Potter v. Mt. Vernon Roller Mill Co.

• Decision Date: 14 April 1903
• Citation: 73 S.W. 1005,101 Mo. App. 581
• Court: Missouri Court of Appeals
• Parties: POTTER v. MT. VERNON ROLLER MILL CO.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 1005

101 Mo. App. 581

POTTER v. MT. VERNON ROLLER MILL CO.^*

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

SALES — WHEAT ELEVATOR — CONSTRUCTION OF CONTRACT — EVIDENCE.

1. Defendant owned a flouring mill, and in connection therewith an elevator, in which wheat of varying grades was received from different owners for storage without charge, commingled in a general bulk, and taken out by defendant both for sale and for manufacture into flour. Defendant would return to depositors, at their option, wheat, or its market value in flour or bran or cash, but no return of the identical wheat delivered was expected or made. Plaintiff and his assignors received slips of paper containing the name of the party delivering the wheat, the date, and the quantity delivered. The evidence showed that plaintiff was to receive flour and bran for his wheat, and his assignors were to be paid in cash at the market rate. The elevator and the wheat therein were destroyed by fire. Held to constitute a sale.

Appeal from Circuit Court, Lawrence County; H. C. Pepper, Judge.

Action by James T. Potter against the Mt. Vernon Roller Mill Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Henry Brumback, for appellant.

REYBURN, J.

The evidence in this case discloses that defendant owned and operated a flouring mill at Mt. Vernon, and connected therewith an elevator, in which, without charge for storage, was stored wheat obtained from different owners, varying in quality and value, and commingled in a general bulk, from which wheat was taken by defendant in course of its business both for sale and for manufacture into flour. It appeared to be a custom firmly established and well understood, to receive wheat from producers and owners, and return them, on demand, at their option, wheat, or the equivalent of its market value in flour and bran, or make actual payment of its market price in cash. It was also known and understood that wheat so delivered would be used and consumed by defendant, and that no return of the identical wheat delivered was expected or would be made. In lieu of receipts or certificates for the wheat delivered by them to defendant, plaintiff and his assignors had received mere slips of paper, containing the name of the party delivering it, the date of delivery, the quantity in bushels and pounds, and in one instance the grade. The proof tended to show that plaintiff was to receive flour and bran for the wheat delivered by him to defendant, and his assignors were to be paid in cash, on demand, at the market rate, for such grain delivered by them to defendant. On August 31, 1901, the mill and elevator were destroyed by fire, at which time defendant had stored in its elevator, ready for delivery, wheat of the quality and exceeding the quantity received from its customers, including plaintiff and his assignors. The case was submitted to the court without a jury, and a finding and judgment for plaintiff made and rendered.

The sole question presented to this court, and answered in the affirmative by the trial court in its finding, was whether, under the circumstances and conditions detailed in the evidence, the delivery of the wheat constituted a sale or exchange, and not a bailment. It is well settled that where a warehouseman has received grain on deposit for its owner, in a common granary or depository, where it is mingled with other grain of himself or others, or both, in such receptacle, to which, from day to day, other grain of various owners, of like kind and quality, is added, and from which, from time to time, sales and delivery of grain are made, and the warehouseman keeps constantly on hand grain of the quality received, prepared for delivery on call to all depositors, the contract is a bailment,...