be mixed not only with grain belonging to third persons, but with grain belonging to the proprietor, if he should have any. This mode of doing business seems to be demanded by considerations of economy. Now we are asked to hold that such depositors lose title to their grain immediately upon its being deposited, and that the receipts issued to them, though expressly calling for grain, are no evidence of a claim for grain, but at best are merely evidence of a claim for money, and are good or otherwise, according as the maker is or is not responsible. It is contended that such deposits of grain are like general bank deposits of money. In our opinion, however, there is a very important difference. In case of a general bank deposit it is understood that the bank will use it in its own way. It is from the use of deposits that the bank is to receive its compensation for receiving the deposits and accounting for the same. It is true that as grain has a definite and well recognized market value it would not, ordinarily, make much difference to the receipt-holder whether he received the grain which his receipt called for, or was paid its market value in cash. But the rule contended for would make a great difference in the safety of the receipt-holder. In our opinion it cannot be sustained either upon principle or authority. The cases above cited as relied upon by appellant's counsel are none of them in point. In all of them there was enough in the receipts, or in the circumstances, or both, to evince an understanding upon the part of the depositor that the warehouseman should have a right to sell the thing deposited upon his own account, or otherwise appropriate it to his own use. Such an understanding does not exist upon the part of grain receipt-holders by reason of a mere agreement that the warehouseman may mix his own grain with theirs and draw out and sell the same amount. In such case the warehouseman becomes a tenant in common like any other depositor, and may be permitted to enjoy the same right of severance without affecting the title of his co-tenants.

Again, upon looking into the plaintiffs' receipts, we find that they are something more than mere receipts. They contain what appears to us to be an express contract of bailment. If so, it is not competent to show that there existed a different contemporaneous parol understanding. Marks v. Cass County Elevator Co., 43 Iowa, 146.

The transaction, then, being a bailment in the outset, we come to inquire whether the relation of the parties became changed by reason of what afterwards transpired. The appellant contends that it did. It is insisted that the evidence shows that the grain in controversy is entirely different grain from that in store when the plaintiff's receipts were issued.

The business which Graham was doing was an ordinary grain warehouse or elevator business. Grain received from different depositors was put in at the top of the elevator and delivered to them at the bottom. Grain of like kind and grade was mixed in a common mass. Delivery was made to each depositor without the slightest reference to

identity of grain deposited. It was not only useless but impracticable to respect the identity of the deposit. The plaintiff's wheat receipt was held about six months. There were in store at the time of its issuance about 55,000 bushels. Afterwards there passed through the elevator about 150,000 bushels. This fact alone, it is said, is sufficient to render it improbable that any considerable part of the wheat in controversy is identical with that originally covered by the plaintiff's receipt; besides, it is said that the evidence shows that the elevator was cleaned out two or three times. It appears that a mode of receiving and delivering grain was employed two or three times which resulted in substantially effecting a change in the mass; it was done to prevent heating; it was accomplished by preventing grain received after a certain date from mingling with that received before. This was easily practicable by reason of the different floors and compartments of the elevator. The amount of grain in store, however, at any given time was neither greater nor less by reason of the cleaning out process. The different floors or compartments were emptied successively and successively refilled, but the change of mass was effected as substantially as if all had been emptied at once. The appellant insists that the change of mass destroyed all identity between the wheat in controversy and that originally covered by the plaintiff's receipts, and, if so, that the receipt cannot be upheld.

