24 Ind. App. 578 | Ind. Ct. App. | 1900
Appellant sued appellees to recover for grain alleged to have been sold and delivered to appellees. It is averred that the contract of sale was that on demand appellees were to pay appellant the market price, as the same might be, on demand of payment. The complaint then ayers a demand and a refusal to pay. The appellees an
The court also found that appellant delivered to appellees at the same place two lots of oats, aggregating 1,432 bushels and twenty-six pounds, for which like storage receipts were given; that said receipts were made out and delivered to appellant at the time or soon after the several lots of grain were delivered to appellees; that said wheat and oats were placed in storage bins with other grain of like quality, and that appellant knew his grain was to be mixed with other grain of like character; that on August 8, 1894, appellees’ warehouse and the contents thereof were destroyed by fire, which fire and destruction occurred without any fault or negligence on their part; that continuously from the time said grain was delivered to appellees at their warehouse, up to and including the time of the fire, they had on hand a. sufficient quantity of wheat and oats of a like character and quality to have delivered to appellant and to all others who had stored grain with them the several amounts stored by him and them; that, aside from the wheat stored with appelr
As conclusions of law, the court stated: (1) “The title to the grain left by the plaintiff in store with the defendants remained in the plaintiff up to and including the time of the fire, and that the defendants held it as bailees for the plaintiff.” (2) “The defendants are not liable to the plaintiff for the value of such grain, nor the damages resulting to plaintiff from its destruction.” (3) “I further conclude that the law is with the defendants, and that the plaintiff should take nothing by his suit.”
Appellees have suggested some technical objections to the exceptions of appellant to the conclusions of law, but, as the questions for decision are fairly presented by the record, we are inclined to waive any such technicalities, and decide, the questions upon their merits.
The main question for decision is, do the facts specially found show a contract of bailment or a contract of sale? If the former, then the conclusions of law are correct. It is earnestly argued by appellant that the facts show a sale, and not a bailment. This argument is based on that clause in the receipts which reads: “For which we agree to pay the market price per bushel at any time to July 1, 1895.” In connection with other provisions of the receipt, it is not difficult to put a construction upon this one. By this provi
From this we have m> doubt but what the. receipts show a contract of bailment, subject only to appellants right at any time up to July 1, 1895, to demand of and receivesfrom appellees the market price of the grain at the* time of the demand. The title to the grain remained in appellant, and it is shown that it was stored in regular storage, bins^. mixed with other grain of like quality, and that appellant knew this. It is also shown that from, the time the grain was stored, up to the time of the fire, appellees kept on hand and in store grain of like character and quality to have delivered to appellant the full amounts so stored by him and to have done the same with all other persons who had grain stored with them. This brings the ease* within, the rule declared in the case of Drudge v. Leiter, 18 Ind. App. 694.
Appellant assigned thirteen reasons for a new trial, but none of them present any question for review except the first and second, which are that (1) the finding of facts is contrary to the evidence, and (2) that the finding of facts is not sustained by sufficient evidence. Technically, under these reasons, if any one fact found by the court is supported by the evidence, we could not consider them, for they challenge the special findings as a whole. The findings of the court were seventeen in number, and the motion for a new trial does not call in question each of said findings separately, but all of them jointly. But we waive this technicality in