dissenting. It is conceded by counsel in-all the parties that when personal property, such as grain, of the same grade and quality is mixed in a common mass by the consent of the owners, so that no one can identify his own, they become tenants in common in the whole mass. This seems to be now regarded as the settled rule, and is well supported by authority. Young v. Mills, 20 Wis., 615; Dale v. Olmstead, 36 Ill., 150; Kimberly v. Patchin, 19 N. Y., 330; Warren v. Milliken, 51 Maine, 97; Cushing v. Breed, 14 Allen, 376.
In the last named case the plaintiffs were the owners of a ship’s cargo of oats, containing 6,095 bushels, which» was stored in an elevator in Boston. They sold to the defendants 500 bushels, and delivered to them an order, and the proprietors of the elevator accepted the order and delivered 105 bushels. All of the remainder of the cargo was sold except 1,274 bushels, and the grain thus left was injured by fire. It *200was the general usage of dealers in grain in Boston to place cargoes in elevators, and those of the same quality, of different owners, were sometimes mingled in the same bins.
The court said: “ The use of elevators for the storage of grain has introduced new methods of dealing, and when sev • eral parties have stored grain in an elevator in one mass or bin they are tenants in common, and each entitled to such a proportion as the quantity placed there by him bears to the whole mass.”
It was held that the plaintiffs were entitled to recover for the whole 500 bushels. But it seems that no case can be found which adopts the rule that where there has been an entire change of the mass, even by the wrongful act of the bailee, and other grain has been substituted, that the title to the substituted grain vests in the owners of. the original mass. In some of the cases, as in Young v. Mills, supra, it is held that any invasion of the rights of the owner by the bailee appropriating the same is a wrongful conversion, and that the owner- may 'follow the grain and recover it wherever it can be identified; and other cases hold that where the quantity has been dimished from any cause each owner is entitled to his proportion of the remainder. Dale v. Olmstead, supra. But I repeat, no case has been cited by counsel, or has come under our observation, which has gone so fajas to hold that, where there- has been a complete change by substitution, the tenancy in common eontijiues in the substituted grain.
The majoi-ity opinion not only holds that where there has been an entire substitution of the mass deposited in one bin or pile the tenancy in commoji continues, but it goes further, as it‘must to reach the conclusion arrived at by the majority, and holds that the parties are tenants in common in all the grain of the same grade and quality contained in the elevator, whether mingled in ojie pile or bin, or in separate compartments in the building. It is necessary to so hold to be consistent with the facts in the case, for it clearly appears *201from the evidence that while these receipts were outstanding the grain was all drawn out two or three times. I cannot assent to any such doctrine. It overturns an elementary principle of law upon the rights of property which, in my opinion, no demand' of trade, commerce, or public convenience can justify. Indeed, it seems to me, there is no demand of trade or commerce involved in this case. It is simply a question as to the proper construction of these receipts. They imply no authority to do more than to store the grain deposited with other grain of the same quality. If the parties contemplated that Graham should sell the grain covered by these receipts, and deposit other grain in its stead, and that the title to the grain thus substituted should vest in the receipt holders, why did they not so contract? Because they did not is, to my mind, no reason why this, as it appears to me,- extraordinary doctrine should be promulgated.
The law applicable to bailments is well understood and need not be repeated. If the right qf property to the substituted grain, which was deposited after all of that on hand at the time the receipts were given was removed, and an entire change had taken place, remained in the original depositor, upon the same principle if the bailee of a horse should sell him, the bailor could claim title to another horse owned by the bailee. There is no controlling reason why this character of chattels should be held by a tenure which may not be applicable to all other property.
In my opinion none of the parties had title to the wheat found in the elevator on the 20th of October, 1875, and they had no other relation to Graham, by virtue of their warehouse receipts, than that of mere creditors, with the right to subject his property to the payment of their demands by the ordinary processes of the law, and that the possession taken of the grain by the appellant, under the facts, as I understand them, authorized it to hold the same as a pledge for the payment of the claims due to it from Graham. It serves. no useful purpose to elaborate a dissenting opinion. All that *202seems to me to be proper in this case is to tbns briefly state the grounds of my dissent, in which, I am authorized to say, Beck, J., concurs.