
    Newhall v. Langdon.
    A. sold to B. fifty barrels of flour out of a lot of one hundred barrels, all of the same brand and quality, stored by itself ata railroad depot- The carrier’s charges had been paid, and the flour was in charge of the agent of the railroad company, as a warehouseman. Subsequently he sold to O. and D. twenty-five barrels each. He gave to each purchaser, in the order of sales, an order on the company’s agent for the number of barrels purchased. B. sent his team and driver, with his order, to bring away part of his purchase. The driver presented the' order to the agent, who received the same, and pointed out the lot of Hour, from which the driver took 17 barrels, leaving the order and his receipt for the flour removed.
    After this, on the same day, C. and D. each presented his order receipted for and took away the flour they had purchased, leaving the 33 bbls., due on B.’s order in store, which was destroyed by fire the ensuing night.
    It was the usage of the business with reference to which the parties contracted, that flour so received by rail and stored, was not removed by consignee to his possession but remained in the custody of the railroad company until sold, and that the owner sold in lots to such purchasers and gave to each purchaser an order on the company for the amount purchased, and upon presentation of such an order the agent would point out the lot from which the order was to be filled, and the purchaser would remove and receipt for the amount taken. Nothing remained to be done by the seller in contemplation of the parties to complete the sale.
    
      Held: That by such usage the flour called for by the order-, after its acceptance by the railroad company, was the property of the purchaser, and he was liable to the seller for the price, though part of it was destroyed before being removed to his actual possession. Wood v. McGee, 7 Ohio, 467, distinguished.
    Error to tbe District Court of Hamilton county.
    Tlie plaintiffs, Newhall, Gale & Co., brought an action against defendants, Langdon & Son, to recover for fifty barrels of flour sold and delivered, based upon t e following account:
    
