This was a suit brought by the appellee against the appellant in an action on the case on promises to recover for certain grain claimed to have been sold by the former to the latter. The claim was tried before a jury, resulting in the return of a verdict for appellee in the sum of §687.80, upon which judgment was rendered and from which this appeal is taken. The main contest in the case was as to whether or not the grain was delivered by appellee to appellant in store or whether it was in fact a sale, the warehouse of appellant having been consumed by fire and a portion of grain remaining therein having been consumed, not equal in amount, however, to that delivered to her by appellee.
The amount of grain in controversy is witnessed by four grain receipts, as follows: one dated October 17,1884, for 249 bushels and 40 lbs. rejected corn in store as stated in receipt; the 2d, September 7, 1889, 1,693 bushels Ho. 2 oats in store without any storage; 3d, October 17, 1889, 2,002, 80 bushels No. 2 corn in store without any storage; 4th, October 27, 1888, 982 bushels No. 3 corn, 306.20 corn No. 2 in store without storage.
Tiie evidence in the case as to the nature of the transaction is not contradictory. It rests entirely on the testimony of the appellee, the appellant’s agent, J. Mostoller, her husband, and the receipts. The fire 'occurred October 27, 1889, when all the remaining corn and oats in store was consumed by ire, and on the 20th December, 1889, appellee demanded his grain or his payment therefor from appellee’s agent. Aside from the receipts no one testified as to what the contract was exeej t the appellee himself, and there was no other evidence in regard to the matter except the actions and conduct of the parties themselves. The appellee swears that the appellant’s agent agreed to pay the market juice for the grain when he (appellee) got ready to sell it. These promises were made at different times, at the time he stored the grain and when he hauled it. Then he also testified that ajypellant paid him money on the grain and also delivered him coal. To this evidence there was no contradiction. From this it appears there was a sale of the grain to appellant, the price to be fixed by appellee at any time he chose within a reasonable time which the law would imply. This price was to be fixed at the market value at the time when appellee should designate, within a reasonable time, according to the implication of the law. The appellee had no option to withdraw the grain and sell it to another or to dispose of it in any way to another. Aj^pellee had only the right to fix the price by setting the time. Now, how was the matter treated by appellant? It was treated by her as a sale throughout. She mixed the corn and oats with other grain and shipped all the corn, probably 500 or more bushels, remaining in the warehouse, not able to be identified as appellee’s corn. There was not enough in the warehouse, however, of any kind of corn to make up anything near the amount delivered by appellee. If this was not a sale, the appellant was palpably violating the law in thus shipping the corn out of the warehouse, not retaining the amount stored, and also violating the criminal statutes. We should not impute any such improper actions to her unless compelled to by the evidence. There is no sufficient proof that appellant kept a warehouse for the storage of grain of class “b” provided for in the statute. There was no proof that any one else stored a bushel of grain in the warehouse. The evidence is also that the money advanced on the grain was intended as payments and notas a mere loan, as we understand it.
The oats rest on the same principle as the corn and on the same contract and it would not matter that there were as many oats in the warehouse when it burned as were delivered by appellee. The jury were not authorized under the evidence to find any other verdict than they did, without it might be as to the amount. While the instructions for appellee are not based on the right theory of the law, and in a different case would have been improper, yet in view of the evidence they can not be harmful, and appellant’s instructions were all she could ask. We think the verdict on the question of sale under the evidence was so clearly right that it makes no material difference as to the instructions. As to the amount of the verdict we are satisfied that the evidence fully justifies it. Under the constitution and laws of this State, if the proof had shown that the grain in question had been taken in store by appellant for compensation, and she had been keeping a warehouse for such purpose, then she would have been protected as a warehouseman under such constitution and laws, even though the grain were mixed with other of like quality, and even though the warehouse and grain were consumed by fire, if without her fault. One other significant fact in this case is that no compensation was to be charged for storage as to nearly all the grain. The principle announced in Bank of Pontiac v. Langan, 28 Ill. App. 401, is called in question, but it is scarcely necessary, in view of what has been said, to say, that we fully adhere to the point decided therein.
It is unnecessary to notice any other point raised by counsel for appellant in his brief. The judgment of the court below is therefore affirmed.
Judgment affirmed.