And so the supreme court of Iowa, in a case yet unreported, Johnson v. Brown, Oct. 1873,) has also held. In the case just cited, wheat was left in an elevator with the understanding that when the depositor should be ready to sell it, the proprietor of the elevator would give the highest market price or the same amount as wheat of like grade and quality- the custom being to ship off grain, but to keep on hand sufficient to fill outstanding storage receipts, but not the identical wheat received-and it was adjudged that the transaction was a sale and not a bailment. I regard the case at bar distinguishable from Young v. Miles, 20 Wis. 615, 23 Wis. 643; and Kimberly v. Patchin, 19 N. Y. 330; and like cases where the bulk from which the mingled articles were to be taken was specific and not subject to constant fluctuations. I am of opinion, therefore, that the court erred in holding that the receipt owners had the right to the wheat in the warehouse as against the assignee, and its decree in this respect is reversed, and a decree will be entered here dismissing the bill. I may add, that I am entirely satisfied, in view of the mode of conducting business at the grain elevators, as shown in the testimony, that the foregoing is a sound view of the relation between the grain depositor and the proprietor of the elevator, and that legislation to protect the former against the insolvency of the latter, would appear to be called for. In respect to the claim of the bank upon the two wheat receipts for 12,000 bushels, made by the bankrupts after their failure to secure $10,000 to their local bankers, I concur so fully in the views of Judge Nelson that I do not deem it essential to do more than refer to his opinion. The decree of the district court, dismissing the cross-bill of the bank is affirmed. The cause will be remanded to the district court with directions to tax the costs in that court equitably as between the receipt holders and the bank. The costs on this appeal will be borne equally between the same parties. Ordered accordingly. (Note by the Editor of Central Law Journal.) In Chase v. Washburn, 1 Ohio St. 244, the receipt of the warehouseman, was; "Milan, O., Nov. 5, 1847. Rec'd in store from J. C. W. thirty bushels of wheat. H. Chase & Co." The evidence aliunde showing that the wheat was received with an understanding that the warehouseman might dispose of it, and that, upon demand, he would return other grain, or pay for that deposited, the transaction was ajudged a sale and not a bailment, and therefore it was no defence to the warehouseman that his warehouse was destroyed by fire at a time when it contained wheat enough to answer all the outstanding receipts. So, in the case of the South Australian Ins. Co. v. Randall, Law Rep. 3 Priv. Council App. 101, 6 Moore P. C. N. S. 341, as in the case to which this note is subjoined, the receipts issued to the farmers by the miller were to store," and under the circumstances stated in the foregoing opinion, the transaction was considered to be a sale. In 6 Am. Law Review, 450, the reader will find a valuable article entitled " Grain Elevators: the title to Crain in Public Warehouses." The case of Chas v. Washburn is there printed in full, and is selected "as presenting the ablest exposition of the opposite opinion" to that which the annotator there maintains to be the true doctrine. In that note is cited, perhaps, every reported case on the subject of the title to grain in elevators which had been decided down to April 1872. The substance of that note will be found condensed in Holme's edition of Kent's Commentaries. 2 Kent Com. 12th ed. 590. The case of Rahilly, supra, is one where there was an understanding implied from the known and invariable course of business, that the warehouseman might mingle the specific wheat deposited with other wheat of like quality, and dispose of it at his pleasure, with the further understanding that on demand, he would pay the depositor the highest market price, or deliver the same amount of grain of a like quality, but not the identical grain deposited, nor grain from any specific mass. We have found no adjudged case which holds such a transaction to be a bailment, but there are several directly to the point that it is a sale, Such a case is obviously distinguishable from that of a specific deposit which is not to be changed by the warehouseman, but retained by him until called for by the depositor. This is a bailment. And the case is distinguishable, also, from those where. specified amounts of grain of different owners is mixed by consent in specific mass, without any understanding that the warehouseman might dispose of the grain so deposited and mingled. And it may be different from the case where the proprietor of the elevator is a mere warehouseman and where his course of business is, and his duty is, always to keep on hand in the elevator sufficient grain to meet all outstanding receipts, though not the particular grain received. We say it may be different from such a case, but it is doubtful whether it is so. See Johnson v. Brown, Iowa Sup. Ct., 1873. But where it is known by the depositor that the warehouseman is himself buying and selling grain on his own account, and also receiving grain "in store," and that he intermingles