      Cincinnati, August 28, 1876.
    Sol. Langkdon & Son,
    ' Bought of Newhall, Gale & Co.,
    Flour and Grain Commission Merchants, and Healers in Mill Feed,
    Terms Cash. No. 86 West Front Street.
    50 Bbls. “Our Pet” Flour, 5.15, . . . $257.50
    By Cash, Nov. 1,......87.25
    Bal. . . . $170.25
    The answer admits the purchase of seventeen barrels at the price stated, avers payment therefor $87.25, and denies a sale and delivery of the balance. In the common pleas the case was heard and determined upon the following special finding of facts:
    “ First. On August 28,1876, during the forenoon, the plaintiffs, who were at that date commission merchants, in Cincinnati, Ohio, contracted to sell the defendants fifty barrels of flour of a particular quality and brand, the price fixed by the contract was $5.15 per barrel, on the afternoon of the same day the defendants received from the plaintiffs an order upon the Dayton Short Line Railroad Company, for the delivery to the defendants of fifty barrels of flour, of the brand and character called for by the terms of the contract.
    “ Second. The plaintiffs were the owners, at the time of giving the order, of one hundred barrels of the brand and character called for by the contract; said one hundred barrels of flour had arrived at the depot of said railroad company in Cincinnati, and was stored in the depot in a ¡particular location or compartment; on said 28th day of August, plaintiffs sold twenty-five barrels of said one hundred barrels, to one Smith, and gave him an order upon the Railroad Company therefor; on the 29th of August, they sold to one Sweeney twenty-five barrels, and gave him an order therefor; on the 29th, between four and five o’clock, p. m., the defendants sent their drayman to the depot, with the order for the fifty barrels for the purpose of obtaining some of the flour; he delivered the order to the railroad clerk, took seventeen barrels of the flonr, left the order with the railroad clerk, who noted the delivery of the seventeen barrels on the back of it, and hauled the seventeen barrels to defendants’ store, pursuant to his instructions; later in the afternoon of the 29th, Smith and Sweeney received and hauled 'away the remainder of flour, due them upon their respective orders, thus leaving thirty-three barrels of the one hundred, before referred to. During the next succeeding night, to wit: at 12|- o’clock, a. m., August the 80th, the depot was burned and the thirty-three barrels of flour left of the one hundred as above stated, were totally destroyed. Subsequently the defendants paid plaintiffs for the seventeen barrels which had been hauled, such payment being without prejudice to the rights of either,party touching the remaining thirty-three barrels.
    “Third. Neither the plaintiffs or the railroad company set apart at any time any specific barrels to the defendants, and there was no such setting off, unless the fact that Sweeney and Smith hauled away all of the flour save the thirty-three barrels which were left, and the hauling of the seventeen barrels hauled by defendants amounted to such separation and appropriation. Neither defendants or any of their agents saw any of the flour which remained after the drayman took away the seventeen barrels, nor had they seen any part of the one hundred at any time prior to the hauling of the seventeen barrels, nor did they know of the sales to Smith and Sweeney, or the removal of any flour by them until after the fire.
    “Fourth. The usage of business in Cincinnati, between buyers and sellers of flour, at and before the dates named, was this: Flour arrives at the depots consigned to commission merchants. The railroad company notifies the merchant of its arrival, who pays the freight and signs a full receipt acknowledging the delivery of the flour to him. The railroad company then stores the flour in a particular location or compartment in its depot, of which the merchant is advised; he then makes sales, and upon the conclusion of an agreement of sale, he hands to the buyers an order upon the railroad company, for the number of barrels called for by the contract. The purchaser sends liis dray or wagon with the order. The driver delivers the order to the railroad clerk, who points out the location or compartment in which the flour, against which the order is drawn, is contained, and the driver proceeds to load his vehicle. If the order calls for a certain number of barrels, and the compartment contains a larger number, the driver makes the selection and removal of the number to which he is entitled, and receipts for them. The order is left with the railroad company, when the first load is hauled, and separate receipt given by the hauler for the amount of each load. The parties to this suit understood and pursued this, the usual mode of transacting this business. The order from the seller to the buyer upon the railroad company, specifies the number of barrels, the number of the car upon which the flour was transported to the depot, and the number of the location or compartment in which it is stored, also the brand and quality of the flour.
    “ Fifth.. The one hundred barrels of flour before referred to, was all that was in the location in which it was stored on the 28th, 29th and 80th of August, and it was all alike, and answered the terms of the contract between plaintiffs and defendants in all respects.”
    The conclusions of law were:
    “ First. That upon the facts as found by the court, the title to the thirty-three barrels of flour destroyed in the depot, remained in the plaintiffs until the destruction thereof by fire, and did not pass to defendants.
    “ Second. That the plaintiffs are not entitled upon said facts, to maintain an action against the defendants as to said thirty- three barrels as for goods bargained and sold, or goods sold and delivered.
    
      “ Third. It is therefore adjudged that defendants go hence without day and recover their costs in this behalf expended and taxed at $ . To all of which said plaintiffs, by their counsel, except.
    “ Judgment and findings of court for defendants. Plaintiffs except. Motion for new trial overruled, to which plaintiffs except.”
    This judgment was affirmed by the district court.
    
