1. The declaration alleged that the plaintiff' shipped over the defendant’s road twelve tons of guano to be delivered to him at Perry, and that on its arrival at that place, the company negligently and carelessly unloaded the guano “in the rain, and stored the same on an open, uncovered platform in the rain and weather; that said guano was thoroughly wetted, and by said wetting, caused by said rain, it become totally worthless.” No other ground of liability than as above stated was mentioned, or even hinted at, in the declaration; so there wTas no allegation upon which it would be legally possible to base a recovery in the plaintiff’s favor upon the theory that the defendant was guilty of a wrongful conversion of the guano by delivering it to a person not •entitled to receive it. Nevertheless the court, more than once, instructed the jury, in substance, as indicated in the first head-note, and refused to charge a written request which correctly set forth the real character of the action. It hardly requires argument to show that the errors thus committed absolutely entitled the defendant — against whom the jury found a verdict for the full amount sued for — to a new trial. No plaintiff can-recover upon a cause of action, however just or well sustained by proof, which is totally distinct and different from that alleged in his declaration, and this is so although palpably irrelevant evidence may have been received without objection. The instructions given by
2. The guano was unloaded from the railroad car by a boy named Allen, who was employed as a messenger at the depot of the defendant; but it does not appear that it was any part of his duty to unload freight-cars. It is clear from the evidence that the expense of unloading the plaintiff’s guano devolved upon him and not upon the railroad company, and that he recognized this fact. The real vital question at issue in the case was, whether Allen was employed by the plaintiff as his agent to unload the car, or whether, in unloading the same, Allen was acting as the servant of the depot agent. Upon this question the evidence was conflicting, but there was nothing, either in the pleadings or in the evidence, properly presenting as an issue in the case the question whether or not this boy was authorized to receive the goods for the plaintiff, or that he undertook so to do. The court, however, in different portions of its charge to the jury, presented for their consideration and determination the question just indicated, and emphasized its supposed importance by making certain qualifications of written requests to charge submitted by the defendant’s counsel. For instance, the court charged as follows: “If the railroad delivered the goods to the wrong person by mistake, or to a person not authorized to receive them, though they be delivered for the consignee or owner, the carrier believing him to be at the time the agent of such consignee or owner, that would ■not relieve the carrier, because the carrier must, at his peril, know that the person to whom he makes such delivery has authority to receive the goods.” And again, after charging the following request: “ If you should believe from the evidence that the plaintiff employed one Allen to unload the guano for him, and agreed to
3. The motion for a new trial contained numerous grounds. It is unnecessary, however, to notice them in detail, enough having been already said to show that the case was not properly tried, and to outline the principles which should control its determination. We will only add, that taking the charge as a whole, it did not even substantially submit the real issues involved in the ease, but altogether prevented the jury from passing upon the merits of the defense, which, if found true, would render a recovery for the plaintiff legally iraposisible. Judgment reversed.