
    James & Neer v. Plank Ex’r.
    
      Bailment — Sale—Warehousemen—Custom—Contracts—Arrest of case from jury — When error.
    
    Action to recover value of wheat sold and delivered. Defense, that the wheat was not purchased but was taken in store at owner’s risk, and that, without, fault of defendant, it was destroyed by fire. Held:
    
    1. Where wheat is delivered to one engaged in buying and selling grain, and a receipt is given by the dealer’s agent, as each load is delivered,, acknowledging receipt of the wheat, and directing the holder to “ present this at office,” the law, in the absence of an express contract, will presume a contract of sale rather than of bailment.
    2. But where it is shown that the receiptor is a warehouseman whose business is, and for many years has been, to receive grain in store for others as well as to buy and sell, such presumption does not arise, and other circumstances must be shown in order to ascertain the real character of the transaction.
    3. And if, in such case, a custom among warehousemen doing business in the vicinity be shown to have prevailed for so long a time and to have become so well known as to warrant the conclusion that the depositor was acquainted with it, to the effect that in the absence of an express contract of sale, wheat deposited was to be mingled with like wheat owned by the warehouseman, and to be understood and treated as in store for the depositor, the warehouseman to have the right to take from the common mass only upon the condition that he at all times should keep on hand an amount sufficient to satisfy all depositors, each depositor having the option, on presentation of his receipts at the office, to either take pay for the wheat at the current market price, or, in case he desired to continue the storage, accept another receipt therefor fixing the terms upon which further storage should be had, the presumption of law would be that the transaction was a bailment, and not a sale.
    4. If, in such case, proof is given at the trial, tending to show the existence of such custom, and knowledge of it by the depositor at the time of so depositing the wheat, and tending to show that the warehouseman at all times prior to the fire retained in store sufficient wheat to satisfy all depositors, a case is made entitling the parties to have the questions of fact determined by the jury, and it is error for the trial court to arrest the case from the jury and direct a verdict for the plaintiff.
    (Decided March 31, 1891.)
    
      Error to the Circuit Court of Logan county.
    The defendant in error brought his action in the Court of Common Pleas of Logan county to recover the value of a quantity of wheat, which, in his petition, he alleged was sold by him as executor, on or about the 18th day of August, 1886, to the plaintiffs in error, who were partners in trade engaged in the business of purchasing, shipping and selling wheat.
    Issue was joined by answer and reply. The principal question to be determined was whether the delivery of the wheat by Plank was a sale or a bailment, the claim of the defendant below being that the transaction was a bailment, and that the wheat was, on the 26th day of August following, without fault on their part, burned except a small portion, of the value of $36.16, which amount had been tendered.
    At the conclusion of the evidence the court instructed the jury that under the undisputed facts the plaintiff was entitled to recover the value of the wheat at the time of delivery, with interest, and a verdict for the plaintiff was found accordingly. Judgment was rendered upon the verdict, which was affirmed by the circuit court, and to reverse these judgments this proceeding in error is brought.
    
