
    Wetherald and Others v. Utter.
    In an action appealed upon the ground of the insufficiency of the evidence to sustain the verdict, this Court will not disturb the verdict if the evidence tends to sustain it.
    APPEAL from the Clinton Circuit Court.
   Hanna, J.

Suit on receipts of which the following is a copy:

Thorntown, August 24, 1857. Ho. 2.

“Received of A. Utter 46 bushels and 10 pounds wheat, in store, subject to order;” properly signed. It is averred in one paragraph that the wheat had been demanded and not delivered, and was worth, &c. In another that defendant had converted it, &e., and upon demand did not deliver, &c.; and again, that upon the delivery of said wheat to defendants it was agreed that the same should be re-delivered when demanded; but was then and there by defendants mixed with a large amount of other wheat, which belonged to defendants and others, so that it could no longer be identified and return - ed. 'Wherefore, &e.

Answer: a denial; and that defendants were millers and warehousemen, and as such'were accustomed to receive in store wheat, &c., and that by the custom and usage of trade at said place and warehouse, which was well known to plaintiff, the saipe when so received was placed in common bins with other wheat of like kind and quality, there to be kept for depositors, subject to their orders and to be returned in the same or other wheat of like kind, &e.; that defendants, in accordance with said custom, were in the habit of receiving and storing free of charge, with the privilege of purchasing the same at the current market price when the same should be demanded, or of returning the same or other wheat of like kind; which was well known to plaintiff; that said wheat Avas deposited with that express understanding and agreement, &c.; that whilst it so remained in store in said mill, and before any demand was made in regard thereto, and whilst it remained the property of the plaintiff, said mill and its contents were accidentally, and without the fault of the defendants, destroyed by fire.

Reply: denial, and also that the property was burned because of the negligence of the defendants and their servants, setting out facts specially.

There were demurrers overruled to the complaint, and to answers and replies; and motions to strike out parts of the pleadings were overruled. None of these rulings will be noticed, unless it may become necessary so to do in determining the. only point presented in the brief of appellant, which is that the finding of the Court Avas not sustained by the evidence. The evidence is in the record. The finding was for the plaintiff.

J. F. McDonald and A. L. Poache, for the appellants.

A. J. Boone, for the appellee.

It is insisted that the evidence does not show a conversion of the wheat by the defendants, nor its destruction through their carelessness.

We have examined the evidence and are of opinion it tends to sustain the finding on either or both of the above named points. See also Carlisle v. Wellon, 12 Ind. 252.

Per Curiam.

The judgment is affirmed, with five per cent, damages and costs.  