1. There was no error in overruling the demurrer.. The petition set forth a cause of action, and was not subject to. any of the objections set up in the demurrer.
2, 3. Complaint is made that the court erred in not granting a nonsuit. The evidence authorized the jury to find that while at the mile-post referred to in the petition there was no depot, station, platform, or agent, the company was accustomed to receive freight on a spur-track at that point; that, by an agreement made between the plaintiff and the master of trains of the defendant company, cars were to be placed on the spur-track at a given time for the purpose of receiving and transporting the seed; that at the time fixed plaintiff carried to the spur-track a portion of the seed to be transported; that, finding no cars there, he notified the train-master that he had transported a portion of the seed and was ready to carry the balance, and asked when the cars would be placed there; that he was informed that the cars would be placed there the next day, and instructed to continue to carry the seed, to the place agreed upon; that, in compliance with this direction, the plaintiff continued to haul the seed to this place, and, no cars being there into which they could be loaded, the seed were placed upon the ground at the most convenient and suitable place that the locality afforded' for the purpose for which they had been carried to that point; that there were no cars sent there for several days, and before any were sent and the seed loaded into, them rain fell upon the seed and damaged them. If the master of trains was authorized to make this contract in behalf of the company, a finding in favor of the plaintiff for whatever damage he sustained as a result of the rain upon the seed was authorized. The master ,of trains testified that he had no authority to make a contract of affreightment, but that he did have authority to make contracts for the placing of cars along the line for the reception of freight. He therefore had a right to make the contract which the plaintiff relies upon; and the question arises, whether the damage resulting to the plaintiff from the seed becoming wet.
4. It is contended, though, that, even if the cause of action was made out by the evidence, the plaintiff was not entitled to recover, because he was not the owner of the seed, but a mere agent purchasing seed for another, and that the title was in his principal. The railway company, through its authorized agent, dealt with the plaintiff as the owner. No other person was known in
5. The evidence was conflicting on many material points. The jury having taken the version of the evidence which was favorable to the plaintiff’s contention,- and the law as-applicable-to-the case when so taken being such as to authorize a recovery by the plaintiff, the discretion of the trial judge in refusing to grant a new trial will not be interfered with.
Judgment affirmed.