BAILMENT — PRACTICE.

[Huron Circuit Court,

April Term, 1894.]

Scribner, Haynes and King, JJ.

#### *****Alexander Gibb v. E. E. Townsend, Rec’r, Etc.

1. Grain Received in Warehouse and Mixed with other Grain.

A warehouseman receiving grain to mix with other grain, with an option either to pay for it or return a similar amount of grain, is not a bailee but a buyer; the property is in him and passed to his receiver in insolvency.

2. Bide oe Exceptions — Limitation oe Time.

Under sec. 5298, Rev. Stat., as amended March 22, 1892, 89 O. L., 124, presenting a bill ol exceptions to the court forty-two days after refusal of a new trial, without it appearing that opposite counsel consented to the use of two days of the ten days allowed him, is too late.

Error to the Court of Common Pleas of Huron county.

*

 This decision -was affirmed by the Supreme Court, without report, in 55 O. S., 652. The circuit decision is cited as authority, *in re*bills of exceptions, in 6 Cir. Dec., 431.

Scribner, J.

Alexander Gibb, the plaintiff in error here, brought an action in the court ■of common pleas, by leave of that court, against one E. E. Townsend, as receiver ■of the property and effects of Dean & Lilly, a partnership, formerly doing business as warehousemen in this county. The action was to recover the value of -some 400 bushels of wheat, which had been deposited in the warehouse in 1891, •by Gibb.

The case was tried in the court of common pleas, and a judgment was rendered in favor of the defendant receiver. A certified transcript of the bill of ■entries shows that the case was heard and disposed of March 14,1894, and final judgment rendered on that day, in favor of the defendants, and against the plaintiff, including the costs.

The journal entry next shows that at the same term, March 31,1894, a motion for a new trial, which had been filed within three days after the rendition of the -final judgment, came on for hearing, and was overruled by the court. It appears *97further, that the plaintiff was allowed fifty days after term to file his bill of excep* tions. Then follows this entry :

> “March term, to-wit, May 12, 1894. Now comes Alexander Gibb, and presents to the court his certain bill of exceptions herein, which being found by the court to be true, is allowed, signed and sealed, and on motion, is hereby made part of the record of this case.”

The motion for a new trial having been overruled March 31, and the bill of exceptions having been presented to'the court MayT2, it appears that forty-two days had intervened between the time of the overruling of the motion for a new trial, and in presenting the bill of exceptions to the court for its allowance.

The Supreme Court, February 27,1894, in the case of *Pugh*v. *State,*a proceeding in error to the circuit court of Franklin connty, held this :

> “First. The proviso of sec. 5302, Rev. Stat., 89 O. L., 125, (quoting) ‘that where exceptions are not allowed and signed during the progress of the trial, the party excepting shall submit the bill of exceptions to the opposite counsel for examination, not less than ten days before the expiration of the said fifty days,’ (here ends the quotation) is intended as a condition to the power of the trial judge to sign a bill of exceptions within the fifty days mentioned in secs. 5298, 5301 and 5302, and where the condition is not complied with, it is the duty of such judge, unless consent of opposite counsel be given, to refuse to sign and allow the bill.

> “Second. The authority given by the second proviso of sec. 5302, to the trial judge to extend the time for signing not exceeding ten days beyond the expiration of the fifty, is for the convenience of the judge, to enable him to examine, sign and allow the bill, and is not intended to authorize such extension for the purpose of submitting the bill to opposite counsel.”

Here is a case then, in whicb the record shows that .the bill was presented to the court on the forty-second day after the'overruling of the motion for a new trial. This, the court holds, is not within the time, unless the opposite counsel consent to the using of a part of the ten days — of the last ten days of the fifty days, for the examination of the bill. The rule is very strictly applied by the-Supreme Court in that case. The record here fails to show us whether or not the opposite counsel was consenting to the use of any part of the last ten days of the fifty days for the purpose of examining the' bill of the opposite counsel. The record is entirely silent upon this point, and a strict regard to the ruling made by the Supreme Court, in the absence of anything in the record tending to excuse the delay, would seem to require us to regard this bill of exceptions as not having been filed in time; but, notwithstanding this condition, we have thought proper to go forward and examine the record of the case, and to pass upon the questions involved precisely as if no defect, if it be a defect, of the character named, existed in the record, and I shall proceed briefly to state the case as presented by the record.

On August 18, 1891, the plaintiff in the action below, deposited with Dean & Lilly, 403 45-60 bushels of wheat. There was issued to him by Dean & Tilly, a receipt, of which the following is a copy:

> “New London, Ohio, August 18,1891. Received in store from A. Gibb, 403 45-60 bushels of wheat, which we store at one-half cents per bushel per month, and we are to have at the market price when called for, unless we prefer to furnish the grain. Subject to the order of A. Gibb on the surrender of this receipt and the payment of charges. To be kept insured by us. No. 66. Dean & Lilly.”

