Henderson v. Lauck

• Decision Date: 25 July 1853
• Citation: 21 Pa. 359
• Parties: Henderson <I>versus</I> Lauck.
• Court: Pennsylvania Supreme Court

21 Pa. 359

Henderson versus Lauck.

Supreme Court of Pennsylvania.

July 25, 1853.

ERROR to the Common Pleas of Cumberland county.

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Henderson, Miller, and Gallagher, were for plaintiffs in error. —To maintain replevin, the property claimed should be clearly or precisely indentified: 2 Rawle 427; 20 Vin. 419; 5 Johns. Rep. 348; 6 Id. 168; 10 Id. 287; Comyn on Land. and Ten. 385; 6 Law Lib. 216. It was said that the Court erred in charging that the plaintiffs could recover if the grain could be indentified with reasonable certainty.

By the doctrine as to confusion of goods, each owner of goods mixed has an interest in the whole to the extent of his portion: but if this doctrine were applicable to the grain in question, replevin would not be maintainable: 1 Black. Com. 405; 5 Barr 211.

As to the second point was cited 1 Yeates 528-9, Leedom v. Philips; 1 Harris 146, Bowen v. Burk; 3 Ser. & R. 20, Harris v. Smith.

Watts, contrà.—Lauck never relinquished any part of the terms agreed upon, and was not guilty of remissness in the matter.

The opinion of the Court, filed July 25, 1853, was delivered by LOWRIE, J.

The instructions of the Court were clearly right as to the questions of the sale and conditional delivery of this grain; and thus the real question is fairly raised — Does the fact, that, on receiving it, the buyer mixed it with other grain of his own, of the same kind in one heap, prevent its specific reclamation?

The answer of the Court was in the negative, and so is the Roman law, Inst. 2, l. 28; Dig. 6, 1, 3, 2, and Eod. tit. L. 5; and such is the very point in Inglebright v. Hammond, 19 Ohio Rep. 337; 11 U. S. Dig. 95, as to grain; and of Ryder v. Hathaway, 21 Pick. 305, as to cord-wood. In all these cases the owner is allowed to take back his own share of the bulk, kind for kind, measure for measure. It does not change the result that the seller saw the mixture take place, without objection: for, by consenting to such a mixture, the owners acknowledge that each parcel is of like quality, and that each one may take out the proportion that he cast in: Dig. 41, 1, 7, 8. It was not the seller that was wrong in allowing the mixture, relying on the promise of the buyer; and to permit the buyer to allege the mixture in bar of the right of reclamation, is to permit him to gain by his own fault.

Indeed every principle of law is against the buyer, for it was he that did the wrong in mixing the grain, if he was not ready to pay for it; and the usual rule would give the bulk to the seller until the buyer should separate his own. But this does not apply to goods so undistinguishable as grain, if the measure of each one's...