all that is so obtained, and is constantly buying, receiving and selling, so that the mass is constantly fluctuating, and there is no fixed time when the receipts are to be presented, it seems impossible to consider the holders of the outstanding receipts as tenants in common of the whole mass of wheat in the elevator in proportion to the amount of their receipts. And such a case seems to be the same in principle as an ordinary general deposit of money in bank; it creates simply the relation of debtor and creditor; and so the Privy Council in the case of the Australian Ins. Co., above cited, considered it. The very recent case of Butterfield v. Lathrop, 71 Pa. St. 225, goes upon the same principle. Here, Baxter and numerous other farmers delivered milk to a cheese factory; each was credited with the amount of his milk, and all was manufactured together; the company sold all the cheese; each farmer was charged with the expense, and received his share of the proceeds in propor tion to the milk furnished; Baxter's interest in the cheese, etc., was sold under an execution against him. Held, that the sale by the factory converted his interest into a money demand, and this interest was, therefore, not the subject of a levy. The arrangement at the factory did not constitute the farmers partners nor tenants in common in the cheese; nor was there an agency or bailment as to the particular milk delivered. It was a sale of milk to be paid for in a certain time and off. [U. S. Rep. At the time of the sale he did not deny but evaded the performance of this promise, by saying he would get his lawyer to write it after the bidding. It was written, and then he refused until the deed was acknowledged. In one of the earliest cases on this subject in Pennsylvania, Thomson's Lessee v. White, 1 Dall. 447, decided in 1789, where a husband and wife, having no children, conveyed the estate of the wife to a stranger, who reconveyed to them as joint tenants in fee, under a parol agreement between the husband and wife that the husband should settle the fee upon the wife's heirs, and the husband died without making the settlement, it was held that the parol evidence was admissible to establish the agreement. Mr. Chief Justice McKean said: "Where a party is drawn in by assurances and promises to execute a deed, to enter into a marriage, or to do any other act, and it is stipulated that the treaty or agreement should be reduced to writing, although this should not be done, the court, if the agreement is executed in part, will give relief." When this case was cited before the same eminent judge soon after, in Plankinham v. Carr, 1 Yeates, 370, he said: "The case of Thomson v. White was that of a fraud and an exception to the general rule." So it has been classed in the numerous subsequent cases in which it has been cited with approbation in the opinions of this court. Wallace v. Baker, 1 Binn. 616; Drum v. Les see of Simpson, 6 Binn. 482; Cozens v. Stephenson, 5 S. & R. 426; Overton v. Tracy, 14 S. & R. 326; Oliver v. Oliver, 4 Rawle, 144; Robertson v. Robertson, 9 Watts, 34; Pugh v. Good, 3 W. & S. 58; Miller v. Pearce, 6 W. & S. 100; Morey v. Herrick, 6 Harris, 128. In short, the principle settled in Thomson's Lessee v. White, is a landmark of our law, and is well generalized by Mr. Justice Duncan in Overton v. Tracy, supra: "If one of the contracting parties insists on a certain stipulation and desires it to be made a part of the written agreement, and the other by his promise to conform to it, as if it was inserted in the written agreement, prevents its insertion, this is a fraud, and chancery will enforce the agreement as if the stipulation had been inserted. Having no court of chancery, our common law courts have constantly acted upon this principle from Thomson v. White, 1 Dall. 424, to Christ v. Diffenbach, 1 S. & R. 464, in a succession of decisions, vary. ing in their circumstances, but all bottomed upon this principle." The case before us is much stronger than Thomson v. White, for there was no evidence to show then that wher [Pittsburgh Legal Journal, Oct. 27, 1873.] Error to Common Pleas of Crawford County. SHARSWOOD, J.-Upon this writ of error we have nothing to do with the competency of the witness, Mrs. Wolford. Her testimony was admitted, and forms part of the evidence. Had it been rejected, non constat that the defendant would not have strengthened his case by other testimony, he might have proved aliunde that she had a deed for the property, or he might have produced and offered the deed itself. He had a perfect right, when the evidence was in, to rely upon it. Her testimony alone, if believed by the jury-and there was no contradiction of it-showed a clear case of fraud on the part of Herrington within our late decisions of Beegle v. Wentz, 5 P. F. Smith, 369, and Boynton v. Housler, 21 Pittsburgh Legal Journal, 17. She had a claim to the land in her own right by an unrecorded deed-whether good or bad-conveying a good title or not, is unimportant; and these cases settle that where one having any interest is induced to confide in the verbal promise of another that he will pursu chase for the benefit of the former at a sheriff's sale, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter of the confidence is such