We find nothing in the contract itself which is inconsistent with a bailment. A similar question was considered by the supreme court of California in the case of Pugh v. Porter Bros. Co., 118 Cal. 628, 50 P. 772, which concerned a consignment of raisins to a commission merchant who guaranteed a minimum return. Concerning this phase of the case, the court, referring to the consignee, said:
Under California law, a guaranty agreement is a contract. See Pugh v. Porter Bros. Co., 118 Cal. 628, 50 P. 772 (1897). Here, the Subscription Agreement represents the original agreement and the Guaranty Agreement is its own contract. Thus, I analyze Plaintiffs' breach of guaranty claim under contract law.
The presence of the guaranty did not alter its essential features. Title to the goods did not pass until sale was made by the factor ( Pugh v. Porter Bros., 118 Cal. 628 [50 P. 772]). The guaranty was but an inducement to the grower to enter into the contract.
(Whelan v. Lynch, 60 N.Y. 469; 19 Am. Rep. 202.) Prices in Fresno were not admissible. (Pugh v. Porter Bros.Co., 118 Cal. 628; Durst v. Barton, 47 N.Y. 167; 7 Am. Rep. 428; Cahan v. Platt, 69 N.Y. 348; Nickerson v. Soesman, 98 Mass. 365; Gregory v. McDowell, 8 Wend. 435; Jones v. St. Louis etc. Ry.Co., 53 Ark. 27; 22 Am. St. Rep. 175; Nelson v. Morgan, 2 Mart. (La.) 256.) H.H. Welsh, and George E. Church, for Respondent.
"In many cases . . . the principal may treat the unauthorized sale not merely as a breach of contract, but as a conversion of the goods." (Mechem on Agency, 2d ed., sec. 2529; Pugh v. Porter Brothers Co., 118 Cal. 628, 633 [50 P. 772].) "It is well settled under the authorities that when one's goods are wrongfully taken and used by another, he may waive the tort and sue in assumpsit for their value, as for goods sold and delivered."
" There was evidence tending to show that there was a market value for raisins at Fresno, and several witnesses testified what that market value was. The evidence presents a different case from that of Pugh v. Porter Brothers Co ., 118 Cal. 628, relied upon by defendants, in which the raisins were sold to be marketed at Chicago. 5.
This court disposed of the objection by saying: "The latter in our opinion is the equivalent of the former"; and in Hellman v. Shoulters, supra, under similar facts, the court said: "An ordinance is also a resolution, or, at least so far as this statute is concerned, they are equivalent," and cited the Waldron case. In all these cases there was the power to act in some mode, and the intention [50 P. 772] to act so as to effectuate the purpose in view. In the case at bar, there was clearly no intention to act by resolution in making the alleged contract, and, as an ordinance was necessary to enable them to perform the contract if one had been made by the resolution, we conclude that when the ordinance was vetoed the common council did not intend to enter into a contract they could not perform without the concurrence of the mayor.