(dissenting)—I dissent. Respondent contracted to deliver grain in hulk only. It is a well known fact, of which we may take judicial notice, that hulk wheat differs from sacked wheat, in that the latter includes the labor of sacking and the cost of the sacks in which it is contained, and commands a higher price in the market than bulk wheat. Therefore, under the contract, respondent was under no duty, in any event, to deliver sacked wheat. The place of delivery was mutually agreed upon and named in the contract, and it is immaterial which party first proposed it. Presumably it was a public warehouse, as we cannot assume that the parties contracted for delivery at a private warehouse controlled by neither, without consulting the person who did control it. The wheat when delivered to such warehouse would belong to appellant, and the warehouseman would become its agent to care for the wheat, and not the agent of respondent, whose interest in the wheat would cease upon making delivery. Therefore, when appellant was advised that the warehouse named in the contract could not receive the wheat in bulk, it was its duty, within the time fixed for delivery, or at least within a reasonable time, to provide means by which respondent could deliver the wheat to it, without additional labor or expense on his part over the labor and expense of the delivery provided for in the contract. In my opinion, respondent did all that the law requires when he advised appellant of conditions at the warehouse, and that he was ready to make delivery; and the facts, as stated in the majority opinion, amply *520convince me that he waited a reasonable time thereafter for appellant to provide means for receiving the wheat. If any tender was required, the tender made was sufficient. Roberts v. Mazeppa Mill Co., 30 Minn. 413, 15 N. W. 680. To hold otherwise is to say that-buyers of grain, stock, and other like products, may, in all such cases, compel the seller to hold the product indefinitely at his own risk and expense, while the buyer awaits an advance in the market price. It is no answer to say that appellant offered to provide sacks, or to pay for the wheat and permit respondent to make delivery later. As to the first proposition, appellant did not offer to furnish sacks and the labor of sacking the wheat; and as to the latter, it is well known that but few farmers have facilities for holding grain for any length of time without danger of loss and deterioration; and the offer was insufficient unless it included, besides the offered payment, a like immediate grading and weighing, so that any subsequent loss in quantity or quality would fall upon the buyer only. In the nature of things, the buyer of wheat must provide the place in which it is to be stored when delivered to him; and this the buyer in this case did not do.
The authorities cited in the majority opinion have no application to the facts. Much more applicable is the ease of Duckham v. Smith, 5 T. B. Mon. (21 Ky.) 372, in which it is held that a covenant to deliver at a warehouse does not require the covenanter to put the goods in the warehouse; and the case of Lockhart v. Bonsall, 77 Pa. St. 53, in which it is held that, where the buyer of 118 cars of oil directed its delivery at a certain sidetrack which would hold but 12 cars, the storing of the remainder upon nearby sidetracks was a delivery. In principle, our own case of Meeker v. *521Johnson, 5 Wash. 718, 32 Pac. 772, 34 Pac. 148, is in harmony with these views.
The judgment appealed from should be affirmed.
Chadwxc.k, O. J., concurs with Tolman, J.
On Behearing.
IBn Banc. May 31, 1919.]
Per Curiam.Upon a rehearing En Banc, a majority of the court adopts the dissenting opinion heretofore filed in this case as the opinion of the court, and the judgment appealed from will be affirmed.