majority">Pleasants, J.

During the summerand fall of 1882, Wright delivered to Ardinger, Piper & Co., the plaintiffs in error, at their mill in Carrollton, some twelve hundred bushels of wheat. On the 25th of November, the mill with most of its contents was burned, without fault on their part. Wright brought this suit in assumpsit for the value of the wheat he had delivered, and recovered judgment on a verdict for $826.95.

The arrangement for the delivery of the wheat was made between Wright and Piper, and they differ materially as to its terms. Wright testified that he was not to pay anything for storage the first thirty days, but so much per month thereafter, or they were to have the wheat at the market price; that subsequently they changed the arrangement to pay for storage after thirty days, and he paid no storage; that Piper told him, probably in September, they had used the wheat; that two or three days before the fire he went to them and asked a settlement, and they said they would settle at the bank on Saturday ; but they did not settle ; that Piper was at the bank, but he (plaintiff) was not; and that such wheat was worth eighty-seven cents. It was further shown that the wheat was received as Ho. 2 St. Louis grade; that it was put in a bin with other wheat of the same grade ; and that defendants sold and shipped wheat from that bin after the mixture.

Upon this evidence it was claimed for plaintiff, under the rule declared in Lonergan v. Stewart, 55 Ill. 44, and Richardson v. Olmstead, 74 Ill. 213, that the transaction was a sale and not a bailment; that the title and risk were in the defendants and they were liable for the market price.

We understand, however, that independent of the provisions of the Constitution and statutes respecting public warehouses, it was competent for the parties to agree that the receivers might mix the wheat with other of the same grade, and hold for the deliverer and at his risk an equal amount of that grade, with or without compensation, until it should be called for by him or they should agree with him to take it as purchasers; and that the delivery under that arrangement would be only a bailment.

The rule referred to fixed the status and relations of the parties as an inference or application of law, from their acts unexplained, and does not forbid their express agreement rebutting such inference.

Piper testified very positively and circumstantially that such was the arrangement in this case; and that, as well as the provisions of the statute relating to public warehouses, was relied on as a ground of defense. He further testified that they kept careful account of the quantity of Ho. 2 St. Louis wheat in' the bin mentioned, and that there was constantly there, up to and at the time of the fire, the full amount delivered by plaintiff, and that during all that time it was sub: ject to his order; that they repeatedly tried to purchase it of plaintiff, offering more than the current market price, but he demanded more than was offered, and no purchase or agreement to purchase was made.

Vet the court gave to the jury three instructions (4, 5 and 7) upon the theory of plaintiff, absolutely, and refused the only one asked by defendants upon the hypothesis of the facts testified to by Piper (the instruction numbered 8).

We think this was error. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.

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