Chase then offered evidence tending to prove that his warehouse was burnt on the night of the 26th of October, 1849, and that there was then consumed in it sufficient wheat to answer all his outstanding receipts. He also offered evidence tending to prove that the custom at Milan was to store all wheat received in a common mass and to ship from the same as occasion required, and that this custom was understood by Washburn; also that the custom was, when parties called for their pay, either to pay the highest market price, or deliver wheat to the holder of the receipts.

Washburn then offered rebutting evidence, tending to prove that Chase had not sufficient wheat in his warehouse, at the time of the fire, to answer all his outstanding receipts, and also that the warehouse was emptied of all wheat between the date of the last receipt given Washburn and the time of the fire.

Upon this state of facts the counsel for Chase asked the court to charge the jury, "that the customs at Milan, if known to Washburn, in the absence of an express contract, became a part of the contract between the parties, and if the jury should find that Chase had sufficient wheat on hand at the time of the fire to answer all his outstanding receipts, that he was not liable in this action, and that neither the mingling of the wheat nor the shipment of it would make Chase liable, if he had a sufficient amount on hand at the time of the fire to answer his outstanding receipts."

The court, however, refused to charge as requested. The bill of exceptions sets out the charge of the court in full, to which the counsel for the defendants below excepted. The verdict and judgment was in favor of the plaintiff below, to reverse which this writ of error is brought.

It is alleged for error that the court of Common Pleas erred in their charge as follows, to wit:

1st. Because that court charged the jury, "that if they should find that the wheat was received and put in mass, with other wheat of defendant, and that received of other persons, with the understanding that the wheat was to be at the disposal of the defendant, either to retain or to ship it, and with the agreement that when the receipts were presented the defendant would either pay the market price therefor or re-deliver the wheat or other wheat equal in amount and quality; then, if the jury should further find that the wheat thus left prior to the fire had all been shipped and disposed of, the defendant cannot be excused unless there was an agreement between the parties that the wheat subsequently purchased by defendant was to be substituted in place of that left by plaintiff, and to be his property."

2nd. Because the court charged the jury" that where a warehouseman receives grain on deposit with an understanding that he may if he choose dispose of it, and that he will, when demanded, return other grain or pay for it, in case of such a disposition he is bound to do the one or the other. A subsequent purchase of grain by the warehouse

man, for the purpose of meeting the demand for grain thus received, would not be sufficient to vest the property in the plaintiff."

3rd. Because that court refused to charge the jury that the custom at Milan, as proved by defendants if known to plaintiff, was a part of the contract between the parties.

Osborne and Taylor, for plaintiff.

Worcester and Pennewell, for defendant.

BARTLEY, J. To determine which of the parties in this case shall sustain the loss of the property in question occasioned by the accident, it becomes necessary to ascertain the true nature and character of the transaction between them, and the rights created and duties imposed thereby. It was either a contract of sale, a mutuum, or a deposit. If a contract of sale, the right of property passed to the purchaser on delivery, and the article was thereafter held by him at his own risk. If a mutuum, the absolute property passed to the mutuary, it being a delivery to him for consumption or appropriation to his own use; he being bound to restore not the same thing, but other things of the same kind. Thus, it is held, that if corn, wine, money, or any other thing which is not intended to be delivered back, but only an equivalent in kind, be lost or destroyed by accident, it is the loss of the borrower or mutuary; for it is his property, inasmuch as he received it for his own consumption or use, on condition that he restore the equivalent in kind. And in this class of cases, the general rule is ejus est periculum, cujus est dominium. Story on Bailments, § 283; Jones on Bailments, 64; 2 Ld. Raym. 916. But if the transaction here was a deposit, the property remained in the bailor, and was held by the bailee at the risk of the bailor, so long as he observed the terms of the contract, in so doing. But if the bailee shipped the wheat and appropriated the same to his own use, in violation of the terms of the bailment, before the burning of his warehouse, he became liable to the bailor for the value of the property.

What then was the real character of the transaction between the parties? The receipt I suppose to be in the ordinary form of warehouse receipts, and such as would be proper to be delivered by a warehouse depositary of wheat, to the owner, upon its being received into a warehouse, for temporary safe-keeping, and to be re-delivered to the owner on demand. The obligation or contract which the law would imply as against the warehouseman, on the face of such a receipt, would be, that he should use due diligence, in the care of the property, and that he should re-deliver it to the owner, or to his order, on demand, upon being paid a reasonable compensation for his services; and if the warehouseman, under such circumstances, should, without the consent of the owner, mix the wheat with other wheat, belonging to himself or other persons, and ship the same to market, for sale, he would be liable to the owner for the value of the wheat thus deposited with him.

