Lonergan v. Stewart

Citations

• 55 Ill. 44

Syllabus

<p>1. Contract—whether a sale or a bailment. When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title.to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed—it is a sale.</p> <p>2. Same—of a deposit of grain in a warehouse. So where grain was deposited in a warehouse, on the understanding between the warehouseman and the owner of the grain, not that the identical grain, or grain of like quality, was to be returned, but the money value thereof, to be ascertained by the market price on the day the depositor should choose to fix, the transaction was held to be sale, not a mere bailment.</p> <p>3. Usage—how far a contract is controlled thereby. Although usages of trade can not be set up either to contravene an established rule of law, or to vary the terms of an express contract, yet all contracts made in the ordinary course of business, without particular stipulations, expressed or implied, are presumed to be made in reference to any existing usage or custom relating to such trade, and it is always competent for a party to resort to such usage to ascertain and fix the terms of the contract.</p> <p>4. So where the owner of grain deposited the same in a warehouse, taking an ordinary warehouse receipt therefor, which did not explicitly state the character of the transaction—whether as a sale or a mere bailment—it is competent, in an action by the depositor against a purchaser from the warehouseman, for the latter to show that, according to the usage in such cases, warehousemen do not keep the identical grain deposited, but ship and sell it without regard to the identity of the grain deposited by any particular person, and that depositors at a warehouse do not expect to take their grain away, but to get their mone