*96Decided October 8, 1912.
On Petition for Rehearing.
(126 Pac. 984.)
Mr. Justice Mooredelivered the opinion of the court.
In a petition for a rehearing it is maintained that this action is not founded on a breach of the contract of bailment, but on the tort occasioned by the wrongful shipping of grain that had been stored in a warehouse, and, this being so, the sum of $54, paid by plaintiff for extra laborers employed to store the wheat, was improperly disallowed, as was also the further sum of $19.20, paid for the use of electric power, on account of which latter item no question was made in the lower court; that reducing the damages sustained by plaintiff was not an issue at the trial; and that, though insisting the judgment ought to be affirmed, if a different view were entertained, the sum of $54 should be deducted from the amount awarded by the verdict, and judgment for the remainder directed to be entered in the circuit court, instead of remanding the cause for a new trial.
2. The bill of exceptions does not have attached to it the whole testimony, and, in the absence thereof, the cause must be remanded when a judgment is reversed. Section 3, Article VII, of the Constitution as amended (see Laws 1911, p. 7).
3. The vital question to be considered is whether this action is .founded in tort or on contract, or, rather, which form is available, based on the facts involved herein. The theory of plaintiff’s counsel respecting this subject is fairly illustrated by parts of the court’s charge. When the jury are properly instructed as to the law applicable to a particular state of facts involved in a trial, and based thereon they make an incorrect finding which can be segregated from the remainder of the verdict and corrected on appeal, a judgment in accordance with the alteration should generally be ordered by this court con*97formable to the provisions of the fundamental law herein-before cited. Where, however, the charge" given or refused, over exceptions, probably misguided the jury, thereby producing an erroneous verdict, a reversal of the judgment rendered thereon ordinarily necessitates a remand of the cause for a new trial.
4. Exceptions were taken to parts of the instruction, as follows :
(4) “When the said grain was stored in the defendant’s warehouse, it became his duty to hold it and keep it safely in storage until he was authorized by the plaintiff to ship or deliver the same.”
(5) “He would not have a right to ship said grain to The Dalles, or any other place, without the order, direction, or consent of the plaintiff; and if he did ship it without such order, direction, or consent, and the plaintiff suffered any damage therefor, the defendnat would be responsible for such damage.”
(6) “In case of a wrongful shipment as hereinbefore defined, if the plaintiff, by reason thereof, was compelled to pay demurrage upon the said grain, and was compelled to expend money in labor and for electric power, in order to take care of the same over and above what would have been otherwise necessary, these are items for which the plaintiff would be entitled to be compensated.”
(8) “Under the laws of this State, no person operating any warehouse or other place of storage shall ship, transfer, or in any manner remove or permit to be shipped, transferred, or removed beyond his custody and control any grain received by him for storage, without the assent of the owner of the grain or holder of the warehouse receipts therefor.”
The statute regulating the business provides generally that it shall be the duty of any person operating a warehouse where grain is stored to deliver to the owner thereof a receipt therefor, showing, inter alia, the rate of storage charges in dollars and cents, and the terms and conditions of the bailment. Section 6035, L. O. L.
*98“No person operating any warehouse * * shall sell, incumber, ship, transfer, or in any manner remove or permit to be shipped, transferred, or removed beyond his custody and control any grain * * for which a receipt has been given by him * * without the written assent of the holder of the receipt.” Section 6038, L. O. L.
“All receipts given by any person operating any warehouse for any grain stored are made negotiable' by indorsement, which assignment is deemed a valid transfer of the commodity represented by the receipt.” Section 6039, L. O. L.
“On presentation of the receipt given by a warehouseman for any grain, and on payment of all charges due thereon, the owner thereof is entitled to the immediate possession of the commodity named in the receipt; and it is the duty of the warehouseman to deliver such commodity to him.” Section 6040, L. O. L.
“Any person violating any of the provisions of such act shall be liable to indictment therefor, and, if convicted thereof, shall be fined, or imprisoned in the penitentiary, and may be subjected to both such fine and imprisonment.” Section 6041, L. O. L.
By comparing the instructions quoted with the provisions of the statute adverted to, it will be seen that the parts of the charge repeated are patterned after the language of the act mentioned. The legislative sanction given to that enactment was undoubtedly prompted by a custom, revealed in other states and manifested in parts of Oregon, whereby warehousemen with whom grain had been stored, after commingling it with other grain that had been deposited with them, sold the cereals as their own, without the knowledge or consent of the owners. If such bailees were insolvent, which was often the case, a judgment rendered against them for the damages sustained by the bailors afforded no compensation for the loss suffered by the fraud that had been perpetrated. The practice adverted to grew to such proportions during periods of financial depressions, and its *99effect was so disastrous to over-confiding bailors that, in order effectually to put a stop to the custom, the statute was adopted to prevent a conversion by warehousemen of property stored with them, and to punish them criminally if found guilty of violating any of the provisions of the enactment.
In the case at bar the plaintiff had secured from bail-ors an assignment of warehouse receipts, and was the owner of the wheat which, without any request therefor, the defendant shipped by rail to plaintiff’s mills at The Dalles, Oregon, its usual place of business. Such delivery was not in any sense a conversion of the grain; for the defendant did no act in reference to the wheat that amounted in law to an appropriation of the property to himself. As the statute referred to was designed to prevent an unauthorized assumption and exercise of ownership over goods and chattels belonging to another, to the alteration of the condition of the property or the exclusion of the owner’s right, it is difficult to see how the provisions of the enactment were in any manner involved.
The legal wrong which results from a breach of a contract is not a tort. 1 Street, Foundations, Legal Liability, p. xxviii. See, however, on this subject, 38 Cyc. 428. “A tort,” observes a text-writer, “may be said to be a breach of duty established by municipal law for which a suit for damages can be maintained.” Bigelow, Torts (8 ed.) § 14. It will be remembered that Section 6038, L. O. L., inhibits a warehouseman from shipping, or in any manner removing beyond his custody and control, any grain for which he has given a receipt. Though the defendant was not an unpaid vendor, and for that reason could not have exercised the right of stoppage in transitu, after having placed the wheat on cars, whereby it was removed beyond his custody and control, it is not believed that the clause of the statute last referred to governs a case like this, or is controlling, *100except in cases of conversion; and that no element of a tortuous act was involved when the defendant shipped the wheat to plaintiif, for which he had given receipts. These evidences of deposit did not expressly state how long the grain was to have been kept in the warehouses, and the statute is silent on that subject. In any event, however, the defendant was required to hold the wheat a reasonable time. If he failed to observe such implied' condition and shipped the grain before the expiration of the time thus limited, thereby terminating the bailment, the plaintiff’s remedy was an action for a breach of the contract, and not for a tort; and hence the instructions complained of were erroneous.
The sum of money expended for electric power was thought to have been involved in the giving of instruction No. 6, hereinbefore quoted.
What was said in the former opinion respecting a diminution of the damages sustained by plaintiff was not based on any issue raised by the pleadings or evidence, but was a suggestion founded on the assumption that the action was in form ex contráctil, and, such being the case, a defense of that kind might properly be interposed.
We adhere to the former opinion.
Reversed: Rehearing Denied.