1854. SMITH

V.

STEWART.

sold and delivered. Pleas, 1. The general issue. 2. That May Term, after the making of the supposed promises set out in the declaration, the parties submitted all the matters in controversy in this suit, to the arbitration of Henry Ross and Levi G. Warren, who awarded that Smith should deliver to Stewart and Mosely their pro rata share of certain salt saved from the burning of his warehouse, being fifty-four barrels, which he tendered to them before the institution of the present suit. Replication, that there was no such arbitration and award as alleged. The Court tried the cause, and found for the plaintiffs 204 dollars. New trial refused and judgment.

Smith was engaged in the forwarding, commission and storage business at Terre-Haute. While so engaged, his clerk, one Livingston, purchased one hundred and eightyseven barrels of salt for Stewart and Mosely, which was paid for by an order drawn on them. The salt cost 1 dollar and 80 cents per barrel, and was stored for them at Smith's warehouse. After this Livingston, Smith's clerk, sold one hundred and fifty barrels of their salt to another person; informed them that he had done so; and told them that they could check upon Smith's warehouse for the same number of barrels. Afterwards Stewart and Mosely drew upon Smith's warehouse for seventy-five barrels of salt, which were delivered to them prior to January 3, 1852. Upon that day his warehouse was consumed by fire.

Livingston, their witness, testified that at the time of the fire there were six hundred and forty-one barrels of salt stored in the warehouse, belonging to different persons. That at that time, Stewart and Mosely had one hundred and two barrels of salt in the warehouse, which was part of the salt stored there. Witness considered that their salt was stored at Smith's warehouse, to be drawn out as they wanted it, just as other merchants did-thereby saving drayage; that Smith was not paid any thing for storage.

It appeared that three hundred and forty barrels of salt were saved from the fire, and the balance consumed; that the pro rata share of Stewart and Mosely of the three hundred and forty barrels saved, would be fifty-four barrels;

V.

May Term, that, after the fire, a pro rata statement of loss was made 1854. out, in which all concerned acquiesced but Stewart and SMITH Mosely, who refused to agree; that the parties then agreed, STEWART. by parol, to settle the difficulty by arbitration; and it was left to the said Warren and Ross, who decided that Stewart and Mosely should bear their pro rata share of the loss, which would be forty-eight barrels, and leave them fifty-four barrels; that both parties were present at the arbitration, were examined touching the case, and agreed to abide the award; and that the fifty-four barrels of salt were tendered to Stewart and Mosely before this suit was commenced, and by them refused.

The evidence plainly shows that Smith received one hundred and seventy-seven barrels of salt belonging to Stewart and Mosely, on deposit, as a bailee without compensation. And the first inquiry is, did Smith remain such bailee after his agent had sold one hundred and fifty barrels of that salt? In other words, did that sale put an end to the bailment?

It is a settled principle, that whenever a bailee converts the thing bailed to his own use, the contract of bailment at once ceases to exist. He becomes a wrong-doer, and the bailor may recover of the bailee, upon an implied promise to pay for the value of the property thus converted. This he may do, without any demand preceding the institution of suit.

In the present case, Smith sold the property bailed without the consent of the bailors, and applied the proceeds to his own use. They assented to the sale after it was made; agreed to check on his warehouse for a number of barrels equal to those sold; and actually did receive seventy-five barrels, pursuant to that agreement. But the effect of this arrangement was evidently nothing more than an acknowledgment by Smith that he owed Stewart and Mosely for the salt, and a promise on their part that they would receive payment of the debt in salt to be delivered to them upon their order.

It is assumed in argument that Smith, by agreement with Stewart and Mosely, allotted to them in his warehouse one

May Term, 1854.

SMITH

V.

hundred and fifty barrels of salt, in lieu of that sold by his agent. We do not so understand the evidence. It will not bear that construction. No such agreement is shown by the record; nor does it appear that any number of STEWart. barrels was, after the sale, allotted or set apart in his warehouse for their use. It can not be fairly inferred from the evidence that any portion of the salt consumed was ever owned by Stewart and Mosely. This suit, then, would be clearly maintainable, unless it is barred by the award set up in the second plea.