The plaintiff’s petition below says that Dean & Tilly kept said wheat in store for said Gibb and subject to his order, as they agreed to do, until .August 22,1892, when by order of this court Elmer E. Townsend was appointed receiver of the said firm of Dean & Tilly.

It appears by the testimony in the case, in the bill of exceptions, that these gentlemen, Dean & Tilly, warehousemen, received wheat as was the usual cus-. *98tom in such cases, and mingled it with other wheat which they had in store, and sold and disposed of it, and shipped it or redelivered it, as they might choose t *>*do -when called' for.

After the appointment of the receiver in favor of Dean & Tilly, the plaintiff, Mr. Gibb, called upon Mr. Townsend for his wheat, which upon consultation with his counsel, the receiver declined to respond to, and hence the bringing of this action to contest the rights as existing between these parties.

The case of *Chase*v. *Washburn,*1 O. S., 244, has long been regarded as a case settling the law arising upon questions in cases of this kind.

In the two paragraphs of the syllabus, the following rule is stated :

> “In case of an irregular deposit or mutuum, where the obligation is imposed upon the depositary or mutuary, to redeliver, not the specific thing furnished, but another article of the same kind and value; or where the depositary has the option to return the specific article received, or another of the same kind and value, in either case the property passes to the dep.sitary as fully as in a case of ordinary sale or exchange, and the risk of loss by accident follows the control or dominion over the property.

> “Where a warehouseman receives wheat, and by the consent of the owner, or in accordance with the custom of trade, mixes the wheat in his warehouse, and with the understanding that he is to retain or ship the same for sale on his own account, at pleasure, and, on presentation of the warehouse receipt, is either to pay the market price thereof in money, or redeliver ,the wheat, or other wheat in place of it, the transaction is not a bailment, but a sale, and the property passes to the depositary, and carries with it the risk of loss by accident.”

According to the doctrine here stated, where the facts exist as they are here stated, the wheat, upon delivery to the warehouseman, ceases to be the wheat of the depositor, but becomes the wheat of the depositary. Now, the language of the court is, in such a transaction, that it is not á bailment, but a sale, and the property passes to the depositary, and carries-with it the risk of loss by accident.

In the course of the disposition of the case upon this subject, it appears from the language of the court that they regard the sale as one whereby the depositary is to pay for the wheat and has his election whether he will pay in money or in other wheat. The receipt issued in this case by the warehousemen contained no stipulation as appears in, this receipt — that the warehousemen were to have the privilege of taking the wheat at the market price. It reads as follows:

> “Milan, Ohio, November 5, 1847. Received in store from J. C. Washburn (by son), the following articles, to-wit: Thirty bushels of wheat. H. Chase & Co.”

Some verbal understanding existed between these parties at-the time the wheat was delivered outside of this stipulation contained in the receipt, and the report shows the statement of the case; that the wheat was accordingly, from time to time, delivered, and, in 1850, a demand was made for either the wheat or the money, and both refused.

Chase then offered evidence tending to prove that his warehouse was burned on the night of October 26, 1849, and that there was then consumed in it sufficient wheat to answer all his outstanding accounts.

The destruction by fire occurred on the night of October 26, 1849, and the demand was made in May, 1850, the May following the fire.

Then there was evidence tending to prove the custom at Milan at the time of the fire, and the warehouseman gave evidence tending to show that he had abundant wheat in store at the time of the fire, to meet the demand that Mr. Washburn might make for the wheat which he had placed in store.

Washburn offered rebutting evidence tending to show that Mr. Chase had not sufficient wheat in his warehouse, at the time of the fire, to answer all outstanding receipts.

Upon this state of facts the counsel for Chase asked the court to charge the jury:

> *99“That the customs at Milan, if known to Washburn, in the absence of an express contract, became a part of the contract between the parties, and if the jury should find that Chase had sufficient wheat on hand at the time of the fire to answer all his oustanding receipts, that he was not liable iu this action, and that neither the mingling of the wheat, nor the shipment of it would make Chase liable if he had a sufficient amount of it on hand at the time of the fire to answer his outstanding receipts.”

The court refused this charge. Two of the propositions charged by the court were excepted to by the defendant below, Chase, and the giving of was alleged as error in the court above, and these are the assignments of error:

1. Because the court charged the jury, “that if they shquld find that the wheat was received and put iu mass with other wheat of defendant and that received of other persons, with the understanding that the wheat was to be at the disposal of the defendant, either to remain or to ship it, and with the agreement that, when the receipts were presented, the defendant would either pay the market price therefor, or redeliver the wheat or other wheat equal in amount and quality; then, if the jury should further find that the wheat thus left prior to the fire had all been shipped and disposed of, the defendant cannot be excused unless there was an agreement between the parties that the wheat subsequently purchased by defendant was to be substituted in place of that left by plaintiff, and to be his property.”

2. Because the court charged the jury, “that where a warehouseman receives grain on deposit, with an understanding that he may, if he choose, dispose of it, and that he will, when demanded, return other grain or pay for it, in case ot such a disposition he is bound to do the one or the other. A subsequent purchase of grain by the-warehouseman, for the purpose of meeting the demand for grain thus received, would not be sufficient to vest the property in the plaintiff.”

