
    John Inglebright (Constable, etc.) v. Bezaleel Hammond.
    Where a witness who is interested in a case is called to testify in favor of himself, it is not error to permit his testimony to go to the jury, unless the record shows that the opposite party objected to his testifying, or asked the court to rule out the evidence.
    A custom cannot be proved to change the title to property, varying a general rule of law.
    Evidence of the common report of a neighborhood, disconnected with the acts and admissions of the parties sought to be charged as partners, is not admissible to prove the partnership.
    Where a person taking his wheat to a mill to be ground, by the assent of the miller mingles it with the wheat of the miller, he does not thereby lose his property in the wheat, but retains a property in so many bushels of the common stock as he has put in ; although, by a contract between the parties, the person delivering it is to receive a certain quantity of flour fct a certain number of bushels of wheat.
    Where a party asks the court to make a charge in a series of connected propositions, some of which are law and some not, it is not error to refuse to charge as asked.
    
      This is a writ of error to the Supreme Court for Jefferson county.
    The action in the common pleas was replevin, brought by the defendant in error, for ten barrels of flour, which bad been levied on by Inglebright, as constable of Wayne township, in Jefferson county, upon an execution against George and Thomas Webb.
    Judgment was rendered for the plaintiff below, which was affirmed by the supreme court, and- to reverse the judgment of the supreme court, this writ is prosecuted.
    Hammond had on the 22d day of April, A. D. 1846, entered into an agreement with Geo. A. Webb, for the sale of a mill. Among other payments to be made by Webb to Hammond, for the mill property, was the following, as appears by the contract of sale:
    “ Together with four hundred dollars’ worth of grinding, to be done by the said George A. Webb for said Bezaleel Hammond, between the said first day of June, 1846, and the first day of April, A. D. 1848, at any time within said time, when said George A. Webb has no customers’ work in the mill; that is, when he may be slack of grinding, for the want of the general custom of the mill. The grinding to be done for the payment of the four hundred dollars aforesaid, is to be made out of the wheat furnished by the said Bezaleel Hammond, and the flour made therefrom is to be delivered by the said George A. Webb, in Steubenville, for Bezaleel Hammond’s use. Por the expense of delivering said flour to Steubenville, said George A. Webb gets the offal made by the grinding of the said Bezaleel Hammond’s wheat.” * *
    “ As respects the grinding to be done by the said George A. Webb for said Bezaleel Hammond, between the 1st of' June, 1846, and the first of April, 1848, mentioned before, in further explanation of the same, for every four and one-half bushels of wheat furnished by the said Bezaleel Hammond, the said George A. Webb is to manufacture and deliver, as aforesaid one barrel of flour, as aforesaid, for said Bezaleel Hammond’s use. Said Bezaleel Hammond is to pay to said Webb thirty-three and one-third cents on each barrel for the manu factoring of said flour.”
    In January, 1847, Thomas Webb, the brother of George, joined him, and came into the contract for the purchase of the mill property, when a deed was made by Hammond to George and Thomas Webb, their joint notes executed to Hammond, for the remaining money payments due upon the contract, payable at the same periods, and for the same amounts. The one half of the grinding, stipulated by the old contract to be done between the first of June, 1846, and the first of April, 1848, it seems had been performed, and the joint note of the brothers, payable at the same time, as stipulated in the old contract, was executed as follows :
    “ f200. On the 1st day of April, 1848, we, or either of us, promise to pay to Bezaleel Hammond, or order, two hundred dollars’ worth of grinding, on or before the above "date, for value received. Witness our hands and seals, this 20 th day of January, A. D. 1847.
    “ GEORGE A. WEBB, [l. s.]
    “ THOMAS H. WEBB, [l. s.]
    “ Witness, William Yantz, James Madwell.”
    All the notes were secured by the mortgage of the brothers upon the premises. The mortgage describes “ their promissory notes for two hundred dollars in grinding, to be done against the first day of April, A. D. 1848.”
    Between the first day of January, 1848, and the 13th of February, 1848, Hammond delivered at the mill 1642 bushels of wheat, in different parcels. The wheat was poured into a sink or vat on the second story of the mill, which was large enough to contain about 150 bushels, and transferred thence by elevators to the third story, where it was emptied from a spout to the floor. At the time Hammond commenced delivering his wheat, two hundred bushels of Webb’s wheat were on the floor of the third story, and between the same period of time, within which Hammond’s wheat had been delivered, Webb had purchased from divers persons, 974 bushels of wheat, which had been emptied into the same sink, and discharged by the same elevators, upon the third story of the mill, and mixed with Hammond’s wheat.
