
    GENOBIA ARAGON DE JARAMILLO v. THE UNITED STATES AND THE NAVAJO INDIANS.
    [Indian Depredations,
    6088.
    Decided February 17, 1902.]
    
      On the Proofs.
    
    There are in New Mexico what are termed contracts in partido, i. e., where cattle or sheep are sold payable in kind. The question involved in this case is: In which party to the contract was the property at the time when the depredation was committed.
    I.The Indian Depredation Act, 3d March, 1891 (25 Stat. L., 851), authorizes judgment for the owner of property taken or destroyed. Where a contract in partido in New Mexico provided that at the end of live years double the number of the cows • should be returned, the title passed, and the party in possession was the owner within the meaning of the statute.
    II.Where a contract in partido, by its provisions, necessarily excludes the return of all the identical cattle, and leaves the purchaser free to return other cattle in whole or in part, the vendor parted with his right of property.
    III.The distinction between bailment and sale is that when the identical article is to be returned in the same or in some altered form, it is bailment; but where there is no obligation to return the specific thing, it is sale.
    
      
      The litporteril statement of the case:
    The following ave the facts of the ease as found by the court:
    I. At the time of the depreciation hereinafter stated the claimant was a citizen .of the United States.
    II. In the month of December, 1865, in the county of Valencia, Territory of New Mexico, Indians belonging- to the Navaho tribe of Indians took and drove away property of the kind and character described in the petition, the reasonable value of which was, at the time and place of taking, the sum of S265.
    Said property was taken, as aforesaid, without just cause or provocation on the part of the owner or the agent in charge, and has not been returned or paid for.
    III. At the time of the said depredation the defendant Indians were in amity with the United States.
    IV. At the time of the depredation the claimant was in possession of the property taken and destroyed, on shares, under and by virtue of a contract with another person from whom it was received to return to that person, as the owner at the time of the delivery to the claimant, double the number of cattle received in five yeans, but with the further condition that all cattle over that number were to belong to the claimant. This contract included the further stipulation that if anything should happen to the cows in the meantime by reason of the depredations of Indians or from causes produced by epidemics or otherwise, such contingencies were not to operate so as to relieve the claimant of the obligation to return to the person from whom he received the cattle the full number of cows contracted to be returned.
    
