On Petition for a Rehearing.
Ross, J.The appellants seek a rehearing and ask to withdraw a part of their original brief, insisting that the court is in error in its views of their contention.
Whether or not we have placed the wrong construction upon the argument of counsel need not be decided, as the original opinion states the law so far as applicable to the rights of the appellees, Fulmer, Sehall and DufE, in *199this case are concerned. The only question to be considered now is, do the facts found by the court entitle the appellants to a judgment against the appellee, Caffyn? We think not. The complaint alleges a wrongful taking of the property by the appellee, Walle, and a sale thereof to the appellee, Caffyn, but the facts found do not show a demand upon Caffyn for the wheat, or his refusal to deliver up the same. The mere fact that he purchased the wheat and took possession thereof does not create a liability, unless he afterwards failed or refused to deliver it up on demand, or it was shown that he had converted it to his own use, so that he could not have delivered it, even though a demand had been made.
Filed June 8,1893.The facts in this case fall short of showing a conversion by the appellee, Caffyn.
Petition overruled.