The opinion of the court was delivered by
Yeazey, J.Although the logs in question were mingled with the defendant’s logs their identity was not lost. Being distinctly marked there could be no confusion or commixture of goods in the sense implied by those terms in law. Upon the facts reported, it is a case of appropriation and turning into money of another’s property, knowingly and without right. For such appropriation the defendant is liable to the oioner. The referee finds that the plaintiff was the owner of 230 of the “ J. C.” logs when taken by the defendant, but says he cannot find that he was the owner of the balance of the 355 logs, but does find that some of that balance were taken by defendant before the purchase by the plaintiff, but how many, or whether all he cannot tell. It is obviously not a case where the defendant should be chargeable on account of the means of knowledge being peculiarly within his reach and not of the other party. We think there is no legal ground upon which the defendant’s liability to the plaintiff can be extended beyond the 230 logs, unless by reason of the promise “ to settle and pay.” Upon this point *470tlie referee finds that a short time before the commencement of this suit, the plaintiff called upon the defendant to settle with him for the logs, and the defendant told the plaintiff to make out his account and he would settle and pay him.
It is a question of fact as to whether the parties referred to all the logs now in controversy or the 230, and a question to be found by the referee and not to be inferred by the court. Darby v. Bank, 57 Vt. 370. Without the inference it is plain that the promise cannot be extended to apply to logs not owned by the plaintiff when taken by the defendant. It is hot entirely clear that the report will admit of the construction that Blanchard & Garland had transferred to the plaintiff their claim against the defendant for their logs taken by the defendant, or if it will, that the defendant knew of it. Knowledge of the sale that took place would not necessarily imply knowledge of the other fact.
Judgment affirmed.