In the ordinary conduct of the business of an elevator a partial change of mass is effected by every receipt and shipment. Such partial change, however, does not impair the value of the outstanding receipts. As each receipt-holder withdraws his grain, the remaining receiptholders become each the owner of a larger fraction in a smaller mass. Upon each new deposit being made, the receipt-holders become each the owner of a smaller fraction in a larger mass. So far, we presume that there is no controversy. The process may be continued from day to day, and so long as the change of mass is a partial one, though approximating day by day to completeness, the value of the outstanding receipts remains unchanged. Possibly it would be admitted by appellant that the value of a receipt would remain unchanged when next to the last kernel originally covered by it was withdrawn. Possibly somewhat more than that amount might be deemed necessary to uphold the receipt. But according to the appellant's theory, as we understand it, whatever the amount may be, whether one kernel or one bushel, its withdrawal, although in the ordinary and necessary conduct of the business, renders the receipt worthless as evidence of a claim to grain, and what a moment before was a valid title in the receipt-holder to all the grain called for by his receipt becomes transferred from the receipt-holder to the warehouseman, and that, too, in the absence of any agreement or understanding of that kind between the parties. It will be seen at once that the rule contended for would result in the most painful uncertainty and interminable confusion. No receipt-holder who had held his receipt even for a

short time during a period of active business would know, or could possibly ascertain, what his rights are. This result, so undesirable in every respect, is reached by appellant upon the purely technical view that unless a portion of the original grain, at least a kernel or two, remains, the receipt must, in the nature of things, fail. In our opinion, a complete answer is that as the receipt attaches upon each new deposit the receipt-holder becomes and remains a tenant in common at all times of the mass which is being added to and subtracted from.

At this point a question arises as to what is to be deemed a common mass. The elevator, as we have seen, was constructed with different floors and compartments. Grain was put in at the top of the elevator and delivered at the bottom. If a receipt-holder called for his grain immediately it seems probable that he would not only receive no part of the grain deposited, but would receive grain from some floor or compartment, which would contain no part of the grain deposited. He would, therefore, receive grain with which the grain deposited by him had not been actually mixed. But the delivery to him would not for that reason, we think, be wrongful. When grain is deposited in an elevator with the understanding that it may be mixed with all grain of that kind and grade in the elevator, and the grain of that kind and grade is distributed upon different floors or in different compartments merely because the weight of the grain, or prevention from heating, or convenience in handling, or some other reason of that kind requires it, and not at all for the preservation of identity, all the grain of that kind and grade is to be deemed a common mass within the view of the law as applicable to such a case. This must be so, because the grain is practically treated as a common mass. When grain passes into the elevator with the understanding that it may be mixed with other grain of the same kind and grade it passes beyond the control of the depositor, so far as identity is concerned. What the parties have agreed to treat as a common mass is such for the purpose of determining the rights of the parties. We think, then, that a depositor becomes a tenant in common of all the grain in the elevator with which his grain may properly be mixed, and he may demand the satisfaction of his receipt out of any or all such grain. Of course if grain is wrongfully abstracted there would not be enough to meet all the receipts. In such case the loss should be borne pro rata.

In this case grain was wrongfully abstracted. Graham after exhausting his own deposits drew largely in excess. The amount wrongfully taken by him exceeded the amount left on hand when he absconded. It is contended by the appellant that the amount thus left belonged to Graham. The appellant's theory is, as we understand it, that the amount on hand must be solely the result of Graham's deposits. The assumption that this grain belonged to Graham at the time he absconded involves the assumption that when grain was wrongfully abstracted by Graham, and afterwards a deposit was made by him, the law would not, in the absence of an agreement to that effect, apply

the subsequent deposit toward making good the previous wrongful abstraction.

Whether, if Graham's deposits had all been made subsequent to his wrongful taking, he could in a controversy between the receipt-holders and himself, in respect to the grain left on hand, be heard to say that they had no interest in it, because he had before the deposit of this grain wrongfully taken all their grain, is a question perhaps not fully settled by adjudication. As tending to support the rule that he would oe estopped in such case, see Gardiner v. Suydam, 3 Selden, 363. But we need not go into this question. There is nothing to show that Graham's wrongful shipments were all made prior to his deposits. To the extent of his deposits at the time of his shipments they were not wrongful. And his shipments altogether never equalled the amount of his deposits, and the amount called for by the outstanding receipts. They lacked precisely the amount left on hand. That, we think, must be deemed to belong to the receipt-holders.

