At the trial it was admitted: “The plaintiff and his assignors delivered the wheat described in the complaint to Morgan’s Sons, to be shipped by them to England for sale. Morgan’s Sons placed the same on board *42the ‘Pride of the Port’ for shipmént in accordance with said agreement. ’ ’
The wheat was shipped by Morgan’s Sons, and the bill of lading ran to them.
The defendant Baker was in actual possession of the wheat, with the right to earn the freight thereon. Neither the plaintiff nor his assignors have had the right to the immediate possession of the wheat at any time since the same was shipped. In this class of actions the principle is of universal application that the plaintiff must prove himself to be entitled to the immediate possession of the goods alleged to have been converted.
The court below properly entered judgment in favor of one defendant, but should have rendered a like judgment in favor of the other.
Judgment and order reversed and cause remanded with an order to the court below to enter judgment in favor of the defendant Meyer.
I concur: Niles, J.
I dissent: Rhodes, J.