Lyon v. Lenon
| Decision Date | 03 June 1886 |
| Docket Number | 12,023 |
| Citation | 7 N.E. 311,106 Ind. 567 |
| Parties | Lyon v. Lenon et al |
| Court | Indiana Supreme Court |
From the Carroll Circuit Court.
Judgment is affirmed, with costs.
J Applegate and C. R. Pollard, for appellant.
J. C Odell, J. C. Nelson and Q. A. Myers, for appellees.
This was a suit in replevin to recover the possession of five hundred and seventy bushels of wheat.
The facts as developed by the evidence are as follows: In 1882 and prior thereto, Lenon was the owner of a grain-house and elevator at Delphi, Indiana. He testified that he was not a warehouseman, and that he never stored wheat for hire. In July, 1882, the plaintiff delivered to Lenon at his elevator, in different lots, the quantity of wheat above mentioned, and received upon the delivery of each lot a receipt signed by the latter's agent of the following tenor:
No. 1., Delphi, Ind., July 24, 1882.
Received of Harry Lyon 53 fifty-three bushels fifty lbs. wheat. Not transferable without notice.
J. V. McCain.
John Lenon.
There is no evidence of any contract or understanding outside of the receipt itself, except such as is afforded by the course of business between the parties. Lenon testified that his manner of dealing with the plaintiff, as with others, was that the latter would deliver wheat at the elevator and take receipts therefor such as that set out. Whenever receipts were presented by the holder, Lenon would pay the market price of wheat at the date of presentation, and take them up. It was also shown that when presentation of the receipt was deferred beyond thirty or sixty days, a small sum as for storage was charged, and a charge was also made for insurance.
All wheat of the same grade was put into a common mass when received, as the plaintiff knew, and was shipped out indiscriminately. An effort was, however, made to keep on hand an amount equal to the outstanding receipts. This was done, not for the purpose of returning wheat to those who held receipts, but as a matter of precaution on the part of Lenon in case of fluctuations in the market. While receipts were thus held for five hundred and seventy bushels of wheat delivered by the plaintiff, Lenon became financially embarrassed and made an assignment, under the statute, for the benefit of his creditors. He had on hand at the time a quantity of wheat more than sufficient to have returned the amount due the plaintiff, but far short of the amount represented by all his outstanding receipts. The plaintiff offered to pay the storage and insurance, and demanded wheat of the assignee equal in quantity to that represented by his receipts.
The case was tried by a jury, the trial resulting in a general verdict and judgment for the defendants.
The only question for consideration is, did the receipts and the attending circumstances constitute the transaction a contract of sale, or was it a bailment? Upon its face the writing furnishes no suggestion, whether the wheat was received in store, or upon a contract of sale. Resort was, therefore, properly had to extrinsic evidence. The general and known course of dealing of Lenon was properly considered. The case is distinguishable from Schindler v. Westover, 99 Ind. 395, and Rice v. Nixon, 97 Ind. 97 (49 Am. R. 430). In the cases cited, it appeared on the face of the receipts that the wheat was left in store. In this, nothing appears except the receipt and the general course of business.
There was evidence from which the jury may have found that Lenon's business was not that of a warehouseman. He so testified. They may have found that he was engaged in purchasing and shipping grain; that the wheat for which the receipts were given was delivered upon the understanding, implied from the known course of Lenon's business, that it was in no event to be kept for him, or that either the wheat delivered or other wheat of like quality was to be returned on demand, but that it would be shipped and sold at Lenon's pleasure on his own account, and that the plaintiff was entitled, upon presentation of his receipts, to demand the market price of wheat at the date of such presentation, and nothing more.
Wheat delivered under a state of facts such as we have assumed the jury may have found, would be a delivery in pursuance of a sale. In such a transaction there would be no element of bailment. A contract of bailment contemplates the return of the goods bailed, or, growing out of the necessities of commerce, where grain is delivered in store, other grain of like quality and grade may be returned in its stead.
We recognize the doctrine, that if wheat is delivered in pursuance of a contract of bailment, the mere fact that it is mixed with a mass of like quality, with the knowledge of the depositor or bailor, does not convert that into a sale which was originally a bailment. Nelson v. Brown, 44 Iowa 455; Nelson v. Brown, 53 Iowa 555, 5 N.W. 719; Sexton v. Abbott, 53 Wis. 181. Upon the facts in this case, there was no bailment to begin with.
Where grain is received by a dealer, under a contract, either express or implied, to pay the person delivering it the market price whenever he chooses to demand it, and such grain is mixed with other of like quality in bins from which shipments are being made daily, there being no understanding that the owner shall have the right to demand either his own or a like...
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