Mr. Chief Justice Walker
delivered the opinion of the Court:
It appears from the transcript in this case that one Runyan, about the 10th day of July, 1876, being indebted to the German National Bank of Chicago, conveyed to Herman Schaffner, its cashier, in trust for the bank, a public warehouse for grain in the city, known as “Runyan’s Elevator;” that afterwards, about the 1st day of November of that year, the bank, through its agents, took possession of the warehouse, in which there was at that time 18,000 or 20,000 bushels of barley stored for different persons. Appellee held warehouse receipts for a trifle over 6000 bushels of this grain, which had been issued for grain actually stored therein.
These receipts contained an agreement by the owner that the grain therein mentioned might be stored with other grain of the same grade or quality, by inspection. It is conceded that this grain was thus stored. And it is found by the Appellate Court that at the time the bank took possession there was a sufficient quantity of grain in the warehouse to meet all the outstanding receipts. The bank, when it took possession, placed one Stokes in charge, and he at once began to receive grain, and placed the same in bins with other grain in store and issued warehouse receipts, and he delivered grain therefrom.
In the following December appellee tendered to Stokes the warehouse charges due for storage and demanded of him the barley represented by his receipts, but he refused to make such delivery. Appellee thereupon brought this action of trover in the circuit court of Cook county. The general issue was filed, and a trial by the court and jury resulted in a verdict in favor of appellee for $3134 against the bank, but the other defendants were found not guilty.
A motion for a new trial having been overruled, judgment was rendered on the verdict. The bank appealed to the Appellate Court, where the judgment was affirmed, and the case is brought to this court and errors are assigned on the record.
All questions of. controverted fact having been found by the Appellate Court we can only consider questions of law arising thereon. Appellant claims that, conceding the facts to be true, as found by the jury and the Appellate Court, still appellee is not entitled to recover, and the judgment should therefore be reversed.
It is contended by appellant that the action is misconceived; that a recovery can not be had in trover; that when the owner consents that his grain shall be commingled with other grain in such a manner as to lose its identity, he can not recover for its conversion. This would no doubt be true if a recovery should be sought by an action of replevin, not because the ownership of the property is changed, but because the sheriff could not deliver it to plaintiff.
To maintain trover it has never been held that the property must even be in existence, much less that it shall be capable of being identified and separated from all other property of the same character. Eo one surely will contend that merely by proving that the defendant had destroyed the property, or so changed it that its identity was lost, a recovery would be defeated. Whatever effect such proof might produce in replevin, it surely would be no defence to an action of trover.
Suppose two persons were, by consent, to mingle their grain, and one were to sell the entire quantity, could it be maintained that the other owner had no action to recover for the loss, or that trover would not lie against the seller or the buyer? It is perfectly apparent that he might maintain trover. By the intermixture neither would lose his legal title to the property, as that undeniably remained as it was before. The only change which that would produce is that of the difficulty of identity with a change of the rights as to possession.
If two persons were the joint owners of a specific chattel and one were to sell it and convert the proceeds to his own use, will it be contended that the other joint owner could not sue in trover and recover damages for the loss of his half? Trover being for the recovery of damages sustained by the plaintiff, for the conversion of his property, it can not matter whether he holds the property thus converted jointly with another or in severalty. His right of property in either case is the same, and the damage he sustains is not different, and reason and justice require that the means of obtaining his rights should be the same in either case. Nor are we aware of any technical rule which prohibits it.
If, however, we refer to authority, it will be found to fully support these views. In Chitty on Pleading, p. 167, it is said the action lies against any person who had in his possession, by any means whatever, the personal property of another, and sold it or used it without the consent of the owner, or refused to deliver it when demanded. And it has been held that a person owning property mingled with that of another, may, on its conversion, maintain the action. See Jackson v. Anderson, 4 Taunt. 24; Whitehouse v. Frost, 12 East, 614. And in the cases of Benjamin v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 id. 314, it was held that one tenant in common of a chattel may maintain trover against the other tenant in common, where he has converted the property to his own use. This right was held to be given under the statute, but it only enlarges the common law right.
