#### *Slaughter v. Green and Others.

December, 1821.

Bailment* — Delivery oí Wheat to Be Ground — Case at Bar. — Where wheat is delivered at a mill to be ground, upon an agreement that the miller shall return to the farmer a given quantity of flour for so many bushels of wheat, the miller is a bailee and not a purchaser: and therefore, if the wheat be consumed by accidental fire, the miller will not be responsible for it. This conclusion will not be altered by an understanding between the parties, that the miller is not bound to return flour made from that identical wheat, but flour of a certain quality made from any wheat in the mill.

This was an appeal from the superior court of law for the county of Culpeper, in which court the appellant brought an action on the case against the appellees, who were the occupiers of a certain mill in the said county, for the value of 120 bushels and 34lbs. of wheat, which he had delivered to them to be ground, and was to receive, in return, one barrel of superfine flour for every five bushels of the said wheat; and he alleges. a total failure on the part of the defendants, to perform the agreement on their part. There are several counts in the declaration; but, as the question does not turn on the form of the pleadings, it is sufficient to give their substance.

The defendants in the court below filed three pleas, setting forth in effect, that after the delivery of the said wheat, the said mills and wheat were accidentally consumed by fire. To these pleas the plaintiff replied generally.

At the trial, a statement of facts was agreed on by the parties and submitted to the court for its decision on the law arising on the case agreed, in the same manner as if it had been a demurrer to evidence, “and that the judgment shall be rendered according to the very right of the case without regard to the pleadings.”

As every circumstance in the case agreed is important, it is deemed proper to give it at full length.

* Robert Slaughter, against John Strother, John W. Green and Jeremiah Strother.

Case agreed.

We agree that at and long before the facts herein after stated occurred, the defendants were owners and occupiers of the mills in the county of Culpeper, called the Paoli mills, and were in the habit and practice of delivering into the said mills their crop of wheat raised on the farm attached to the said mills, and of receiving into the said mills from such persons as chose to send it, wheat to be manufactured into flour: that the wheat so delivered by the defendants and the wheat so sent by whomsoever or how many sent, was by means of the machinery of said mills mixed together, and flour ground from the mass so'mixed without regard to the particular wheat sent by any particular person: that out of the flour so ground, each person, so sending wheat to the said mills, was entitled, after allowing a reasonable time for grinding the same, to receive from the defendants in succession and in the order in which they might have delivered wheat, upon his or- their demand, at the said mills, one barrel of superfine flour for every five bushels of wheat weighing sixty pounds to the bushel and at that rate for a larger or smaller quantity, and to receive as aforesaid such portion of the said flour as he might choose, loose and not packed in barrels; and for every 100 bushels of wheat, 1000 pounds of bran and 300 pounds of ship-stuff, and at that rate for a larger or smaller quantity; or, if such person chose, he was to give up his claim to the said bran and ship-stuff in consideration of the barrels in which the flour should be packed; which in all cases were to be furnished by the defendants, or otherwise to pay the defendants 42 cents for each barrel so furnished: that it was the general custom of the country, to grind wheat upon the same terms; all which was well known to the plaintiff at and before the delivery into the said mills of the wheat hereinafter mentioned. We *agree, that before the plaintiff delivered into the said mills the wheat hereinafter mentioned, various persons, subsequent to the 1st -day of August 1815, had delivered into the said mills to be ground as aforesaid 2800 bushels of wheat, weighing sixty pounds to the bushel, including 260 bushels of wheat raised by the said defendants on the farm attached to the said mills, which they had put into the said mills, and all of which 2800 bushels, including the said 260 bushels, were indiscriminately mixed as aforesaid, and was in the mill at the time the plaintiff delivered into the mill the wheat hereinafter mentioned. We agree, that the plaintiff between day of and the day of 1815, without any special Contract with the defendants, delivered into the said mills 120 bushels and 29 pounds of wheat weighing 60 pounds to the bushel, for which the defendants gave him the receipts, herewith filed, marked 1, 2, 3, 4, and which are in the words following:

“Paoli Mills, 24th October, 1815.

“Received of -Robert Slaughter Esq. fifteen bushels and fifteen pounds of wheat pr. Joe to grind.

“John Strother & Co.”

*9“15 15-60.”

“Paoli Mills, 36th October, 1815.

“Received of Robert Slaughter fifteen bushels and ten pounds of wheat by Joe to be ground.

“John Strother.”

“Paoli Mills, 28th October, 1815.

“Received of Mr. Robert Slaughter, thirty-nine bushels and fifty-five lbs. wheat by Thomas Vaughn to be ground.

“John Strother.”

“Paoli Mills, 8th December, 1815.

“Received of Mr. Robert Slaughter by Staunton ^Slaughter’s Calep fifty bushels and fourteen pounds wheat to be ground.

