Dierkson v. Cass County Mill & Elevator Co.

Dat, J. The plaintiff introduced in evidence the receipt, a copy of which is attached to the petition, and proved the delivery to the defendants, in their warehouse, of the quantity mentioned in the receipt, that the same had been demanded, and the demand was refused, and the value of the wheat. The defendants proved that the elevator burned on the 15th of February, 1874, containing 5900 bushels of wheat, and more than enough to cover the amount they had received in store. t. wAiinnousiDmax: bailment: sale. The court instructed the jury as follows: “ 1. This receipt, which has been given in evidence, and which, it is admitted, the defendants gave when they received the . , . .. . , , wheat m question, is a contract as well as a receipt, and by its terms the defendants were bound to keep [41] the wheat so received by them, and return the same to plaintiff. If the wheat so received was in the defendants’ elevator at the time said elevator was burned and was destroyed in the fire, the defendants are not liable therefor. Or, if the wheat in question was, at the time of the delivering of the same to the defendants, with the knowledge and consent of plaintiff, mingled with the other wheat in said elevator, belonging to defendants and other parties, and the mass of said wheat with which said wheat in question was so mingled remained in said elevator at the time of the fire and was destroyed thereby, the defendants would not be liable therefor. But if the mass of wheat with which that in question was mingled had been removed, from said elevator and sold by defendants before the fire, they ' are liable therefor; and the question of their liability is not in any manner affected by the fact, if it be a fact, that they had on hand at the time of the fire an amount of wheat equal to or greater than the amount received from the plaintiffs, and of like quality with that received.” “ 2. The question of fact, therefore, for the jury to determine from the evidence is, whether at the time of the burning of the defendants’ elevator the wheat in question, or the mass with which it was mingled at the., time it went into the elevator (if the mingling was with plaintiff’s consent), was present in said elevator and destroyed in said fire. If you find from the evidence that neither the wheat delivered by plaintiff nor the mass with which it was mingled was destroyed in said fire, your verdict should be for the plaintiff, and the measure of damages is the value of the wheat at the time the same was demanded by plaintiff, with six per cent interest from that date. But if you do not so find, your verdict will be for defendants.” The defendants asked the following instruction, which the court refused to give: “ If the jury should find from the evidence in the case that the wheat was mixed with that of other parties and of these defendants, they must further find that the mixture was made by defendants, and was made without the consent of plaintiff, before you can find for plaintiff.” The giving of these instructions and the refusal to give that [42] asked, are asssigned and urged as error. There was no error in the court’s action. The transaction between plaintiff and ■defendants constituted either a sale or a bailment; and it is not in this case material which, for in either case if the jury found the existence of the facts stated in the instructions, the .plaintiff must recover, j If the transaction was a sale, then by the terms of their contract the defendants are liable for the .value of the wheat purchased. If the transaction was a bailment, then the defendants were under obligation to return to plaintiff either the identical wheat deposited, or a like quantity and quality from the mass with which it was mingled with plaintiff’s express or implied assent; and if they shipped off and sold plaintiff’s wheat or the mass with which it was mingled, they are guilty of a conversion, and are liable for its value. / See Johnston v. Browne, 37 Iowa, 200, and cases cited. This case reviews the authorities cited and relied upon by appellants. See, also, Pierce v. Schenck, 3 Hill, 28. The j udgment is Affirmed.