We are therefore of opinion that even if it can he said that appellee held a third interest in this grain in common with the other holders of receipts, that wmuld be no impediment to his maintaining the action.
Nor does the case of Bailey v. Bensley, 87 Ill. 556, impinge this rule. In that case the questions involved were between the commission merchants and their consignor. He had shipped grain to them, to be sold when he should so order. When they sued him for a balance for advances, commissions, and charges paid for storage, one of the objections raised by him was that, on receiving receipts for grain he had consigned to them, with directions to hold it, they had sold and transferred the warehouse receipts given when his grain went into store, and that when he ordered them to make sales they furnished and sold other receipts representing the same quantity and grade of grain as he had stored, and for which the receipts had been given. But it was held that this being according to usage on the board of trade, it was unobjectionable.
It was also said that “ we do not see how, as appellant claims, the warehouse receipt can be regarded as the property, or as representing the property, of the consignor, on account of the receipt of whose grain it issued, so that the parting with such particular receipt is a disposal of the consignor’s property. The grain, on being received at the warehouse, is stored in common bins, mixed with other grain, and loses its identity, and becomes incapable of specific designation,— that amount of grain is credited to the consignee. The warehouse receipt is given to the consignee as his voucher that he has in that warehouse, not the grain of the consignor, nor any particular grain, but a certain number of bushels of grain of the kind and grade mentioned in the receipt, subject to his order and disposal. The consignor is not named in the receipt. It does not represent his particular property. It is not issued to be used by him.
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Mr. Chief Justice Walker
delivered the opinion of the Court:
It appears from the transcript in this case that one Runyan, about the 10th day of July, 1876, being indebted to the German National Bank of Chicago, conveyed to Herman Schaffner, its cashier, in trust for the bank, a public warehouse for grain in the city, known as “Runyan’s Elevator;” that afterwards, about the 1st day of November of that year, the bank, through its agents, took possession of the warehouse, in which there was at that time 18,000 or 20,000 bushels of barley stored for different persons. Appellee held warehouse receipts for a trifle over 6000 bushels of this grain, which had been issued for grain actually stored therein.
These receipts contained an agreement by the owner that the grain therein mentioned might be stored with other grain of the same grade or quality, by inspection. It is conceded that this grain was thus stored. And it is found by the Appellate Court that at the time the bank took possession there was a sufficient quantity of grain in the warehouse to meet all the outstanding receipts. The bank, when it took possession, placed one Stokes in charge, and he at once began to receive grain, and placed the same in bins with other grain in store and issued warehouse receipts, and he delivered grain therefrom.
In the following December appellee tendered to Stokes the warehouse charges due for storage and demanded of him the barley represented by his receipts, but he refused to make such delivery. Appellee thereupon brought this action of trover in the circuit court of Cook county. The general issue was filed, and a trial by the court and jury resulted in a verdict in favor of appellee for $3134 against the bank, but the other defendants were found not guilty.
A motion for a new trial having been overruled, judgment was rendered on the verdict. The bank appealed to the Appellate Court, where the judgment was affirmed, and the case is brought to this court and errors are assigned on the record.
All questions of. controverted fact having been found by the Appellate Court we can only consider questions of law arising thereon. Appellant claims that, conceding the facts to be true, as found by the jury and the Appellate Court, still appellee is not entitled to recover, and the judgment should therefore be reversed.
It is contended by appellant that the action is misconceived; that a recovery can not be had in trover; that when the owner consents that his grain shall be commingled with other grain in such a manner as to lose its identity, he can not recover for its conversion. This would no doubt be true if a recovery should be sought by an action of replevin, not because the ownership of the property is changed, but because the sheriff could not deliver it to plaintiff.
