Webster Bros. Milling Co. v. Bingham

ROSS, J. The appellant has made several assignments of error, most of which are too indefinite to call attention of this court to the errors assigned. We think that attorneys bringing cases to this court should be careful to observe that rule of the court which requires that “all assignments of error must distinctly specify each ground of error relied upon, and the particular ruling complained of.” However, we think there is sufficient of substance in the assignments made by the appellant that we are able to examine the record in the following three respects: That the’lower court committed errors (1) in instructing the jury to return a verdict for appellees; (2) in permitting appellees to prove that the appellant had insurance on wheat and barley in storage; and (3) in refusing the offer of evidence by appellant that it had on hand sufficient grain to return all storage grain. 1. It is the contention of appellees that the evidence conclusively shows that the transaction was a sale, and that the appellant was debtor to the appellees for the value of grain at the “going price,” and the appellant insists that the transaction was a bailment. Whether it was one or the other depends upon the intention of the parties to the contract. Bingham, one of the appellees, testified that Webster, who was an officer of and represented the appellant in making the contract, said, “You can put it [the grain] in the mill, and I will give you the going price, or you can store it.” From this language it cannot be said to be a sale. Appellees began at once to place their grain in appellant’s mill, but did not announce then nor later whether they would take the “going price” or store the grain. Appellees did, however, a few days after ask for and were given $50 and a little later $100 by the appellant “to pay expenses.” At the time of the first of these payments Bingham said that he told Webster that his grain “would go at the going price,” and that he had to have some money to pay his men, and. that Webster said all right. This evidence standing alone and uncontradicted might well [55] be construed as an election on the part of Bingham to sell his grain at the “going price,” and an acquiescence therein by appellant. But Webster, for appellant, testified that Bingham said to him in the first conversation: “ ‘The price is pretty low, and I don’t want to sell for that price. I have got a payment to make on my machine in September some time, and don’t have to sell it until that time, and I would rather make some arrangements to store it.’ I said: ‘All right, you can store the grain here until threshing is all over with, and can come then and we will settle up. If the grain rises you can have the price of the grain.’ He says: ‘What about my running expenses?’ I said: ‘You can draw your expenses for necessaries and coal. As you draw this money, we will take the grain for that amount at the going price.’ ” The statements of the transaction and the conversations between the parties involve a sharp conflict. Appellant’s evidence, if believed, would show that the grain was taken by it in storage with the agreement and understanding that it might ship and dispose of certain portions, accounting to the appellees for the same at the going price, for which the appellant was to pay the appellees cash for running and necessary expenses and to supply the appellees with coal. Whatever grain was left over after these deductions was to be kept in storage until after the threshing was all done. As the grain was delivered at appellant’s mill, receipts were issued to appellees, and on them was this statement: “This is not a final receipt only a memorandum of your sacks and the amount of grain received by us less screenings and shrinkage. Please retain this slip for final settlement.” This does not purport to be a warehouseman’s receipt, but a mere memorandum evidencing that appellant had received from appellees some grain to be held for shrinkage and screening. Webster testified that, after the screening, the memorandum receipt was returned and storage receipts were issued which provide tha.t appellant “was not responsible for grain lost by fire.” It will be seen that the weight of the grain upon which it was agreed that a settlement should be made had not been ascertained. The “shrinkage” contemplated had not been determined, nor had the depreciation in weight. The memorandum receipt then does not sustain the contention that the transaction was a sale, but tends to show a bailment only. [56] The evidence was that at the time of the fire other farmers had their grain stored with appellant and that it was customary for them to do so, and that appellees had stored their grain with it in previous years. J. J. Birdno testified that Wallace and Rube Bingham told him after the fire that they were heavy losers. Tom Moody testified that Rube Bingham told him before the fire that his grain was in storage with appellant. It will be seen that there is a striking conflict in the evidence as to what the contract was, and, inasmuch as contracts of this kind are subject to the same rule as other contracts, the meeting of the minds of the parties, we think the question of sale or bailment should have been submitted to the jury. 2. The fact that the appellant was carrying insurance on the grain in its mill is not necessarily evidence of ownership. Warehousemen and bailees have a right to insure bailments for their protection against loss that might occur through the negligence or carelessless of their servants or agents or themselves. 19 Cyc. 586, note 20; Dawson v. Waldheim, 80 Mo. App. 52; Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 213, 15 S. E. 562; Baxter v. Hartford F. Ins. Co. (C. C.), 12 Fed. 481. In a suit of this kind, brought and prosecuted upon a contract of sale, it is not competent as evidence of a sale to show that the defendant had insured the grain when the defendant denies the sale and alleges a contract of bailment, for, as above stated, he has a right to insure the bailed property. 3 The offer on the part of the appellant to show that it had in its mill grain sufficient to return all grain on storage at the time of fire was properly refused. Had the offer been to prove that appellant had all of the grain of appellees, except such as had been disposed of under agreement of the parties, it would have been error to refuse it. There is no evidence, however, of an agreement that the grain might be commingled with the grain of appellant and others with the right in the appellant to take from it at pleasure and appropriate it, on condition of its procuring other grain to supply the place of that taken, nor is any custom of that kind shown to exist in the community. If such had been the agreement or such a custom had been proved, the offer would have been proper. Fleet v. Hertz, 94 Am. St. Rep. 220, note B; Rice [57] v. Nixon, 97 Ind. 97, 49 Am. Rep. 430; Bretz v. Diehl, 117 Pa. 589, 2 Am. St. Rep. 706, 11 Atl. 893; Dole v. Olmstead, 36 Ill. 150, 85 Am. Dec. 397; Hall v. Pillsbury, 43 Minn. 33, 19 Am. St. Rep. 209, 7 L. R. A. 529, 44 N. W. 673. Under all of the facts, we believe the jury might reasonably have found the transaction detailed by the witnesses was a contract of bailment, and not of sale. The judgment of the lower court is reversed, and the case is remanded to the superior court of Graham county for a new trial. FRANKLIN, C. J., and CUNNINGHAM, J., concur. Application for rehearing denied. NOTE.—As to who must bear loss if property is lost after sale but before payment, see note in 22 Am. St. Rep. 266.