14 Or. 529 | Or. | 1887
The main facts of this case are as follows : In January, 1880, certain parties, including the respondents and the appellant, had wheat in different amounts on storage in the warehouse kept by one S. Harkleroad, at Gervais, in Marion County. The wheat had been received by Harkleroad as warehouseman, and was in mass. On the 22d of January, 1880, the appellant having made arrangements with Allen & Lewis of Portland, to sell to them the wheat he had on deposit in said warehouse, gave an order to Harkleroad to ship it to said Allen & Lewis, and at the same time contracted with Harkleroad to procure for him the necessary sacks in which to place it for shipment. Harkleroad engaged transportation of the railroad company for the wheat. There was a side track to his warehouse, and the company left some cars upon it to receive the wheat. Harkleroad engaged in sacking and putting the wheat aboard these cars. After he had sacked up some thirteen hundred and thirty-three bushels, the greater part of which he had put aboard the said cars, he stopped sacking and sent for appellant, who lived a few miles out in the country from Gervais. Appellant came to Gervais on the evening of the 30th of said month of January, and was then informed that there was not sufficient wheat on storage in said warehouse to pay all the depositors the amounts they had respectively stored with Harkleroad. A conference was had between Harkleroad and the respondents and appellant, which resulted in Harkleroad’s making a bill of sale to them of certain effects, including the wheat; and on the following day they, respondents and appellant. entered into a written agreement between themselves, of which the following is a copy: “ Articles of agreement made and entered into by and between N. Goodman, S. T. Northcutt and S. Brown, of Marion County, State of Oregon, on this 31st day of January, 1880, as follows, to wit: Whereas S. Harkleroad did on the 30th day of January, 1880, make a bill of sale and deliver
“N. Goodman.
“ S. T. Northcutt.
“ S. Brown.”
The respondents and appellant were the principal owners of the wheat stored. There were, however, three parties besides those named in said written agreement, who also had wheat stored .with Harkleroad, viz: John Wolford & Co., 117.60 bushels, James Broyles, 28 bushels, and Charles Barkhurst, 166.30 bushels, subject to the general deficiency. The following is a copy of the bill of sale referred to in said agreement above set out, viz:
“Done in Gervais, Oregon, this 30th day of January, 1880.
“ S. Harkleroad. [l. s.] ”
After said bill of sale was executed, and the understanding had in reference to the closing out of the affair, the appellant became solicitous about his ai-rangement with Allen & Lewis to sell them his wheat, which resulted in an agreement between him and the respondents, that he should have a sufficient part of it, at one dollar a bushel, to fill his contract with Allen & Lewis.
The business and assets of said Harkleroad were, on the said 31st day of January, delivered over to respondents and appellant. The latter says in his testimony, that “ the next day, that is Saturday, the 31st, the key of the warehouse was given to me. I went over to the warehouse for a few minutes and came back to Mr. Goodman’s.” Then he went and received the property, went by the warehouse, told the men that-had been working there for Harkleroad that he did not think he ^oulu do any work in the warehouse that day ; went up to Ilarkleroad’s, and was busy until noon receiving the property ; thinks that was all that was done that day between Brown,
There was a deficiency of wheat held by Harkleroad at the time appellant gave the order to ship his wheat to Allen & Lewis, arid at the time Harkleroad began loading the cars, amounting to about one third the quantity that had been stored with him by the several parties before mentioned. The suit was brought to adjust the matter, and to compel the appellant to account for the 1G87 bushels at one dollar a bushel, the price he had agreed to pay therefor, if the respondents would permit him to ship it upon his said contract; and I am not able to discover any sufficient reason why he should not be required to do so. It is true that the bill of sale and the written contract between the parties only specify the wheat in the warehouse ; but it is evident, I think, that the parties intended them to include all the wheat Ilarkleroad had on hand, or that was in the cars, or that had been sacked. The written agreement shows that, and the testimony establishes it beyond any question.
It is claimed upon the part of the appellant that all the wheat that had been placed in the cars prior to the time of the agreement between the parties, and all that had been sacked and left in the warehouse, belonged of right to appellant; that as soon as it was segregated from the mass of wheat it became his in severalty; and that he did not know, at the time he signed the contract, that the thirteen hundred and thirty-three bushels had been sacked and the three cars loaded, and that he should therefore be entitled to claim that wheat, notwithstanding he had agreed to receive it and pay to respondents a dollar a bushel therefor.
In Cushing v. Breed, supra, the court held that where several parties had stored various piarcels of grain in an elevator, and it was pmt into one mass according to usage, to which they must have been deemed to have assented, they were tenants in common of the grain, and that each was entitled to
This is undoubtedly the correct rule, as it is founded upon common justice. The result of the rule is simply this: A puts wheat in a warehouse for storage ; B, C, and others, severally, have wheat there for the same purpose. It is all mingled together, with the presumed consent of all parties. They each necessarily own the several amounts of wheat they have there, but neither can identify his own, but it is in common; and if a loss occurs by casualty, or the warehouseman wrongfully abstracts a part of the general lot, it must necessarily be borne by the depositors pro rata. But to render A liable to contribute to the loss, it must occur after he stored his wheat; he would not be affected by any deficiency which occurred prior to his deposit of his wheat. Former deficiencies would have to be borne by B, C, and others, who had wheat there when it occurred. A’s amount of wheat would be the proportion it bore to the whole amount actually in store when he placed his there, not to the amount it would be with whát B, C and others had really put there.
Now, when the appellant gave the order to Harkleroad to ship his wheat to Allen & Lewis, he did not have on storage with him seventeen hundred and twenty-three and twenty-three-sixtieths bushels. Assuming that the deficiency amounted to one-third of the whole mass, he only had eleven hundred and forty-eight and a fraction bushels there, and had no right whatever to take more than that from the warehouse. Any attempt upon his part to take beyond that quantity was an attempt to take wheat which did not belong to him or to
Some suggestion was made upon the argument, that the law favored the vigilant in obtaining their rights. To a certain extent that is correct. The law looks with disfavor upon a pai’ty who sleeps upon his rights, but it certainly does not commend the vigilance of a party in his endeavors to deprive others of their rights. The vigilance that is exercised to get others’ property from them may be tortious and even criminal.
I cannot see but that the respondents and appellant acted fairly and manly in their attempted adjustment of the matter. The respondents may have been officious in having Ilarkleroad quit the shipment of the wheat for appellant; but they had a right to be ; their wheat was there also; a deficiency had occurred in the amount of wheat on hand. There was not enough left to pay all the depositors in full, and if the ajtpellant were permitted to take out the full amount he had placed in the warehouse their loss would be greater. It was right, under the circumstances, that Harkleroad should desist from shipping the wheat until the affair could be arranged, and it could not have been arranged in any better or more honorable way than it was. The respondents and appellant being the principal depositors of wheat, all that remained on hand and all the other property Harkleroad had was assigned to them, and they entered into the written agreement to administer upon it. Even if the appellant had obtained a legal advantage
This is a case of bailment. Upon that hypothesis, where wheat of different owners has been deposited in a warehouse, and so intermingled that identification of separate ownership is lost, the depositors of such wheat in mass are tenants in common. ( But the title of the depositors, or the ownership of such wheat, has not been destroyed by the intermixture—the depositors have simply transferred the possession to the warehouseman, and he holds it as their agent, and subject to their orders for a delivery of the possession. In such case, the wheat is a common fund, out of which each depositor is to be restored to his possession; or, so to speak, for the repayment of each owner’s wheat. Any owner or depositor, upon the payment of charges for storage, has a right to demand the redelivery of his wheat, and 'to be restored to its