a fraud as will convert the purchaser into a trustee ex maleficio. But we are of opinion, also, that if the testimony of John Wightman—a clearly competent witness, admitted without objection-is believed, it was sufficient to make Herrington a trustee ex maleficio, independent of any interest in the land in Mrs. Wolford. He testified that at the time of the verbal contract Herrington distinctly agreed that he would execute a writing declaring the trust before he bid the property U. S. Rep] WOLFORD V. HERRINGTON-CHANCERY SPRING CIRCUITS. the party made the promise he did not mean to comply with it in good faith, but circumstances evinced the contrary. The fact was that he had procured a settlement to be drawn by a conveyancer, which his wife refused to sign, because it contained a remainder to the "issue of the bodies of her three half sisters," one of whom was unmarried, which she thought an indelicate expression; and on his death bed he expressed great uneasiness at not having made a will, and soon after the declaration lost his reason. In noticing the case in Oliver v. Oliver, supra, Mr. Justice Rogers said: "It has never been doubted that he entered into the contract in good faith." In the case before us, from Herrington's evasion of his promise at and after the bidding, and his final refusal, there was reason to infer that when he made the agreement he did not mean to perform it, and that the whole arrangement was sought by him for the very purpose of deceiving and defrauding the Wolfords, and becoming the owner of their property at a price below its true value. When, however, it is a part of the agree ment that the trust shall be declared in writing, or it is shown that the trust was not inserted in the deed under a stipulation to that effect in consequence of the verbal promise to perform it, such fraudulent intent at the time of the agree ment need not be shown in order to establish the trust. The fraud consists in the fraudulent use of the instrument, as was decided in Oliver v. Oliver. It is true that it has been since held in Jackman v. Ringland, W. & S. 149, that where there is nothing more in the transaction than is implied from the violation of a parol agreement, equity will not decree the purchaser a trustee; which was affirmed in Barnet v. Dougherty, 8 Casey, 371, Kellman v. Smith, 9, Ibid, 158, in the latter of which Mr. Justice Strong said: "The fraud which will convert the purchaser at a sheriff's sale into a trustee, ex maleficio of the debtor, must have been fraud at the time of the sale." But in none of these cases did the element exist of a promise at the time to execute a declaration of trust in writing, upon the faith of which the purchase was made. In Jackman v. Ringland the opinion was by Mr. Justice Rogers, who does even refer to his own opinion in Oliver v. Oliver, and evidently did not suppose that there was any conflict. In Kellman v. Smith, Mr. Justice Strong cites Robertson v. Robertson, 9 Watts, 32, in the opinion in which, by Mr. Justice Rogers, Thomson's Lessee v. White is cited with approbation as a case of fraud. He would undoubtedly have noticed it if he had supposed the These opinion he was then pronouncing overruled it. Thomson's Lessee v. White, and Oliver v. Oliver, have never been shaken or overruled. decision are founded upor sound reason. Where it appears that the understanding at the time of the verbal promise was by a writing to comply with the provisions of the statute of frauds, it is something more than a mere verbal promise. The opposite party relies upon the special stipulation to reduce it to writing and thus make him secure. A chancellor would decree its specific performance. If in confidence that such writing will be executed the legal title is acquired, it is a fraud in the purchaser to refuse to do what was promised, and claim to hold discharged of it, which will constitute him a trustee ex maleficio. We are of opinion that the case below should have been submitted to the jury. Some difficulty may arise perhaps upon another trial, growing out of the fact that John Wolford, the defendant below, was the defendant in the execution. It may be well for the counsel to consider the propriety of applying to the court to permit Mrs. Wolford also to be inade a defendant. Judgment reversed, and venire facias de novo awarded. AGNEW and WILLIAMS, JJ., dissent. LAW SOCIETY-MICHAELMAS TERM, 1873. That all other candidates for admission shall pass a satisfactory examination upon the following subjects, namely, (Latin) Horace, Odes Book 3; Virgil. Eneid, Book 6; Cæsar, Commentaries Books 5 and 6; Cicero, Pro Milone. (Mathematics) Arithmetic, Algebra to the end of Quadratic Equations; Euclid, Books 1, 2, and 3. Outlines of Modern Geography, History of England (W. Douglas Hamilton's) English Grammar and Composition. That Articled Clerks shall pass a preliminary examination upon the following subjects:-Cæsar, Commentaries Books 5 and 6; Arithmetic; Euclid, Books 1. 