      Keifer Keifer, for plaintiffs in error.
    I. Assuming that the answer sets up a good defense, and is supported by testimony as to its substantive averments, the common pleas court erred in its direction to the jury. If there was any evidence tending to prove James & Neer’s case, the charge of the court was erroneous. Dick v. Railroad Company, 38 Ohio St. 389; Whelan v. Kinsley, 26 Ohio St. 131; Turner v. Turner, 17 Ohio St. 449; Richardson v. Curtiss, 33 Ohio St. 339.
    II. Ignoring the question of custom, set out in the answer and proved on the trial, we confidently claim that the transaction of delivering the wheat at the warehouse, commingling it with other wheat of like kind therein, without any agreement to sell, and receiving weigher’s receipts therefor, of the character taken, create a bailment, and not a sale. Inglebright v. Hammond, 19 Ohio, 337, 346; 6 Am. Law Rev., pages 467, 469; 24 Am. Dec., 143, 155; Story on Agency, 229; Chase v. Washburn, 1 Ohio St. 244; 2 Kent’s Commentaries, 13th ed., 365, and notes; 590 and notes ; 2 Parsons on Contracts, 137; Cushing v. Breed, 14 Allen 376, 380; Young v. Miles, 20 Wis. 615; Mowry v. White, 21 Wis. 417; Young v. Miles, 23 Wis. 643; Stearns v. Raymond, 26 Wis. 74; Newton v. Howe, 29 Wis. 531; Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 N. Y. 118; M. & M. Bank v. Hibbard, 48 Mich. 118; Ledyard v. Hibbard, 48 Mich. 421; Nelson v. Brown, 44 Iowa, 455; Irons v. Kentner, 51 Iowa, 88; Arthur v. C., R. I. & P. Railway, 61 Iowa, 648; Sexton & Abbott v. Graham, 53 Iowa, 181; Odell, assignee, v. Leyda, 46 Ohio St. 244; Benjamin on Sales, sec. 1; Wells on Replevin, secs. 3, 203, 205.
    III. If the transaction, as it appears by the weigher’s receipt and otherwise, does not alone show the bailment of the grain, then the evidence of custom or usage would make the delivery of the grain a bailment. An established custom has the force of law. 2 Disney, 482; Steel Works v. Dewey, 37 Ohio St. 242; 15 Ohio St. 571; Foster v. Robinson, 6 Ohio St. 90; Steel Works v. Dewey, 87 Ohio St. 242; Newhall v. Langdon, 39 Ohio St. 87; Lowe v. Lehman, 15 Ohio St. 179; Rodgers v. Woodruff, 23 Ohio St. 632; 11 Ohio, 364, 367; Irons v. Kentner, 51 Iowa, 91; 77 Ills., 305; 87 Ills., 556.
    
      West, Brown West, for defendant in error.
    In the case at bar, the warehouse receipts contain no suggestion of storage, bailment or risk. And nothing whatever was said by either of the parties in regard thereto. It was the delivery by the executor in’the regular course of trade of a quantity, of wheat to parties engaged in the business of buying, shipping and selling grain, and in no other business whatever. It must, therefore, be held to have been received by them in their regular course of business as merchants so engaged for the purpose of their trade, and therefore constituted a sale to them, unless .the circumstances showed the contrary. Plaintiffs in error seek to avoid this by evidence of local custom, contending that by such custom the wheat when delivered was a mere bailment, and continued to be the property of the executor until he should present the weigher’s receipt and demand payment therefor; that he had the option either to demand payment, or a return of the wheat, or demand and receive a regular storage certificate in the terms before set out, and that until he demanded payment, or a regular storage receipt, or a return of the wheat, the’bailment was at his risk. Custom is the growth of usage continuously practised for a long period. 1 Bouvier’s Die., 359; Inglebright v. Hammond, 19 Ohio, 337.
    Again, the claim that the holder of such weigher’s receipts had the customary right to surrender it at pleasure and demand and have a regular storage certificate, is unsupported. Eveiy such storage certificate was a special contract or agreement between the parties. It specially stipulated the length of time the grain might remain in store free of charge; that it should remain only at the owner’s risk; and that if he withdrew it five cents per bushel would be charged for handling the grain, together with regular storage charges for the time it remained. This is an express contract formally executed, and not an agreement created by or implied from custom or usage.
    • But if it were otherwise, the habit of giving such storage certificates when requested furnishes no evidence tending to prove that the grain represented by it was held in store previous to its issue, or was the property of him to whom issued previous thereto, while he held the weigher’s certificate only. Such storage certificate might upon a sufficient consideration have been issued to any one who never had or delivered a bushel of wheat, and yet the parties to the certificate be bound by all its terms and stipulations precisely the same as in case of previous delivery by a customer. So if one delivering upon an actual sale, should afterwards change his notion and request a certificate of deposit, the merchants might assent and issue it, in which case it cannot be contended that the grain represented by the certificate had been previously held in store for, and as the property of, the holder of the weigher’s certificate. An actual 'Sale may be afterwards converted into a bailment, by stipulation and agreement of the parties. If the executor in the case at bar after delivery of the wheat in controversy had changed his purpose, and upon agreement with the merchant, accepted a storage certificate of the character before set out, it is quite clear that he could not have maintained this action on the authority of O’Dell v. Leyda. The certificate would have shown that at the time of the destruction of the warehouse his wheat was held in store at his own risk. But he never requested a storage certificate and never delivered any wheat as executor for the purpose of storage, but as upon a sale only. Where grain is delivered by a customer to a grain merchant engaged in the business of buying, shipping and selling grain, and nothing is said at the time for what purpose, the presumption is that a sale thereof is intended, and that the delivery is upon sale. If nothing be said about the price, the presumption is that it is a sale at the maket price. Such was the case at bar.
    For the distinction between a bailment and a sale, see Benjamin on Sales, sec. 2, note 1.
   Spear, J.

