O'Dell v. Leyda (46 Ohio St. 244, 1889)

Williams, J.

The receipt which Easterday gave to the plaintiff, when he stored his wheat in the warehouse, interpreted according to its terms and commercial usage, evidences a bailment and not a sale; and the property in the wheat remained in the plaintiff. The obligation of Easterday was to use due care during his possession of it, and return it to the owner when he should require it. And this relation of the parties was not changed, or the plaintiff’s title extinguished, or transferred to the bailee, by mixing the wheat with wheat of like quality and grade, stored by others on like terms, or with the wheat belonging to Easterday.

' “ When the owners of wheat consent to have their wheat, when delivered at a mill or warehouse, mixed with a common mass, each becomes the owner in common with the others, of his respective share in the common stock. And this would not give the bailee any control over the property which he would not have, if the wheat of each one was kept separate and apart. * * * If a part of the wheat held in common belong to the bailee himself, he could not abstract from the common stock any more than his own appropriate share without a violation of the terms of the bailment.” Chase v. Washburn, 1 Ohio St. 244, 252.

It was held in Inglebright v. Hammond, 19 Ohio, 337, that “ 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 for a certain number of bushels of wheat.”

In Wells on Replevin, sec. 203, it is said that “where from the very nature of the property the different articles are incapable of being distinguished, and where such separation, could it be made, would not be of the least advantage to any one, the just rule and the current authorities is, that each must take his share from the common mass. Thus, when like grain of different owners is mixed, the separation is not only impossible, but the failure to make it can not injuriously affect either party in the slightest degree. And in all such cases when the mixture has been by consent, or under circumstances in which the mixture would be reasonably expected by both, or when it has been occasioned by accident, or mistake, and without any wrong intent, the law will give to each his just proportion, for the reason that in such case the mixture does not change the title, nor are the consequences such as follow the mixture of ingredients incapable of separation.” “ The law is well settled,”, says the same author, “ that, where property can not be identified or separated so as to be seized, replevin is not the proper remedy. But in cases like the preceding, where the goods mixed are of the same kind, though not capable of separation by identification, yet if a separation and delivery can be made of the proper quantity without injuriously affecting the remainder, each may claim his share from the general mass, and may employ. this action to secure it.” Wells on Replevin, sec. 205.

And Inglebright v. Hammond, supra, announces the same doctrine, as follows : “ 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.”

It remains to be considered whether the agreement of the parties, at the time the wheat was deposited, or their subsequent conduct, establishes a different relation between them, or materially affects their legal rights. There is no substantial discrepancy in the statement of the parties concerning the agreement, which simply was, that the wheat should be deposited free of storage at the owner’s risk, to remain in the warehouse until Leyda was ready to sell, when, it was expected Easterday would buy it, but if he did not, and it should be sold to another, he was to deliver to the purchaser. There was no agreement that Easterday might ship or sell the wheat, or have any dominion or control over it, other than its possession while it remained in storage. The agreement, therefore, did not constitute a sale, but a bailment. It appears from the testimony of Easterday, that Leyda and others brought their wheat to his warehouse to be stored, and it was put in bins with other wheat of the same grade and quality belonging to Easterday. Out of these bins Easterday sold wheat, but never took out more than his own. He says: “ I never took out of the common pile more than my own. I would take my portion and sell it. I always reserved the amount in store, but not the identical wheat.” He further testified that there was nothing said between him and the persons who stored their wheat about mixing it with his or other wheat. The practical question presented by the exceptions to the charge of the court, and the refusal to charge as requested, therefore is, whether, upon the-foregoing state of facts, it was essential to the plaintiff’s right to maintain his action of replevin for his portion of wheat from the common mass, that the specific wheat stored should continue to be part of the common mass from which the property was taken under the writ. In other words, does the fact that Easterday sold out of the common mass of stored wheat his own portion, but always keeping and reserving enough to meet the demands of his depositors, deprive a depositor of his remedy by replevin, unless it be shown that the identical wheat deposited remained and constituted part of the common mass ?

The jury were instructed, that if the stored wheat was sold and shipped by Easterday, though kept separate from wheat intended for shipment, and other wheat was by him put in its place, the plaintiff could not by replevin take his portion from the substituted wheat, but that his remedy would be to recover by action the value of the wheat, or present his claim therefor to the assignee as other creditors. This instruction is in no way qualified, nor is its application made to depend upon the agreement of the parties, or upon any other fact. It defeated the plaintiff’s action, if the jury found that the stored wheat had been removed by Easterday, although the agreement required that it remain in the warehouse, and gave Easterday no power of sale or disposition over it, and notwithstanding he substituted for it and in its place, other wheat of like quantity, grade and quality, for the purpose of preserving to the plaintiff the ownership of the property his receipt represented. There can be no doubt, that if, by the terms of the contract, Easterday had been authorized, at his pleasure, to take from the common mass of stored wheat, and appropriate it to his own use, or otherwise dispose of it, and pay for it either in money or with other wheat, the title atid dominion of the property would have passed to him upon delivery, as fully as in case of an ordinary £ale, and he would have become a debtor for its value. Chase v. Washburn, supra. Nor can it be doubted that where the contract is purely one of bailment, and the bailee in violation of his duty under it, sells the property, or converts it to his own use, the bailor may bring an action against him for its value; and it will be no defense that the bailee has put other like property in its place. But is that the only remedy of the bailor in such case ? May he not waive the tort and take the property? If the bailee chooses to supply the place of the property he has wrongfully disposed of, with other property of the same kind and value, why should he complain if the bailor, instead of suing for the wrong, take the property which has been put in the place of his ? A bailee, like other agents entrusted with property, holds by a delegated right, and, as a general rule, is not permitted to dispute the title of his principal, or set up any personal claim to the property, but is held bound to restore the property to his bailor; and, when a transfer of the property by the agent is tortious, the principal may elect to sue for the tort, or reclaim the property, or hold the agent as his trustee for whatever he has received for it. Wharton on Agency, sec. 240, 414.

“ And not only may the principal, in many cases, follow his own property into the hands of third persons, where it has been transferred or disposed of by an ■ agent, contrary to his instructions, or duty, but the principle is still more extensive in its reach ; for, if it has been converted into, or invested in other property, and can be distinctly traced, the principal may follow it, wherever he can find it, and as far as it can be thus traced, subject, however, to the rights of a bona fide purchaser for a valuable consideration without notice, in all cases where the latter is entitled to protection. It will make no difference, in law, as, indeed, it does not in reason, what change of form, different from the original, the property may have undergone, whether it be changed into promissory notes, or other securities, or into merchandise,