Nelson v. Brown, Doty & Co. , 44 Iowa 455 ( 1876 )

Day, J.

We have held that, where grain is deposited with a warehouseman with the understanding that he is to ship and sell it on his own account, and when the depositor desires to sell the warehouseman will pay the highest price or return a like quantity and quality, the transaction constitutes a sale, and the property passes to the warehouseman. Johnston v. Browne, 37 Iowa, 200.

i BAiruiENTsaie of grain. The contract in question provides that “ wheat of equal test and value, but not the identical wheat, maybe returned.” This clearly gives the warehouseman the right to disp0se 0f ■wheat deposited on his own account, and, if there were no other provisions in the contract limiting and qualifying this provision, it would bring the case fully within the principle of Johnston v. Browne, and the wheat, from the time of the deposit, would bo at the risk of the warehouseman. But, in order to get the exact sense and true meaning of the contract, all of its provisions must be construed together. The contract further provides that the wheat is received in store “ for account and risk of C. C. Cowell, * * * * loss by fire, heating and the elements at owner’s risk.” As the wheat is at the risk of Cowell, it is evident that he is the party who is alluded to in the contract as owner. To hold that, because the warehouseman was not under obligation to return the identical wheat, the transaction in law became a sale, and hence Brown, Doty & Co. are the owners, at whose risk is loss by fire, heating and the elements, would do violence to the evident intention of the parties.

The meaning of the whole contract taken together is clearly this: fThat so long as the wheat remains in the elevator, loss by fire, heating and the elements is at the risk of the depositor. In other words, so long as the wheat is kept in the elevator, though thrown in a common bin and mingled with other wheat of like quality, it is a mere bailment. But the warehouseman is not under obligation to retain the wheat of the depositor in his warehouse. He may, without breach of contract, and without being guilty of a conversion, ship the wheat away on his own account. When he avails himself of this privilege the character of the transaction and the relation of the parties change. There is then a completed sale, and the warehouseman assumes a liability which he can discharge only by payment in wheat of like quality and value, or in money. The wheat does not pass to the warehouseman, and become at his risk, simply because that of a number of depositors, of like grade, is with their consent mingled in a common mass. Upon this subject see Young v. Miles, 20 Wis., 615; Sterns v. Raymond, 26 Wis., 74; and Gardner v. Dutch, 9 Mass., 407.

The answer alleges that the wheat deposited by the respective owners named in the contracts sued on was in the elevator, and with it, without fault or negligence of defendants, was destroyed by fire. These facts constituted a defense, under the contract of the parties.

The demurrer was improperly sustained.

Reversed.