The question is: did the court of common pleas err in directing a verdict for the plaintiff below ? If, as was assumed by that court, the undisputed evidence established that the transaction was a sale, then the direction was right, but if the whole evidence left a fair question as to whether it was a sale'or a bailment, then the question should have been submitted to the jury.

It was shown by the evidence that the wheat was delivered by an employee of the plaintiff, at the warehouse of the defendants, on the 17th and 18th days of August, 1886, and received by a clerk or foreman employed at the warehouse, who, as the loads came, issued receipts in substance like the following:

“No. 1721. DeG-raee, O., August 17, 1886.
James & Neeb.
“ Received of J. C. Plank, (Administrator), load of wheat, 11 bushels, 5 pounds.
“Not transferable. Present this at office.
“ J. H. McKinnie, Weigher.”

The wheat, when deposited, was mixed with other like wheat in the warehouse, some belonging to the defendants and some to others for whom it had been received in store.

On the 26th day of August, 1886, a fire occurred which consumed the warehouse and nearly all the wheat there at the time. The fire was without fault on the part of the defendants. At that time none of the receipts had been presented at the office. Shortly after the fire Plank demanded of James & Neer pay for all the wheat delivered, which was refused. They, however, tendered $86.16, as his share of damaged wheat which had been sold after the fire.

Within the previous year Plank had delivered to the defendants at the same warehouse from eleven to twelve hundred bushels of wheat, for which he took weigher’s receipts in form similar to the copy given, which he subsequently presented at the office and received in exchange storage receipts, a copy of one of which is as follows:

“ James & Neer,
DEALERS IN GRAIN & SEEDS.
“No. 240. DeGraee, 0., January 5, 1886.
“ Received of Joseph C. Plank, four hundred and fifty-two bushels and 35 pounds of wheat (452 35-100 bushels). Subject to the following rules:
“ Storage free until June 1,1886. One cent per bushel per month or any part thereafter. All grains stored at owner’s risk. We will not be responsible for loss or damage in any way. Grain taken out of house by owners, five cents per bushel and usual storage. James & Neer.”

This wheat was subsequently sold to the defendants.

The evidence further tended to show that James & Neer were at the time, and had been for several years, engaged in storing wheat as warehousemen, as well as in buying and selling; that they sold and withdrew from the common mass, but never so much but that there was left sufficient to return to each depositor his proper quantity; and that, when the fire occurred, they had in the warehouse between 200 and 800 bushels of wheat in excess of the quantity necessary to satisfy all depositors, including Plank.

The evidence further tended to show the existence of a custom of dealing in vogue for many years at that and other warehouses in the neighborhood, of which Plank had knowledge, to the effect that grain deposited in the warehouse, for which weigher’s receipts were given, was regarded as grain in store until such receipts were presented at the office, when the owner had the option to exchange the weigher’s receipts for a storage receipt and continue the storage upon the terms specified in that form of receipt, or to sell at the price ruling the day such weigher’s receipts were presented; and that the receiving of the wheat and the giving of the weigher’s receipts did not constitute a sale of the wheat, but that it remained the property of the depositor until the weigher’s receipts were presented at the office and an election to sell made.

