Henderson v. Lauck

The opinion of the Court, filed was delivered by

Lowrie, J.

— The instructions of the Court were clearly right as to the questions of the sale and conditional delivery of this grain; and thus the reál question is fairly raised — Does the fact, that, on receiving it, the buyer mixed it with other grain of his own, of the same kind in one heap, prevent its specific reclamation?

The answer of the Court was in the negative, and so is the Roman law, Inst. 2, 1. 28; Dig. 6, 1, 3, 2, and Eod. tit. L. 5; and such is the very point in Inglebright v. Hammond, 19 Ohio Rep. 337 ; 11 U. S. Dig. 95, as to grain; and of Ryder v. Hathaway, 21 Pick. 305, as to cord-wood. In all these cases the owner is allowed to take back his own share of the bulk, kind for kind, measure for measure. It does not change the result that the seller saw the mixture take place, without objection: for, by consenting to such a mixture, the owners acknowledge that each parcel is of like quality, and that each one may take out the proportion that he cast in: Dig. 41, 1, 7, 8. It was not the seller that was wrong in allowing the mixture, relying on the promise of the buyer; and to permit the buyer to allege the mixture in bar of the right of reclamation, is to permit him to gain by his own fault.

Indeed every principle of law is against the buyer, for it was he that did the wrong in mixing the grain, if he was not ready to pay for it; and the usual rule would give the bulk to the seller until the buyer should separate his own. But this does not apply to goods so undistinguishable as grain, if the measure of each one’s share be known. On the general subject of confusion of goods and effects, the rule is, that he,, who wrongfully causes it, must submit to all the risk and inconvenience of making a clear and well defined identification and- separation: 30 Maine R. 237, 295, 370; 7 Conn. 275; 20 Verm. 333; 15 Ves. 436; 8 Id. 50; 2 Johns. Ch. R. 108; 2 Blackf. 383; 7 Mass. 127; 8 Pick. 443. Evep. debts due to a principal, and mixed up by an agent with his own, may be specifically followed: 2 Pick. 86; 5 Id. 7; 3 Mass. 232.

Judgment affirmed.

Lewis, J., dissented'.