      31r. William TI. Roñerar for the claimant:
    When this claimant received the cows from the original owner and agreed to return him double the number at the end of five years, his contract was either one of bailment or one of sale. If it was a contract of bailment, it was certainly not a gratuitous bailment. Nor did it belong to that class of contracts denominated in the Koman law a mutuum; for a mutuum is the loan of specific articles designed for consumption — as, for instance, when a neighbor borrows a cup of sugar for which a cup of sugar is to be returned, in which case there is no doubt, according- to all the decisions, that when the cup of sugar is delivered the title to it immediately passes to the party receiving- it.
    Nor did it establish a bailment for hire, because no consideration was to pass from the original owner to the party who received these cows. The payment was to come the other waju The party who received the cows was to repay to the oi-iginal owner double the number at the end of five years. If, therefore, it was not a gratuitous bailment, and was not a mutuum, and was not a bailment for hire, it results that it was a contract of sale and that the title to the property passed with its delivery to the claimant.
    That” this is true is evident from another proposition, namely, that tho claimant was not to return to the original owner the very cows which he had received; for, at the end of five years those cows, or some of them, would probably be dead; and as a matter of fact in all the New Mexican contracts which have come under counsel’s observation, especially those regarding sheep, the condition is that the party receiving the sheep was to return to tho original owner the same number of sheep and of the same age and kind as those which had been originally delivered to him.
    This will impress the court, counsel is satisfied, as tho common-sense view to take of the contract, but we are not without aids to assist us in the correct determination of the question.
    With as little comment as possible counsel presents the authorities in support of his position that the contract was one of sale and not one of bailment.
    The case of Sturm v. Booker (150 IT. S., 312) involved this identical question. The court decided in that case on a statement of facts which makes it appear almost incredible that the question was raised that the contract was one of agency and not one of sale; but in the course of the opinion it is said:
    “The recognized distinction between bailment and sale is that when the identical article is to be returned in the same or in some altered form, the contract is one of bailment, and the title to the property is not changed. On the other hand, • when there is no obligation to return the specific article, and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and the title to the property is changed; the transaction is a sale.” (150 U. S., 312-329.)
    This opinion cities the case of Powder Company v. Burh-hardt. (97 U. S., 110.) In this latter case it appears that the company entered into a contract with the defendant who was the owner of letters patent for an explosive compound whereby they undertook to furnish to him certain ingredients. They furnished these ingredients, a portion of which were seized upon an execution sued out by creditors of the defendant. The company brought action to recover for the wrongful conversion of the materials. The court held that the contract between the company and the defendant did not create a bailment, but that upon delivery of the raw material to the defendant, they became his sole propertjr and were subject to execution at the hands of his creditors. (97 U. S., 110.)
    The case of Austin v. SeMgman et al. (16 Fed. Rep., 519) was decided in the circuit court for the southern district of New York. In that case it was held that—
    “When, by the terms of the contract under which property is delivered by an owner to another, the latter is under no obligation to return the specific property'- either in its identical form, or in some other form in which its identity may be traced, but is authorized to substitute something else in its place, either money or some other equivalent, the transaction is not a bailment, but is a sale or e change.” (18 Fed. Rep., 519.)
    Fortunately wo are able to give the court two cases exactly in point. In the case of Carpenter v. Griffin et al. (9 Paige, Ch. 310) the plaintiff leased to the defendant his farm with the sheep found on it and 30 cows for the term of five years. In the lease was á clause reading as follows:
    “Cows of equal age and quality to be returned at the end of the said term, and also the sheep.”
    The defendant went into possession, and in a few months these cows and sheep were levied upon by one of his creditors, whereupon the plaintiff filed a bill for an injunction to restrain the creditor from selling the property as that of the defendant. In his opinion the chancellor says:
