| Cal. | Jul 1, 1856
Mr. Justice Terry concurred.
On the 8th February, one West had in store 3276 barrels of Gallego flour, and 572 barrels of Haxall flour.
Subsequently, West sells at two different periods to the plaintiffs, an aggregate of 1700 barrels of the Gallego, and 324 barrels of the Haxall, but .which at the time of the respective sales were not separated from the bulk of West’s flour.
Subsequent orders of West in favor of other purchasers, to whom the flour was delivered, reduced the amount in store of the original bulk, before the seizure by the defendants, to 1482 barrels of Gallego, and 324 barrels of Haxall.
• There was also in store at the time of the seizure, 200 barrels of Haxall flour, a different and subsequent lot sent there by West, and sold by him to Piper; but this can make no figure in the transaction, because it was separate and apart from the other flour by position in the warehouse, sufficiently to be distinctly known, and specifically delivered. It was not mingled with the other Haxall flour, but was placed upon the top of the large quantity of Gallego flour, from which it was distinguished by its brand, and in that position was seen and accepted by the buyer, pointed out and specified by the warehousemen.
The title therefore of the plaintiffs, was clear to 1700 barrels of Gallego and 324 barrels of Haxall flour, and much less than this amount was in store at the time of the seizure.
Under this state of facts, I do not see how it can be insisted, that the title did not vest absolutely in the plaintiffs for want of segregation. There was in fact, at the time of the alleged taking by the defendants, nothing from which to separate it, because it was mingled with nothing. When it was first purchased by plaintiffs from West, it remained in bulk with West's flour. A separation could then have taken place, either by the plaintiffs removing the part purchased by them, or West removing his remaining portion. This latter was effected by the orders of West to subsequent purchasers, which indeed, it seems extended beyond West’s remainder.
No embarrassment can be created by the claim of Adams, Welch & Co. for 162 barrels, because their purchase from West was subsequent to the plaintiffs’, and there was no flour in the store to meet the order in their favor.
It was said in the argument that the plaintiffs sue only for 1664 barrels of flour, whereas the sheriff seized 2006 barrels, of which it seems 200 barrels were the specified property of Piper, leaving 1806 barrels of the original lot out of which plaintiffs purchased, and therefore it is urged there is no particular 1660 barrels which are sought to be recovered, and the action must fail for want of segregation. But I have shown that the entire 1806 barrels were the property of the plaintiffs, and indeed less than the amount they had purchased from West; and surely it cannot be argued with any degree of propriety, that the doctrine of segregation is applicable to one man’s property alone, and for
It results from the examination we have made of the facts of this case, that the plaintiffs are entitled to recover judgment against the defendants for the sum of the price of 1660 barrels of flour, at $12 per barrel, to which the district judge who tried the case upon the facts, may add legal interest from the time of the seizure by way of damages, if in his discretion it is proper to allow it.
Judgment reversed, and cause remanded.