majority">By the Court, Parker, P. J.

The plaintiff contracted with one Davis to sell him a quantity of barley, for cash on delivery, which was to be between the 1st and 15th of October, 1862, The plaintiff commenced hauling the barley to the defendant's storehouse, where it was to be delivered, for Davis, on the _ 1st and finished on the 9th of October, on which day, Upon delivering the last load, he demanded of the person in charge of the storehouse, and who received the barley, the money for the whole amount delivered. This person said he had no money then, but would give the plaintiff the defendant's check on the bank, which the plaintiff refused to take. He was then told that he could have the money on *185Saturday, (that being Thursday,) to which the plaintiff replied that did not answer the contract, and he would not accept it. Subsequently, on the 18th of October, the plaintiff saw Davis’ agent with whom he made the bargain for the sale of the barley, and informed him he had delivered the barley, and then again demanded the money for it, and was told there was none for him. He then told the agent that he could not have the barley. On the 20th, the defendant, on behalf of Davis, tendered the money for the barley to the plaintiff, which he refused to receive. Afterwards, either on or before the 10th of November, the plaintiff tendered the defendant the amount of his charge for storage, and demanded the barley, which the defendant refused to give up, saying there was a dispute about it, and he should not deliver it until that was settled. The barley, as the same was delivered, was emptied into a bin with other barley then being delivered for Davis, with the plaintiff’s knowledge, he having assisted in so delivering it. Upon the defendant’s refusing to give up the barley to the plaintiff, this suit was commenced, to recover for its conversion.

In this case there was an actual delivery of the barley to the vendee, and one question is, whether the title passed to him. If the delivery was absolute and unconditional, the title did pass, and the plaintiff can not maintain the action. There is no doubt, from the evidence, that this was a sale for cash to he paid on delivery, even upon the defendant’s own showing. The delivery was to be at the defendant’s storehouse, and the money was to be left with the defendant to pay upon the completion of the delivery. The defendant did not attend in person to the receiving and measuring of the grain, but had a clerk or agent who attended to that business. As the defendant was not present at the storehouse when the last load was delivered, but it was received by this agent, who made up a statement of the whole amount and delivered it to the plaintiff, it was sufficient, within the meaning of the contract, that the plaintiff should demand the money of *186the agent, and it was not necessary for him to go iff sedrcih of the defendant, himself, to make the demand of him. The clear intent of the contract was, that the money should be at the place of delivery, though in the defendant’s hands, and if it was not so, the purchaser was in default, unless the plaintiff waived it. Whether he did waive it, depends on his intent at the time of the delivery. (Furniss v. Hone, 8 Wend. 256. Smith v. Lynes, 1 Seld. 41.) Did the plaintiff intend, when he delivered the barley, to waive the right to immediate payment, and trust to the responsibility of Davis, or was the delivery only conditional ? was the question; and that was a question of fact for the jury, and was fairly left to them.

The fact that the barley was, as delivered from day to day, put into bins in which other barley of Davis was being put at the same time, and so mingled with such other barley as to lose its identity, is used as a defense. This confusion of the plaintiff’s barley with that of Davis, it is insisted, made them tenants in common of the whole, and consequently the refusal of the defendant, (who was Davis’ bailor,) to deliver to the plaintiff his share on demand, did not amount to a conversion.

I am strongly inclined to think that the admixture' of the grain, under the circumstances of this case, did not make the owners thereof tenants in common. The parties, manifestly, did not intend to become tenants in common. The admixture was for no such purpose. The plaintiff delivered his barley either absolutely, intending to pass the title to Davis, or conditionally, intending to retain it hiiiáself, so that no tenancy in common was contemplated; The case of Seldon v. Hickock, (2 Caines, 166,) is an authority showing that the mere fact of an admixture does not necessarily produce a tenancy in common, and that each owner may own in severalty his share of the goods so mingled; especially when, as in that case, the property is all of one kind and value. The circumstance which gives rise to the rule that an admixture *187produces a tenancy in common, is the loss of identity of the property mixed, making it impossible for each owner to reclaim his separate property. But where the property, so mixed, is of the same kind and of equal value, and the proportionate shares are known, the loss of identity does not prevent each owner from claiming his separate share, and each may take and sell or destroy his share, without being liable to the owner of the other part. (15 Barb. 334. 22 id. 568.) In such case the admixture does not have the effect to ctiange the title, unless so intended, but each owner continues to own his separate share as though no admixture had been made. The identity, in such case, is not deemed destroyed, so as to produce the consequences following a mixture of ingredients incapable of separation. (Story on Bailm. § 40. Wilson v. Nason, 4 Bosw. 155.) The tenancy in common exists only when the things mixed can not be separated without inconvenience, in the proportion of the quantity, quality and value belonging to eacla (4 Bosw. 167.) In Ryder v. Hathaway, (21 Pick. 306,) it is said: “The intentional and innocent intermixture of property of substantially the same quality and value, does not change the ownership; and no one has a right to take the whole, but in so doing he commits a trespass on the other owner.” This, I am inclined to think, is the rule applicable to this case. The plaintiff, notwithstanding the admixture of the barley delivered by him, With barley delivered by others, did not lose his ownership, but remained owner of the 585 bushels delivered, as though it had not been so mixed. He had the right, as against Davis, and consequently as against the defendant, his bailee, to take that amount from the common bulk, as held in 15 and 22 Barb, (supra,) and it follows that the defendant, in denying that rig|jd "and refusing to permit him to have his own, was guilty of converting it, SO as to entitle him to this action. (Bristol v. Burt, 7 John. 254.)

There was no error in the direction of the judge to the jury, that if they found for the plaiútiff, they would give *188him the value of the barley on the 10 th of November. If that was not the day on which the demand and refusal occurred, as I am inclined to think from the evidence it was, still the plaintiff was entitled to recover the highest value of the barley at any time between the conversion and the day of trial. (Clark v. Pinney, 7 Cowen, 681. Wilson v. Mathews, 24 Barb. 295. Romaine v. Van Allen, 26 N. Y. Rep. 309.)

[Bboomb Gbhbbai TebIt,May 9, 1865.

I am of the opinion that judgment he given for the plaintiff upon the verdict, and that a new trial be denied, with costs.

Ordered accordingly.

Parker, Mason and Bakom, Justices.]

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