
    *Cruikshank and Another v. Henry.
    Bailment.—Assumpsit for goods sold, &c. Pleas, non assumpsit, &c. The1 facts were as follows : The plaintiff being the owner of two thousand gunny bags, instructed a warehouseman in whose possession they were, to deliver them to the defendant if he called for them, but if they were not so called for, to sell them. The defendant called and received the bags— paying the warehouseman his charges, &c. At the time of this transaction, there was a contract between the plaintiff and defendant for a quantity of corn to be delivered by the latter to the former in bags; which corn was not delivered. Held, that these facts did not sustain the suit.
    ERROR to the Knox Circuit Court.
   SullivaN, J.

Assumpsit by Henry against the plaintiffs in error. The declaration contains two counts; 1, Indebitatus assumpsit for goods sold and delivered; 2, Account stated.. The defendants pleaded non-assumpsit and’payment

The facts were, that the plaintiff was the owner of two-thousand gunny bags, which were in the possession of a warehouseman at Vincennes; that the owner instructed the warehouseman to deliver the bags to Cruikshank & Co., if they called for them, if they did not, to sell them; that Cruikshank & Co. called for the bags and they were delivered to them, they paying to the warehouseman his charges, &c. There was proof that at the time the bags were delivered to Cruikshank & Co., there was a contract between the plaintiff and the defendants in the Court below, for a quantity of corn to be delivered by defendants to plaintiff in bags; and that the corn was not delivered.

8. Judah, for the plaintiffs.

C. Fletcher, 0. Butler, and S. Yandes, for the defendant.

The cause was tried by the Court, and judgment given for the plaintiff.

The testimony .does not prove a contract of sale, nor any thing from which the law will imply one The bags were transferred from the possession of the warehouseman to the possession of the defendants below, but for what purpose does not appear. They became the bailees of the property, and can not be made liable for its value, unless it be shown that they have converted it to their own use.

In the case Of Cooper v. Helsabeck, 5 Blackf., 14, where the defendant had converted to his own use a wagon left in his possession by the plaintiff’, this Court decided that the ^plaintiff might waive the tort, and recover the value of the wagon in an action of assump-sit. The principle of that decision is, that the defendant, in such circumstances, will not be permitted to take advantage of his own wrong, and the law will therefore imply a contract to pay.

In the case before the Court, it does not appear that there has been a conversion of-the property. The bags may yet be in the possession of the defendants below, ready to be delivered to the plaintiff on demand.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.  