“John Strother.”

And it was the understanding of both parties, that the said wheat was delivered to be ground upon the general terms of the said mills and the custom of the country aforesaid, and was to receive his quantity of flour therefor, without regard to any particular wheat so delivered into the said mills it might be ground out of, as soon as it came to his turn, and as soon as it could be conveniently ground as aforesaid: that the said wheat so delivered by the plaintiff was the last wheat delivered into the said mills during that season and of the then last crop, except about 70 bushels weighing 60 pounds to the bushel delivered subsequently by another customer of the mill to be ground as aforesaid: that when the said wheat was so delivered by the plaintiff, a greater part of the wheat which had been so previously delivered into the mill, was deposited in one bulk in the third floor of the mill, and the residue thereof, consisting of six or seven hundred bushels, was deposited in the fourth story of the mill: that the said wheat, so delivered by the plaintiff, was elevated by the machinery of the mill into the said fourth story, and mixed with the bulk of wheat aforesaid previously deposited in the fourth story, and that the said bulk of wheat deposited in the fourth story was first ground, and the whole of the flour made from it, delivered to customers of the mill, other than the plaintiff, in satisfaction of their claims upon the mill for flour and which had a priority to the claim of the plaintiff. We agree, that the water in Mountain Run upon which the said mills were built, from the 1st day of August, 1815, to the 15th day of December, 1815, was so low and scarce, that no flour could be made at the said mill during that period; and that on the said 15th day of December, 1815, the water in the said run became abundant, and from that time until the *said mill was burned as hereinafter mentioned, the usual quantity of flour was regularly ground at the said mills, and at all times during the last mentioned period there were more than 30 barrels of superfine flour in the said mill, packed in barrels and ground in manner aforesaid, out of the wheat delivered as aforesaid into the mill.

We agree, that a certain Sterne, in September 1815, delivered into the said mill a quantity of wheat of superior quality to be ground as aforesaid, and that John Strother one of the defendants intended to use so much thereof as might be necessary for seeding the crop of the defendants, and offered to lend some of the last mentioned wheat to a neighbour for the same purpose, and gave directions to the miller to put the said .wflieat by itselfybut the miller forgot the directions, and mixed it (as was common) with the wheat of others, and thereby disappointed the intentions of the defendants in seeding thereof or loaning out any as aforesaid. We agree that on the 11th day of February 1816. the said mills with all the wheat, flour, bran and ship-stuff therein, were accidentally and without the default of the defendants, consumed by fire, and that at the time of said burning, there was in the said mill of the wheat delivered as aforesaid, and flour ground out of the wheat so delivered and bran and ship-stuff the proceeds of such grinding, a sufficient quantity to satisfy all claims for flour, bran and ship-stuff, which any person or persons so haying delivered wheat as aforesaid, had against the defendants on that account, and that no flour had been delivered by the defendants to the plaintiff on account of the wheat so by him delivered, except 100 pounds which he received at the said mills on that account; and that the plaintiff, after the burning of the said mills, demanded of the said defendants, at the place where the said mills had stood, 24 barrels of superfine flour, on account of the said wheat so by him delivered; which flour the defendants did not deliver to the plaintiff. We agree, that the receipts herein before mentioned, given by the defendants *to the plaintiff, were in the usual form of receipts given for wheat delivered at the mill, and were_ intended to shew that the wheat was received to be ground according to the usage and custom of the mill before stated. We agree, that the law, arising upon the foregoing case agreed, shall be adjudged as if all the facts aforesaid had been proved by the plaintiff, and the foregoing case agreed, was a demurrer to evidence filed by the defendants, and that the judgment shall be rendered according to the very right of the case, without regard to the pleadings. And we agree, that if the law be for the plaintiff, so that he is entitled to recover for the whole amount of the wheat so delivered by him, after crediting the 100 pounds of flour aforesaid, that judg-. ment shall be entered for the plaintiff for $152.75, wfith interest thereon from the 11th day of Febniary, 1816. But, if the plaintiff be not entitled as aforesaid, and the defendants be responsible to him for any thing on account of their having put into the said mills 360 bushels of wheat as aforesaid, then we agree that judgment shall be rendered for the plaintiff for $38.18, with interest from the 11th day of February, 1816. And if the defendants be not responsible as last aforesaid, but be responsible to the plaintiff for any thing, on account of any interest which they might have had in the wheat, flour, bran and ship-stuff so burned, otherwise than *10on account of the said 260 bushels of wheat, we agree that judgment shall be rendered for the plaintiff for $38.18, with interest from the 11th day of February, 1816; and if the defendants be responsible to the plaintiff, both on account of the said 260 bushels of wheat and on account of any other interest which they may have had in the said wheat, flour, bran and ship-stuff so burned, we agree that judgment shall be rendered for the plaintiff for $76.36, with interest from the 11th day of February, 1816. But, if the law upon the whole matter be for the defendants, that then judgment be rendered for the defendants.