Now, a paragraph or so from the opinion of the court upon this question:

> “To determine which of the parties in this case shall sustain the loss of the property in question occasioned by the accident, it becomes necessary to ascertain the true nature and character of the transaction between them, and the rights created and duties imposed thereby. It was either a contract of sale, a mutuum, or a deposit. If a contn-ct of sale, the right of property passed to the purchaser on delivery, and the article was thereafter held by him at his own risk. If a mutuum, the absolute property passed to the mutuary, it being a delivery to him for consumption or appropriation to his own use ; he being bound to restore, not the same thing, but other things of the same kind. Thus, it is held, that if corn, wine, money, or any other thing which is not intended to be delivered back, but only an equivalent in kind, be lost or destroyed by accident, it is the loss of the borrower or mutuary; for it is his property, inasmuch as he received it for his own consumption or use, on condition that he restore the equivalent in kind. And in this class of cases, the general rule is, etc., (citing authorities). But if the transaction here was a deposit, the property remained in the bailor, and was held by the bailee at the risk of the bailor, so long as he observed the terms of the contract in so doing. But if the bailee shipped the wheat, and appropriated the same to his own use, in violation of the terms of the bailment, before the burning of his warehouse, he became liable to the bailor for the value of the property.”

After proceeding to discuss at some length the question involved, the learned judge says:

> “In case of a regular deposit, the bailee is bound to return the specific article deposited; but where the depositary is to return another article of the same kind and value, or has an option to return the specific article, or another of the same kind and value, it is an irregular deposit or *mutuum,*and passes the property as fully as in a case of ordinary sale or exchange. Sir William Jones says: ‘It may be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others of equal value. In the first case, it is a regular bailment; in the second it becomes a debt.’ In the latter cas'e he considers the whole property transferred.”

In another paragraph the learned judge says:

> “In all this class of cases, the risk of loss by unavoidable accident attaches to the person who takes the control or dominion over the property. When, therefore, Washburn’s wheat was delivered to Chase & Co., and became subject to their disposal, either to retain, or to ship it on their own account, the property passed, and the risk of loss by accident followed the dominion over it.”

The ruling in the case does not seem at any time to have been questioned in our courts. It is approved by the Supreme Court in the case of *O'Dell*v. *Leyda,*46 O. S., 244, and especially pages 249 and 250. The subject is further discussed in the case of *James & Neer*v. *Plank,*Exr. 48 O. S., 255, 262, but nothing in the *100opinion delivered in the case in any degree questioned the wisdom of the ruling made in the case of *Chase*v. *Washburn, supra.*

*A. M. Beattie,*for plaintiff in error. ,

*Andrews Bros.,*for defendant in error.

We have examined the most of the authorities cited by the counsel for the plaintiff in error in this case bearing upon this question, and we are unable to find anything contained in them that would warrant any distinction between this and the case of *Chase*v. *Washburn, supra.*

In the case of *Chase*v. *Washburn,*it will be observed as I have before stated, that the receipt issued is silent as to any power or control on the part of the warehouseman over the wheat; but testimony was given tending to show that, according to the custom and usage prevailing, it was the understanding had between the parties to the transaction that the warehousemen were at liberty to dispose of the wheat if they chose to do so, or to return other wheat in its place. But in this case, the receipt, as it appears to us, provides in specific terms that the warehousemen may, at their option, purchase the wheat. “Revived in store from A. Gibbs, 403 45-60 bushels of wheat which we store for one-half cents per bushel per month, and are to have at the market price when called for, unless we •prefer to furnish the grain.”

It is true that there is no direct obligation assumed on the part of the warehouseman to purchase the wheat at the market price when called for, but surely if it is competent to show an understanding outside of the receipt at the time the grain is deposited that the warehousemen may take the wheat at the market price when called for, and the courts enforce such an understanding and maintain it, allow and enforce it, we cannot see any reason why an express stipulation of this kind contained in the receipt which the parties issued for the wheat at the time it was delivered, does not secure to them the right to purchase the wheat. It is an option, it is true, but it is an option for which a consideration is paid in the transaction itself. The parties received the wheat in store, and they are to be allowed a certain commission per bushel for it — for taking the responsibility and for handling it, but as a part of the transaction and upon the same consideration in part that the one-half per cent, a bushel is allowed to be paid, they have an option secured to them of taking the wheat at the market price. The case is somewhat similar in principle to a case determined in one of the volumes of our state reports where a party re-leases real estate at a certain rental per annum and with the stipulation that at the end of the lease, if he desires to purchase the land at the stipulated price, he may do so, and the Supreme Court has held virtually, that such a stipulation as that is good and binding and may be enforced.

Here, of course, the case is somewhat different in character. But the principle involved is the same as that which was applied, as we understand, in the case of *Chase*v. *Washburn, supra.*

For these reasons, the judgment of the court of common pleas will be affirmed.