delivered the opinion of the Court:
This action was commenced in replevin, to recover possession of 3,200 bushels of corn, but riot being able to obtain all the corn on the writ, a count was added in trover.
On the trial plaintiffs introduced a receipted bill, dated April 21, 1873, which shows plaintiffs, on that day, bought of defendants 4,000 bushels of corn, at thirty cents per bushel, total value $1,200, then in the warehouse and cribs of defendants at Gilman, payment acknowledged. • On the same day defendants issued their certificate to the effect they held in store, in warehouse and cribs, 4,000 bushels of corn belonging to plaintiffs, which they promised to deliver, free, on hoard the cars, at option of plaintiffs, between the 15th of May and the 1st of July, charges paid to the 1st of July, and storage thereafter not to exceed one cent per bushel per month.
This evidence shows prima facie the purchase of the corn, and that defendants were mere bailees, without reward, until the 1st of July. A portion of the corn was delivered on the cars, and shipped to plaintiffs at Baltimore. Demand was made for the remainder after the 15th of May, and on refusal to deliver, this suit was brought.
The burden of proof rested on defendants to impeach the fairness of the transaction. This has not been done by any legitimate evidence in the case. The testimony offered for that purpose, viz.: the alleged propositions made by one of the plaintiffs, to settle the matter for much less than the value of the com in controversy, was clearly inadmissible. There is some uncertainty whether the propositions were made before or after the 21st day of April, the date of the certificates. If made before, the presumption is, all previous negotiations were merged in the written agreement afterward executed; but if made afterward they are at most but propositions looking to the final closing up of the matter, and if not accepted would be of no binding force whatever. In either view the testimony was inadmissible.
It was shown plaintiffs were commission merchants or ware-housemen doing business in Baltimore; that they had bought and sold grain for defendants, and that, in course of business, defendants had become indebted to plaintiffs in a large sum of money. To satisfy such indebtedness defendants sold to plaintiffs the corn in the certificate referred to, and also, on the same day, 2,500 bushels in addition, at thirty cents per bushel, total value $750, in their warehouse and cribs at Gil-man, payment acknowledged, and in like manner to be by defendants delivered on the cars, at the option of plaintiffs, between 1st of June and 1st of July, charges paid to the 1st of July, and storage after that date not to exceed one cent per bushel per month. This evidence, to say the least of it, tended to prove a consideration for the sale of the corn to plaintiffs. The case ought, therefore, to be submitted to another jury without the objectionable evidence. It may have misled the jury. It certainly did not tend to prove, as counsel contended at the trial, no corn had been sold.
There does not seem to have been any dispute, the demand in this case was made after the 15th of May, and there was no necessity for the modification made by the court to plaintiffs’ instructions. The agreement was, defendants were to deliver the corn on the cars, free of charges for handling, at the option of plaintiffs, between 15th of May and 1st of July. They were liable, therefore, to be called upon at any time after the 15th of May, and it was their duty, if liable at all, to make the delivery, but not before that date.
For the error of the court in admitting improper testimony the judgment will be reversed and the cause remanded.
Judgment reversed.