McGrew v. Thayer
| Decision Date | 09 May 1900 |
| Docket Number | 3,143 |
| Citation | 57 N.E. 262,24 Ind.App. 578 |
| Parties | MCGREW v. THAYER, ET AL |
| Court | Indiana Appellate Court |
From the Wabash Circuit Court.
Affirmed.
B. M Cobb, for appellant.
J. B Kenner and U. S. Lesh, for appellees.
Appellant sued appellees to recover for grain alleged to have been sold and delivered to appellees. It is averred that the contract of sale was that on demand appellees were to pay appellant the market price, as the same might be, on demand of payment. The complaint then avers a demand and a refusal to pay. The appellees answered in general denial. Upon proper request, the court made a special finding of facts, and stated its conclusions of law thereon. The facts specially found show that appellees were partners engaged in buying, selling, and storing grain at Huntington, Indiana, and were operating a warehouse there; that on July 19, 1894, appellant brought to appellees' warehouse 850 bushels and fifteen pounds of wheat, which was received by appellees upon the terms and conditions of a written agreement as follows:
The court also found that appellant delivered to appellees at the same place two lots of oats, aggregating 1,432 bushels and twenty-six pounds, for which like storage receipts were given; that said receipts were made out and delivered to appellant at the time or soon after the several lots of grain were delivered to appellees; that said wheat and oats were placed in storage bins with other grain of like quality, and that appellant knew his grain was to be mixed with other grain of like character; that on August 8, 1894, appellees' warehouse and the contents thereof were destroyed by fire, which fire and destruction occurred without any fault or negligence on their part; that continuously from the time said grain was delivered to appellees at their warehouse, up to and including the time of the fire, they had on hand a sufficient quantity of wheat and oats of a like character and quality to have delivered to appellant and to all others who had stored grain with them the several amounts stored by him and them; that, aside from the wheat stored with appellees, they had on hand about 8,000 bushels, which they had purchased outright, and which belonged to them; that all the wheat, including that owned by appellees, which was not totally destroyed by fire, was carefully cared for by appellees, and distributed among the different persons who had wheat in store with them, each receiving an amount in proportion to the amount he had in store, and that appellees tendered to the appellant a portion of said salvage equal to his proportion of wheat so left in store with them, but that he refused to accept the same; that, when the wheat was delivered by appellant, it was worth forty-three cents per bushel, and when the oats was delivered it was worth twenty-five cents per bushel.
As conclusions of law, the court stated: (1) "The title to the grain left by the plaintiff in store with the defendants remained in the plaintiff up to and including the time of the fire, and that the defendants held it as bailees for the plaintiff." (2) "The defendants are not liable to the plaintiff for the value of such grain, nor the damages resulting to plaintiff from its destruction." (3) "I further conclude that the law is with the defendants, and that the plaintiff should take nothing by his suit."
Appellees have suggested some technical objections to the exceptions of appellant to the conclusions of law, but, as the questions for decision are fairly presented by the record, we are inclined to waive any such technicalities, and decide the questions upon their merits.
The main question for decision is, do the facts specially found show a contract of bailment or a contract of sale? If the former, then the conclusions of law are correct. It is earnestly argued by appellant that the facts show a sale, and not a bailment. This argument is based on that clause in the receipts which reads: "For which we agree to pay the market price per bushel at any time to July 1, 1895." In connection with other provisions of the receipt, it is not difficult to put a construction upon this one. By this provision, a time limit was given appellant by which he could, at any time within the limit (July 1 1895), demand of appellees payment for the grain at the market price at the time of the demand. Up to that time, appellees could not have compelled appellant to accept from them the market price without his consent. In other words, the appellees had no right to purchase the grain at the market price without the assent of the appellant, and the special findings fail to show any such sale was ever made, or any market price ever agreed...
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