25 Ill. 297 | Ill. | 1861
The evidence in this case shows, that the wheat was left by defendant in error, in the mill of plaintiff in error. It also appears that the sacks which contained the wheat were marked with the initials of the name of defendant in error, and that the same sacks were found in the mill of plaintiff in error, containing bran. The evidence does not show that plaintiff in error was notified, that the wheat was placed in his mill. This then presents the question, whether plaintiff in error became a bailee of defendant in error, and liable for the safe custody of the grain, after it was placed in his mill, unless notice had been given. Had the evidence failed to show that the wheat had come to his actual custody, a doubt might have existed as to his liability. Had the mill been entered and the grain stolen, before it came to the possession of plaintiff in error, or his miller, a doubt of his liability might have existed. But it appears the sacks which contained the wheat when left, were found there, in the custody of the miller, with the wheat removed, and filled with bran.
From these facts the jury were fully justified in finding that the grain had been in the actual possession of the plaintiff in error. And with a miller who receives grain and manufactures it for his customers, when it is left for that purpose, there is an implied promise, that he will use reasonable care and diligence for its preservation, and will return it on demand. It is not the notice that grain is left in his mill that creates the liability, but it is the fact that it is placed there, and he has learned that fact, which imposes the duty.
The instruction given for the defendant in error does not assert a different rule. It informs the jury that if the evidence shows that the grain was left at the mill in the usual or customary way, although actual notice was not given to him or his miller, he would be liable for its safe keeping. This instruction impliedly tells them that any other than actual notice is sufficient. If it was left there, and the plaintiff in error or his miller by any means, became aware of that fact, this liability attached, and whether it was left in the usual and customary way could make no difference. That portion of the instruction was immaterial, as far as the liability was concerned. If it was calculated in any way to mislead the jury, it was in favor of the plaintiff in error, and he has no right to complain that it was given. This being true, the court decided correctly in refusing the instruction asked by plaintiff in error, as it presents the converse of the proposition contained in the instruction given.
The judgment of the court below is affirmed.
Judgment affirmed.