To maintain trover it has never been held that the property must even be in existence, much less that it shall be capable of being identified and separated from all other property of the same character. Eo one surely will contend that merely by proving that the defendant had destroyed the property, or so changed it that its identity was lost, a recovery would be defeated. Whatever effect such proof might produce in replevin, it surely would be no defence to an action of trover.
Suppose two persons were, by consent, to mingle their grain, and one were to sell the entire quantity, could it be maintained that the other owner had no action to recover for the loss, or that trover would not lie against the seller or the buyer? It is perfectly apparent that he might maintain trover. By the intermixture neither would lose his legal title to the property, as that undeniably remained as it was before. The only change which that would produce is that of the difficulty of identity with a change of the rights as to possession.
If two persons were the joint owners of a specific chattel and one were to sell it and convert the proceeds to his own use, will it be contended that the other joint owner could not sue in trover and recover damages for the loss of his half? Trover being for the recovery of damages sustained by the plaintiff, for the conversion of his property, it can not matter whether he holds the property thus converted jointly with another or in severalty. His right of property in either case is the same, and the damage he sustains is not different, and reason and justice require that the means of obtaining his rights should be the same in either case. Nor are we aware of any technical rule which prohibits it.
If, however, we refer to authority, it will be found to fully support these views. In Chitty on Pleading, p. 167, it is said the action lies against any person who had in his possession, by any means whatever, the personal property of another, and sold it or used it without the consent of the owner, or refused to deliver it when demanded. And it has been held that a person owning property mingled with that of another, may, on its conversion, maintain the action. See Jackson v. Anderson, 4 Taunt. 24; Whitehouse v. Frost, 12 East, 614. And in the cases of Benjamin v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 id. 314, it was held that one tenant in common of a chattel may maintain trover against the other tenant in common, where he has converted the property to his own use. This right was held to be given under the statute, but it only enlarges the common law right.
We are therefore of opinion that even if it can he said that appellee held a third interest in this grain in common with the other holders of receipts, that wmuld be no impediment to his maintaining the action.
Nor does the case of Bailey v. Bensley, 87 Ill. 556, impinge this rule. In that case the questions involved were between the commission merchants and their consignor. He had shipped grain to them, to be sold when he should so order. When they sued him for a balance for advances, commissions, and charges paid for storage, one of the objections raised by him was that, on receiving receipts for grain he had consigned to them, with directions to hold it, they had sold and transferred the warehouse receipts given when his grain went into store, and that when he ordered them to make sales they furnished and sold other receipts representing the same quantity and grade of grain as he had stored, and for which the receipts had been given. But it was held that this being according to usage on the board of trade, it was unobjectionable.
It was also said that “ we do not see how, as appellant claims, the warehouse receipt can be regarded as the property, or as representing the property, of the consignor, on account of the receipt of whose grain it issued, so that the parting with such particular receipt is a disposal of the consignor’s property. The grain, on being received at the warehouse, is stored in common bins, mixed with other grain, and loses its identity, and becomes incapable of specific designation,— that amount of grain is credited to the consignee. The warehouse receipt is given to the consignee as his voucher that he has in that warehouse, not the grain of the consignor, nor any particular grain, but a certain number of bushels of grain of the kind and grade mentioned in the receipt, subject to his order and disposal. The consignor is not named in the receipt. It does not represent his particular property. It is not issued to be used by him. Tor his protection and voucher he may be supposed to have a railroad receipt on shipment, and the acknowledgment of the consignee of the receipt of the grain.”
Here, the court was not discussing what legal right the holder of the receipt has, but what claim the consignor has on his consignee, to whom the receipt was given, and which had never been delivered to the consignor, so as to vest title in him of any specific property or any number of bushels of the entire mass with which it was mingled. Had the consignee returned the receipt to the warehouseman and demanded a delivery of the grain, the latter could not have been heard to say the consignee was not the owner of that number of bushels of grain to be taken and separated from the great bulk of grain of the same grade. He would not have been entitled to the very same grain he stored, or placed in the warehouse, but to other similar grain. So it would have been had the consignee given the receipt to the consignor, and he had made the tender and demanded the grain for which the receipts called.
