Carlisle v. Wallace
| Decision Date | 27 May 1859 |
| Parties | Carlisle v. Wallace |
| Court | Indiana Supreme Court |
From the Marion Court of Common Pleas.
The judgment is affirmed with 1 Per cent. damages and costs.
L Barbour and J. D. Howland, for appellant.
H. C Newcomb and J. S. Tarkington, for appellee.
Wallace sued Carlisle for the value of wheat, which he had deposited in store with Carlisle, who was a miller. The plaintiff declared in assumpsit and trover, and in his reply he set up a claim for the destruction of the wheat by fire, by the carelessness of Carlisle. The Court overruled a demurrer to the complaint, for a misjoinder of causes of action, and held, also, that the reply was in conformity with the statute. The defendant, in his answer, set up a usage of trade, that when wheat was placed in store with a miller without any further agreement, it remained at the risk of the depositor; and he might afterwards call for the same quantity of the same quality of wheat, or sell it to the miller, as they might agree.
The evidence is not upon the record, and the questions in this Court are raised only upon instructions given and refused.
As the evidence is not before us, we are unable to discover the precise facts of the case, and can with difficulty determine upon the accuracy of qualifications in instructions, as applied to the evidence.
It would seem from the record and arguments of counsel, that Wallace placed in the mill of Carlisle some four hundred bushels of wheat, upon the terms that the latter was at liberty to mix it with his own, convert it into flour when he pleased, sell the flour, and appropriate the proceeds to his own use; and, whenever Wallace saw fit, he had a right to exact from Carlisle, the same quantity in kind of wheat, or the amount of flour so much wheat would make, or the then price of wheat per bushel in money.
After the delivery of the wheat, but before Wallace had made a demand of Carlisle for anything in return, the mill of the latter, and the wheat, then in store in it, were consumed by fire; and the question is, who is to bear the loss of the wheat?
It is necessary, in answering this inquiry, to first ascertain the character of the contract under which the wheat was delivered to Carlisle. Was it one of bailment, or of sale?
As neither the identical wheat, nor the flour made from it, was to be returned to Wallace, and the wheat was not to be kept separate, but to...
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