But it is said that subsequent to the issuance to the plaintiffs of their wheat receipts they gave their consent to Graham that he might sell their wheat upon his account. If they did give such consent, and the deficiency resulted from the sales of their wheat in pursuance of such consent, perhaps as between them and other receipt-holders they should sustain the loss.

There is some evidence showing a consent by plaintiffs to certain sales. One of the plaintiffs testified that Graham sometimes asked for permission to sell wheat, and that he gave permission on condition of his replacing it, which he generally did in a few days. Now while it is certain that he sold a large amount which he did not replace, it is not shown that that grain was sold by plaintiffs' permission.

The appellant further insists that the evidence shows that Graham not only sold a portion of plaintiffs' grain by their permission, but purchased of them all the balance. In the evidence upon this point there is a very decided conflict. Graham testifies that he not only purchased the plaintiffs' grain but paid them for it. But Graham's relation to the case is not such as to commend his testimony to us as entitled to the fullest credit. Besides there is an undisputed fact that prevents us from believing that Graham made such purchase and payment. The plaintiffs' receipt was held by the Citizens' National Bank of Davenport as collateral to a loan of $10,000, which was well known to Graham. It was not within Sexton & Abbott's power to give Graham a good title while the bank held the receipt. Possibly title was of no consequence to Graham. He may have contemplated selling and shipping the grain without title, as he in fact did do to a considerable extent. But that is no reason why he should buy the grain of the plaintiffs, who he knew could not sell it, and pay them for it.

But it is said that Graham's testimony is corroborated. Four witnesses do indeed testify to hearing one of the plaintiffs say that they had sold their grain to Graham. It seems improbable that these wit

nesses were all mistaken. There were negotiations for a sale, as appears from the evidence, and we are inclined to think that plaintiffs, for reasons known to themselves, spoke of the sale to others as having been consummated. But this is not, in our opinion, sufficient to overcome the testimony of the plaintiffs that such sale was not in fact made, corroborated as they are by the undisputed fact to which we have referred.

The appellant further insists that the evidence shows that the plaintiffs were partners with Graham, and that Graham had a right as partner to sell the grain. Graham testifies that such was the fact. But the right on the part of Graham to sell the grain as partner would not include the right to sell it upon his own account, and there is no pretence that he sold it upon any other. That circumstance alone would discredit him. But further than that the undisputed fact is that the title to the grain was not only solely in the plaintiffs, but they had transferred their receipt to the Citizens' National Bank as security, which bank still held it. If anything more were necessary to show that Graham did not consider the shipment and disposal of the grain by him as a partnership transaction, it may be found in the fact that no specific shipment and disposal of the grain appears to have been made. The shipment and disposal appear to have been an undistinguishable part of a criminal raid.

Having reached the conclusion that the plaintiffs and Graham in the outset sustained to each other the relation of bailors and bailee, and that nothing afterward transpired which changed the relation, we proceed to consider the relation of the plaintiffs to the appellant.

Both plaintiffs and appellant are receipt-holders. In our opinion, however, they do not stand in the same relation to the grain. The appellant's receipts were not issued to it upon deposits made by it, nor because it had acquired the title to any grain in the elevator. The understanding between Graham, the maker of the receipts, and the appellant was, that the receipts were issued upon grain owned by him, and to which he still retained the title. They were issued merely as security. The appellant insists that as such they are valid, being evidence of a pledge of the quantity of grain therein described.

...

...

Section 2172 of the Code provides that" no warehouseman . . . shall issue any receipt . . . for any personal property to any person unless such property is in store," and section 2171 provides that "all warehouse receipts, or other evidences of the deposit of property shall be, in the hands of the holder thereof, presumptive evidence of title to said property."

It is evident that the property contemplated by the statute, for which a warehouse receipt may be issued, must be the property of the receipt-holder. This is so because the statute provides that the receipt shall be presumptive evidence of title in the holder. If it is issued in a case where the holder has no title, and where the receipt was not designed by either party to be evidence of title, it appears