In that case it was also said that as two receipts for precisely the .same amount and grade of grain were equivalent, it did not matter whether the consignee delivered the very same receipts he received when the grain went into the warehouse, or others for the same quantity, or quality and grade. On presenting either he would not have received the same he stored, as it would have been impossible to have delivered the very same grain that was received. So that, as between him and his consignor, he had no right to demand the identical receipt that was issued when his grain passed into the warehouse,—that any other receipt issued by the same warehouseman for a like number of bushels of the same grade would answer the same purpose, when the consignee wished to sell or withdraw the amount, as the original receipt. Either receipt invested him, when delivered to him, with the legal title to that amount of grain of the same grade, which he could undeniably have demanded, and, on paying the charges, if refused, maintain an action of trover and recover damages for its conversion.
It is true that this grain was delivered to Runyan and the demand was made of Stokes. But Runyan was compelled to sell the warehouse to pay indebtedness to the bank. He conveyed to Schaffner to hold in trust for the bank, and was compelled to deliver possession to the purchaser. And as he was not permitted to remove the grain he had received into the warehouse, except under circumstances not claimed to have existed, without committing a felony, he had no choice, but was compelled to surrender the possession of the grain with the elevator. Nor did Stokes, the bank or any other person acquire any title, claim or lien on the grain then in the warehouse, the possession of which was delivered with it. But they, by receiving it, became as mere substituted bailees in the place of Runyan, and became charged with the same duties to the owners, and were bound to deliver it precisely as would Runyan had he been in possession. And this duty manifestly devolved on Stokes or the bank. A failure to deliver the grain, then, rendered one or the other liable to respond in damages.
It is insisted for the bank that its charter does not authorize it to engage in or carry on the business of warehousemen ] that its charter only authorizes it to do a banking business, and the receipt, storage and otherwise handling grain as a warehouseman is ultra vires, and it can not be held liable. The jury by their verdict, and the Appellate Court by affirming the judgment of the circuit court, have found that the bank has converted this grain to its own use; that it has appropriated appellee’s property and deprived him of it to the amount of the verdict, and that this was wrongfully done. And shall the bank be heard to say that, although it has appellee’s property which it refuses to surrender to him, and has converted it to the use of the bank, and because it was obtained by the performance of acts not authorized by its charter, the bank will hold it and refuse to account for it or its proceeds? Such can not be the law. Suppose a person to make a special deposit in a bank of a sum of money, and the envelop should be broken, the money taken and placed with the funds of the bank and its profit account credited by the amount, and it should be paid out in the course of its business, could the bank, when sued, escape liability by saying that the bank is not authorized to receive special deposits for safe-keeping only, and the act was ultra vires ? We presume no one would contend for such a defence. And it may be asked, in principle how does the case at bar differ from the one supposed ? In such a case the bank would have received money and appropriated it, to which it had no claim, nor should it be permitted to hold it because it was wrongfully obtained.
The question is, not whether the bank was acting under and in conformity to the provisions of its charter in receiving and forwarding grain, but whether the bank has wrongfully converted appellee’s property to its own use. If, as the jury have found, the bank has, then it does not matter whether, the wrong was perpetrated whilst the bank was in the pursuit of its legitimate business or was acting against the provisions of its charter. The wrong to appellee is the same in the one case as in the other. It can be no defence to say the bank obtained and converted appellee’s property contrary to the provisions of its charter. The wrong is the same, and it can not matter in what manner the wrong was perpetrated, as the liability is the same. It is the wrong, and not the manner in which it occurred, that we have to consider. It is not a defence for the bank to say we received and converted the grain and held the money without claim of right, but, as when we converted the property we were acting beyond the limits of our charter, you can not recover. The bank committed the wrong and is liable.
Perceiving no error in this record, the judgment of- the Appellate Court is affirmed.
Judgment affirmed.