    Upon several occasions, while Hammond’s wheat was being de • livered, Hammond was present, and upon one occasion, weighed á draught of Webb’s wheat, which was poured into the same vat in which his own had been poured. All of Webb’s wheat and of Hammond’s had been mixed by being conducted through the elevators, and discharged in one pile on the floor of the third story.
    From the 24th of January to the 14th of February, 274 bai’rels of flour had been manufactured by Webb, taken to Doyle’s warehouse, entered there in the name of G. A. & T. H. Webb, delivered by Webb as his own, and on the 14th of. February sold by him to Doyle, &nd the money received by him from Doyle.
    The Webbs both absconded; Thomas left in the latter part of January, and George on the' 14th of February, and have not since been heard of.
    On Saturday, the 12th of February, as George was about leaving the mill for Steubenville, he gave'these instructions to Roland, the miller: “ To grind out the wheat then in the mill, and deliver it to Hammond in Steubenville, to take care of his family and stock till he returned, and to get Blackburn to help him.”
    On Monday, the 14th of February, when in Steubenville, when he sold the flour to Doyle, he told Doyle “ that all the grain that was then in the mill belonged to Hammond, and tha’t he was grinding it out for him, and that he would not send in any more flour on his own account, but that the balance that would arrive would be Hammond’s.” '
    On the 14th of February, there were about 1000 bushels of wheat in the mill. So soon as it was known that Webb had absconded, Hatton, Swearingen, Devinney, and others, cred itors of the Webbs, without judgments or executions, came down to the mill to secure their debts by seizing the property. Mrs. Webb let them into the mill upon the pledge -that they would remove no wheat out of it. They then, each for himself, proceeded to measure into separate piles what each one thought would be sufficient to satisfy his demand, when they left the mill. A day or two after, Roland, the miller, in pursuance of the instructions left with him by Webb, proceeded to deliver up all the wheat in the mill to Hammond, who took possession accordingly. Roland then employed Blackburn to grind it, which Blackburn agreed to do, Hammond becoming security for his wages. He ground of the wheat in the mill fifty barrels, which were removed by Hammond to a neighboring stable. All further proceedings were then stopped by the creditors, who, having obtained judgments, levied their executions upon all the wheat, and upon the fifty barrels of flour. The ten barrels replevied were part of the fifty placed by Hammond in the stable.
    The court charged the jury, amongst other things—
    “ That wheat delivered to the Webbs by the plaintiff, (Hammond,) to be ground, in performance of the promise of Webbs, in their note of Jan 20, 1847, to pay to plaintiffs, or order, two hundred dollars in grinding, on or before the first day of April, 1848, would not, by such delivery, become the property of Webbs.”
    The court charged further—
    “ That the part of .the article of agreement in evidence between the plaintiff and George A. Webb, relative to grinding to be done by George A. Webb for the plaintiff, (Hammond,) is not, by the terms of the note of January 20, 1847, made part of the contract evidenced by the note ; and that whether the two Webbs, in performance of their promise to pay plaintiff two hundred dollars in grinding, (as Specified in the note,) were to be governed by the stipulations, as to the terms and manner of grinding stipulated in the article of agreement, or not, might be shown by parol evidence; and as there was evidence in the case to that question, it was for the jury to find how the fact was from the evidence.”
    The court was asked by the defendant to charge the jury: “ That they might look to the circumstances attending the delivery of the wheat by the plaintiff in replevin, to ascertain whether such delivery was under and in pursuance of the note of January 20, 1847, or not; and that if the jury shall find that there was an undertaking or agreement, either expressed or implied, between the Webbs and the plaintiff, at the time the wheat was delivered by Hammond, that Hammond was to receive flour for it, without reserving flour to be made out of the specific wheat delivered, that a sale of the wheat and not a bailment is imported, arid that such understanding may be inferred from the acts and declarations of the parties.”
    The court refused to charge as requested, for which refusal, as well as for charging as aforesaid, the defendant excepted.
    Exception was also taken to the ruling of the court, in the reception and rejection of testimony, the facts in relation to which appear in the opinion of the court.
    
