SELDEN, J.
It is claimed on the part of the defendant that the wheat in controversy in this case, was transported solely under the contract between Tyler, master of the schooner Raleigh, and Reed Co., of Toledo, by which the latter agreed to load the schooner with a cargo of wheat for Oswego, at 10½ cents per bushel; and that if other persons furnished the wheat under an arrangement with Reed Co., by which the latter were to receive 12½ cents per bushel for the transportation, the latter alone, and not the owners of the vessel, are directly responsible to the shippers.
This position would be unanswerable if the master had persisted throughout in dealing with Reed Co. alone. But when, after receiving the wheat, he consented to give shipping bills to the respective owners, he thereby created a privity of contract between himself and such owners, and became responsible directly to them for the safe transportation and delivery of the wheat. The effect of the entire arrangement was, that Reed Co. were to receive two cents per bushel brokerage, for making the contract in behalf of the owners of the wheat.
The defendant's counsel also contend that inasmuch as the one thousand bushels of wheat, for which this action is brought, were never separated from the residue of the wheat with which the vessel was loaded, nor in any way distinguished from the general mass, the action cannot be sustained — for the want of any identification of the property purchased by the plaintiff. The authorities upon which the counsel relies to support this position are those which hold, that in order to pass the title to part of a general mass of property, it is necessary that the portion intended to be sold should be separated from the residue, or in some way designated so as to be capable of being identified. This is no doubt true where the aggregate, out of which the part sold is taken, consists of separate articles capable of being readily distinguished from each other. But when the whole mass consists of portions which are homogeneous and undistinguishable, as for instance, wine in a cask, or wheat in a bin, authorities are not wanting to show that the title will pass without a separation, and that the purchaser becomes a tenant in common with the owners of the residue.
But whatever may be the true rule on this subject, it cannot affect the present case. By the delivery of all the other parcels of wheat to their respective owners, a perfect separation and identification had been effected. The tenancy in common which existed among the other owners having been severed, the wheat to which the purchase by the plaintiff must necessarily attach was designated, and the portion which remained became his. The master of the vessel was bound, therefore, to deliver it to him upon demand. This obligation, indeed, the master did not dispute; but the real controversy between him and the plaintiff was, whether he was liable for the deficiency. The referee has found specifically, that the plaintiff's wheat was accurately weighed and tallied, and that there was no proof of the accuracy of the weight or tally of the other parcels. This finding might not be of any importance if the defendant had shown how the deficiency could otherwise have occurred. But in the absence of any evidence of waste or loss, the presumption is that there must have been some mistake in regard to the quantity contained in some of the parcels, and the plaintiff has succeeded in showing that this mistake did not occur in the parcel of which his wheat was a part. The master was bound at all events, to see that the plaintiff had his full quantity; and when by delivery to others the quantity remaining in the vessel was reduced to one thousand bushels, the right of the plaintiff attached itself to that specific portion of the wheat, and the master should have delivered it to him.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed.
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