20 * Q FEDERAL REPORTER. ·
warehouse it was injured by a rise in the Wallamet river, and while M. do Co.
were assuming to care for it. The security for this reason proving insufficient
to satisfy the claims of the B. of B. O., it brought this action to recover the
balance due, and the defendants set up the loss by the injuryto the wheat as a
counter-claim thereto. Held, that the transaction was essentially apledge, and
the wheat remained the property of M. & Co.; but that, notwithstanding this,
· it appears that it was the intention and understanding of the parties that M.
& Oo. should care for the wheat in case of flood, and therefore the plaintiff was
not liable for the loss.
4. Quasrrons or Facr-Drscnmron or Cormr.
lt is in the discretion of the court to submit to or withhold from the jury a
particular question of fact.
5. S.AME—FINDING THEREON—EFFECT or.
The court being of the impression that upon the written contract of bailment,
and the conduct of the parties under it, as testified to by the defendant M.,
that the plaintiff wasnot bound to care for the pledge, instructed the jury to
find a verdict for it for the balance due; and also instructed them to find
whether the plaintiff was guilty of negligence in respect to the wheat, assum-
ing that it was its duty to care for it as a pledgee in unqualified possession. The
jury, in addition to the general verdict for the plaintiff, answered the particu-
lar question in the negative. The defendants moved for a new trial. Held, that
the special finding was a fact in the case to which the court must give legal
effect in any stage thereof, and that, therefore, the motion must be denied.
even if the court is now satisfied that its instruction to the jury, as to which of
the parties was bound to care for the wheat in case of flood, is erroneous, be-
cause it appears from such finding that the plaintiff, if even bound to care for
the pledge, was not guilty of negligence, and therefore is not liable to the
defendants for the loss sustained by the injury to it in any view of the matter;
and also that it is not an error, if error at all, of which the defendants can
complain, that the court assumed in its charge to the jury that the uncontra-
dicted testimony given in the case by one of them was true. .
Action for Money.
W. H. Ejinger and Joseph N. Dolph, for plaintiff'.
H. Y. Thompson and George H. Williams, for defendants. ‘
Dnam, D. J. On September 27, 1880, the plaintiff was a foreign
corporation doing a banking business at Portland, Oregon, and the
defendants George Marshall and J. M. Ten Bosch, as George Marshall
& Co., were engaged in the business of buying and selling wheat at
the same place. They usually purchased wheat from the dealers and
producers in the interior of the state, and shipped it in sack by boat
and rail to Portland, where they stored it in the warehouses on the
river front until disposed of for shipment abroad. When so disposed
of, the vessels carrying the grain were usually loaded directly from
the warehouse.
A . On that day, the defendants being desirous of procuring money
from time to time to-be used in their business during the wheat sea-
son, and the plaintiff being also desirous of furnishing the same, the