Nelson v. Brown, Doty & Co.
| Decision Date | 26 April 1880 |
| Citation | 53 Iowa 555,5 N.W. 719 |
| Court | Iowa Supreme Court |
| Parties | NELSON v. BROWN, DOTY & CO. |
OPINION TEXT STARTS HERE
Appeal from Benton circuit court.
Action upon three wheat receipts, one of which is in the following words:
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¦“No. 29.¦DYSART, IOWA, November 3, 1874.¦
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Received of S. Everett, in store, for account and risk of L. B. Nelson, 56 40-60 bushels of No. 2 wheat. Loss by fire, heating, and the elements, at owner's risk. Wheat of equal test and value, but not the identical wheat, may be returned.
BROWN, DOTY & CO.”
Each of the other receipts imported a similar obligation. The evidence shows that the defendants were the proprietors of an elevator at Dysart, Iowa, and that they received the wheat for storage in their elevators; that the wheat upon being deposited in the elevator became mixed with other wheat of the same grade, some of which belonged to the defendants and some to other depositors; that the defendants shipped from the common mass, from time to time, wheat upon their own account, but never to exceed the amount to which they were entitled as owners, and there was enough on hand at all times to meet the outstanding wheat receipts until the elevator and contents were destroyed by fire, which occurred February 20, 1875.
The plaintiff claims that the title to the wheat deposited by him had passed to the defendants, and that he is entitled to recover the value. The court gave the jury an instruction in these words: “Whether the said wheat was in said elevator at the time it was burned, or whether it had, before that time, been shipped by the defendants or otherwise disposed of, and converted by them to their own use, is a fact for you to determine from all the evidence in the case; and unless, from all the evidence, you believe that the actual and identical wheat received on plaintiff's account was in said elevator when it was burned, and also believe that said wheat was burned up with the elevator, your verdict will be for the plaintiff.”
The jury found a verdict for the plaintiff, and judgment was rendered thereon. The defendants appeal.J. D. Nichols and Bois & Couch, for appellants.
Struble & Kinne, for appellee.
It seems probable to us, from the evidence, that very little, if any, of the identical wheat deposited by the plaintiff was in store at the time the elevator was destroyed. But where grain is mixed in a common mass, with grain of like kind and grade belonging to others, as was done in this case, the depositors became tenants in common of the mass. Cushing v. Breed, 14 Allen, 380;Sexton & Abbott v. Graham, 4 N. W. REP. 1090. From the time of such mixture the identity of the deposit made by each becomes entirely immaterial. Each depositor has a right of severance at any time, and in the exercise of such right he takes from the common mass, without reference to the identity of his deposit. The remaining depositors become each the owner of a larger fraction in a smaller mass, and their interests are not thereby affected....
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