difficult matter to determine whether a contract is in fact one of sale, or consignment or agency. Much ingenuity has been employed by consignors in framing contracts to secure all the benefits, and at the same time avoid the disadvantages, of contracts of sale, and also to secure the benefits and avoid the detriments of agency contracts. The result is a hybrid contract, frequently involving essential elements both of sale and consignment contracts. In construing them the essential elements of each character of contract are used as tests to determine the character of the particular contract.

"In contracts of this character, as in other contracts, however, the rule applies that, where the construction of any part is involved in doubt, an understanding of its meaning is to be sought in the light afforded by all the other parts of the instrument. Even though one part of the contract is somewhat repugnant to the remaining portions, which is frequently the case in this class of contracts, the true meaning of the contract as a whole is to be ascertained and enforced. And the court will construe such a contract as a whole, weighing all the terms and provisions in connection with the reasonable and natural results of its performance, in order to gain a definite conception of the intention of the parties in this regard.

"For, of course, the intention of the parties as gathered from the contents of the instrument as a whole, with such light as in proper cases, may be shed thereon by extrinsic proof as to their admissions and prior conduct and dealings, will control the court in determining the character of the contract. But it should be noted in this connection that the intention of the parties cannot thus control where to give effect to their express or implied intent would be violative of the principles of law applicable to contracts of sale or of agency, for a contract cannot be both. And while, as hereafter shown, the express intent of the parties is not to be ignored, nevertheless that intent is governed and controlled by the actual results accomplished by the contract.

"The consignor cannot impose upon the consignee the burdens, obligations, and risks of a purchaser without at the same time exposing himself to the risks incident to the passing of the title from him to the consignee; nor can he impose upon the consignee these obligations and risks, and evade the risks due to a change in title, by asserting in the contract the expressed intention of the parties that it is to be construed as one of agency or consignment. And this pretense will not have the effect of enabling him to evade the necessity of recording the contract as one of conditional sale in order to make it valid as to the consignee's creditors or subsequent purchasers, if the effect of the contract is to charge the consignee as purchaser. Since the actual results of the contract control in its construction, the real question is as to the relation established between the parties by the contract, and this question is usually one of law to be determined from all its provisions, except that where it is not clear whether a contract is one of sale or consignment for sale its interpretation becomes a mixed question of law and fact, based upon the acts of the parties thereunder. As hereinafter shown, the conduct and dealings of the parties may be resorted to to determine the character of the contract, and under some circumstances these matters furnish the real test and are decisive in this regard."

Question 269: Why do contracts under which goods are delivered to another sometimes contain provisions which indicate they are of sale and also of bailment? What advantage to the seller to have it one of sale, or of bailor to have it one of bailment? Can it be both bailment and sale? What should determine which it is? Is the question which it is, sometimes difficult to determine?

(Note: The editor has come to the conclusion that little can be done in a book of this character to steer the student through the mazes of the law on the subject at hand. The cases given are cases in which the distinction is brought out between a bailment and sale, and cases which clearly illustrate without much room for argument that a bailment exists when goods are in the

hands of a person who must deliver those same goods to another, in the same or altered form, or disposed of for him as owner, while a sale exists where the goods. do not have to be turned over by the recipient, although he may have the right to return such goods.

(The note quoted from above indicates the troublesomeness of the subject for lawyers and judges.)

§ 291. (Sales, Sec. 4.) Same subject in case of fungible goods.

Case 270. Yockey v. Smith, 181 Illinois Reports, 564. Facts: Suit in replevin brought by Smith against Yockey to recover possession of 4,955 bushels of corn and 211 bushels of oats which had been stored by Smith in the elevators of Robert T. Harrington, and which Yockey had seized as sheriff under an execution against Harrington. Defense that the grain does not belong to Smith, but to Harrington and is therefore rightfully seized. Harrington was a grain dealer at Marseilles, Illinois. He bought, shipped and sold grain on his own account and received from farmers grain in store in his elevators. Smith being the owner of about 3,000 bushels of oats and 5,000 bushels of corn, hauled and stored it in the elevators operated by Harrington, under an agreement that it was to remain his grain, subject to his order, and he was to pay a certain price per bushel for storage. The grain was mixed with grain of the same quality belonging to other depositors.

Point Involved: Whether a deposit of grain in a public warehouse to be stored and mixed with other grain of like quantity, under an agreement that the same or a like quantity of the same kind of grain shall be held subject to the order of the depositor, is a bailment or a sale.

MR. JUSTICE CRAIG:

We think it is plain that the proprietors of public warehouses, such as were kept by Harrington, do not become debtors of the own

ers of the grain stored, but on the other hand, they are custodians, charged with the duty to restore, in quantity and quality, such grain as they may receive. This rule is demanded for the safety and security of those who entrust their grain to the keeping of persons engaged in the public business of warehouseman.

Question 270: (1) If grain is deposited with a public warehouseman, to be mixed with grain of like quality, the same quantity of like grain to remain at the depositor's order, in whom is the title of the grain so stored?

(Note: This rule applies only to goods of a fungible character (that is, goods made of units indistinguishable from the units of similar masses) where by custom the goods may be mixed and similar quantities restored. Compare with cases in this chapter, supra.)

CHAPTER 37

RIGHTS AND OBLIGATIONS OF ORDINARY
BAILEES

§ 292. Bailee's duty of case.

§ 293. Use of property by bailee.

§ 294. Bailee's lien.

§ 295. The pledge.

§ 292. (Sales, Sec. 5.) Bailee's duty of care.

Case 271. Gray, defendant v. Merriam, plaintiff, 148 Illinois Reports, 179.

Facts: Merriam sues Gray and Kean as surviving parties of Preston, Kean & Co., bankers, to recover the value of 15 United States 4 per cent $1,000 bonds, claimed to have been left with said firm and lost through the firm's negligence. The bonds were kept as a special deposit tied together and kept in the vault in which the cash was kept, and were stolen by Ker, assistant cashier. Ker had been speculating and Kean had conversations with him about it and drew Ker's attention to the fact it was against the rules of the bank, but the evidence doesn't show that he insisted on him stopping it. The trial court instructed the jury to the effect that the obligation resting on the bank was to exercise only reasonable and ordinary care; that what constitutes such care is a question of fact for the jury to determine from the evidence; that it will vary with the nature, value and situation of the property; that the person who holds or who has charge of the property of another is required to exercise the care usually and generally deemed necessary in the community for the security of a similar property under like circumstances, and nothing more; that if from the evidence the jury should find that defendants did not exercise such care but were guilty of gross negli