Nelson v. Brown, Doty & Co.

Adams, Oii. T.

x. warehooseSA|[xiin“con6tea,ui,‘ It seems ¡probable to us from the evidence that very little, if any, of the identical wheat deposited by the plaintiiT was in store at the time the elevator was destroyed. But where grain is mixed in a common mass with grain of like kind and grade belonging to othei’s, as was done in this case, the depositors become tenants in common of the mass. Cushing v. Breed, 14 Allen, 380 ; Sexton & Abbott v. Graham, ante, 181. From the time of such mixture the identity of the deposit made by each becomes entirely immaterial. Each depositor has a right of severance at any time, and in the exercise of such light he takes from the common mass without reference to the identity of his deposit. The remaining depositors become each the owner of a larger fraction in a smaller mass, and their interests are not thereby affected. The proprietor *557 of the elevator would not, by reason of the severance and withdrawal of grain by one depositor, acquire title to the balance or any part thereof. He would acquire nothing by the severance and withdrawal which could be taken by his creditors ujion execution, or burned by fire. If he would acquire nothing by one severance and withdrawal by a depositor, he would acquire nothing by two or any other number. Net it is evident that it might happen that the grain remaining to meet the receipts of the remaining depositors might not be identical to any extent with the grain deposited by them, or either of them. Upon a former appeal it was held that, under the receipts, the defendants might appropriate and dispose.of the grain upon their own account, and become debtors therefor. It is possible that the court had in mind in the instruction given the submission of the question as to whether the defendants, in the exercise of the right given them by the receipts, had appropriated and disposed of the grain on their own account, but if so we think that the language used did not submit the question properly. It gave the plaintiffs a right to recover provided the identical wheat deposited by them had been shipped out, though in the ordinary course of business, and while their interest in the mass remained unchanged.

2____ing • The question is, had the defendants made shipments upon the strength of their right acquired under the receipts, allow-them to become purchasers if they should elect. We think the court erred in the\ instruction given.

The appellee, however, contends that the title to the grain deposited by plaintiff passed to the defendants before any withdrawal by any one, and by reason of its being mixed by the defendants with other grain. This would certainly not be so if the grain was mixed by the consent of the depositors. Such was the express ruling upon the former appeal. 44 Iowa, 457 . It is claimed, however, that such consent does not now appear. Whether the rule would be different in the absence of such consent we need not determine. The plain *558 tiff’s receipts provided that the defendants might return wheat of like test and value. ' Under such receipts he cannot claim that it was understood that he was contracting for special bins to preserve the identity of. his deposits. If the preservation of the identity of the deposits was not deemed by plaintiff material, the defendants had a right to mix the wheat with other wheat of like test and value, in the ordinary conduct of the elevator business. In our opinion the title to the , wheat did not pass to defendants by reason of being mixed, nor, as .the instruction allowed the jury to find, by reason of such shipments as would remove the identical grain deposited, if they were such as to leave the plaintiff a tenant in common of the mass, and the owner of an interest equivalent to his deposit. v>

JtteVERSED.

Mr. Justice Rotiirock and Mr. Justice Beck dissent, upon the ground expressed in the dissenting opinion of Mr. Justice Rotiirook in Sexton <& Abbott v. Graham, above cited.