I concur in the opinion of Holden, C.J., except as to the amount of recovery. As to the amount of recovery I concur in his opinion to the effect that the only evidence of the market value of respondent's wheat at the time of the conversion thereof was that for which the wheat was thereafter sold. The evidence conclusively shows, however, that the top sale price of $9 a ton, or 27 cents per bushel, and therefore, under the above statement of law the top market value, did riot apply to all of the wheat in the warehouse, hence not to all of respondent's wheat, because the evidence shows no grain was sold as undamaged wheat, and but three car loads of all the salvaged wheat were sold as Salvage No. I at the top price, or thereby had a market value as No. 1 salvage of $9 a ton or 27 cents per bushel. Applying the above rule and conceding respondent's grain was damaged the least of any grain in the warehouse, respondent would be entitled to only the top sale, or considered market value, at which the wheat was actually sold (Unfried v. Libert, 20 Idaho 708, 726, 727, 119 P. 885) namely, as shown by a tabulation of the car loadings and prices received therefor, car No. 13566 containing 76,612 pounds or 1277 bushels (60 pounds per bushel, sec. 69-208, I. C. A.) at $9 a ton or .27 *Page 677 cents per bushel, $344.79; car No. 40433 of 70,584 pounds or 1176 bushels $317.52; car No. 46742, 75,875 pounds or 1264 bushels, $340.88; car No. 28618, 81,430 pounds or 1357 bushels at $8 per ton or .24 cents per bushel, $325.68; leaving 27 bushels in car No. 43372 at $6.70 per ton or .20 cents per bushel, $5.40, amounting to a total of $1334.27 for 5100 bushels, with interest at 6 per cent. from May 27, 1933, amounting to $346.20, thus totaling $1680.47 principal and interest, for which amount with costs in the district court of $129.25, the judgment is affirmed.
Costs herein awarded to respondent.
Ailshie and Budge, JJ., concur with Givens, J.