63 Minn. 314 | Minn. | 1895
This case, like that of Weiland v. Sunwall, infra, p. 320, 65 N. W. 628, grows out of the failure of plaintiff’s assignor,
In this case, as in the other case, after Nicolin’s assignment, some of the ticket holders brought replevin actions, in which they took possession of the wheat in the elevator. Thereupon the assignee, as in the other case, brought an action in equity, to which he makes all the claimants defendants, for the purpose of determining the rights of all parties; and, as in the other case, the replevin suits were consolidated with the equity case, it being stipulated that the determination of it should be a final determination of all the suits.
The sole question in the case is whether the contract under which the defendants delivered their wheat into the elevator constituted a sale or a bailment.
The elevator was owned and operated by Nicolin at New Prague, 12 miles distant from Jordan, where his mill was. It appears in evidence that his object in operating this elevator was to procure wheat for his mill at Jordan, and that all the wheat taken into the elevator, except a few car loads sent to Minneapolis, was shipped to the Jordan mill, and there ground up; that the elevator had been operated in this way for a number of years, and this was generally known throughout the community tributary to New Prague; that during all that time no one had ever demanded a return of the grain delivered into the elevator, but they had always presented their tickets when they saw fit, and received for their wheat the market price on the day when the tickets were presented; also, that Nicolin never charged storage, and that no contract, at least no express contract, was ever made for charging storage. So far the evidence is not dissimilar to that in the other case, but otherwise the evidence in the two cases was wholly dissimilar.
The business of the elevator was entirely conducted by one Schlosser, whose testimony was practically all the evidence there was
There is evidence tending to prove that Nicolin was accustomed to use all the wheat in the elevator as his own, and ship it down to his mill as he needed it, without regard to the amount of outstanding tickets. While, perhaps, it is fairly inferable that the defendants knew that Nicolin was accustomed to ship wheat from the elevator to his mill, yet there is no evidence that they knew that he shipped more than he had bought and paid for, or that he did not always keep an amount of wheat in the elevator equal to the amount of outstanding tickets. In fact, there is no evidence that the defendants had ever before delivered wheat at this elevator, or that they knew anything about the manner of conducting the business, except in the case of their own individual transactions, unless they are to be charged with such knowledge from the fact that Nicolin’s manner of conducting his business was generally known in the neighborhood,— a kind of evidence which may sometimes be competent and of value, by way of corroboration, when the other evidence is conflicting, but very dangerous, as well as insufficient, upon which alone to establish an implied contract in accordance with the manner in which one of the parties conducts his own business.
Where a farmer or other person brings a load of wheat to a grain elevator, and is asked if he wishes to sell, and replies “No,” and then
Our conclusion being that the findings of fact were not justified by. the evidence, the order appealed from is reversed, and new trial granted.