Savage v. Salem Mills Co.

• Decision Date: 27 February 1906
• Citation: 48 Or. 1,85 P. 69
• Parties: SAVAGE v. SALEM MILLS CO.
• Court: Oregon Supreme Court

85 P. 69

48 Or. 1

SAVAGE v. SALEM MILLS CO.

Supreme Court of Oregon

February 27, 1906

On Rehearing April 12, 1906

Appeal from Circuit Court, Marion County; George H. Burnett, Judge.

Action by George O. Savage against Salem Mills Company. From a judgment for plaintiff, defendant appeals. Modified.

This is an action to recover for wheat delivered to the defendant company by plaintiff and his assignors. The complaint contains 11 causes of action, but as they are all substantially the same, it will be necessary to refer to the pleadings only as they affect the first. It is alleged that the defendant is a corporation doing a general milling business; that at all the times mentioned in the complaint and for many years prior thereto, it had owned and operated a flouring mill, having in conjunction therewith and connected thereto by stationary mechanical wheat conveyors a storage house, to hold and retain wheat received by it until such wheat should be sold or manufactured into flour or other mill products; that it was the custom and usage of the defendant to receive wheat from the farmers, giving load checks therefor, showing the name of the person from whom received the date and number of bushels, and thereafter, at the convenience of the parties, to issue a receipt to the holders of such load checks, a copy of which receipt is set out; that it was the custom and usage of the defendant, known and agreed to by parties delivering wheat to it, to mix the wheat received with its consumable stock and to sell the same or grind it into flour and sell the flour at its pleasure and to retain the proceeds thereof; that the party delivering wheat by paying 2 1/2 cents per bushel for storage and 3 1/2 cents per bushel for sacks could demand payment for the wheat so delivered in merchantable wheat at any time before the 1st day of July next following the delivery, subject, however, to the defendant's preferred right to purchase, but in case such demand should not be made prior to the date stated, it should be optional with the defendant, either to pay the market price of wheat of the kind and quality delivered at the date of the demand, or deliver an equal quantity of merchantable wheat upon the payment of storage and for sacks that such custom and usage were known and agreed to by all parties doing business with the defendant, and in delivering wheat and in issuing the receipt mentioned, the parties contracted with reference to such usage and custom, and such receipt was based upon and controlled thereby; that on the ______ day of August, 1899, the plaintiff delivered to the defendant at its mill 2,092 bushels and 12 pounds of merchantable wheat and received from it the customary load checks therefor; that such wheat was delivered to and accepted by the defendant under and in accordance with such usage and custom and not otherwise, and the same constituted and was the contract in reference thereto; that no part of the wheat so delivered was ever returned to the plaintiff or paid for in money or in kind, except 55 bushels and 12 pounds, paid in mill feed and flour, leaving a balance of 2,037 bushels due the plaintiff; that soon after receiving the wheat the defendant sold and disposed of the same and applied the proceeds to its own use; that on August 17, 1901 the plaintiff tendered to defendant the requisite amount for storage and for sacks and demanded the delivery to him of 2,037 bushels of merchantable wheat or the payment of 50 cents a bushel, the value thereof, but defendant refused to do either. The plaintiff therefore demanded judgment against it for the value of the wheat with interest thereon from the date of the demand. A demurrer to the complaint on the ground of a misjoinder of causes of action (one in contract and the other in tort) being overruled, the defendant answered, admitting the receipt by it from the plaintiff of 2,092 bushels and 12 pounds of wheat in August, 1899, and that it issued and delivered to its customers load checks and final receipts as set out in the complaint, but denying the other material allegations. For an affirmative defense it averred that for 25 years it had been engaged in the business of receiving grain for hire in store, charging and collecting storage thereon, and issuing checks and receipts therefor as provided by statute; that in such business it had acquired and operated warehouses and equipped them in the manner usual for storing and handling grain; that on September 21, 1899, the plaintiff had in store with it 2,037 bushels of wheat which had been previously deposited by him and received by it upon the terms and conditions and in accordance with the receipts set out in the complaint; that of the wheat so stored by plaintiff, 1,391 bushels and 50 pounds was white wheat No. 1, and 645 bushels and 10 pounds was white wheat No. 2; that on September 22, 1899, the grain then in store with the defendant, including that belonging to the plaintiff, was either consumed or damaged by fire; that at the time of such fire there was deposited with the defendant by 254 storers 122,534 bushels and 54 pounds of wheat of five different grades and values; that of such wheat 17,162 bushels and 22 pounds was not destroyed; the plaintiff's portion thereof being 23 bushels and 16 pounds, which the defendant has on hand. The reply put in issue the material allegations of the answer. The cause was, by agreement of the parties, tried by the court without the intervention of a jury, and the findings and conclusions of law, omitting those giving the dates and amounts of wheat deposited by plaintiff's assignors, are as follows:

"(1) At all the dates and times mentioned in the pleadings in this action, the defendant was and now is duly incorporated by and organized under the laws of the state of Oregon, and authorized by its charter to conduct a general milling and manufacturing business, and at all said times and dates was engaged in the business of buying and selling wheat and grinding wheat into flour and other mill products, and doing a general milling business at Salem, Or., at which place was and is situated its principal office and place of business.

"(2) At all the dates and times mentioned in the pleadings in this action the defendant, for the purpose of carrying on its business, owned and operated a flouring mill at Salem. Or by means of which it ground wheat into flour and other mill products, and also for the purposes of its business owned and operated in connection with its said flouring mill two other buildings at Salem, Or., in which were various bins, suitable for and used by the defendant for the purpose of holding and containing wheat. One of said buildings was joined and connected immediately to the said flouring mill, under the same roof, but with a covered passageway between them, into which wagons could be driven for the purpose of unloading wheat into said mill and said building so immediately connected with said flouring mill. The other of said buildings was distant from said flouring mill about 100 feet, but both of said buildings were so connected with said flouring mill by proper appliances, such as conveyors and the like, that wheat could be and was readily conveyed from the bins in said buildings to and into the grinding machinery in said flouring mill, and said flouring mill and two buildings were operated by defendant at all times as one plant or manufacturing establishment.

"(3) At all the dates and times mentioned in the pleadings in this action it was the usage, custom, and usual course of business between the defendant and all persons delivering wheat to the defendant in said flouring mill and buildings of defendant at Salem, Or., well known to and habitually acted upon by both the defendant and all such persons, for the defendant to issue and deliver to each person delivering wheat to the defendant at Salem, Or., for each wagon load of wheat so delivered a load check having the blanks therein filled according to the number of load check, the date of delivery, the amount in bushels and pounds of wheat delivered, and by and for whom delivered, in blank form as follows: 'No. ______. S.F.M. Co., Salem, _______, 189--. Received from ______, _______ bushels. Sacksreturned, ______. Sacks returned empty, ______. _______, Weigher. Not transferable.' Which load checks were always signed by some duly authorized agent or employé of defendant, for and on its behalf, and if so desired by such person for the defendant afterward to issue to such person, in lieu of such load checks, a receipt having the blanks filled therein, according to the date and number of issue, for whose account and order, the number of cents per bushel for sacks, and the amount of wheat delivered, in bushels and pounds, in blank form as follows: 'No. ______. Salem Flouring Mills Co., Salem, Oregon, ______, 189--. Received in store for account of ______, _______ bushels of merchantable wheat in bulk, subject to ______ order (damage by the elements excepted), on or before the first day of July next, on payment of two and one-half cents per bushel storage and ______ cents per bushel for sacks and the return of this receipt properly endorsed, the wheat being deliverable on boat or cars sacked. It is understood and agreed that the Salem Flouring Mills Co. are to have the first refusal of said wheat. Bushels, ______. Salem Flouring Mills Co., per ______.' Such receipts being always signed by the defendant by one of its duly authorized agents.

"(4) At all the dates and times mentioned in the pleadings in this action, it was also the usage, custom, and usual course of business between the defendant and all persons delivering wheat to the defendant in said flouring mills and buildings of defendant at Salem, Or., well known to and...