Let us examine and ascertain the effect of this evidence in order to determine the duty of the trial court with respect to it. The naked fact of the delivery of the wheat and the terms of the weigher’s receipts are consistent with either a sale or a bailment. It being shown further, however, by plaintiffs’ evidence that James & Neerwere buyers and sellers only of grain, it might well be claimed that the delivery and the receipts imported a sale. But the added character of warehousemen presented a new question. This question would have been removed, and the plaintiffs claim again sustained, had it appeared that James & Neer appropriated the grain to their own use by shipping, so as not to leave a quantity sufficient to satisfy depositors, for, in such case, it might fairly be presumed that the owner and receiptor had agreed upon a sale to the latter. Besides, while the mere option to elect to treat a bailment as a sale at some future time does not deprive it of its character of a bailment, (Colton v. Wise, 7 Ill. App., 395; Plow Co. v. Porter, 82 Mo. 23; Ledyard v. Hibbard, 48 Mich. 421), yet, where the depositary appropriates to his own use more than his proportion of the common mass the depositor may elect to treat the transaction as a sale, and demand pay for the wheat delivered. So that if at all times James & Neer left enough to return to each depositor, including Plank, his proper quantity, the depositors remained tenants in common of the mixed mass, each entitled to such proportion as the quantity placed there by him bore to the whole mass, and Plank, if a depositor originally, would remain such, because the mere fact that the warehousemen mixed the wheat of all of like quality in one common mass and shipped and sold, from time to time, from the mass, their proportion only, would not work a change in the ownership of the wheat, and it would follow that the fact of mingling and of such shipping and sale would not determine that the transaction was a sale rather than a bailment. Inglebright v. Hammond, 19 Ohio, 337; Chase v. Washburn, 1 Ohio St. 244; Odell v. Leyda, 46 Ohio St. 244; Rice v. Nixon, 97 Ind. 97. No doubt whatever exists that the warehouseman may become a tenant in common like any other depositor, and may be permitted to enjoy the same right of severance without affecting the title of his co-tenants. Sexton & Abbott v. Graham, 53 Iowa, 181. So that, further proof was necessary in order to ascertain to which class the transaction belonged.

No one will doubt that the parties were competent to make a contract either of sale or of bailment. And the parties having failed to make either directly, by spoken words or in writing, the circumstances surrounding the transaction and the parties at the time were to be resorted to in order to ascertain the real character of the business done. So, evidence having been given tending to show that the defendants were warehousemen as well as buyers of grain, if a custom of trade prevailed in the community, certain, definite arid uniform, and so notorious that it might be presumed to have been known to the plaintiff, throwing light on the understanding of the parties, and tending to show in which capacity the defendants received the wheat, that was competent to be considered. Ledyard v. Hibbard, supra. Such custom might give color to the otherwise doubtful acts of the parties so as to aid in arriving at their understanding, and it was necessary to ascertain that understanding in order to determine the legal effect of the transaction between them. This is the precise purpose and office of proof of a custom. Inglebright v. Hammond, supra. It in no rvay can be said to change the law. On the contrary, it may aid in determining the law.

