Schindler v. Westover

• Decision Date: 30 December 1884
• Docket Number: 11,600
• Parties: Schindler et al. v. Westover et al
• Court: Indiana Supreme Court

99 Ind. 395

Schindler et al. v. Westover et al

No. 11,600

Supreme Court of Indiana

December 30, 1884

From the St. Joseph Circuit Court.

The judgment is affirmed, with costs.

A Anderson, for appellants.

L Hubbard and J. Dixon, for appellees.

OPINION

Howk J.

After this cause was at issue it was tried by the court, and, at the request of the parties, the court made a special finding of facts, and stated its conclusions of law thereon, in substance, as follows:

"About the first day of November, 1882, the plaintiffs agreed with George Kuhn to put in store with him 500 bushels of wheat in Kuhn's flouring mill at Mishawaka. It was agreed that said wheat should be stored to July 1st, 1883, that plaintiffs might sell the wheat when they pleased before that date, or that wheat would be returned if called for. George Kuhn was then operating a flouring mill, which ground, when running, about 200 bushels of wheat per day, and thereafter, until March 3d, 1883, ran about one-half of the time. At the time of the negotiation, in October or November, 1882, plaintiffs asked George Kuhn to keep their wheat in a bin by itself, and Kuhn replied that he could not agree to return them the same wheat; that he did not intend the wheat to go out of the mill. The wheat, 516 bushels, was delivered by plaintiffs to George Kuhn and piled on the floor of the mill early in November, 1882, when the mill was not running, and for that reason could not be elevated into the bins where wheat was usually kept. In the same pile on the floor was put 200 or 300 bushels bought by George Kuhn of other parties, and in a few days the mill was started and the wheat was elevated into the bins in which wheat was kept and from which the grinding was done. Of the wheat mentioned in said contract, and that piled with it, all except about 200 or 300 bushels, was put in a bin known as the smutting bin, and was all made into flour and disposed of by George Kuhn before March 3d, 1883, the remaining 200 or 300 bushels were put into another bin, known as the corner bin, and was all ground and disposed of by George Kuhn before March 3d, 1883. Said wheat was mingled with other wheat in said two bins, and all the bins in which wheat was stored ran into the bin known as the smutting bin. George Kuhn bought at least 4,000 or 5,000 bushels of wheat after this before March 3d, 1883, which went into the mill. Wheat was continually taken in, ground and sold, and on March 3d, 1883, none of the identical wheat so delivered by plaintiffs was in the mill. On March 3d, 1883, there was left in the mill about 1,900 bushels. On the 21st day of February, A. D. 1883, the plaintiff received from John Kuhn, a son of George Kuhn, who was then running the mill during the sickness of his father, as his agent, a writing in the words and figures following:

"'Mishawaka, February 21st, 1883.

"'Received of R. M. Westover (500) five hundred bushels of wheat in store to July 1st, 1883, to be disposed of at market price when he concludes to dispose of same between above date and July 1st, 1883, or wheat returned if called for.

"'George Kuhn,

"'per John."

in evidence of the contract theretofore made. Sixteen bushels of the 516 were sold to George Kuhn by plaintiffs, and paid for by George Kuhn. The remaining 500 bushels mentioned in the writing were never sold by plaintiffs, nor did they receive any payment therefor.

"On the 3d day of March, A. D. 1883, the mill stopped running and was not thereafter run until after July 3d, 1883, and between March 3d, 1883, and July 1st, 1883, the defendants, Schindler, Kamm, Yenn and Casper Kuhn, received of George Kuhn a chattel mortgage on all the wheat in the mill, and under and by virtue of said chattel mortgage took and sold all the wheat in the mill, amounting at that time to nineteen hundred bushels, receiving therefor ninety-five cents per bushel at the depot. The wheat was worth, in June and July, 1883, ninety-three cents per bushel at the mill.

"On the last day of June, 1883, plaintiffs demanded of George Kuhn the wheat or money on his agreement, but received neither, and on the 3d day of July, A. D. 1883, they demanded of the defendants, John J. Schindler, Simon Yenn, Casper Kuhn and Adolph Kamm, that they should leave five hundred bushels of wheat for them in the mill, but said defendants refused so to do. They were then removing the wheat from the mill, and about that time they converted all the wheat and the proceeds thereof to their own use.

"The value of the wheat when sold was ninety-three cents per bushel, and the value of five hundred bushels was at that time four hundred and sixty-five dollars.

"And as a conclusion of law thereon, I find that the plaintiffs are entitled to recover of the defendants, John J. Schindler, Adolph Kamm, Simon Yenn and Casper Kuhn, the sum of four hundred and sixty-five dollars.

(Signed) "Daniel Noyes."

"January 16th, 1884."

Over the appellants' exceptions to the conclusion of law the court rendered judgment in accordance therewith for the appellees, the plaintiffs below.

In this court the only error assigned by the appellants is that upon the facts specially found the trial court erred in its conclusion of law.

As the case is presented here the appellants admit that the facts have been fully and correctly found by the circuit court, and therefore the only question we are required to consider and decide may be thus stated: Upon the facts specially found, did the court err in its conclusion of law? This is settled by many decisions of this court. Cruzan v. Smith, 41 Ind. 288; Robinson v. Snyder, 74 Ind. 110; Braden v. Graves, 85 Ind. 92; Dodge v. Pope, 93 Ind. 480; Fairbanks v. Meyers, 98 Ind. 92.

Upon the facts specially found the appellees claim, and the court so decided, that the agreement or contract, under which they delivered and deposited their wheat at and in the mill of George Kuhn, was one of bailment, pure and simple. If this view of the force and legal effect of such agreement or contract be the correct one, it would seem that the court did not err in its conclusion of law, and that the judgment ought to be affirmed.

But, on the other hand, the appellants insist that such agreement or contract is not one of bailment, but is a mutuum or exchange or sale of the wheat, under which the title thereto passed at once to the depositary, George Kuhn, and he became the appellees' debtor for the value of the wheat. If this view of the case be correct, of course the court erred in its conclusion of law, and the judgment should be reversed.

The question is a close one, and much can be said, indeed, much has been said by the learned counsel of both the appellees and the appellants in their able and exhaustive briefs of this cause, in support of their respective positions. The views of both parties, antagonistic and irreconcilable as they are, are not unsupported by authority. A careful consideration of the facts found by the court in the case in hand has led us to the conclusion, though with some degree of hesitancy, that the contract or agreement, under which the appellees deposited their wheat in the mill of George Kuhn was a contract of bailment. Upon the facts specially found there was not, and could not have been, a mutuum or exchange, or sale of the wheat; for the court found that the wheat was put in store with George Kuhn in his flouring-mill, about the 1st day of November, 1882, under the following verbal agreement, then made: "It was agreed that the wheat should be stored to July 1st, 1883; that the plaintiffs might sell the wheat when they pleased before that date, or that wheat would be returned if called for." The court also found that, on the 21st day of February, 1883, the contract or agreement theretofore made was reduced to writing, in the...