      Greorge W. Mason, for plaintiff in error, cited the following authorities:
    Story on Bailments, sec. 40, 283; 1 Phillips Ev. 547 ; 2 Atk. 383 ; 2 Bro. Ch. C. 219; 7 Ves. 218 ; 4 Taun. 786 ; 2 Barn & Cres. Rep. 634; Chitty on Cont. 5 Am. ed. 19, 27, 104; Smith v. Clark, 21 Wend. 83 ; Jones on Bailm. 64, 102; 3 Mason’s Rep. 478; Holbrook v. Armstrong, 3 Fairf. 31; Dearborn v. Turner, 4 Shep. 17 ; Diving v. French, 1 Blackf. 353 ; Hurd v. West, 7 Cowen 752.
    R. S. Moodey, for defendant, cited these:
    Story on Contracts, sec. 73; Phillips on Ev. 443, 4; 1 Greenl. Ev. sec. 288; 2 Stark. Ev. 768, 9; 2 Black. Com. 405 ; Slaughter v. Green, 1 Randolph’s Rep. 3.
   Caldwell, J.

The first error assigned on the record of the court of common pleas, is, that the court erred in not ruling out the testimony of Daniel Hammond, he being an interested witness. This witness was called by Bezaleel Hammond, the plaintiff below, and testified in the cause. After his testimony was through, several witnesses-were called, who gave evidence, tending to prove that he was a partner of said plaintiff, and had an interest in the property in controversy. The evidence to this point is strong. It does not, however, appear from the bill of exceptions that any objection was taken to his testifying. He was not interrogated as to his interest, nor does it appear that the court was asked to rule out his testimony. If the opposite party would avail himself, on error, on account of an interested witness being allowed to testify, he should, if the fact of interest were known to him, object to the witness testifying; or if by evidence after-wards offered in the case, the interest of the witness should become apparent, he should ask the court to rule it out. Nothing of this kind being done, it was not error in the court to permit the testimony of the witness to go to the jury, although he might have been interested.

It is alleged that the court erred in ruling out the testimony of John T. Leslie. This witness was called for the purpose of proving that Daniel Hammond was an interested witness. He testified that it was generally reported in the neighborhood that Bezaleel and Daniel Hammond were partners, but that he knew nothing about the matter of his own knowledge, nor had-he ever heard any thing respecting it from either of the Hammonds. We think the evidence was incompetent, a,nd that the court acted properly in ruling it out. If the Hammonds, by word or deed, had held themselves out to the world as partners, that might have been proved ; but the neighborhood report, without proving any act of theirs, was not competent evidence to prove that they were partners.

The defendant on the trial offered to prove that it was a custom amongst millers, that when a person took wheat to a mill, and consented to its being mingled with the miller’s, that the property in the wheat passed to the miller. The court refused to admit this evidence. The custom offered to be proved in this case was contrary, as we think, to the rule of law. Where an article of the same kind and value, which is calculated by the bushel or pound, is mingled together by the consent of parties, each party is entitled to have divided to him so many pounds or bushels as he may have put in — and is recognized in law to have a property in so much as he may have put into the common stock.

Evidence of custom may properly be given to explain and give the proper effect to the contracts and acts of parties; but it would be carrying the doctrine too far to permit a custom to change the title to property, contrary to an established rule of law. The court decided correctly in refusing to admit the evidence.

