The weight of authority seems to be that as to animals delivered by an owner to another person under such a contract, the relationship of bailor and bailee is created. Edgar v. Parsell, 184 Mich. 522, 151 N.W. 714, Ann.Cas.1917A, 1160; Manti City Savings Bank v. Peterson et al., 30 Utah 475,86 P. 414, 116 Am.St.Rep. 862; Haws et al. v. Fracarol, 9 Cir.,27 F.2d 74; Robinson v. Haas, 40 Cal. 474; Woodward v. Edmunds,20 Utah 118, 57 P. 848; Turnbow v. Beckstead et al., 25 Utah 468,71 P. 1062; Wetzel v. Deseret Nat. Bank et al., 30 Utah 62,83 P. 570; Clay, Robinson Co. v. Atencio, 74 Colo. 17,218 P. 906.
Where such contracts provide that the person feeding and caring for the animals is to receive a portion of the increase or, in the case of sheep, a portion of the wool, the weight of authorities appears to be that as to the increase and the wool, when shorn, the parties are tenants in common. Deutscher v. Broadhurst, 69 S.D. 554, 12 N.W.2d 807; Samuel and Lewis Hewlett v. Owens Moore, 50 Cal. 474; Beezley v. Crossen,14 Or. 473, 13 P. 306; Mahoney v. Citizens' Nat. Bank of Salmon,47 Idaho 24, 271 P. 935.
I am of the opinion that the proper construction to be placed on the agreement here under consideration is that it established the relationship of bailor and bailee, a bailment for the benefit of both parties. Hollis was to be benefitted by the services rendered by York, as well as by the weight to be gained by his hogs. Under the agreement York was to be paid for his services and his peanuts in the event there was an increase in the weight of the hogs, the amount of such compensation to be determined by the weight gained by the hogs. It is clear to my mind that the parties did not contemplate a sale of the hogs or any interest therein.
At the time the writ of garnishment was served on the garnishee, Hollis, there was a contract out of which, in the usual course of things, a money liability was certain to spring. Teague, Barnett Co. v. Le Grand, 85 Ala. 493,5 So. 287, 7 Am.St.Rep. 64. At the time the answer of the garnishee was filed, the hogs had been sold and York had received his compensation for feeding and caring for the hogs. Under such circumstances, I think the trial court correctly entered judgment in favor of the plaintiff, Bender, against the garnishee, Hollis.
As I understand the majority opinion, the conclusion there reached is influenced by the events which occurred subsequent to the date on which the writ of garnishment was served on Hollis. The mere fact that when the hogs were sold, several weeks after the writ of garnishment was served, the purchaser made a check direct to York, cannot in my opinion have any bearing on the construction to be placed on the contract between York and Hollis. Such a procedure could have been followed as a means of preventing vendor from reaching the money coming to York as a result of his contract with Hollis. Under the contract Hollis had title to the hogs when they were delivered to York and never parted with that title. Hollis was the only man who could sell the hogs. Under the contract, when the hogs were sold Hollis was liable to York for an amount equal to one half of the proceeds received from the increased weight of the hogs. The fact that the check was not made from Hollis to York, in my opinion, sheds no light on the principal inquiry in this case, viz., what relationship did the contract create between Hollis and York?
LIVINGSTON, J., concurs in these views.