The award pleaded was made pursuant to a parol submission. On that account it is alleged to be of no avail, until actually performed; that a mere offer to perform is insufficient. But in the case before us the property awarded was duly tendered and refused. This, in our opinion, should be deemed equivalent to a performance. We are referred to 2 Greenleaf's Ev., sec. 69, where it is said that "an award, duly made and performed, may also be pleaded in bar of any subsequent action for the same cause." That authority is not in point. Mr. Greenleaf has not said that an award duly made and followed by a tender of performance, would not constitute a sufficient bar. Indeed it has been ruled, that in pleading an award in bar of an action, it is not requisite to aver performance of the thing awarded. Armstrong v. Masten, 11 Johns. R. 189.

But it is insisted that the award is not available to Smith, because, in making it, the arbitrators mistook the law of the case. This argument might have some weight, if it was shown that their decision was based upon the same state of facts now before us. The record does not profess to show the evidence given before the arbitrators. It is not competent for us, therefore, to decide whether they did make an erroneous application of the law to the facts under their consideration or not. In the absence of proof relative to the proceedings before the arbitrators, we must presume that they acted in good faith, and consider the award as conclusive upon the parties. Merritt v. Merritt, 11 Ill. 565.-Mitchell v. Bush, 7 Cowen 185.-Caldwell on Arb., p. 279.

May Term, 1854.

CHENOWITH

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.

V.

HICKS.

S. B. Gookins, for the defendants.

Thursday, June 8.

CHENOWITH v. HICKS and Another.

A demurrer was sustained to certain special pleas, but the facts alleged in the pleas were admissible, and were received, in evidence under the general issue. Held, that it was not necessary, therefore, to pass on the merits of those pleas.

The Supreme Court will not set aside the verdict of a jury merely because the jury assessed higher damages than the Supreme Court would have done on the same evidence.

Trespass for diverting a spring branch from the defendant's slaughter-house. Held, that under the former system of practice, the fact that the slaughterhouse was a nuisance, and had depreciated the value of the defendant's land, &c., was not admissible in defence.

ERROR to the Vermillion Circuit Court.

STUART, J.-Hicks and English brought an action on the case against Chenowith, for diverting a spring branch from its natural channel. The declaration contains three counts. The first and second counts are for diverting the water, &c., without reference to the use made of it by the defendants in error. The third count is for diverting the water from the slaughter-house of Hicks and English.

The defendant below filed six pleas. The first is the general issue. The second and third pleas are in substance the same. They allege that Chenowith has been the owner of the land on which the spring rises ever since 1825; that he built a dwelling, barn, and other outhouses, with reference to the use of the spring, to the value of 2,000 dollars; that he has been in the habit of keeping a large amount of stock; that in 1847, and before the erection of the slaughter-house, he dug a small ditch for the purpose of conducting a part of the water of the spring to a point convenient to his stables and yards, to be used as stock

water, taking no more than was necessary for that pur- May Term, pose, &c.; that the residue passed off in the accustomed channel over the lands of Hicks and English.

To these pleas there were replications, that Chenowith did take more water than was necessary, &c., and that the excess passed off in a new route and different direction from its wonted course, concluding to the country.

The fourth, fifth, and sixth pleas take the ground that the slaughter-house was a common and public nuisance. The fourth plea boldly assumes that the diversion of the water, in addition to procuring stock water, was the means resorted to for abating the nuisance. The fifth and sixth pleas aver that the slaughter-house was wilfully and maliciously erected to injure and annoy Chenowith.

General demurrer to these latter pleas sustained.

It is not necessary to pass upon the merits of these pleas, as the matter pleaded was admissible under the general issue, and did in point of fact go to the jury.

Trial on the issues formed on the first, second and third pleas, and verdict of guilty. The damages were assessed at 50 dollars.

The evidence is all set out in the record in the usual mode.

On the first and second counts it clearly appears that the plaintiffs below were not entitled to more than nominal damages, if indeed to that even. Most of the evidence is referable to the third count, viz., the injury to the slaugh ter-house.

It was proved that the land of Hicks and English, with the spring diverted, and without the slaughter-house, was worth 25 dollars; with the spring in its natural channel 350 dollars; and that the slaughter-house was worth from 800 to 1,000 dollars; that the slaughter-house was kept with ordinary care for such establishments; that the smells arising from the offal were not offensive after persons became accustomed to them; that there was still some water in the natural channel, but not enough to carry off the blood, &c.; that some excess of water from the water-trough of Chenowith found its way, by another route, VOL. V.-15

1854. CHENOWITH

V.

HICKS.