Appeal from the District Court of the Twelfth Judicial District, County of San Francisco.

This case was before this Court upon a former occasion. (8 Cal. R. 503.) Upon another trial in the District Court, some additional facts were proven. The material facts, as they now appear, were substantially these: In December, 1858, Hussey, Bond & Hale sold to Barker & Paddock 6,649 barrels of flour, then on store with Tilden & Little. The sale was negotiated through J. R. West, a broker. There was evidence tending to show that it was understood between Hussey, Bond & Hale, Barker & Paddock, and West, that the sale should be kept secret, for the reason that, if known, so large a sale might affect the market, among dealers in the article. The flour sold was of two different brands, Gallego and Haxall. West was employed by Barker & Paddock to sell the flour for them. Hussey, Bond & Hale drew delivery orders, from time to time, in favor of West, upon Tilden & Little, for a large portion of the flour. One order for another large portion was drawn in favor of Barker & Paddock, who endorsed it to West. Those orders were delivered by West to Tilden & Little, and then credited West, on their books, with the flour specified in the orders. In March, 1854, the plaintiffs loaned West two different sums, making together the sum of $11,500, and received in pledge 1,544 barrels of flour, for the delivery of which they took two warehouse receipts, issued by Tilden & Little to West. These receipts plaintiff surrendered to Tilden & Little, taking from them, in their own names, two warehouse receipts, dated May 17th, 1854; one for three hundred and twenty-four barrels Haxall, and the other for 1,220 barrels Gallego flour. West was in the habit of selling flour and drawing delivery orders on Tilden & Little, who were accustomed to deliver the flour called for by such orders, if required, and charging West’s flour account; or if the purchaser preferred to leave the flour on storage, the quantity called for was placed to the credit of the purchaser on the books of Tilden & Little, and a warehouse receipt issued to him, if required; but no designation or setting apart of any particular barrels was made. On the twenty-ninth September, 1854, West sold to the plaintiffs five hundred barrels of Gallego flour, and drew a delivery order upon Tilden & Little for the same, “ to be inspected superfine.” The order was surrendered by plaintiffs to Tilden & Little on the same day, and they transferred on their books four hundred and eighty barrels to the credit of plaintiffs. The reason they did not transfer to plaintiffs the other twenty barrels, was the fact that West had previously drawn orders for all the flour on storage in his name, except the four hundred and eighty barrels. The 1,220 and the four hundred and eighty barrels of Gallego flour were part and parcel of the original pile, containing 4,135 barrels, and had never been separated from the mass. After the twenty-ninth of September, and up to the seventeenth of October, 1854, plaintiffs had inspected and separated from the mass three hundred and eighty of the four hundred and eighty barrels. On the seventeenth of October, and before the seizure by the Sheriff, the plaintiffs were in' the act of completing the inspection and removal of the residue of the four hundred and eighty barrels, when the defendants forbade the plaintiffs from proceeding any further; whereupon the plaintiffs claimed the Haxall and Gallego flour as their own, and demanded the same should be given to them, which was refused by Tilden & Little at the defendants’ command; after which the Sheriff took possession of the flour at the suit of Barker & Paddock against Tilden & Little. ♦*,}

Of the original pile of 4,135 barrels Gallego flour, there had been previously withdrawn from the warehouse all excepting 1,682 barrels, of which number 1,320 stood on Tilden & Little’s books in the name • of plaintiffs, two hundred in the name of McCreery, eighty-nine in the name of Adams, Welsh & Co., and seventy-three in the name of C. C. Hunter, all remaining together in the same mass. It appeared that ninety per cent, of both the Gallego and Haxall flour was of the quality called superfine, and ten per cent, of the quality called bad ; and that the difference in value was one dollar per barrel.

It also appeared that West, during the years 1854-5, occasionally bought and sold flour on his own account. It was also shown that it was customary in San Francisco for goods to be stored in the name of the factor.

The Court charged the jury “ that plaintiffs had made out title to the property described in the complaint, to wit: 1,320 barrels of “Gallego flour, and three hundred and twenty-four barrels of Haxall flour; and that they were entitled to recover,” to which the defendants excepted. The plaintiffs had judgment, and the defendants appealed.