Richard H. Field, plaintiff’s attorney.

J. H. Williams, attorney for defendants.

*Upon this agreed case, the court rendered judgment for the defendants; and the plaintiff appealed to this court.

Leigh, for the appellant.

W. Hay, junr., for the appellees.*

*

See principal case cited in Reherd v. Clem & Wenger, 86 Va. 380, 10 S. E. Rep. 504.

*

Hie reporter regrets that he is compelled to omit the argument on this interesting case, as it took place before his appointment. — Note in Original Edition.

JUDGE ROANE,

delivered the opinion of the court:

The court is of opinion, that although wheat may be exchanged for flour, as well as sold for money, so as to operate a transmutation of the property in it, from the vendor to the vendee, it may also be the subject of bailment, both for the mere purpose of safe keeping, and for that of being converted into flour, for the use of the bailor. A bailment of this last kind, is called, in the books, locatio operis faciendi, and undeniably exists in- the case of a single bailment, and where the flour of the s&me wheat is to be received in return. But the character of the transaction is not lost, when, for general convenience, the wheat delivered at a mill, by many customers, is agreed by a common usage, or otherwise, to be put into a common stock, and when it is further agreed, that the return is to be made out of the common mass of flour. These variations from the doctrine of a simple and individual bailment, whereby each bailor was to receive the identical proceeds of his own wheat, it was competent for a numerous class of bailors to make, without changing the character of the transaction. It may still be considered as a simple and individual bailment of the wheat, accompanied by an agreement of all the parties, (the bailees themselves not excpted,) that, ' for general convenience, these conditions should be superadded. They .are conditions which impose no hardship on the bailee, but, on the contrary, are inserted for his accommodation and convenience; and in relation to the bailors, it is probable .*that, without . them, the wheat would not have been received. While the convenience of the bailee is consulted thereby, as aforesaid, it is not seen that any loss or injury will arise to the bailors therefrom. On the contrary, the wheat, deposited by all the other bailors, may have been better, than that of the appellant in the case before us; and if so, the custom in question would conduce to his benefit. At any rate, the parties to the contract had power to agree to these conditions; and they do not change the character of the transaction. They do not convert a bailment of the kind mentioned, into a sale or an exchange of the wheat for flour.

By the terms of this custom, this wheat is “to be ground” into flour, and when so ground, is to be “returned” to the farmers collectively taken. These circumstances completely negative the idea of a sale or exchange of the wheat, which would carry with it the transmutation of property. The property in the wheat is certainly not conveyed to the millers, when they could not sell the wheat in specie, without violating their contract, which is to grind it into flour; nor even sell the flour itself without, in like manner, violating their agreement to return it to the several bailors. That is a curious kind of ownership, in which the party has no absolute power over the subject, either in its original state, or after it has been manufactured. The millers, in this case, have the absolute ownership of nothing, but the excess of the flour which may remain to them, after returning the stipulated quantity to the several farmers. This constitutes their profit in the contract, and over this portion of the subject, alone, have they the absolute right of property. That right, as to the residue, remains in the farmers, and has never been surrendered by them.

These two circumstances, so utterly incompatible with the idea of a right of property in the millers, in the wheat or flour in controversy, conclude that question, as at the time of the contract. At that, time they estopped the appellees *from claiming the wheat, as their wheat. The millers, by their receipts given at the time, even expressly say, that the wheat is received, “to be ground;” which excludes the idea of an absolute ownership of the wheat itself. The construction arising out of these receipts, being the act of both the parties to the contract, at the time, outweighs a seeming exposition of the contract, by the appellees only, at a future time, in relation to the wheat of Sterne. They certainly do, when they are combined with the other circumstances.

This wheat, then, remaining the property of the bailors, and being accidentally burnt by fire, the loss must be borne by them. It must be so borne, because, however it might be under other circumstances, it is expressly found, that there was in the mill, at the time of the fire, flour &c. enough to satisfy all the claims upon the mill, for the same. Thereafter, it was the fault of the appellant, that his portion of it was not demanded, and taken away. He shall, therefore, bear the loss. It is even stronger than the case put in Bacon, vol. 1, p. 554, where it is held, that if A deliver goods to B, (a carrier,) to be carried from C to D, and then forwarded to E, and B carries them to D, and puts them in his *11warehouse, in which they are destroyed by fire, before an opportunity offered to forward them to E, B was adjudged not to be liable. In this case, if the appellant had not neglected to call for the flour, after it was ready, the loss in question would not have happened. We are all, therefore, of opinion, to affirm the judgment.