delivered the opinion of the Court:
Most of the questions presented by this record were raised, discussed and determined in the case of Bacon v. Cobb, ante, p. 47. This case, however, presents an additional question not arising on that record. The evidence in this case strongly tended to show that appellees had received a portion of the grain which was; condemned and a portion which passed inspection, and that they had sold and received the money for it, and for which it was claimed that appellees had never accounted.
The court, however, by the first clause of the instruction given for appellees, took this question entirely from the consideration of the jury. The instruction informed the jury, “ that upon the facts that the plaintiffs have shewn, without reference to any evidence on the part of the defendants, the plaintiffs have no right to recover.” It will be remembered that it was claimed that appellees had received two car loads of corn which passed inspection and one that was rejected, the proceeds of which they, had appropriated to. their own use, and for which they had not accounted to appellants. If this was true, and it seems to us that there was evidence at least tending to prove it, then appellants had a right to recover for that corn under the common counts,- although they might not be able to recover under the special counts for a breach of the contract. If they received the corn, or its proceeds, .they were bound to account for it, although delivered under the contract, and it had not been performed by appellants.. And the jury should have been left free to determine that question. In taking its consideration from the jury the court erred, and the judgment must be reversed and the cause remanded.
Judgment reversed.