CONFUSION OF GOODS. Such a mix ture of the goods of two or more persons that they cannot be distinguished.
When this takes place by the mutual con sent of the owners, they have an interest in the mixture in proportion to their re spective shares; Silsbury v. McCoon, 6 Hill (N. Y.) 425, 41 Am. Dec. 753; but see Wells v. Batts, 112 N. C. 283, 17 S. E. 417, 34 Am. St. Rep. 506. Where it is caused by the wilful act of one party without the other's consent, the one causing the mixture must separate them at his own peril; Bisp. Eq. § 86.; Hesseltine v. Stockwell, 30 Me. 237, 50 Am. Dec. 627 ; Bryant v. Ware, 30 Me. 295; Dunning v. Stearns, 9 Barb. (N. Y.) 630; 2 Kent 365; and must bear the whole loss; Brackenridge v. Holland, 2 Blackf. (Ind.) 377, 20 Am. Dec. 123; Huff v. Earl, 3 Ind. 306 ; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; Willard v. Rice, 11 Mete. (Mass.) 493, 45 Am. Dec. 226; Hesseltine v. Stock well, 30 Me. 237; unless he can identify his goods; Ayre v. Hixson, 53 Or. 19, 98 Pac. 518, 133 Am. St. Rep. 819 ; Levyeau v. Cle ments, 175 Mass. 276, 56 N. E. 735, 50 L. R. A. 397; otherwise, it is said, if the confusion is the result of negligence merely, or acci dent; Pratt v. Bryant, 20 Vt. 333; or of the wrongful act of a stranger ; Bryant v. Ware, 30 Me. 295; if commingled by mistake or accident, or by consent of the parties, the owners will be treated as tenants in com mon ; Ayre v. Hixson, 53 Or. 19, 98 Pac. 518, 133 Am. St. Rep. 819. The rule extends no further than necessity requires; 2 Campb. 575; Holbrook v. Hyde, 1 Vt. 286 ; Wood v. Pales, 24 Pa. 246, 64 Am. Dec. 655; Queen v. Wernwag, 97 N. C. 383, 2 S. E. 657 ; for if the goods can be distinguished, it will not justify one in taking another's goods upon the ground that they have been intermin gled; Claflin v. Beaver, 55 Fed. 576.
Lord Eldon was of opinion that the wrong doer should not lose his whole property in the mass; 15 Ves. 442; and with this view agrees a learned article in 6 Am. L. Rev. 455, understood (Williston, Sales, 179) to have been written by Mr. Justice 0. W. Holmes, and containing a full discussion of the prin ciples relating to grain in elevators.
Where a vessel was wrecked and the bales of cotton that were saved were indistinguish able as to ownership, it was held that the several owners of the cotton that was ship ped had a proportional interest in what was saved, as by a kind of tenancy in com mon; L. R. 3 C. P. 427.
The fact that defendants in replevin to recover ore had wrongfully mixed ore their ore of a lower grade did not preclude recovery of their ore, though some of the defendants' might have been taken with it; Blurton v. Hansen, 135 Mo. App.
548, 116 S. W. 474. Where a bank com mingles its own collateral to secure its own debts with collaterals which it held to se cure a note payable through the bank, owed to a depositor, in such a way that it was impossible to distinguish one set from the other, all the collaterals became the. prop erty of the depositor to secure the note; First Nat. Bank of Decatur v. Henry, 159 Ala. 367, 49 South. 97.
A writer in 14 Harv. L. Rev. 157, is of opinion that the better view is that where there has been no change of value and the mass is homogerieous each party is entitled to his proportionate share irrespective of brand; citing Hesseltine v. Stockwell, 30 Me. 237, 50 Am. Dec. 627; Claffin v. Jersey Works, 85 Ga. 27, 46, 11 S. E. 721.
As to grain in an elevator, the cases give effect to the intention of the parties (which undoubtedly exists) that the depositor shall retain title ; Williston, Sales, § 154, citing Woodward v. Semans, 125 Incl. 330, 25 N. E. 444, 21 Am. St. Rep. 225; Moses v. Teetors, 64 Kan. 149, 67 Pac. 526, 57 L. R. A. 267; Ledyard v. Hibbard, 48 Mich. 421, 12 N. W. 637, 42 Am. Rep. 474; Millhiser Mfg. Co, y. Mills Co., 101 Va. 579, 44 S. E. 760; Rahilly v. Wilson, 3 Dill. 420, Fed. Cas. No. 11,532. The same writer says (section 154): "The warehouseman is thus a bailee to keep the grain, with power to change the bailor's ownership in severalty into a tenancy in common of a larger mass and back again, and with a continuous power of sale, sub stitution and resale. At any given moment, however, all the holders of receipts for the grain are tenants in common of the amount in store, the share of each being proportion ate to the amount of his receipts as com pared with the total number of receiptei out standing." It is the duty of the bailee to keep sufficient grain to meet all his out standing receipts; Young v. Miles, 23 Wis. 643.
Where gas from plaintiff's well was wrongfully mixed with gas from defendant's 59 wells, plaintiff could recover of the proceeds from the sale of the product of all of the 60 wells; Great Southern Gas & Oil Co. v. Fuel Co., 155 Fed. 114, 83 C. C. A. 574.
The doctrine does not apply to cattle and horses or other like property that can be readily identified; McKnight v. U. S., 130 Fed. 659, 65 C. C. A. 37.