteen acres. They had the quantity of land sown with the wheat, the quantity threshed at the barn, which the defendant said was 620 or 630 bushels, and evidence besides, that four loads were drawn away unthreshed, and that these loads would average twelve or fifteen shocks to a load, and a bushel to a shock. The defendant said also, that there were about 500 bushels in all after it was cleaned, and the value was two dollars a bushel. From these data I have no doubt, assuming that the defendant was entitled to the wheat growing on fifteen or sixteen acres, and no more, that a jury of farmers in Livingston county, where this cause was tried, would very soon have determined how much the plaintiff was entitled to recover for the wheat grown on the remaining eight or nine acres, if the plaintiff was entitled to recover for such wheat. But if there was any uncertainty in respect to the quantity for which the plaintiff was entitled to recover upon this assumption, the defendant, having caused such uncertainty by mingling the plaintiff’s wheat with his own, was bound to prove the true quantity belonging to the plaintiff j or stand the loss or the risk of mistake in the calculation of the jury resulting from such confusion of the wheat. And this was, in substance, the proposition which the counsel for the plaintiff requested the judge to submit to the jury, and the same was so understood and construed by him in his opinion denying the motion for a new trial. The rule in respect to the confusion of goods assumed in the request, is so stated by Chancellor Kent, in Rcurt v. Ten Eyck, and the same rule is asserted in Lupton v. White, and when the action is for damages, the damages are to be given to the utmost value the article will bear, In that case Judge Rtjggles, cites with approval the case of Bullock v. Dibler, where the plaintiff had mixed his own hay with the defendant’s, and the latter had taken and carried away all the hay thus intermixed. It was held that, the plaintiff having intermixed the hay, the defendant should not he guilty for any part of the hay, for by the inter-mixture, he should not be prejudiced in taking the hay.”

The exception to that part of the charge which instructed the jury that they might find an implied agreement in respect to the sowing, reaping and taking away either part of the said wheat, I think was also well taken. In the absence of -any express agreement, claimed or proved, in many cases an agreement may be implied from circumstances, as stated by the judge, but, as in this case, where an express agreement was claimed and proved, it can hardly be admissible or strictly correct for a jury to imply an agreement of the same nature and effect. The proof in this case, upon which the jury were advised they might imply an agreement, was all properly received, and admissible as corroborative of the defenddant’s testimony, asserting and tending to establish an express agreement. The defendant had testified positively to an express agreement made between him and the plaintiff, in respect to the sowing of the two parcels of land, and, if the jury would not believe him on this point with the evidence so given in corroboration of his testimony, I cannot see upon what principle on such evidence separately considered, or otherwise, they could imply an agreement of the same nature, and to the same effect. Ho error I think, was committed in the ruling, in respect to the other exceptions stated in the case.

The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed, and new trial granted, costs to abide event. 
      
       2 Johns. Chy., 108.
     
      
       15 Vesey, 440.
     
      
      
         Armory v. Delamirie, 1 Strange, 505; Rockwell v. Saunders, 19 Barb., 473, charge of Cady, J.; Silsbury v. McCoon, 3 N. Y., 389.
     
      
      Popham, 38.
     