Preston v. Witherspoon
| Decision Date | 21 December 1886 |
| Docket Number | 12,843 |
| Citation | 9 N.E. 585,109 Ind. 457 |
| Parties | Preston et al. v. Witherspoon et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Feb. 26, 1887.
From the Gibson Circuit Court.
Judgment affirmed, with costs.
M. W Fields and L. C. Embree, for appellants.
J. E McCullough, J. H. Miller and J. W. Ewing, for appellees.
The nature of the case sufficiently appears from the special finding of facts made by the court below at the request of appellants.
As the brief of counsel for appellees contains a fuller statement of the facts found than does the brief of counsel for appellants, we take therefrom the following summary, making a few additions thereto:
The defendants, Runcie & Wallace, under the firm name of "The Fort Branch Elevator Company," were engaged at Fort Branch in buying, selling and shipping wheat, and for hire receiving wheat from farmers for storage, and on demand of the depositors were to return to them wheat of a like kind, quality and amount as that deposited, but not the identical wheat.
The company occupied an elevator and warehouse, situated fifty or sixty feet apart. The elevator contained fourteen bins, each holding, when filled, three thousand bushels of wheat, and the warehouse three bins, holding six thousand bushels.
The plaintiffs severally, during the months of June, July and August, 1883, deposited wheat, in amounts set out in the finding. The wheat deposited by the plaintiffs was all delivered at and taken in at the elevator, except two hundred bushels of the plaintiff Preston's wheat, which was taken in and stored at the warehouse.
The company from July 10th, 1883, to March 1st, 1884, received for storage from the plaintiffs and other depositors forty thousand bushels of wheat, and during the same time bought, sold and shipped on their own account fifty-five thousand bushels.
The wheat bought and the wheat deposited was nearly all taken in at the elevator, being hauled there in wagons by the farmers, and unloaded into a common receptacle, and from there elevated to the bins in the elevator, and in this way all the wheat purchased and taken in at the elevator, and all the wheat deposited and stored in the elevator, was mixed and mingled together.
It was the custom of the company to sell wheat from the elevator, and to ship from the elevator in car lots of from one to five cars at a time, the shipments being publicly made from the elevator from day to day and from week to week. The plaintiffs knew that the company was selling wheat, and knew at the time they deposited their wheat, that the custom of the company was to mix wheat purchased and stored, and sell from the common bin.
About the 1st of March, 1884, the company sold and shipped from the warehouse four cars of wheat (two cars of Mediterranean, and two of Fultz,) to the defendants, Witherspoon, Barr & Emison, who were engaged in the milling business at Princeton, Indiana, under the firm name of Witherspoon, Barr & Co.
The Mediterranean wheat was purchased by Runcie & Wallace and stored by them in the warehouse, separate and apart from any wheat of their customers, and also separate and apart from other wheat bought and sold by the elevator company.
The firm of Witherspoon, Barr & Co. purchased and paid the Fort Branch Elevator Company the contract price and market value of said wheat, in the due course of business, and without having any knowledge or information that plaintiffs, or any one else, had or claimed to have any interest in or title to the same.
"The Fort Branch Elevator Company," on their own account, from July 10th, 1883, to March 7th, 1884, sold and shipped the fifty-five thousand bushels of wheat bought, and also the forty thousand bushels deposited by the plaintiffs and others, except the four cars sold to Witherspoon, Barr & Co., and the two thousand three hundred and seventy-seven bushels left in the elevator after the company ceased to do business, which was March 7th, 1884. The wheat thus left in the elevator was taken by the depositors and divided pro rata among themselves.
A short time before the sale to Witherspoon, Barr & Co., Preston, being in the warehouse with Wallace, said to him: "Where is my wheat?" and Wallace said: "There is all of your wheat," pointing to a pile of wheat in the warehouse, containing three or four thousand bushels. And a few days afterward the plaintiff Preston, and Wallace, went together to Vincennes to sell the wheat, and being unable to realize a satisfactory price, they started back to Fort Branch; and on their way back it was understood that Wallace should stop off at Princeton, and see what was the best offer he could get for the wheat. Wallace stopped off, went to Witherspoon, Barr & Co. and sold the wheat shipped to them a few days afterward.
1. The Mediterranean wheat, bought by said Runcie & Wallace, is not of the kind or quality of that deposited by the plaintiffs or either of them.
2. The facts do not show that the Fultz wheat, so bought by Witherspoon, Barr & Emison, was the wheat of the plaintiffs or either of them.
3. Because (in any view of the facts) Runcie & Wallace were, by the voluntary acts of the plaintiffs, clothed with the apparent title and right to sell, and the said Witherspoon, Barr & Emison were bona fide purchasers for value.
The only error assigned by the appellants is, that upon the facts specially found, the trial court erred in its conclusions of law.
Upon the facts found by the trial court, are Witherspoon, Barr & Co. liable to the plaintiffs who deposited wheat with the Fort Branch Elevator Company? That is the question, and the only question for decision here.
In the case of Rice v. Nixon, 97 Ind. 97 (49 Am. R. 430), cited by counsel for appellants, the question was, whether, as between the depositors and the warehouseman, the latter should be held as a bailee or as a purchaser of the wheat deposited for storage, which, without his fault and before a demand therefor by the depositors, had been destroyed by fire. The depositors sought to hold him liable as a purchaser, because he had mixed their wheat in a bin with wheat deposited by others, and with wheat purchased by him, and had sold from the common mass. That he had done, in keeping with a custom of his. But of that custom the depositors, prosecuting the action, had no knowledge. There was always in the bin wheat enough to supply all depositors, and at any time before the fire they could have received from the bin all the wheat they had deposited. Upon the facts thus before the court, it was held that the warehouseman was a bailee, and not a purchaser, of the wheat so deposited.
It will be observed, that in that case the wheat deposited had all been deposited in, and the sales made from, a common bin, and that it does not appear whether or not any of the wheat deposited by the plaintiffs in the action remained in the bin at the time of the fire. See, also, Bottenberg v. Nixon, 97 Ind. 106.
The case of Schindler v. Westover, 99 Ind. 395 also cited by appellants' counsel, involved a question of title to wheat, as between the depositors and a mortgagee of the warehouseman. The wheat (five hundred bushels) had been stored to be kept until the 1st of the following July. The depositors requested that their wheat should be kept in a separate bin. That the warehouseman declined, but agreed that the wheat should not be taken from the mill, and that he would return a like amount and a like quality whenever called for by the depositors. The wheat was stored in a bin with the wheat of other depositors, and with wheat bought by the warehouseman, and from the common mass, wheat was taken in the manufacture of flour. Before the 3d day of the following March, all of the wheat so received from the depositors, together with that with which it had been so commingled, had been ground into flour and disposed of by the warehouseman. On that day there were 1,900 bushels of wheat in the mill, and the warehouseman executed a chattel mortgage thereon. The mortgagees, under and by virtue of that mortgage, took possession of and sold the wheat. Before it was removed from the mill the depositors demanded of the warehouseman and the mortgagees, the amount of wheat by them deposited. It was held that the depositors and depositary were tenants in common of the 1,900 bushels of wheat then in the mill; that the title of the depositors to 500 bushels of wheat in the mill was superior to any claim of...
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