ON PETITION FOR REHEARING.
RICE, J.A petition for rehearing has been filed in this ease, in which it is urged, among other things, that the instruction as to burden of proof which was commented upon in the original opinion is erroneous, in that the court should have instructed the jury that the depositor must prove the demand provided for in C. S., sec. 6126, as a condition precedent to casting the burden of proof upon the warehouseman; also that respondent failed to prove that he made a demand, accompanied by the offers required by the statute.
No doubt, in the ordinary case which would arise, the statutory demand is one of the things which must be" established *638before the burden of proof shifts to the warehouseman, but in this case the failure to include this element in the instructions was not error. In addition to the reason given in the original opinion for upholding the instruction, we are of the opinion that appellant, by claiming title to the hay through purchase at the time of its delivery to him, in effect waived the necessity for the statutory demand as a prerequisite to his assuming the burden of proof.
The petition will be denied.
Morgan, C. J., and Budge, J., concur.