The receipts themselves are silent as to the time the wheat was to be kept, the price to be paid for its custody, when or how to be paid, whose property it was to be after delivery into the warehouse, and what dis

position was to be made of it. But it is claimed that, inasmuch as written receipts, whether for money or other property, are always subject to explanation by parol, that the terms on which this wheat was delivered can be explained by the declarations of the parties at the time of the delivery of the first load of wheat, and also by the custom of trade which prevailed among warehousemen at Milan; and that, by such explanation it is shown that the real transaction was that the wheat was received, and, with the consent of the depositor, put in mass with other wheat of the warehouseman, and that received of other persons, with the understanding that the wheat was to be at the disposal of the warehouseman, either to retain or ship it, and that when the receipts should be presented by the depositor the warehouseman should either pay the market price therefor or re-deliver the wheat, or deliver other wheat equal in amount and quality.

If these terms were incorporated into the contract, they could not have excused the liability of the warehouseman in this case. The distinction between an irregular deposit, or a mutuum, and a sale, is sometimes drawn with great nicety, but it is clearly marked, and has been settled by high authority. In case of a regular deposit, the bailee is bound to return the specific article deposited; but where the depositary is to return another article of the same kind and value, or has an option to return the specific article, or another of the same kind and value, it is an irregular deposit or mutuum, and passes the property as fully as a case of ordinary sale or exchange. Sir William Jones says, It may be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others of equal value. In the first case, it is a regular bailment; in the second it becomes a debt." In the latter case, he considers the whole property transferred.

Judge Story, in his commentaries on the law of bailment, says, "The distinction between the obligation to restore the specific things, and the obligation to restore other things of the like kind and equal in value, holds in cases of hiring, as well as in cases of deposits and gratuitous loans. In the former cases, it is a regular bailment; in the latter, it becomes a debt or innominate contract. Thus, according to the famous laws of Alfenus, in the Digest, "if an ingot of silver is delivered to a silversmith to make an urn, the whole property is transferred, and the employee is only a creditor of metal equally valuable, which the workman engages to pay in a certain shape, unless it is agreed that the specific silver and none other shall be wrought up in the urn." Story on Bailments, § 439.

In all this class of cases, the risk of loss by unavoidable accident attaches to the person who takes the control or dominion over the property. When, therefore, Washburn's wheat was delivered to Chase & Co., and became subject to their disposal, either to retain or to ship it on their own account, the property passed, and the risk of loss by accident followed the dominion over it.

The doctrine here adopted was at one time somewhat obscured by the opinion of Chief Justice Spencer, in the case of Seymours v. Brown. 19 John. Rep. 44, in which the court decided that where the plaintiff delivered wheat to the defendants, on an agreement that for every five bushels of wheat the plaintiff's should deliver at the defendants' mill, they, the defendants, would deliver in exchange one barrel of flour, was a bailment, locatio operis faciendi; and the wheat having been consumed by fire, through accident, the defendants were not liable on their agreement to deliver the flour. This decision, however, was disapproved of by Chancellor Kent, as not being conformable to the true and settled doctrine laid down by Sir William Jones, who has been styled the great cracle of the law of bailment. 2 Kent's Com. 464. And the decision has been distinctly overruled by repeated subsequent adjudications in the State of New York. Hurd v. West, 7 Cowen, 752; Smith v. Clark, 21 Wend. 83; Norton v. Woodruff, 2 Comstock, 153; Mallory v. Willis, 4 Comstock, 77; and Pierce v. Skenck, 3 Hill, 28.

The same doctrine has been affirmed in the case of Baker v. Roberts, 8 Greenleaf's R. 101, and also Ewing v. French, 1 Blackford, 354. In the latter case, a quantity of wheat having been delivered by the plaintiff to the defendants, at their mill, to be exchanged for flour, and the defendants having put the wheat into their common stock of wheat, the mill, with the wheat, was afterwards casually destroyed by fire. The court held that the defendants were liable for a refusal to deliver the flour. If in that case the agreement of the parties had been that the flour to be furnished should be, the flour which should be manufactured from the specific wheat delivered, instead of an exchange of wheat for flour, it would have been a bailment, and the loss would have fallen upon the plaintiff.

In the case of Buffum v. Merry, 3 Mason, 478, where the plaintiff had delivered to the defendant cotton yarn on a contract to manufacture the same into cotton plaids, and the defendant was to find filling, and to weave so many yards of plaids, at eighteen cents per yard, as was equal to the value of the yarn at sixty-five cents per pound, it was held to be a sale of the yarn; and that, by the delivery of it to the defendant, it became his property, and he was responsible for the delivery of the plaid, notwithstanding the loss of the yarn by an accidental fire. But had the plaintiff and the defendant agreed to have the particular yarn, with filling to be found by the defendant, made into plaids on joint account, and the plaids, when woven, were to be divided according to their respective interests in the value of the materials; but, before the division, the plaids had been destroyed by accident, the loss, in the opinion of Judge Story, would have been mutual, each losing the materials furnished by himself.

The case of Slaughter v. Green, 1 Randolph, 3, and also the case of Inglebright v. Hammond, 19 Ohio Rep. 337, are relied upon as sustaining the plaintiffs in error. These two cases, on examination, do not sustain the doctrine of the case of Seymours v. Brown, above referred to