Opinion,
Mr. Justice Clark:
The defendants in this case are judgment creditors of William D. Newman, a miller, operating a steam flouring mill in the town of Bedford. Haying issued executions, they levied on some eighty or ninety barrels of flour and some bran found on the floor of Newman’s mill. The plaintiffs claimed the property levied upon, alleging that it was the product of grain by them delivered to and held by Newman as their bailee. This is a feigned issue, framed under the sheriff’s interpleader act to determine the dispute.
The plaintiffs, who are farmers residing in the vicinity of Bedford, brought their grain to this mill; no special contract or arrangement was made with the miller, by any of the plaintiffs, when they delivered their wheat, but, in accordance with the practice of the mill in all cases, except when wheat was at once paid for, a receipt or memorandum was given in the following form:
Crystal Mills, Bedford, Pa., Sept. 12,1884. Received from D. W. Lee:
' Amount.
Four hundred and fifty-five b. wheat, . $455.14
“ rye,
“ corn,
Two hundred and fifty-five “ oats, . 255.12
“ buckwheat.
For use of self. W. D. Newman.
The mill was not arranged to keep the several lots of grain in separate parcels. It was so constructed that all the grain delivered into it was hoisted to the second floor, emptied into a sink on the first floor, and from thence carried by elevators into a bin on the third floor, where, at times, there was a large accumulated mass of wheat. Newman also purchased wheat in considerable quantities from time to time, which was delivered into the mill, and disposed of as the other wheat. This promiscuous commingling of the grain into a common mass was in accordance with the known usage of the mill, which [603]*603was supplied for grinding from the mass of the wheat, without any discrimination as to the several lots or parcels in which it was received. The miller was, of course, under no obligation to restore to the plaintiffs the specific or identical wheat which he received, nor the product of it in flour; indeed this, owing to the manner in which the business was conducted, was practically impossible.
The fundamental distinction between a bailment and a sale is, that in the former, the subject of the contract, although in an altered form, is to be restored to the owner, whilst in the latter there is no obligation to return the specific article; the party receiving it is at liberty to return some other thing of equal value in place of it. In the one case the title is not changed, in the other it is, the parties standing in the relation of debtor and creditor. Thus in Norton v. Woodruff, 2 N. Y. 153, a miller agreed to take certain wheat and to give one barrel of superfine flour for every four |fths bushels thereof; the flour to be delivered at a fixed time, or as much sooner as he could make it. As the miller’s contract was satisfied by a delivery of floru’ from any wheat, the transaction was held to be a sale. But in Malloy v. Willis, 4 N. Y. 76, wheat was delivered under a contract “ to be manufactured into flour,” and one barrel of the flour was to be delivered for every four ||-ths bushels of wheat; this transaction was by the same court held to be a bailment.
If a party, having charge of the property of others, so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produces it; where, however, the owners consent to have their wheat mixed in a common mass, each remains the owner of his share in the common stock. If the wheat is delivered in pursuance of a contract for bailment, the mere fact that it is mixed with a mass of like qu.ah.ty, with the knowledge of the depositor or bailor, does not convert that into a sale which was originally a bailment, and the bailee of the whole, can, of course, have no greater control of the mass than if the share of each were kept separate. If the commingled mass has been delivered on simple storage, each is entitled on demand to receive his share; if for conversion into flour, to his proper proportion of the product: Chase v. [604]*604Washburn, 1 Ohio N. S. 244; Hutchison v. Common-wealth,. 82 Pa. 472. It makes no difference that the bailee had, in like manner, contributed to the mass of Ms own wheat; for, although the absolute owner of his own share, he still stands as a bailee to the others, and he cannot abstract more than that share Mom the common stock, without a breach of the bailment, wlflch will subject him not only to a civil suit, but also to a criminal prosecution: Hutchison v. Commonwealth, 82 Pa. 472.
But where, as in Chase v. Washburn, supra, the understanding of the parties was that the person receiving the grain might, take from it or from the flour at Ms pleasure, and appropriate' 'the,same to Ms own use, on the condition of his procuring other wheat to supply its place, the dominion over the property passes to the depositary, and the transaction is a sale, and not. a bailment. To the same effect are Schindler v. Westover, 99 Ind. 395; Richardson v. Olmsted, 74 Ill. 213; Bailey v. Bearly,. 87 Ill. 556, and Johnston v. Brown, 37 Ia. 200. In Lyon v. Lenon, 106 Ind. 567, the distinction is thus stated: “If the dealer has the right, at Ms pleasure, either to ship and sell the same on his own account, and pay the market price on demand, or retain and re-deliver the wheat, or other wheat in the place of it, the transaction is a sale. It is only when the bailor retains the right from the beginmng to elect whether he will demand the re-delivery of his property, or other of like quality and grade,, that the contract will be considered one of bailment. If he surrender to the other theright of election, it will be considered a sale, with an option on the part of the purchaser to pay either in money or property, as stipulated. The distmction is : Can the depositor, by his contract, compel a delivery of wheat, whether the dealer is willing or not ? If he can, the transaction is a bailment. If the dealer has the option to pay for it in money or other wheat, it is a sale.” This distinction is drawn of course, with reference to cases where grain is deposited in a mass, as in grain elevators, etc.