      
      Ramsey & Matthews and C. B. Matthews, for plaintiffs in error:
    We claim, 1st, that there was a separation of the thirty-three barrels from any and all other ñour, and a conclusive appropriation of them to the purchasers, by the sellers, and that the possession had been vested in the defendants, so that, in any view of the law, the title had passed. Woods v. McGee, 7 Ohio, pt. 2, p. 127; Hooban v. Bidwell, 16 Ohio, 509; Story on Sales, § 296; Hanson v. Meyer, 6 East 614; Young v. Miles, 23 Wis. 643; Cloud v. Moorman, 18 Ind. 40 ; Horr v. Bucker, 6 Cal. 489; s. c., 8 Cal. 603; Watts v. Hendry, 13 Florida, 523.
    2nd. That such separation and appropriation were not necessary, and that the title would have passed, had the entire lot of one hundred barrels remained in the depot until the close of the transaction.
    Assuming that there was no separation of fifty barrels from the larger quantity, the plaintiffs were still entitled to recover upon two grounds: 1. The transaction gave defendants — the vendees — access to the entire lot of flour- — and the power to withdraw the quantity bargained for, without any further act by vendors. This brings the case within the rule asserted in Weld v. Cutler, 2 Gray, 195, and similar authorities. Brewer v. Salisbury, 9 Barb. 511. 2. Where an order is given upon a warehouseman for a specific quantity of goods, being but a part of a greater quantity, all of the same character, the title passes, upon the acceptance of the order. Cushing v. Breed, 14 Allen, 376; Carpenter v. Graham, 42 Mich. 191; Young v. Matthews, L. R., 2 C. P. 127; Kimberly v. Patchin, 19 N. Y. 330 ; Hurff v. Hires, 17 Am. L. Reg. N. S. 11; s. c., 18 Ib. 161; Russell v. Carrington, 42 N. Y. 118 ; Waldron v. Chase, 37 Me. 414; Chapman v. Shepard, 39 Conn. 413; 42 Mich. 86; 71 Me. 78 ; 6 Randall, 473.
    
      P. H. Kumler, Hrausin Wulsin and James H. Perhins, ■for defendant in error,
    claimed that there was no such separation and appropriation as to pass title to defendants, and cited, Woods v. McGee, 7 Ohio, 467; Chase v. Washburn, 1 Ohio St. 244; Smith Merc. Law, 483, Am. ed.; Outwater v. Dodge, 7 Cowen, 85; Davis v. Hill, 3 N. H. 382; Donner v. Thompson, 2 Hill, 187; Olyphant v. Baker, 5 Denio, 379; and see Benjamin on Sales, 3 ed. §§ 352, 359, 360; Blackburn on Sales, 128 ; Lynch v. O'Donnell, 127 Mass. 311; Heyward's Case, 2 Coke, 36; Aldridge v. Johnson, 7 E. & B. 885, 901, 26 L. J. Q. B. 296; Coffey v. Quebec Bank, 20 U. C. C. P. 110, 155, 483; Scudder v. Worcester, 11 Cush. 573; Bailey v. Smith, 43 N. H. 141.
   Johnson, C. J'.

Since the decision of Whitehouse v. Frost, 12 East, 614, the cases bearing on the question here involved have been numerous, but by no means uniform. The tendency of the more recent cases has been to follow that case, though its correctness has been ably challenged. This tendency has arisen out of the apparent necessity of adapting the principles of the common law to the changes in the new methods adopted for the transaction of business.

The accepted principles of right and justice form the groundwork of the law of contracts. In all questions involving contract relations, the convenience and wants of business give rise to usages which become part of the contract, where it is made with reference to such usages. This is often called the expansive property of the common law, but it is rather the application of accepted principles of right and justice, as evidenced by common law, to new phases and methods in the transaction of business.

In view of the nature of this particular business, in the case at bar, and the known usage governing buyer and seller, we think it clear that, as between them, by the delivery of the order from the seller, by the purchaser to the warehouseman, and his acceptance of the same, the right to the fifty barrels of flour wras perfected in the purchaser, and that thereafter it became his property. It is true, there were one hundred barrels out of which the order was to be filled, but it was all of the same quality, and by the known usage, the only delivery to be made by the seller, was by an order on the warehouseman, winch, when presented, entitled the purchaser to separate and remove the property.

No selection, properly speaking, had to be made, as all the barrels were alike, but only a counting off and separation, and in this respect it differs from those cases where it is the intention of the parties that there is to be a selection or designation out of the larger quantity. The effect of a known usage on such a transaction is settled in Steel Works v. Dewey, 37 Ohio St. 242. In. that case, Dewey, Yance & Company had a contract for a large quantity of ore, belonging to the Iron Mountain Company, to be taken from a larger quantity lying on the bank of the river. They sold to the Steel Works part of the ore so situated, and gave the purchaser an order on the Iron Mountain Company for the same, which was presented and accepted. By the terms of the contract, and by the usage of the business, purchasers were to take away their ore by boats during the year’, or the order would be canceled. Owing to ice and other causes, the ore was not taken away by the Steel Works during the year, though it was there for them in mass with the larger lot. It was held, that as between Dewey, Yance & Company and the Steel Works, and in view of the usage, the sale was completed, and the right to the ore vested in the Steel Works, without any separation from the larger mass. We think this case is decisive of the case at bar.