    “If the lease had contained a stipulation that the same stock put upon the farm by Fowler should be returned at the expiration of the term, there could have been no doubt as to the complainant's equitable right to restrain the defendant Spencer from selling or otherwise disposing of the 8 cows which are a part of those leased to him, or any other cows now on the farm purchased with the proceeds of the original cows which had been sold by the lessee without authority. 1 infer from the terms of the lease, however, that it was not contemplated by the parties to that instrument that the same cows which were leased with the farm should be returned at the end of the 5 years, but that the lessee should return to his -landlord at the end of the term 30 cows of the same age and equal in value to those which were received at the commencement of the term. If such was the intent and meaning of the contract, I do not see how this case can be distinguished from that of llurdv. West (7 Cow., 752). In that case the Supreme Court decided that where a certain number of sheep were hired by A to B at a pound of wool a head per annum, and at the expiration of the time limited B was to return to him the same number of sheep and of as good quality, the title to the sheep did not continue in A, but that the lessee might dispose of the sheep, let and return other sheep of the same value at the time appointed for the fulfillment of the contract on his part.” (9 Paige Ch., 310; JIurd v. West, 7 Cow., 752.)
    On the oral argument of a case involving a similar question it was suggested to counsel by the Chief Justice that these contracts were very similar to the contracts which were formerly in vogue in Scotland. The case above cited is interesting in that it contains a reference to these Scottish contracts and to authorities supporting the view of the case which we present. I quote further from the opinion:
    “In the present case the stipulation in the lease is to return, at the end of 5 years, cows of equal age and quality; which necessarily excludes the idea that the identical cows put on by the landlord were to be returned to him at the expiration of the term. For these cows could not be of equal age, although they might possibly bo of equal value, with the 30 cows when they were put onto the farm in January, 1837. Contracts of this kind were very common in Scotland previous to the commencement of the present century. Lessors of real estate there, the better to enable their tenants to cultivate and carry on the farms leased to them for a term of years, wore in the habit of delivering to the tenant at the commencement of the term, grain for seed, cattle to stock the farm, and implements of husbandry, under stipulation in the lease that the like property, in quantity and quality, should be returned by the tenant at the expiration of the lease. And the property thus let Avith the farm was in the language of the country called “SteelboAV goods.” * * * In relation to goods thus let with the farm, it has been held that whether they be grain, which is necessarily consumed in the using, or cattle or implements of husbandly, which are not usually considered as fungi hies, they are the goods of the tenant, and may be attached and sold for the payment of his debts. Trumbull v. .Ker, Morr. Diet. Dec. 11, 711.” (Oarpmter■ v. Griffin, 9 Paige CL, 310.)
    Upon the general proposition that, where the property is not to be redelivered, or even where there is an option to deliver other than the specific property received, the contract is one of sale, the authorities are all one way. A few are stated as follows:
    “ Where the obligation is to redeliver not the specific thing furnished, but another article of the same kind and value, the property passes to the depositary as fully as in the case of ordinary sale and exchange.” (O/itwev. Warhlmrn,, 1 Ohio St. Pep., 241.)
    “When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the. title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make return and the title to the property' is changed — it is a sale.” {Lonrn/un v. Stewart, 55 Illinois, 15.)
    “The defendant let to one Dayton a number of sheep for 1 year for a pound of avooI a head; and was to have the same sheep, or sheep of as good a quality, returned in ease any of these died.”
    The Court held that, as Dayton was given the right to return any other sheep of the same quality, he had the right to dispose of those he received and that the transaction was a sale. (Jlur/l v. 1JW, 7 Cow. N. Y., 752.)
    These authorities holding that, Avhile the option to. return other than the specific article makes the contract one of sale and not one of bailment, present by no means so strong a case as the conditions in this case. Here there Avas no option either to the party delWering the cows or to the party receiving them; but to him Avho delivered there was to be returned, not the same cows at all, but by the terms of the contract itself different, cows, inasmuch as it Avas required that those to be redelivered should be of the same age and quality.
    