2, and 3. Outlines of Modern Geography, History of England (W. Douglas Hamilton's) English Grammar and Composition, Elements of Book-keeping. That the subjects and books for the first Intermediate Examination shall be :-Real Property, Williams; Equity Smith's Manual; Common Law, Smith's Manual; Act respecting the Court of Chancery (C. S. U. C. c. 12), (C. S. U. S. caps. 42 and 44). That the subjects and books for the second Intermediate Examination be as follows:-Real Property, Leith's Blackstone, Greenwood on the Practice of Conveyancing chapters on Agreements, Sales, Purchases, Leases, Mortgages, and Wills); Equity, Snell's Treatise; Common Law, Broom's Common Law, C. S. U. C. c. 88, Statutes of Canada, 29 Vic. c. 28, Insolvency Act. That the books for the final examination for students at law, shall be as follows: 1. For Call.-Blackstone Vol. i., Leake on Contracts, Watkins on Conveyancing, Story's Equity Jurisprudence, Stephen on Pleading, Lewis' Equity Pleading, Dart on Vendors and Purchasers, Taylor on Evidence, Byles on Bills, the Statute Law, the Pleadings and Practice of the Courts. 2. For Call with Honours, in addition to the preceding, -Russell on Crimes, Broom's Legal Maxims, Lindley on Partnership, Fisher on Mortgages, Benjamin on Sales, Jarman on Wills. Von Savigny's Private International Law (Guthrie's Edition), Maine's Ancient Law. That the subjects for the final examination of Articled Clerks shall be as follows:-Leith's Blackstone, Watkins on Conveyancing (9th ed.), Smith's Mercantile Law Story's Equity Jurisprudence, Leake on Contracts, the Statute Law, the Pleadings and Practice of the Courts. Candidates for the final examinations are subject to reexamination on the subjects of the Intermediate Examinations. All other requisites for obtaining certificates of fitness and for call are continued. That the Books for the Scholarship Examinations shal be as follows: 1st year,-Stephen's Blackstone, Vol. i., Stephen on Pleading, Williams on Personal Property, Griffith's Institutes of Equity, C. S. U. S. c. 12, C. S. U. C. c. 43. 2nd year.-Williams on Real Property, Best on Evidence, Smith on Contracts, Snell's Treatise on Equity, the Registry Acts. 3rd year.-Real Property Statutes relating to Ontario, Stephen's Blackstone, Book V., Byles on Bills, Broom's Legal Maxims, Story's Equity Jurisprudence, Fisher on Mortgages, Vol. 1, and Vol. 2, chaps. 10, 11 and 12. 4th year. Smith's Real and Personal Property, Russell on Crimes, Common Law Pleading and Practice, Benjamin on Sales, Dart on Vendors and Purchasers, Lewis' Equity Pleading, Equity Pleading and Practice in this Province. That no one who has been admitted on the books of the Society as a Student shall be required to pass preliminary examination as an Articled Clerk. J. HILLYARD CAMERON, DIARY-CONTENTS-EDITORIAL ITEMS. DIARY FOR MAY. 1. Fri... Vienna Expos. opened, 1873. Local Clks. make ret. to Co. Treas. under 32 V. c. 36, s. 113. Assessors in cit. & towns to complete rolls by this date (do. s. 49). Co. Treas. to make up arrs. on lands. 2. Sat...Cands. for Atty. leave art. with Sec. Law Soc. (25 V. c. 2, s. 5.) 3. SUN..4th Sunday after Easter. 5. Tue..Primary Exam, of Students-at-Law and Art. Clerks. 6. Wed..Siege of Quebec raised, 1776. 8. Fri...John Stuart Mill died, 1873. 10. SUN..Rogation Sunday; 5th Sunday after Easter. Treaty of Peace between France and Germany, 1871. 11. Mon..Law School Examination. 12. Tuę.. Gen. Sess. and Co. Ct. York begin. Inter. Exams. Cand. for call to pay fees and leave papers. 14. Thu..Ascension Day. Last day for serv. for Co. Ct. Atty.'s. 15. Fri...Examinations for call to the Bar. 16. Sat... Examinations for call with honours. 17. SUN..1st Sunday after Ascension. 18. Mon..Easter Term begins. 20. Wed..Sir George E. Cartier died, 1873. 22. Fri....Paper Day, Q.B. New Trial Day, C.P. 23. Sat... New Trial Day, Q.B. Paper Day, C.P. 24. SUN..Whit Sunday. McMahon appointed Pres. 25. Mon..P.D., Q.B. N.T., C.P. Last d. to dec. for Co. Ct. 29. Fri... Last day for not. of trial in Sup. Ct. case for THE Canada Law Journal. Toronto, May, 1874. We observe that the Great Seal of Ireland is said to be held in reversion for Dr. Ball, the present Attorney-General for Ireland, till the end of the Session. Meanwhile it has been placed in commission in the hands of Sir Joseph Napier, Mr. Justice Lawson, and Master Brooke, one of the Irish Masters in Chancery. The Legislature of the State of Illinois has recently amended its criminal code, by allowing prisoners to testify on their own behalf. There are conflicting opinions upon the wisdom of this provision.. There were such touching the propriety of examining parties to a civil suit as witnesses on their own behalf. Experience will be the best guide in this, as in other matters. We can afford to wait for the present. We publish in another column the judgment of Mr. Justice Grove in the Taunton Election Case, which has excited so much comment, adverse as well as favourable, in England. It will, no doubt, be eagerly appealed to in many of the election petitions now pending here. It deals with the question of agency, and defines the limits within which the candidate is responsible for the acts of his supporters. It has been decided in the Liverpool County Court in regard to commercial travellers, or, as they used to be called in England, "bagmen," or as they are now called in the United States, much more graphically, "drummers,"-that the sam150 ples and accounts of such persons are not personal or ordinary luggage, so as to make a railway company liable for their 141 150 151 152 |