given to it by the labor of the wrongdoer. In Woodenware Co. v. United States (16) thieves cut timber from government land where its value at the time it first became a chattel by cutting was $60.71 and carried it to Depere, where its value was $850, and there sold it to the defendant (plaintiff in error) who bought in good faith. It was held that the thieves could acquire no title by accession and, having no title, could convey none to defendant, and the government was allowed to recover the value of the timber at Depere. If the defendant had later added value, he would have acquired title by accession and been liable for the value only at the time of the first conversion by him, i. e., when he bought.

While the foregoing represents the weight of authority, there is some recognition of the doctrine that a wilful convertor may acquire title if he adds so much value that the loss of the accession would be too great a penalty to impose upon him for the conversion. In Single v. Schneider (17) defendants cut logs from the land of the plaintiff, part in good faith and part intentionally. The question being the amount of damages to be recovered, it was held that it made no difference whether defendant made a mistaken or intentional conversion; plaintiff was entitled to only the original value of the property before the accession. The logic of the reasoning should lead to the same result if the action were replevin to recover the specific property, for the denial of the right of the plaintiff to recover the enhanced value of

(16) 106 U. S. 432. (17) 30 Wis. 570.

the property in an action of trover must rest upon the ground that the title has passed to the convertor as a result of the accession; and the property right should not be dependent upon the plaintiff's choice of remedy.

CHAPTER V.

TITLE BY CONFUSION.

SECTION 1. LAWFUL OR ACCIDENTAL CONFUSION.

§ 29. Definition of confusion. Confusion is such a mixture of the goods of two or more persons that they cannot be distinguished. It includes mixtures of similar goods, as of two quantities of the same kind of grain or liquid, and also of different kinds, where the result is a mass, the elements of which are indistinguishable, as of two kinds of liquids or metals melted and fused together, and where the original elements are practically inseparable, as wheat and oats thoroughly intermingled.

The doctrines of confusion and accession have some analogous features, but confusion is to be distinguished from accession, in that while accession is the addition in value made by one to the property of another, confusion is the mixture of the property of two or more persons. If A builds a house with B's bricks, it is the accession of B's bricks to A's land; if two piles of bricks, one belonging to A and one to B, are mixed together, it is confusion. Confusion often gives the different parties rights in common. In some cases of confusion they become owners in common of undivided shares in the mass. Accession never gives rights in comomn. One party or the other is the sole owner of the whole. The

important question is, "Who has title to the mass?" If the property of A and of B are indistinguishably mixed, A or B may have title to the mass or each may own an undivided share in it.

§ 30. General rule. Where several different owners shipped cotton in a vessel which was wrecked and part of the cotton was lost and the marks on the remainder were obliterated, so that the cotton of the respective owners could not be distinguished it was held that the different owners become owners, or, as termed in law, tenants in common of the whole mass, each owning a share proportionate to his share of all the cotton shipped (1). So if A and B, by mutual agreement, mix their grain, they become tenants in common, with interests proportionate to their contributions. These cases

represent the general rule.

§ 31. Effect on title of bailment, sale or mutuum. A bailment is the placing of personal property by one known as the bailor, in the possession of another, known as the bailee, who is to return the identical property to the bailor. The purpose may be to give the bailee the use of the property or to have something done with it or to use it for the bailor's benefit, e. g., to have it stored or to have some work done upon it.

In the case of a true bailment, the bailee does not acquire title. He has merely the right of possession to carry out the purposes of the bailment. If the identical property is not to be returned but something else in its stead, it is a sale or mutuum, being the latter when sim

(1) Spence v. Union Marine Insurance Co., L. R. 3 C. P. 427.

ilar property is to be returned. If it is a sale or mutuum the title passes to the transferee of the property. Thus, where plaintiffs delivered wheat to a miller under an agreement by which the miller was to give the plaintiff a barrel of flour for each amount of wheat of an agreed quantity, it was held that the transaction was a sale (2). Where, however, wheat was furnished and flour was to be returned, and it was agreed that the flour was "to be made out of the wheat furnished by" the person furnishing it, it was a bailment (3). In the former case there was no such obligation to return the flour made from the identical wheat.

§ 32. Confusion by bailee and vendee. Cases of confusion frequently occur when a person, with whom property has been deposited, mixes it with the property of other persons or of himself. It becomes important to determine whether the transaction is a bailment or a sale. If it is the former, it is a case of confusion; if it is the latter, there is no real confusion. In Smith v. Clark, above, the wheat received from the plaintiff by the miller was stored by him in a common bin with other wheat. As the agreement made a sale, this was not a true case of confusion. The miller simply mingled his own property. When, however, a bailee mixes property of different owners deposited with him the result is a confusion. In Sexton v. Graham (4) grain was deposited with a warehouseman by different owners. The contract was that the grain was received in store subject

(2) Smith v. Clark, 21 Wend. (N. Y.) 83.
(3)

Inglebright v. Hammond, 19 Ohio 337.

(4) 53 Ia. 181.