The court charged the jury that if wheat was delivered by Hammond to be ground by the Webbs, in payment .of their two hundred dollar note, the property in the wheat, by such delivery, would not pass to the Webbs ; that the two hundred dollar note did not in terms connect itself with the first agreement made between Bezaleel Hammond and George Webb, and that whether the Webbs, in performing their promise to pay two hundred dollars in grinding as specified in their said note, were to be governed by the stipulations by the first agreement of Hammond and George Webb, was a matter to be determined by the jury from the evidence. They further charge that parol evidence was admissible to prove that fact, and as there was evidence on that question, that the jury would consider it in coming to a conclusion on the subject. We do not discover any error in this charge. The Webbs, in the two hundred dollar note, merely agreed to pay the amount in grinding. That grinding had to be done in a certain manner,' and on certain terms. If no price was fixed, before the grinding was done,'then the Webbs would be entitled to receive credit for so much as the work was worth, and Hammond would be held to have im pliedly promised to allow them that amount. Or the parties might agree upon what was to be ground, and the price al lowed for the same, eithey verbally or in writing, and such agreement could be proved, by parol evidence, if verbally made, or by the written instrument, if reduced to writing. And if the wheat was delivered under both these contracts, the first fixing the price at which the grinding was to be done and specifying the article to be ground, and the other specifying the quantity to be ground, such fact might be proved by parol; that it would neither be adding to, contradicting, or varying these written agreements. The one would still evidence how much was to be done, and the other the terms on which it was done. The parol evidence in that ease would merely show the performance of these agreements. And as the court say there was evidence in the case, that was proper for the jury to consider in determining the question whether this wheat was delivered in performance of these two contracts. The court read a long extract from Story on Bailments, page 44, (on the subject of a mixture of corn, etc.,) which they told the jury was good law, and applicable to the ease on trial. This is assigned for error. As the extract is long, we do not intend to refer to it specifically. We would merely say that, as the court said in that case, we suppose it to be good law, and the evidence in reference to the mingling of the wheat, certainly, made it applicable to the case.

The court charged the jury that if they should find that the wheat in the mill was -the property of the Webbs; and that the Webbs were indebted to Hammond, and that after the Webbs left, the wheat out of which the flour was ground was delivered over to Hammond in payment of his claim against the Webbs, by a person authorized to do so, that the verdict should be for the plaintiff Hammond. This is assigned for error. We do not see any error in this charge.

The defendants asked the court to charge: That they might look to the circumstances attending the delivery of wheat by the plaintiff, to ascertain whether such delivery was under and in performance of the note of January 26, 1847, or not. And that if the jury should find that there was an understanding or agreement, either expressed or implied, between Webbs and the plaintiff, at the time the wheat was delivered by Hammond, that Hammond was to receive flour for it, without reserving flour to be made out of the specific wheat delivered, that a sale of the wheat and not a bailment was imported, and that such understanding might be inferred from the acts and declarations of the parties. This charge the court refused, which refusal is assigned for error.

Now the charge asked embraced several different propositions. A part, taken by itself, was no doubt good law, and-proper to be given to the jury in the case — a part had already been given to the jury by the court. In determining, however, whether the court erred in refusing the charge, the charge must be taken as a whole. And the question, on error, for refusal to charge, is whether the whole charge asked was law, and proper to be given to. the jury in the case. The party presents his own ideas, in his own form, and asks the court to adopt them. If the court cannot adopt the whole they may refuse the whole. There was one proposition embraced in this charge that we think was erroneous ; and that was, that if Hammond was to receive flour for the wheat, unless such flour was made out of the specific wheat delivered, the% jury should consider it a sale of the wheat, and not a bailment. We have already given our views of the law in reference to the mingling of wheat by the consent of the owners, or other articles admitting of a similar division. Each party retains the property in a quantity equal to what he has put into the common stock. Nor do we think that it necessarily alters the case that the party is to receive his return in flour, as is alleged in this case, at a barrel of flour for so many bushels of wheat. This is but another mode of dividing to the party his property in the flour, in which it was agreed by the parties it should be received. If so many pounds of flour was considered as equivalent to a bushel of wheat, then receiving flour at that rate would, to all intents and purposes, be the same as a division of the wheat. We think then that it was "not necessary to create a bailment, that the flour should be made out of the specific wheat delivered,' and that the court did not err in refusing the charge. We do not discover any error in the record.

The judgment of the Supreme Court will be affirmed.  