
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    HOWE v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY.
    
      Stoppage in transitu— Ownership—
    "Where the evidence discloses ownership in the plaintiff, and the case was tried upon that theory and no demurrer was tiled to the petition, the judgment will not be disturbed on review for failure to allege ownership in the petition.
    On motion for Re-hearing.
    Swing, J.; Smith, P. J., and Giffen, J., concur.
   We have been asked upen a motion for a rehearing to affirm the judgment of the court of common pleas for the reason that the petition does not state a cause of action in the plaintiff.

No demurrer was filed to the petition, and the case went ■to trial upon the petition and the answer, and upon the ■conclusion of the plaintiff’s evidence, on motion of the defendant, the court directed the jury to return a verdict for the defendant. The reason urged why there is no cause of ■aotion stated in the petition is that there is no allegation that Howe was ever the owner of the goods and had any right in them at the time of delivery to the railroad company.

This is undoubtedly the first time that this point has been raised. It was not argued before this court when the case was submitted,and it is not reasonable to believe that it was presented to the court below and was a reason for the judgment of that oourt, for the evidence discloses the fact that Howe was the owner of the goods in question, and sold them to one Lee and that court would undoubtedly have permitted an amendment to the petition to correspond with the facts upon the mere suggestion of this point. What is alleged is entirely consistent with ownership, and the pleader evidently supposéd he had stated facts showing •ownership. We would be very reluctant indeed to affirm the judgment on this ground under the circumstances here presented.

Follett & Kelley, for Plaintiff.

A. B. Benedict, for Railway Company.

(For former opinion of the court in this case see ante, (18 C. C., 383.)

But we do not think the point well taken when applied to the position taken by U3 upon the decision of the case. Our ■opinion was that the consignor had'such an interest in the goods shipped to the consignee that he had the right to stop the goods in transitu, provided the consignee was insolvent, and that the defendant railway company in this case recognized that right, and made a new agreement with the consignor, Howe, whereby the company agreed and undertook to deliver the goods to one other than the consignor,whereby the goods were lost; and this contract was made with the C., B. & Q. Railway Co., and not the C., H. & D. Railway Co., and -it is this contract that is set out, and for the violation of which plaintiff is entitled to recover, if at all, and net upon the contract to deliver to Lee. This contract was made witü Howe,and is set out and was not subject to a demurrer.

Judgment will be entered as originally ordered.  