Judges: Agnew, Prius, Sharswood, Thompson, Williams
Filed Date: 3/30/1872
Status: Precedential
Modified Date: 10/19/2024
The opinion of the court was delivered, by
In the court below this cause was referred under the Act of January 20th 1870, Pamph. L. 85, extending to Susquehanna county the provisions of the act entitled “ An act authorizing the reference of civil actions in the county of Bradford,” passed April 6th 1869, Pamph. L. 725. By the 4th section of this latter act it is provided that the referee “ shall state the facts found and the conclusions of law separately, and his decision shall be given and may be excepted to and reviewed in like manner as though tried by the court with a jury, but not other
We think there was error in the conclusion of the referee upon the facts as found by him. Indeed upon a very material question the finding would be bad as a special verdict for uncertainty. He says: “ The sheriff’s sale on Lathrop’s judgment was at Mrs. Deans’s house; cheese not there but was at factory, or had been sold previously by the committee.” When sold ? previously to the levy or previously to the sale ? If previously to the levy, it is abundantly clear that Baxter had no interest remaining in any cheese, but if had been converted into a mere money demand on the factory. But suppose that no sale had taken place? The arrangement as proved between the farmers — owners of milk — and the cheese factory, is somewhat peculiar. It certainly did not constitute the parties partners. Nor were the milk-owners tenants iu common of the cheese when manufactured. No one could have claimed an individual share, and considered the sale by the factory as a conversion. Neither replevin nor trover could have been maintained. By the agreement ■ the milk delivered from time to time by the different customers was thrown into a common mass, made into cheese, sold by the committee of the factory, and then the milk paid for at the price produced b.y the cheese, allowing ten and a half pounds of milk to one pound of cheese, deducting the cost of manufacturing. “ The practice at the 'factory,” says the referee, “ was to credit the different patrons of that establishment with the number of pounds of milk received — to charge them one and a half cent per pound for what cheese was made — to credit the parties again with the proceeds of the sales in proportion to the amount of milk brought.” There was evidently no bailment or agency as to the particular milk delivered. By the very terms
Judgment reversed.