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the plaintiffs' bales being included or not in the quantity totally lost ; but, in the absence of information as to the part of the vessel in which those bales were stowed, so as to show whether they were exposed, and to what extent, to the perils which caused the total loss of the bales that perished, it is obvious that such calculations can result only in dry formulæ of combinations, subject to be disturbed by the missing element of extent of exposure to danger, and that they furnish no practical assistance upon the one side or upon the other.

It was upon a calculation of this description that Mr. Griffith Williams, on behalf of the plaintiffs, for the first time, at a very late stage of the argument, contended that, assuming the defendants' principle to be correct, yet that it had not been correctly applied. Mr. Williams has, however, failed to satisfy us that the calculation was incorrect. It seems to us that, so far as it is practicable, and without entering into every minute circumstance and probability connected with the state of the weather and of the vessel, the position of the different parts of the cargo, and the effects of the sea and weather upon the vessel and cargo, upon which there was no evidence, the amount paid into court, together with the other payments, is sufficient to cover the plaintiffs' claim, so far as it was proved, for an average loss.

Upon the remaining question which was raised, as to whether, if there were å total loss, it was a loss proximately by the perils of the seas, it is not necessary to pronounce any opinion.

Our judgment is in favor of the defendants; and the rule to enter the verdict for them, or a nonsuit, will therefore, at the election of the plaintiffs as to the alternative, be made absolute.

Rule absolute accordingly.

SMITH v. CLARK.
SUPREME Court of New YORK. 1839.

[Reported 21 Wend. 83.] This was an action of replevin tried at the Yates circuit in June, 1838, before the Hon. Daniel Moseley, one of the circuit judges.

The plaintiffs declared for the taking and detaining of 75 barrels of wheat flour. The defendant pleaded non cepit and property in himself. On the trial the following facts appeared : Charles Hubbard owned a flouring and custom mill on the outlet of the Crooked Lake. In December, 1834, the plaintiffs made an agreement with him to deliver wheat at his mill, and he agreed that for every 4 bushels and 55 pounds of wheat which should be received, he would deliver the plaintiffs one barrel of superfine flour, warranted to bear inspection in Albany or New York. The plaintiff's purchased from farmers and others nearly 2,000 bushels of wheat, which was from time to time delivered at the mill,

wheat and took 100ml also sola defendant had

and put into a bin with other wheat which Hubbard purchased on his own account, and with the toll wheat taken by him from time to time. Hubbard delivered 230 barrels of flour to the plaintiffs, but that was not enough to satisfy his contract. On the 25th March, 1835, he sold 100 barrels of flour to the defendant, and in May following delivered him the 75 barrels of flour in question, in pursuance of the contract of sale. The plaintiffs brought this action and arrested the property on board a canal boat, in which the defendant had caused it to be shipped for market. Hubbard also sold between 30 and 50 barrels of four at retail, and took 10 or 12 bushels of wheat for his own use. All the wheat manufactured and used by Hubbard was taken from the same bin. The plaintiffs attempted to prove that the 75 barrels of flour in question had been delivered to them by Hubbard.

The defendant moved for a non-suit, which was refused, and raised other questions on the charge of the judge, which are noticed in the opinion of the court. The jury, under the charge of the judge, found a verdict for the plaintiffs, and the defendant now moved for a new trial.

H. Welles and S. Stevens, for defendant.
S. Cheever, for plaintiffs.

By the Court, BRONSON, J. The contract between the plaintiffs and Hubbard was, in effect, one of sale, — not of bailment. The property in the wheat passed from the plaintiffs at the time it was delivered at the mill, and Hubbard became a debtor, and was bound to pay for the grain in flour, of the specified description and quantity. There was no agreement or understanding that the wheat delivered by the plaintiffs should be kept separate from other grain, or that this identical wheat should be returned in the form of four. Hubbard was only to deliver flour of a particular quality, and it was wholly unimportant whether it was manufactured from this or other grain. Jones on Bail. 102, 64. A different doctrine was laid down in Seymour v. Brown, 19 Johns. R. 44; but the authority of that case has often been questioned. 2 Kent, 589 ; Story on Bail. 193-194, 285; Buffum v. Merry, 3 Mason, 478; and the decision was virtually overruled in Hurd v. West, 7 Cow. 752, and see p. 756, note. The case of Slaughter v. Green, 1 Rand. (Va.) R. 3, is much like Seymour v. Brown. They were both hard cases, and have made bad precedents.

There was, I think, no evidence which would authorize the jury to find that the flour in question had been delivered by Hubbard to the plaintiff's. There certainly was no direct evidence of that fact, and Hubbard himself testified expressly that there had been no delivery. The proof given by the plaintiffs of what Hubbard had said to others about the flour in the mill was not necessarily inconsistent with his testimony.

But if there had been a delivery, so that the property in the flour passed to the plaintiffs, they still labor under a difficulty in relation to the form of the remedy. Notwithstanding the transfer, the property

was left in the possession and under the care of Hubbard. He was a bailee of the goods, and as such would have been answerable to the plaintiffs for any loss happening through gross negligence on his part. The defendant took the flour by delivery from the bailee, who had a special property in it. Such a taking is not tortious. Marshall v. Davis, 1 Wend. 109; Earll v. Camp, 16 Wend. 570. The plaintiffs should have counted on the detention, not on the taking of the goods. Randall v. Cook, 17 Wend. 57; 10 Wend. 629. There must be a new trial.

Nero trial granted.

CHASE v. WASHBURN.
SUPREME COURT OF Ohio. 1853.

(Reported 1 Ohio St. 244.) . ERROR to the Common Pleas, reserved in the District Court of Huron County for decision by the Supreme Court.

The original action was assumpsit, in which the plaintiff, Washburn, sought to recover the value of a quantity of wheat, which bad been delivered by him to the defendants, Chase & Co., as warehousemen, engaged in the produce business, at the village of Milan, in said county.

It appears from the bill of exceptions taken in the case that on the trial of the cause in the Common Pleas, Washburn offered in evidence sundry warehouse receipts, given him by Chase & Co. for wheat delivered at various times, between the month of October, 1847, and the month of August, 1849, amounting in the aggregate to six hundred bushels and more. The receipts are similar in form and effect, and the first in date, which may be taken as a sample of the others, is as follows:

“ Milan, O., Nov. 5, 1847. Received in store from J. C. Washburn (by son), the following articles to wit: Thirty bushels of wheat.

H. CHASE & Co."

It further appears that the agent of Washburn was introduced as a witness, who testified that he had been instructed by Washburn, the defendant in error, when he delivered the first load of the wheat, not to sell the wheat for less than one dollar per bushel, and if he could not get that, to leave it in store with Chase & Co., the plaintiffs in error, and that he told Chase that Washburn had five or six hundred bushels to draw, and that Chase at the time told the agent, when he left the first load, that they (Chase & Co.) would pay the highest price when Washburn should call for it. The wheat was accordingly from time to time delivered, and in May, 1850, a demand was made for either the wheat or the money, and both refused.

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 tbe 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 bis 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 deterinine 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 it 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 clue 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

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