OPINION OP THE COURT
RAYNOLDS, J.(after stating the facts as above). The appellant assigns eight errors of the trial court, which may be considered in two general heads: First, that the court erred in holding that the appellee was not bound by her contract of 1911 with appellant, and in not holding thereby that both parties were equally negligent, and the sheep should have been apportioned between the parties in the proportion to their interests, and second that the appellant had forfeited his rights by allowing appellee’s earmark to be placed on the sheep and their increase.
The fault with appellant’s first contention is that the contract of 1911 was not the contract on which his right of action was based. It was not exhibited in the petition to intervene, and over objection of the appellee it was expressly admitted for the purpose of “tracing the earmark,” and for no other purpose, as was stated by appellant in offering it in evidence. No rights were apparently claimed under it, but the subsequent contract of October 25, 1915, was the basis of the action whereby 500 ewes marked with appellee’s earmark were turned over to Gonzales. Appellant’s own witnesses testified that the earmark in question was not the earmark of appellant, but of appellee.
We agree with, the trial court in its finding that it was through the fault and negligence of the appellant that the sheep in question were so marked and commingled as to render their identification impossible. His acts led to the confusion of the goods, but it is urged upon us that appellant’s acts, although negligent, were in no sense fraudulent nor wrongful, and that he should not be made to forfeit his property when the elements of willful, fraudulent, and wrongful commingling of the property are absent. We think this position well taken.
“Par. 3. Where one fraudulently, willfully, or wrongly intermingles his goods with those of another, so that there is no evidence to distinguish the goods of the one from those of the other, the wrongdoer forfeits all his interest in the mixture to the other party; in other words he cannot recover for his own proportion, or for any part of the intermixture, but the entire property vests in him whose right is invaded. However the rule that a wrongful or fraudulent confusion of goods works a forfeiture of the interest of the wrongdoer in the 'mixture is adopted solely to prevent fraud, and will not be extended further than that object requires; it is never resorted to, except in favor of an innocent party as against a wrongdoer.”
“Par. 4. The rule that a person who mingles his goods with those of another person forfeits his own. goods does not apply where the act was not done willfully, with a fraudulent or other improper intent or purpose. In such case he should be protected in his ownership so far as the circumstances permit.”
12’C. J. p. 491.
See, also, note to Ayre v. Hixson, 53 Or. 19, 98 Pac. 515, 133 Am. St. Rep. 819, Ann. Cas. 1913E at page 669.
We therefore hold that the court should have permitted appellant to recover his proportionate share of the sheep marked with appellee’s earmark, as there was no willful wrong nor fraud imputed to the appellant shown by the evidence nor found by the court in its findings. The case is therefore reversed with instructions to enter judgment awarding the intervener his proportionate share of the sheep, that is, 314, and the appellee her proportionate share of the sheep, that is, 230; and it is so ordered.
Parker, C. J., and Roberts, J., concur.