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to the orders of the depositors and it gave the warehouseman the right to mix the grain. He did so, mixed in grain of his own, and then wrongfully sold more than the amount of his own grain. In an action to determine the rights of the respective owners in the grain that remained it was held that the contract was a bailment and that all the several owners, including the warehouseman himself, became tenants in common. When one owner's share was drawn out the part taken became appropriated to him, and the others continued to own the rest in common. When more was added the new owner became a tenant in common with the others, the rights of the former owners attaching to the new grain so added. The warehouseman's act in withdrawing more than his own share was a conversion as to the excess, but it left the others tenants in common of the residue. It is a peculiar bailment, for, by the agreement, the bailee may substitute, by means of successive withdrawals and additions different property for that bailed. Ordinarily the right to return other property would make a mutuum, but here it was a bailment with the right to mix, thus giving the bailee the right to substitute, but the bailor's title as bailor immediately attaching to the substituted property. The holding that the different depositors became tenants in common of the mass is an application of the general rule in lawful confusion.

In Nelson v. Brown (5) wheat was deposited with a warehouseman under a contract for storage, making loss by fire at the owner's risk and allowing wheat of equal test and value, but not the identical wheat, to be returned.

(5) 44 Ia. 455.

The warehouse was burned, and an action against the warehouseman for the value of the wheat was decided for the defendant. The right to return other wheat, if there were no other provision in the contract, would have made the transaction a sale and the risk would have been on the warehouseman from the time of the deposit; but the clause that the wheat was at owner's risk showed the intention was that title should not pass, and hence it was a bailment and the owner must bear the loss. It follows that whatever the general nature of the transaction, the title will not pass if there is anything showing an express agreement that it shall not pass.

The case, however, seems open to criticism on the point that the right to return other wheat, standing alone, would have made it a sale (or mutuum) from the time of deposit. As it was optional with the warehouseman to return other or the identical wheat, the contract really was a bailment until the warehouseman elected to make it a mutuum by returning other wheat or by putting it out of his power to return the identical wheat, as by selling or mixing it. So, in Ledyard v. Hibbard (6) the court said: “As by the receipt the grain was declared to be at the depositor's risk, for the time being, it must have continued to be at his risk until some act was afterwards done by one party or the other to convert what at first was manifestly a bailment into a sale;' thus recognizing that a deposit may constitute a bailment with a power in one party or both to make it a sale.

(6) 48 Mich. 421.

SECTION 2. WILFUL CONFUSION.

§ 33. General rule. The law makes a distinction between lawful or accidental (innocent) confusion and wilful or tortious confusion. Where plaintiff had cut wood from his own land and from defendant's land and mixed it, and defendant took the whole, the trial court charged that if the wood was so mixed that the defendant could not distinguish which was his, his taking it was not a trespass. The charge was held to be erroneous because it took no account of the good or bad faith of the one responsible for the mixture (7). The good or bad faith in which the mixture is made has a material effect on the right of the respective owners.

The general principle usually stated to be the law is that where A tortiously mixes his property with that of B, so that it cannot be separated, title to the whole passes to B. Thus where the plaintiff, claiming title to certain hay belonging to the defendant, in order to be more sure to secure it, mixed it with hay of his own, and the defendant then carried away the whole, and the plaintiff brought trespass for that taking, it was held that the defendant was not liable. As the hay was indistinguishable the defendant had a right to the whole (8). And where one mortgaged a number of hats, and, being in possession, mixed them with hats of his own, so that the property of each became indistinguishable, and from the mixture sent hats to the defendant, the mort.

(7) Ryder v. Hathaway, 21 Pick. (Mass.) 298. (8) Anon., Pop. 38, pl. 2.

gagee was allowed to recover in trover for all the hats received by the defendant (9).

§ 34. No forfeiture where restitution possible. The general principle, however, is carried no further than justice requires. In Hesseltine v. Stockwell (10) A had cut logs on his own land and on plaintiff's land, mixed them, and marked them the same. Part was sold to the defendant. The plaintiff seized of that part a portion equal to what was cut on his land. The defendant retook it, and the plaintiff brought trover. It was held that an instruction to the jury that the plaintiff must prove that the logs for which he claimed damages in this action had been cut on his land and that there was no question of confusion in the action was erroneous. If the logs were so mixed as to be indistinguishable, under the law of confusion the plaintiff would be entitled to a quantity equal to what came from his land, although the identical logs taken might not all have come from his land. On the point here considered the court said: And there is no forfeiture in case of a fraudulent intermixture when the goods intermixed are of equal value. This has not been sufficiently noticed, and yet it is a just rule and is fully sustained by authority. Lord Eldon, in the case of Tupton v. White, 15 Ves. 442, states the law of the old decided cases to be, 'if one man mixes his corn or flour with that of another and they are of equal value, the latter must have the given quantity;' ... This doctrine is stated with approval by Kent. 2 Kent's Com. 365.” The

(9) Willard v. Rice, 11 Metc. (Mass.) 493,
(10) 30 Me. 237.

case makes it clear that when a restitution to the injured party of an amount equivalent to what was taken from him is possible there is no forfeiture of the wrongdoer's share. The law is satisfied if a complete recompense is made.

§ 35. Burden of separation on wrongdoer. In Fuller v. Paige (11) the defendant was mortgagee of certain drugs and medicines. The mortgagor, being in possession, sold the goods to plaintiff who mixed with them some goods of his own, and, when requested by the defendant to pick out his own property, refused. The defendant then took all and the plaintiff brought trespass. It was held that defendant was not liable for taking all. And where plaintiff wilfully mingled his logs with defendants', which he had converted, so that they were indistinguishable, and the defendants took a quantity that they in good faith believed equivalent to their own so taken, having no means of ascertaining the exact amount; in trover by the plaintiff against the defendants for the surplus that it was claimed the defendants took, it was held that the defendants were not liable (12).

The burden rests upon the wrongdoer to make the separation if he wants his property. The injured party is only obliged to exercise good faith. If he has no means of knowing what is his he may take as much as he in good faith believes is necessary to recompense him.

§ 36. Mixture of property of unequal values. In the cases discussed thus far the mixture has been of goods

(11) 26 Ill. 358.
(12) Smith v. Morrill, 56 Me. 566.

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