Wood v. McGee, 7 Ohio, pt. 2, p. 128 (169), is relied on to sustain the court below, and but for the effect of the known ■usage, the language of Judge Grimke sustains this claim. An examination of the facts of that case will show, that while the judgment is right, yet it did not necessarily depend ujlbn the principles discussed and declared by the learned judge. That was trover by Woods against McGee, a warehouseman, for the wrongful conversion of three hundred barrels of flour, which ’ he claimed to own. The facts were these: Swearinger owned fifteen hundred barrels of flour, varying in value from twenty-five to fifty cents per barrel, which was stored with McGee, a warehouseman. Out of this lot, Swearinger sold to Hutton six hundred barrels, and bn the 23d of April, gave , him an order on McGee for the same. On the same day, Hutton assigned the order to Gordon and Sidwell. Seven days thereafter, Gordon assigned to plaintiff, Woods, all his interest in the oi’der and purchase. This was on May 1. The order was not presented to the warehouseman until May 21, when Woods, as assignee of Gordon’s interest, received from McGee three hundred ban’els, and Sidwell received three hundred barrels, and in each case McGee took a receipt for the amount, from the respective parties. Wood sued for the three hundred barrels delivex’ed to Sidwell, on the ground that he had purchased the same of Sidwell, prior to said delivery, through his agent, Gordon. Of this sale McGee had no notice, and it appears that Sidwell, at the time he received the flour, presented the oi’iginal order with the assignment thereon by Ilntton to himself and Gordon, and with the assignment of Gordon, only of his interest to Woods. Looking, therefore, to the ordei’, one half this flour belonged to Sidwell, when delivered to him, and the warehouseman who delivered the same to him in good faith, could not, on any principle of justice, be charged in trover in favor of an unknown purchaser, when he had strictly complied with the terms of the order showing the right in Sidwell.

The distinction between that case and the one af'bax-, is so manifest, that even conceding the correctness of the principles stated by the learned judge, independent of any usage on the subject, and it is unnecessaxy to question them, they do not control in this case.

1st. There the question was considered, unaffected by any usage, in the light of which the parties acted.

2d. in that case, the order was never presented by the holders and accepted by the warehouseman, as in this, nor does it appear that he knew of its existence, or of the assignments indoi’sed thereon, until the day when all the flour was delivered,' one half to each assignee, as directed by the order. So far, therefore, as the acceptance of the order by the warehouseman affects the question of ownei’ship, as between seller and buyei’, the cases are unlike.

3d. The flour varied in price, and therefore in marketable quality, and in all such cases, there is to be a selection before the title passes.

This opinion might be extended and perhaps made more interesting by an analysis of the numerous cases on the subject both ancient and modern, but we content ourselves with a reference to some few of them, without attempting more. We hold that upon the facts found by the court, showing the well known usage of the business, it is manifest that upon the presentation and acceptance of this order, the sale was completed, and the subsequent loss of the flour, while stored at the depot must fall on the purchaser. Steel Works v. Dewey, 37 Ohio St. 242; Young v. Miles, 23 Wis. 643; Cloud v. Monman, 18 Ind. 40; Horr v. Barker, 8 Cal. 489 ; Cushing v. Breed, 14 Allen 376; Kimberly v. Patchin, 19 N. Y. 330; Waldron v. Chase, 37 Maine, 414; Chapman v. Shepard, 39 Conn. 413 ; Whitehouse v. Frost, 32 East, 614; also notes to Hurff v. Hires, 17 & 18 Am. Law Reg. 17, 161, in which the whole subject in exhaustively discussed and the cases reviewed.

Judgment reversed and cause remanded.  