¶1We are by no means clear that the books of Higby were incompetent evidence under the circumstances. The general accuracy of the books was fully proven, and the course of business in receiving freight for the cars. And T. Higby says he made the entries of the wheat received by the ears numbered 278, 1,002, 836 and 996, according to the account sent from the railroad company. He explains fully the method of doing business between the firm of Higby & Son and the railroad company, and shows how they ascertained the amount of wheat delivered and the car by which it was received. But we shall not dwell upon this point. For even assuming that the books were not admissible, we agree with the counsel for the plaintiff in the opinion that there was more than sufficient evidence in the case, from other and clearly competent sources, to warrant and sustain the finding of the jury. Of course, the object of introducing the books in evidence was to identify the wheat received by the defendants with that set apart by Robinson in his warehouse, for the plaintiff, on the 8th of June, 1864. But aside from the books, we think the other evidence fully establishes the fact that this wheat came to the possession of the defendants, and that the jury must have so found from that *652testimony. It was certainly very easy for tbe defendants to show where tbe wheat in disjiute came from, if it was not this identical wheat. Miles' own testimony strongly tends to show that the wheat set apart by Robinson in his warehouse at Wabasha for the plaintiff came to their possession, and the fact was quite clearly established by the other testimony in the cause. The jury, therefore, were fully wai-ranted in finding that this identical wheat had come to their possession, aside from any thing contained in the books. So that, even if these books were not coiUpetent, the defendants could not have Seen prejudiced by their admission in evidence.
¶2It is insisted that the court erred in refusing to instruct the jury as requested in regard to the wheat owned by Blake. It appeared from the evidence, that on the 1st of June, 1864, Robinson had in his warehouse in bulk at Wabasha 4,665 bushels of wheat belonging to Blake. This wheat was received during the preceding winter, and up to the last of May, 1864. On the 1st of June, Robinson shipped to a firm in Chicago 3,204 bushels of this wheat, for Blake. The balance of Blake’s wheat he shipped to the plaintiff on the 7th of June, 1864. After it was shipped, Robinson purchased this wheat of Blake. This purchase was made about the 12th of June. Now it is claimed that Blake was interested in the wheat which Robinson set apart for the plaintiff on the 8th of June, and therefore that the plaintiff’s title fails. But it seems to us that this is a mistake. What would be the consequence of this separation, providing Robinson had not afterward become the owner of Blake’s wheat by purchase, we need not determine. It is sufficient to say that Robinson afterward acquired Blake’s title. Consequently we think the court properly withdrew from the consideration of the jury all the defense founded upon Blake’s ownership of the wheat. Eor, as already remarked, what would have been his rights if he had not sold, and whether he could not have claimed the entire quantity of wheat in store *653on tbe 8tb of June, the admixture having been made without his consent, are questions which are not in the case. He saw fit to part with his title to Robinson, and has no further interest in the property. And although Robinson did not own all the wheat in his warehouse which he set aside for the plaintiff, yet, as he subsequently acquired the title, that title, immediately upon its acquisition, became vested in the plaintiff. It is said that the evidence shows that the sale by Blake to Robinson was not absolute, but in the nature of an agreement to sell. But this is not a fair inference even from the testimony of Blake himself; while Robinson says unqualifiedly that he purchased Blake’s wheat on the 12th of June. And he says that he purchased because he had shipped it without his consent or knowledge.
¶3We do not deem it necessary to go over all the points so ably discussed by the counsel for the defendants in his brief. The plaintiff’s right to maintain the action of replevin for the wheat which has come into the possession of the defendants, was affirmed when the case was before us on a former appeal. 20 Wis. 615. On the second trial, the court, in a very clear charge, submitted the questions of fact to the jury arising upon the evidence; and we are entirely satisfied with the result.'
¶4By the Oowrt. — The judgment of the circuit court is affirmed.
¶5A motion for a rehearing was denied.