There are cases in wMch the doctrine of bailment has been carried' much beyond the rule recognized in the cases we have cited. See Sexton v. Graham, 53 Ia. 181, and Nelson v. Brown, 53 Ia. 555. We think, however, the rule recognized in Chase v. Washburn, supra, and Lyon v. Lenon, supra, is a safe one, [605]*605and is more in accord with the well settled principles of the law relating to bailment!
But in the case at bar we are not called upon to say what would be the effect upon the transaction, if Newman had authority in the regular course of dealing to ship or sell the wheat of his customers on his own account. Undoubtedly he had a right to sell of the grain or flour to the extent of his own share; that is to say, what he contributed to the common stock and the tolls to which he was entitled. But the jury has found that he had no authority whatever to sell or to abstract from the common stock beyond the amount to which he was himself ■entitled.
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Opinion,
Mr. Justice Clark:
The defendants in this case are judgment creditors of William D. Newman, a miller, operating a steam flouring mill in the town of Bedford. Haying issued executions, they levied on some eighty or ninety barrels of flour and some bran found on the floor of Newman’s mill. The plaintiffs claimed the property levied upon, alleging that it was the product of grain by them delivered to and held by Newman as their bailee. This is a feigned issue, framed under the sheriff’s interpleader act to determine the dispute.
The plaintiffs, who are farmers residing in the vicinity of Bedford, brought their grain to this mill; no special contract or arrangement was made with the miller, by any of the plaintiffs, when they delivered their wheat, but, in accordance with the practice of the mill in all cases, except when wheat was at once paid for, a receipt or memorandum was given in the following form:
Crystal Mills, Bedford, Pa., Sept. 12,1884. Received from D. W. Lee:
' Amount.
Four hundred and fifty-five b. wheat, . $455.14
“ rye,
“ corn,
Two hundred and fifty-five “ oats, . 255.12
“ buckwheat.
For use of self. W. D. Newman.
The mill was not arranged to keep the several lots of grain in separate parcels. It was so constructed that all the grain delivered into it was hoisted to the second floor, emptied into a sink on the first floor, and from thence carried by elevators into a bin on the third floor, where, at times, there was a large accumulated mass of wheat. Newman also purchased wheat in considerable quantities from time to time, which was delivered into the mill, and disposed of as the other wheat. This promiscuous commingling of the grain into a common mass was in accordance with the known usage of the mill, which [603]*603was supplied for grinding from the mass of the wheat, without any discrimination as to the several lots or parcels in which it was received. The miller was, of course, under no obligation to restore to the plaintiffs the specific or identical wheat which he received, nor the product of it in flour; indeed this, owing to the manner in which the business was conducted, was practically impossible.
The fundamental distinction between a bailment and a sale is, that in the former, the subject of the contract, although in an altered form, is to be restored to the owner, whilst in the latter there is no obligation to return the specific article; the party receiving it is at liberty to return some other thing of equal value in place of it. In the one case the title is not changed, in the other it is, the parties standing in the relation of debtor and creditor. Thus in Norton v. Woodruff, 2 N. Y. 153, a miller agreed to take certain wheat and to give one barrel of superfine flour for every four |fths bushels thereof; the flour to be delivered at a fixed time, or as much sooner as he could make it. As the miller’s contract was satisfied by a delivery of floru’ from any wheat, the transaction was held to be a sale. But in Malloy v. Willis, 4 N. Y. 76, wheat was delivered under a contract “ to be manufactured into flour,” and one barrel of the flour was to be delivered for every four ||-ths bushels of wheat; this transaction was by the same court held to be a bailment.
If a party, having charge of the property of others, so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produces it; where, however, the owners consent to have their wheat mixed in a common mass, each remains the owner of his share in the common stock. If the wheat is delivered in pursuance of a contract for bailment, the mere fact that it is mixed with a mass of like qu.ah.ty, with the knowledge of the depositor or bailor, does not convert that into a sale which was originally a bailment, and the bailee of the whole, can, of course, have no greater control of the mass than if the share of each were kept separate. If the commingled mass has been delivered on simple storage, each is entitled on demand to receive his share; if for conversion into flour, to his proper proportion of the product: Chase v. [604]*604Washburn, 1 Ohio N. S. 244; Hutchison v. Common-wealth,. 82 Pa. 472. It makes no difference that the bailee had, in like manner, contributed to the mass of Ms own wheat; for, although the absolute owner of his own share, he still stands as a bailee to the others, and he cannot abstract more than that share Mom the common stock, without a breach of the bailment, wlflch will subject him not only to a civil suit, but also to a criminal prosecution: Hutchison v. Commonwealth, 82 Pa. 472.