      Mr. Harry Peyton (with whom was Mr. Assistant Attorn<y-General John G. Thompson) for tire defendants:
    The law is very well settled as to what constitutes a bailment and what constitutes a sale, and while the distinctions are fine, yet they are very clear. The distinctions may ho stated as follows:
    “The recognized distinction between bailment and sale is that when the identical article is to be returned in the same or in some altered form, the contract is one of bailment and the title to the property is not changed. On the other hand, where there is no obligation to return the specific article and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and the title to the property is changed; the transaction is a sale,” (150 U. tí., 312-329.)
    This authority is cited by the claimant in the Jaraniillo case and reference is also made to the case of Austin v. Seligmann (18 Fed. R.., 519) and other cases.
    It is stated by the court in 97 U. tí., page 110, referred to by the claimant in his bi’ief, that—
    
      “ Where articles are delivered to be manufactured, if the product of the identical articles delivered is to be returned to the original owner in a new form, it is a bailment and title does not vest in the manufacturer. Rut if the manufacturer may deliver any other product of equal value, it is a sale or a loan and the title vests in the manufacturer.”
    The rule seems to be that, where the taker of property under a contract has the right to return other property than than that taken — in other words, to substitute for the propert}r taken property of an entirely different kind or in lieu thereof to pay its value — such undertaking or contract becomes a contract of sale, and the reason supporting this rule is entirely practical, because the owner not only parts with his possession but he parts with his right to the property and his right of control over the property, leaving something to be done by the grantee or the person taking the property that will absolutely divest him of all claim of title. ■In the cases referred to, those of Carpenter v. Griffin and Heard v. West, the party taking the property under the contract had a right to return different property from that taken, but of “equal value, age, and quality.” In the Jaramillo ease we have no clear statement as to whether or not the contract was of this kind, but in the case at bar, especially in the contract between the two Gonzales and Fischer, it was provided as follows:
    “Said parties of the second part agree and are obliged by this contract to deliver to the, said party of the first part at the end of the two years, or on August the 15,1882, in Socorro, the same number of ewes (3,550) (white ewes), young, and picked from the same herd, to the satisfaction of the said party of the first part.” * * *
    The court will readily observe the difference between this contract and the contracts referred to bj' the claimant in his contention in the Jaramillo case. Those cases provided that the party taking the property might return property of an entirely different kind, but of the same quality and value. In the Fischer contract above referred to, he, Fischer, had a right to take from the same herd 3,550 ewes; not from a different herd, not sheep of a different grade nor sheep of a different stock, but evidently intending and meaning sheep from the same herd, from the increase of the identical sheep, or possibly some of the identical ewes, as the age is not mentioned; but the right in Fischer is reserved to take that number from the same herd given by him to the claimants.
    The contract between the claimants and Armijo as to the return of the sheep does not appear, except as a verbal statement of the witnesses as to what the written contract contained. Neither does the specific contract appear in the case of Jaramillo; but contracts m partido in New Mexico are general in their character, it being a custom of that section for the owners of sheep to let them out m.partido with certain stipulations as to their return. Having a written contract as a guide we majr reasonably assume that this written contract expresses the custom of the country in the-absence of the contrary appearing. It is therefore insisted by the defendants that the elements necessary to constitute a sale do not exist in the present case, and that the claimant and his partners were simply bailees of Fischer and Armijo.
    The right of suit on the part of Fischer rested upon the guaranty of the two Gonzales that they would be responsible against the loss of the property from any cause whatsoever, and the judgment followed upon this feature of the contract and does not evince in any way any recognition on the part of Fischer or any recognition by the judgment of the court that the legal title to the property was in Gonzales.
    Additional light, it is thought, can be thrown upon the question under discussion by reference to the laws of New Mexico. In the early acts of the Territorial legislature (Laws of New Mexico, 1851-52, 192) by section 3 it was provided that—
    
      “ Hereafter all persons- soiling or disposing of any of the animals specified in the first section of this act (which includes sheep) shall give to the purchaser a certificate of sale, with his name and signature affixed in the presence of two witnesses, describing the animal and the price at which it was sold” * * *
    This law is reenacted in the Compiled Laws of New Mexico, 1865, on page 58. On pago 762 of said compilation of the laws of New Mexico it is also provided that all sales of animals, including sheep, must be made by bill of sale, describing the property, signed by the seller and witnessed by two persons, the act providing further a penalty for the violation of this provision.
    In the General Laws of New Mexico, 1880, on page 11, it is again provided that the sale shall be evidenced by a bill of sale, signed by the seller and witnessed by two persons. On page 19 of this compilation, by act of February 1, 1865, it is provided again that—
    “No person within the limits of the Territory of Nc-w Mexico, and especially at the military posts within the limits of the same, may purchase any kind of animal, such as oxen, bulls, cows, calves, ewes, sheep, or goats, from any other person or persons unless such person or persons mark the animals they offer for sale with the brand and mark describing the same; and there shall furthermore be required of the vendor or vendors a bill of sale in which shall appear the number and kind of animals purchased and the name in full of the vendor or vendors, which bill of sale shall be signed by themselves and two witnesses attesting the sale.”
    By section 2 a penalty is provided for the violation of the foregoing provision.
    
      In the Compiled Laws of New Mexico, 1897, appears an act that was passed by the Territorial legislature, which provides in part as follows:
    “Sec. 95. Copies of all contracts heretofore made or hereafter made by the owner of any animals, such as sheep, bovine cattle, horses, and of any other class and kind, with any other person for the herding or caring' for the same, for pay or on shares or in any other manner, may be filed with the clerk of the probate court of the county where the owners or either of them reside, if he resides in the Territory; and if the owners nor either of them do not reside in the Territory, then the said copies maybe filed with the clerk of the probate court of the county in which the contract may be -made. And when such copies are so filed they shall be notice to every one of the contents of such contracts, and of the legal effect thereof, and of the usages and customs relating thereto.
    “Sec. 9<>. When anyone has or shall receive from the owner thereof any sheep, bovine cattle, horses, or other animals under written contract for the herding or caring for the same, for pay or on shares, or in any other manner except bjr absolute purchase, such as sheep, bovine cattle, horses, or other animals, together with the increase and product thereof at all times, and until the full completion of such contract according to the terms thereof, shall he and remain the property of the said owner or owners so letting them out to be herded or carecí for; and the person or persons so receiving the same for such purpose shall have no authority or right to sell, transfer, mortgage, or dispose of the same, or any part thereof, in any manner whatever without the express consent of the owner or owners thereof, and when a copy of any such contract shall he filed with the clerk of the probate court, as provided in the, preceding section of this act, it shall be notice to everyone that the person or persons in charge of such animals, sheep, cattle', or horses, has no right to sell or dispose of the same in any manner.”
    By section 97 succeeding of this act a penalty is provided for the wrongful disposing of any animals under this kind of a contract.
    It is submitted in conclusion that this case is widety different from the cases cited upon the claimant’s brief, where the contracts provided for the return of entirely different property from that originally given to the party who was to care for the same. It is more nearly like a case reported where leather was let to a factory to be converted into shoes, the manufactured article to be returned to the original owner.
    
      This was held a bailment. In the ease at bar property was let under contract for a return of either the specific property or property which was the increase of the specified property.
    It is therefore urged that the claimant and his associates were simply bailees and had no such title as would warrant a judgment under the Indian depredation act of March 3,1891.
   Howry, J.,

delivered the opinion of the court:

The jurisdictional requisites of the citizenship of claimant and amity of the defendant Navajoes are disclosed by the findings, and on the merits a taking of property is established. The claimant’s title, however, is disputed, and it is urged that at the time of the loss he was not the sole owner of the property, and that the title thereto had never become vested so as to warrant a recovery by him by virtue of the statute under which the action is brought. (26 Stat. L., 851.)

While the amount involved is inconsiderable, the issue derives its chief importance from the fact that it is one appearing in a class of cases from New Mexico governed by what is called in,partido contracts in the possession of flocks of sheep and cattle. In some of these cases the actions appear in the name of the persons owning the property and delivering it on shares for a time to another, while, in other cases, as in this case, the persons receiving the property allege title and sue as owners. Inasmuch as the contracts are nearly all in writing and greatly vary as to the time and character of possession and the kind and number of sheep or cattle to be returned from the original herds or the increase thereof, each case must stand on its merits and its own peculiar conditions when presented.

In support of the contention respecting ownership and title in this case the authority of the decision of this court in the' case of Need, (Ind., No. 882,) is invoked. Conclusions of law adverse to claimant as to a part of the property were declared in that case, but the judgment rendered was entered without an opinion.

The case of Reed appears to have been one of bailment as to some of the chattels, and it was claimed that Reed had advanced the money to pay for the stock taken while in his possession, and that by reason of his qualified property in the stock as bailee he (as well as tlie bailor) could maintain an action against those depredating upon or taking away the chattels. The bailment appears to have been of the class which the law denominates an agistment, which consisted in delivering stock for care and support for hire. The effect of the judgment appears to have been that whatever right an agistor might have to vindicate his possessory interest against others trespassing upon or interfering with that possession, the right to prosecute to judgment for the loss or depredation of the property did not exist in favor of the bailee under the Indian depredation act.

The rule adopted in Need’s case has been followed in Gallegos et al. (Ind., No. 4877), recently decided. There it appears that some horses were borrowed by one of the parties for a buffalo hunt. The stock was taken from the alleged bailee, who claimed to have made good the loss to the owner by pajwnent of the value of the animals taken. Without- inquiring into the truth of that assertion the claim for borrowed property was disallowed because the claimant was not the owner when the property was taken, if any such was in fact taken. A bailee can not, in general, be held responsible for losses resulting from irresistible force. While a bailee may become liable by special contract, or by some positive policy of the law, he can not ordinarily be held in case of robbery.

In this case a parol agreement in partido is established, by which it appears that at the time of the loss the claimant was in possession of the property on shares under an agreement with another person by which the claimant agreed to return to that person (within five years), as the owner at the time of the delivery, double the number of cattle received, with the further condition that all cattle over that number were to belong to the claimant; it being further agreed that if anything should happen to the cows in the meantime by reason of the depredation of Indians, or from causes produced by epidemics, or otherwise, such contingencies were not to operate to relieve the claimant of his obligation to return to the person from whom he received the cattle the full number of cows agreed to be returned.

The first section of the act of hi arch 3,1891, supra, authorizes judgment to be rendered for the owner. The question then is, Where does the right of property' lie?

The agreement did not require the same cows delivered by the original owner to be returned to him. At the end of five years double the number were to be returned. The party receiving the cattle could in the meantime sell or dispose of the cows received, and yet comply' with his undertaking. The measure of his contract could be met by a return of the number agreed to be returned. It could not have been contemplated by the parties that the same cows were to be returned at the end of the five years, because natural causes would largely intervene to prevent that. The title, wo think, under these circumstances, became lost to the original owner, and necessarily' vested elsewhere if the agreement was enforceable as a valid contract. The case in this respect is not so strong as Carpenter v. Griffin (9 Paige Ch., 310), where cows of equal age and quality were to be returned after some yrears, which necessarily excluded the return of the identical cows from the tenant to a landlord. But no essential difference exists where double a given number of animals were required to be returned at the expiration of five years’ time. Not only would the natural causes adverted to operate to prevent the return of the original stock, but the contingency of loss by depredation or other causes put into the matter the element of uncertainty' too great to say that the identical stock received should go back to the original owner. In delivering the stock with such a stipulation, the original owner transferred his title to the person from whom they were taken by the defendant Navajoes, if the contract can be upheld under the local law.

The recognized distinction between bailment and sale is that when the identical article is to be returned in the same or in some altered form the contract is one of bailment, and the title to the property' is not changed. On the other hand, when there is no obligation to return the specific article and the receiver is at liberty to return any other thing of value— he becomes a debtor to make the return, and the title to the property is changed — the transaction is a sale. (150 U. S., 312-329; Powder Co. v. Burkhardt, 97 U. S., 110; Austin v. Seligman et al., 18 Fed. Rep., 519; Hurd v. West, 7 Cow. N. Y., 752; Chase v. Washburn, Ohio St. Rep., 244; Lonegran v. Stewart, 55 Ill., 45.)

The authorities clearly settle the transaction which put the claimant in possession of the property (subsequently taken by the Indians) as a sale and not merely a bailment, unless the agreement between the original owner and the claimant being verbal was unenforceable for that reason.

In the early acts of the Territorial legislature it was provided that: “Hereafter all persons selling or disposing of any of the animals specified in the first, section of this act shall give to the purchaser a certificate of sale, with his name and signature affixed in the presence of two witnesses, describing the animal and price at which it was sold.” * * -x- (Laws of New Mexico, 1851-52, 192.) This statute was reenacted in substance a short time before the commission of the depredation, to which there was added a penalty for a violation of its provisions, none having been imposed by the original act.

As between the original owner and the person claiming title from him, this act was operative as a local statute of frauds. Replevin to recover the cattle may have been maintained by the first owner had he elected to avail himself of his right to have a return of the property in the absence of a written agreement. But the original owner and the claimant having treated the transaction as a sale and not as one of bailment, strangers to the transaction can not take advantage of the persons delivering and receiving the property in this proceeding on the ground that the agreement was not in writing.

Judgment according to the conclusions derived from the findings will be entered for the claimant.  