The trial court assumed, that, upon the undisputed facts, a sale was conclusively shown, and that a question of law only remained. In this, we think, the court erred. Upon the whole evidence intelligent minds might reach a different conclusion, and wherever that state of the evidence exists it presents a case for the jury, under proper instructions. If the jury should find, from the evidence, that the understanding between the parties was that James & Neer were to mingle the wheat received of Plank with other wheat and sell and ship at their pleasure, and that the direction in the weigher’s receipts to “ present this at office,” was for the purpose only of indicating to the holder where he could get his pay, or, if the understanding was that thejr were to mingle the wheat with other wheat of like kind and sell only their own proportion, keeping enough for all depositors, and yet, in disregard of this, they actually did sell at their pleasure, not leaving enough on hand for depositors, then the verdict for the plaintiff as rendered, would have been justified. But if, on the other hand, the jury should be satisfied from the evidence that the custom as claimed by defendant, actually existed, was known to plaintiff, and from it and other facts appearing, that the understanding was that though the wheat might be mingled with other wheat belonging in part to depositors and in part to defendants, yet that defendants were to sell from the common mass from time to time, their proportion only, leaving sufficient on hand to satisfy all depositors, and the defendants observed this understanding; and especially if, in addition to the foregoing, they found further that the distinct understanding of the parties was, by virtue of said custom, that the wheat was to be regarded as in store until Plank should elect to make a sale of it, then, it appearing that no demand for the pay had been made by presentation of receipts at the office, or otherwise, before the fire, the jury would have been justified in finding for the defendants.

It is insisted that the court below is sustained by the-case of Chase v. Washburn, supra. We think not. In that case Washburn delivered to Chase several hundred bushels of wheat, taking receipts, as delivered, expressing that the wheat was “received in store.” The wheat was delivered between October, 1847, and August, 1849. In May, 1850, demand was made for either wheat or money, which was refused. Washburn’s evidence tended to prove further that he had instructed his agent who delivered the wheat not to sell unless he could get a dollar per bushel, and if he couldn’t get that to leave it in store, though it did not appear that this instruction was communicated' to Chase; that Chase was informed that Washburn had five or six hundred bushels to draw, and, when the first load was delivered, that Chase said they would pay the highest market price when Washburn should call for it. Chase’s evidence tended to show that his warehouse was burned October 26, 1849, and that there was consumed in it sufficient wheat to answer all outstanding receipts. Also, that the custom at Milan was to store all wheat received in a common mass and to ship from the same as occasion required, which was known to Washburn, and that the custom also was, when parties called for their pay, either to pay the highest market price, or deliver wheat to the holder of the receipt. Washburn’s rebutting evidence tended to establish that Chase had not sufficient wheat in his warehouse at the time of the fire to answer all his outstanding receipts, and that the warehouse was emptied of all wheat between the last receipts given Washburn and the time of the fire.

The gist of the defendant’s claim as to the law was summed up in his request to charge as follows : That the “ custom at Milan, if know to Washburn, in the absence of an express contract, became a part of the contract between the parties, and if the jury should find that Chase had sufficient wheat on hand at the time of the fire to answer all his outstanding receipts, that he was not liable, and that neither the mingling of the wheat, nor the shipment of it would make him liable if he had sufficient amount on hand at the time of the fire to answer his outstanding receipts.” This the court refused to give, but charged the converse of the proposition.

It is manifest that the strongest position Chase could claim was that the transaction was a mutuum. It left Chase the right to sell and ship at his pleasure, and pay either in money or wheat. The practical effect of a mutuum must always be to transfer the title of the chattels deposited. Otherwise the depositary would not have the unqualified right to sell. The custom introduced lacked definiteness as to one feature of it, and, taken altogether, imputed a sale. Hence it was proper for the court to refuse to charge as requested. The charge as given was correct, and the verdict being for plaintiff, he was entitled to judgment. And the affirmance of the judgment was clearly right. The reasons for the decision stated by Bartley, J., in the opinion, are given with the usual clearness and learning of that eminent jurist, and nothing further need be added.

A sufficient distinction between Chase v. Washburn, and the case at bar is that, while in the former case the evidence relied on by Chase tended to prove that the warehouseman was to have the right to sell upon the condition only that he have wheat enough on hand to satisfy Washburn when he should call, or pay money, in the present case the evidence relied on by the warehousemen tended to prove that they were to have the right to sell only their own portion of the common mass, and sold no more than that, having at all times prior to the fire enough to satisfy all the depositors. In the one case the defendant’s own evidence disclosed that the title to the wheat passed; in the other, if the defendants’ claim was established, it did not pass.

Judgment reversed.  