¶1delivered the opinion of the Court:
¶2This was an action brought by Ogden against Lucas, for trespass to personal property. The jury found a verdict for the defendant, on which j udgment was rendered.
¶3The first error assigned is upon overruling the demurrer to the fifth additional ¡ilea, as it is termed by counsel. That plea is to so much of the declaration as charges the defendant with wrongfully taking certain rails, and it sets up that the rails were borrowed from the plaintiff by one Holt, and by him built into a fence and corn-bin, on a certain piece of land which Holt occupied as a tenant of one Lucas, from whom the defendant bought the land without notice that plaintiff owned the rails.
¶4This plea may have been liable to a special demurrer, on the ground that it amounted to the general issue, but the demurrer in this case being general, was properly overruled. The plea ivas substantially good, as it showed a state of facts, in which the plaintiff’s remedy, after a demand and refusal, would have been trover and not trespass.
¶5The second and third instructions for the defendant were wrong. In both, the jury were substantially told, that unless the purchaser of a field of corn gathers it in a reasonable time after it is fit. for gathering, the owner of the field may turn in his cattle, without responding to his vendee for any damage he may suffer by the destruction of his ungatliered corn.
¶6This is not the law. The purchaser of the corn must not only have a reasonable time after the crop matures, but the vendor must give the vendee notice, and a reasonable time after such notice, to gather the corn. This is the only reasonable rule, as, without such notice, the vendee may well suppose it a matter of indifference to the owner of the land when the crop is gathered, so that it is got out of the way before the land is again needed for tillage.
¶7The fourth instruction for the defendant would tend to mislead the jury. They would understand from it that they could not find a verdict for the plaintiff, unless they could determine from the evidence, with mathematical precision, how much' of the corn had been destroyed by plaintiff’s cattle. In cases of this sort, entire accuracy is impossible. The jury had aright to consider from the evidence how much corn had been destroyed, and what proportion of the cattle in the field were turned in by the defendant, and thus arrive at as near an estimate of the damages as the nature of the case would permit.
¶8The judgment is reversed and the cause remanded.
¶9Judgment reversed.