
    13621.
    McCall v. Merriman.
    Decided Februaky 14, 1923.
    Complaint; from city court of Eeidsville — Judge Cowart. April 3, 1922.
    
      A. S. Way, S. B. McCall, for plaintiff in error.
    
      E. C. Collins, contra.
   Stephens, J.

Where an owner of eross-ties agreed to sell such of the cross-ties as would pass inspection at a fixed sum per tie, the purchaser agreeing to haul the entire lot of ties to the railroad where they were to he inspected, and where a definite number of the ties passed inspection after being hauled to the place of inspection by the purchaser, the remaining number being rejected; and where the purchaser converted to his own use an indefinite number of the rejected ties, claiming that the proceeds from the sale of such ties as were converted by the purchaser were applied to the purchaser’s bill for hauling the ties to the place of inspection, and where it did not appear from the contract that the purchaser was to be paid for such service, the inference was authorized that the purchaser converted all the ties to his own use, and that thereupon there arose an implied agreement to pay the plaintiff the value of the ties so converted, and the contract being silent as to what disposition should be made of the rejected ties, and it not appearing that the defendant returned any of them to the plaintiff, in a suit -by the seller against the purchaser to recover the contract price for the rejected ties, the verdict rendered for the plaintiff was authorized, and the trial judge did not err in overruling the defendant’s motion for a new trial.

Judgment affirmed.

JenMns, P. J., and Bell, J., concur.  