Campbell J.:
This was an action of trover brought to recover certain wheat stored by plaintiff with defendant, and not delivered, either specifically or in kind, when called for. Evidence was received, and acted upon by the jury, of an usage whereby wheat so stored on similar receipts was mixed with other wheat of like kind and quality, and that a delivery of the same wheat is never expected, but only of similar wheat of the same quality. This usage is found to have been known by the parties. Upon this finding,- judgment was rendered against the plaintiff on the ground that his remedy was in assumpsit, and not in trover, the transaction not creating a bailment, but amounting to a sale.
My own individual opinion has been that, under such a receipt as was given here, without any subsequent agreement to modify it, no usage coulcí be shown to relieve the defendant from restoring the identical wheat. The case does not find anything more, in fact, than, an ordinary storage, and does not find that any mingling took place with other wheat. It rests, therefore, on the naked fact of usage, which is claimed to be admissible to turn a bailment into a different arrangement from what it directly purports to be. This receipt promises *18on its face to restore the identical wheat in so many words. It charges storage upon it for a specific. period. It leaves plaintiff liable for losses by heating, fire, or inevitable accident — not to the warehouse, but to the wheat. These provisions are senseless, unless the plaintiff retained his property in the grain, and they are not applicable to anything but the grain delivered to the bailee. It is not found that the usage covers these risks. It has appeared to me that a usage which absolutely contradicts the contract in all its essential features is not admissible under pretext of explanation. In the absence of a finding that plaintiff had in some way consented to a modification of the contract by his acts, or by his direct assent, I, myself, should have been disposed to hold the contract must govern. But as the case is designed to present for consideration the effect of a contract made in accordance with such a usage, and we are all agreed concerning it, we have deemed it best, waiving the question of admissibility, and not deciding it, to place our decision upon the same • grounds as if the usage' were not only admissible, but incorporated directly into the contract in terms. It refers to the custom of elevating wheat or other grain into common bins, and drawing out from the common mass an equivalent amount when demanded. It may not be safe to hold, without a full investigation of points which do not always suggest themselves in advance upon new trade usages, that the property rights of a depositor of wheat in an -elevator, 'can always be enforced in the same way against all persons. But, as against the bailee at least, it seems to us the proprietary right still remains, being-converted, however, into , a tenancy in common, instead of an ownership in severalty. The jury do not find that the depositor under such a usage considered himself as making a sale, and as looldng to the personal liability of the warehouseman. Such 'an usage would be, to say *19the least, a very singular one, and a very clumsy way of selling. It is evident that the depositor expects to receive back his wheat directly or indirectly, and regards ■the elevation as a method of handling grain in which he retains an interest. Allowing it to be mingled with the grain of others may subject' Mm to some risks and disadvantages, but, as between himself and Ms bailee, he has only allowed it to be mixed in such a way that Ms aliquot part is as easily restored as if no commingling had taken place. We held in Fiquet v. Allison, 12 Mich., 328, that a refusal to deliver the proper number of bushels by a tenant in common, who had taken charge of it, upon reasonable request, might amount to a breach of duty, which could be treated as a conversion. TMs case is stronger, because the tenancy in common was only created for the purpose of agency. The mixture, by consent, of grain of the same kind and value has never been regarded, even by the most rigorous rules of the Common Law, as affecting the right of property of either owner in his aliquot portion as against the other. — 2 Bl. Com., 405; Story on Bailments, §40,
" We think, therefore,' that, upon the facts found in this case, there was a right of recovery in trover, and that the action was properly brought.
After finding the facts specially, the jury go on to. apply the law according to their own judgments, and determine that if the usage is allowed to prevail, the plaintiff cannot' recover. TMs is entirely beyond their province. Having found enough to determine the plaintiff’s right to recovery, their verdict entitles him to such judgment as the facts so found will justify, without regard to their legal opinions on the subject.
Judgment below must be reversed, and a new judgment must be entered on the verdict for the plaintiff' for six hundred and two and fifty-eight one hundredths. *20•dollars, with interest from January 18, 1864, and costs ■of both courts.
'Christiancy J.:
If it was necessary to the decision of this case to ■determine whether the custom proved was admissible, so far to modify the contract as to make it an undertaking to deliver an equal quantity of the same kind of wheat, instead of the same identical wheat; or if the question, whether this was a contract of bailment or sale, dejiended entirely upon this point, I should be disposed to hold the proof of custom admissible to determine the sense in which the parties used the term “ deliverable,” and to show that the delivery of the like quantity and quality, instead of the identical wheat, was intended.
But there are several other provisions of the contract, •as noticed by my brother Campbell, ■ which are wholly inconsistent with the idea of a sale, and which fix upon it the character of a bailment. In fact, such, I think, is the character of the whole contract. And' while a custom may be showm to explain the sense in which the parties have used particular terms, it is not competent to change the entire contract. No proof of usage or custom, however strong, could be permitted to convert a promissory note into a policy of insurance, or the latter into a deed of, conveyance. And it is at all times competent for parties, notwithstanding the existence and knowledge of a custom, to enter into a contract which shall not bo affected by it. This, I conceive, the parties have done here, by the other terms of the contract, so far as the question of sale or bailment is involved, vdiether the receipt should be construed as an undertaking to deliver the same, or an equal quantity of the same kind of wheat. I do not assent to the doctrine, which has been held in several cases, that this consider•ation alone must always, of necessity, determine ■whether *21the contract be one of sale or bailment. It is little short of absurdity, it seems to me, to hold a contract to be one of sale when it is evident that neither of the parties intended it as such, and there is no illegality in the contract. As no offer was made in the present case to satisfy the receipts by the delivery of wheat of the same quantity and quality, I concur with my brother Campbell, and in his reasoning, with the single exception above alluded to, and am entirely satisfied that the contract in the present case is one of bailment and not of sale, whether the custom was or was not admissible: upon the point indicated.
Martin Ch. J. concurred in the result.