
    [No. 15014.
    Department Two.
    January 9, 1919.]
    George Hancock, Appellant, v. Pacific Coast Elevator Company, Respondent.
      
    
    Warehousemen (7)-—Action for Conversion-—Title—Evidence. An action for the conversion of wheat held in warehouse, must fail where plaintiff had sold all his receipts, representing all his wheat, although, due to a commingling of other wheat, a portion of it remained in the warehouse after full delivery to the purchaser; since plaintiff had no title.
    Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered April 22, 1918, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for conversion.
    Affirmed.
    
      J. W. Brooks, for appellant.
    
      J. G. Thomas and W. A. Toner, for respondent.
    
      
      Reported in. 177 Pac. 639.
    
   Holcomb, J.

Appellant stored his 1915 crop of Turkey Red wheat in respondent’s warehouse at Moore Station. It was piled in the south end of the warehouse in an L shape, in a separate pile marked with appellant’s name for identification. The wheat remained in the warehouse until about November, 1916, at which time it was weighed out and delivered, excepting 164 sacks, to Jones-Scott Company, which had purchased all the warehouse receipts from appellant. During the time the wheat was in storage, the end of the warehouse fell, and a considerable quantity of the wheat also fell out, which necessitated resacking the fallen wheat. The resacking increased the number of the sacks, for the reason that some sacks contained smaller quantities of grain than originally. Some 12,000 pounds of wheat more than the warehouse receipts called for, and evidently wheat of other parties, was delivered to Jones-Scott Company, and appellant found that there remained 164 sacks, or 340 41/60 bushels, of his wheat, for which respondent issued and delivered to appellant a memorandum of scale weight, subsequent to the sale to Jones-Scott Company. [Respondent sold this wheat with all the other wheat in the warehouse. Appellant brought action to recover $500 for the value of the 164 sacks of wheat. The jury returned a verdict in favor of appellant for the sum of $429.25. On motion of respondent, the court, on April 22, 1918, entered a judgment notwithstanding the verdict in favor of respondent. The entry of this judgment is assigned as error.

The evidence shows that the wheat which appellant had delivered to the respondent was sold by the appellant to the Jones-Scott Company. The appellant testified as follows:

“Q. How many bushels of wheat did you sell to the Jones-Scott Company? A. I cannot say. I sold them my wheat that I had in there, all the wheat I had in there, and I went by my receipts. Mr. Kershaw said he would take my wheat and if there was any overweight he would take it at the same price, so it was weighed out. Q. Do you know how much more wheat they paid for than your receipts call for? A. About two hundred bushels.”

The evidence is uncontradicted that the appellant sold all his wheat, and that the Jones-Scott Company bought all the appellant’s wheat in the warehouse. If any of the wheat was left in the warehouse out of the pile that appellant had delivered to the warehouse in 1915, while, of course, it would not belong to respondent, it could no longer belong to the appellant on account of the sale. All over-weight, under the sale, belonged to Jones-Scott Company, which alone would be liable to appellant for its value, and respondent could not be liable for its value.

Respondent had answered, alleging, and appellant proved, that Jones-Scott Company had bought appellant’s 1915 crop of wheat. There being no showing that the appellant was in any way representing or succeeding the Jones-Scott Company in the action, the appellant’s complaint must fail if the proof does not substantiate it. The evidence was such that the minds of reasonable men could not differ, and the judgment notwithstanding the verdict was proper. The judgment is affirmed.

Main, C. J., Paekee, Fhlleeton, and Mount, JJ., concur.  