I dissent. In my opinion the court has fallen into error by failing to give a sufficiently broad scope to our statutes regulating the business of warehousemen; in determining the powers of the department of agriculture under the law of agency; and in treating the holders of storage tickets as creditors of the insolvent warehouseman.
Under the common law, grain dumped in storage lost its identity and title passed to the warehouseman, but this is not so under statutes such as ours, declaring the transaction a bailment and not a sale. Here the holders of storage tickets and all bailors who have placed their grain in storage are tenants in common of the contents of the warehouse, up to the full amount of this "fungible" commodity, for which evidences of storage have been issued, and regardless of whether or not any of the grain on hand was delivered for storage. Title does not pass to the warehouseman, or, through him, to innocent parties to whom he has purported to sell it. (Stutsman v. Cook, 53 N.D. 162,204 N.W. 976; Hall v. Pillsbury, 43 Minn. 33, 19 Am. St. Rep. 209, 7 L.R.A. 529, 44 N.W. 673; Young v. Miles, 20 Wis. 615;Tobin v. Portland Mills, 41 Or. 269, 68 P. 743, 1108.)
While a bailor might waive the tort and sue for the value of his grain in case of conversion, he is not required to do so, but may take any one of numerous courses open to him, and, *Page 59 consequently, he does not become a "creditor" of the warehouseman unless he chooses to do so. This being so, owing to the number of bailors usually involved, and, perhaps, the manner in which warehouses for grain have been conducted in the past, the state stepped in and, for their protection, created the grain standard and marketing division of the department of agriculture. It is authorized to exact a bond for the protection of the bailors and, on default, is given power to intervene, without the consent of and without consulting the bailors, to seize grain found in the warehouse as stored grain, and, on exhausting this, to demand payment from the bondsmen in so far as necessary for the payment of storage tickets, again without consulting the bailors.
It is worthy of note that, in so far as the complaint discloses, no ticket holder is objecting to the action of the department in his behalf.
Nowhere in the Act do I find authority for the statement made in the majority opinion that the power just noted marks the full authority of the department or that "the legislature never contemplated that there should arise a situation, as here * * *." I do not know what was in the contemplation of the legislature, but I do know that it empowered the department to do "all things lawful and needful" for the protection of the bailors, and I believe that, had it intended that the department should have power only to apply stored wheat and the proceeds of the bond to the payment of storage tickets, it would have granted those powers in set terms, rather than employing the phraseology found in the Act.
When a situation as is here shown does arise — and we know that it does often — it is clearly "needful" that additional steps be taken for the protection of those favored under the law discussed, the only question remaining being as to whether or not what is done is likewise "lawful."
We must remember that the statute deals only with "warehousemen" and that an elevator man acts in a dual capacity, — as warehouseman only with reference to storage contracts, and that, in his business of grain buyer he is no more a warehouseman *Page 60 than is the banker who rents safety boxes and thereby becomes a warehouseman, such as to his business of receiving money on deposit. Consequently, dealing only with warehousemen, the position of depositor and creditor is entirely foreign to the Act and to this case.
With this thought in mind, it is clear that the provisions of the Act, as amended, respecting the holders of other evidences of wheat delivered to a warehouseman than storage tickets, can apply only to like evidences of wheat delivered for storage; the rule of ejusdem generis applies.
As clearly pointed out in the majority opinion, there could be no legal objection to the warehouseman making amends to one or more of the bailors whose property he has converted, by delivering to such ones personal property, and this regardless of whether he is indebted or not; his creditors could not deprive those he thus favors of the property, as was done here.
Perhaps, under the law of agency, as declared in the majority opinion, the state officials could not act as agents for those the state has attempted to protect, without their prior consent, but I do not believe that this rule of law precludes the department from protecting ticket holders as it has attempted here to do. The warehouseman, having wronged those who deposited their property with him for safekeeping, could, under the majority opinion, make amends to them direct in exactly the same manner in which it is here attempted to make amends; why, then, when the number of those wronged is too great to admit of personal restitution, should he be precluded from making such restitution through the agency provided by the state for handling just such a situation and empowered to do "all things lawful and needful" for the protection of this class of bailors?
I believe that, under the law, the desired result may be reached by the creation of a trust and the delivery of the property to the state agency for its discharge.
"Except as to a purpose foreign to the public policy of the state or within the meaning of a statutory prohibition, the policy of the law, to permit a man to make whatever disposition *Page 61 of his property he sees fit, allows him to create an active trust for any purpose he deems wise and expedient." (39 Cyc. 37.) The public policy of this state, in this regard, is clear from the attempt of the legislature fully to protect the holders of warehouse receipts.
In this state a trust may be created for any purpose for which a contract may be made, except as otherwise provided by the chapters on uses and trusts and on transfers. (Sec. 7883, Rev. Codes 1921.)
An express trust, for the benefit of a third person, is created with the mutual consent of the trustor and trustee, without consulting the cestui que trust (sec. 7903, Id.) and the acts of the trustee bind the trust property to the same extent as the acts of an agent bind his principal. (Sec. 7914, Id.)
At common law and under statute in some states, a trust may be created for the purpose of paying the settlor's debts (38 Cyc. 38; Thomas v. Lamb, 11 Cal. App. 717, 106 P. 254; McHardy v. McHardy, 7 Fla. 301). The common law in this respect is not changed in this state, except it be by the provisions of our Code respecting assignments for the benefit of creditors. For the purpose here considered, there is nothing in our statutes to prevent the creation of such a trust; it would not be an assignment for the benefit of creditors, for the holders of receipts are not creditors.
No particular words are necessary for the creation of a trust; the trust agreement need not be in writing and, the personal property having been delivered, the contract does not come within the statute of frauds. (Secs. 10612, 10613, Rev. Codes 1921;Stagg v. Stagg, 90 Mont. 180, 300 P. 539.)
The department acted under the statute in intervening and, according to the allegations of the complaint, with the consent and express authorization of the Grain Company. The facts alleged clearly show that the acts of the department were needful for the protection of ticket holders, and, in my opinion, they were lawful as well.
It is immaterial that the Grain Company may not have had a clear intention of creating a trust, or that the complaint *Page 62 is not framed on the theory of a trust created. Under the rule which has always prevailed in this court, the sufficiency of the complaint should be upheld if it can be on any logical theory.
In my opinion, the ruling of the trial court should be reversed and the parties given the opportunity to determine their rights on a trial.