But where, as in Chase v. Washburn, supra, the understanding of the parties was that the person receiving the grain might, take from it or from the flour at Ms pleasure, and appropriate' 'the,same to Ms own use, on the condition of his procuring other wheat to supply its place, the dominion over the property passes to the depositary, and the transaction is a sale, and not. a bailment. To the same effect are Schindler v. Westover, 99 Ind. 395; Richardson v. Olmsted, 74 Ill. 213; Bailey v. Bearly,. 87 Ill. 556, and Johnston v. Brown, 37 Ia. 200. In Lyon v. Lenon, 106 Ind. 567, the distinction is thus stated: “If the dealer has the right, at Ms pleasure, either to ship and sell the same on his own account, and pay the market price on demand, or retain and re-deliver the wheat, or other wheat in the place of it, the transaction is a sale. It is only when the bailor retains the right from the beginmng to elect whether he will demand the re-delivery of his property, or other of like quality and grade,, that the contract will be considered one of bailment. If he surrender to the other theright of election, it will be considered a sale, with an option on the part of the purchaser to pay either in money or property, as stipulated. The distmction is : Can the depositor, by his contract, compel a delivery of wheat, whether the dealer is willing or not ? If he can, the transaction is a bailment. If the dealer has the option to pay for it in money or other wheat, it is a sale.” This distinction is drawn of course, with reference to cases where grain is deposited in a mass, as in grain elevators, etc.
There are cases in wMch the doctrine of bailment has been carried' much beyond the rule recognized in the cases we have cited. See Sexton v. Graham, 53 Ia. 181, and Nelson v. Brown, 53 Ia. 555. We think, however, the rule recognized in Chase v. Washburn, supra, and Lyon v. Lenon, supra, is a safe one, [605]*605and is more in accord with the well settled principles of the law relating to bailment!
But in the case at bar we are not called upon to say what would be the effect upon the transaction, if Newman had authority in the regular course of dealing to ship or sell the wheat of his customers on his own account. Undoubtedly he had a right to sell of the grain or flour to the extent of his own share; that is to say, what he contributed to the common stock and the tolls to which he was entitled. But the jury has found that he had no authority whatever to sell or to abstract from the common stock beyond the amount to which he was himself ■entitled. In the general charge, and also in the answers to the points submitted, the learned court instructed the jurors in the clearest manner, that if they should find from the evidence that Newman, by the nature of his dealings with the several plaintiffs, had acquired such dominion over their wheat, as authorized him, at his pleasure, not only to grind it into flour, but also to sell the same for his own use, the transaction must necessarily be treated as a sale, and that, in that event, the plaintiffs could not recover. This instruction was repeated with marked emphasis several times during the progress of the charge, and it seems quite impossible that the jury could have labored under any misapprehension as to the nature of the inquiry they were to make. The verdict of the jury was for the plaintiffs, and we must assume the facts which it is plain the jury, in arriving at such a verdict, must have found, viz., that Newman had no authority to sell the grain delivered into his mill under the arrangement with the plaintiffs; that is to say, their share of the common stock, nor the flour, which was the product thereof. It was the plain duty of Newman, however, to see to it that at all times the mill contained wheat or flour sufficient in amount to answer all demands under the bailment; failing in this, he was derelict in duty, and liable, under the law, for the appropriation and conversion unto his own use of property which did not belong to Mm.
Nor do we see that the court committed any error in the answers to the plaintiffs’ points. These points according to the general practice, were based upon an assumption of facts, the truth or falsity of which was for the jury, and the law was stated as upon a finding of these facts by the jury. They were [606]*606relevant to the issue ; they disclosed clearly the specific facts assumed, which were fairly and reasofiably consistent with the plaintiffs’ theory of the case upon the evidence, and the opinion of the court thereon could not have had any weight with the jurors in their deliberations, unless the facts assumed were, in their judgment established by the proofs. The points certainly were not such as could be disregarded by the court, and we cannot see how the answers thereto could be supposed to have misled the jury.
The learned court defined a bailment and a sale, marking the distinguishing features of each, and as the nature of the transaction depended not wholly upon the written receipt, but in part on verbal evidence as to the method of conducting the business, the question was undoubtedly one proper to be submitted to the jury. The court instructed the jury, that if certain facts existed the transaction was a sale, otherwise it was but a bailment, and the question was proper for the jury, whether or not, under the instruction of the court, according to the facts as the jury might find them, the transaction was a bailment or a sale.
On a careful review of the whole case, we find no error, and the
Judgment is affirmed.