
    John C. Worth v. