
    Nowlen vs. Colt.
    Where the wheat of A. was mixed with that of B., by being put into a common bin with the consent of both parties, and B. afterwards sold the whole; held, that the • intermixture created a tenancy in common between them, and that the sale by B. rendered him liable to A. in trover.
    
    Trover for a quantity of wheat, tried at the Livingston circuit in 1843, before Monell, C. Judge. In 1838 and 1839, the plaintiff delivered the wheat in question to the defendant, at his store in Geneseo, and took from him several receipts, most of which, except as to dates and amounts, were as follows : “ Reed, of Gurdon Nowlén two hundred bushels of good wheat in store. Geneseo, Sept. 22d, 1838. (Signed) Ch. Colt.” It appeared that 'on or about the 1st of August, 1839, all the wheat in the defendant’s store, including the wheat in question, was sent by him to H. B. Williams & Co., millers in the city of Rochester, and that they subsequently paid him for it.
    The defendant proved that the wheat in question, on being delivered at his store, was put into a common bin and mixed with other wheat which he had purchased; and that this was done with the knowledge and consent of the plaintiff. One ground of defence set up was, that by a usage or custom which prevailed throughout the district of country where the parties resided, among dealers in wheat, the defendant was authorized to.dispose of the wheat in question, without first consulting the plaintiff. The evidence on this • point, however, was conflicting, and the judge submitted the question to the jury. He charged, among other things, tha-t if the wheat of two persons is mixed together, with their knowledge and consent, and either afterwards carries away and disposes of the whole, an action of trover may be maintained against him. The jury rendered a verdict in favor of the plaintiff, and the defendant now moved for a new trial on a bill of exceptions.
    
      A. Taber, for the defendant.
    
      J. Young, for the plaintiff.
   By the Court, Nelson, Ch. J.

I am of opinion that the ruling of the learned judge was correct. Mingling the wheat in a common bin, with the knowledge and assent of both parties, made them tenants in common; and the disposal of the entire mass by one of the co-tenants subjected him to this action. (Inst. lib. 2, tit. 1, § 28 ; Vin. Ab. tit. Property (E); White v. Osborn, 21 Wend. 72.)

New trial denied. 
      
      
         Where the mixture is by mutual consent, the proprietors have a joint interest, in proportion to their respective shares. (2 Bl. Comm. 405 ; 2 Kent’s Comm. 364.) As to the several distinctions which prevail in cases of mixture without mutual consent, see Story On Bailm. 43 to 45, § 40,3d ed.; 2 Kent's Comm. 364, 5; Bouv. Law Dict. tit. “ Confusion Of Goods;" Met. & Perk. Dig. tit. “ Confusion and Accession;” Dane’s Abr. Ch. 76, Art. 5.
     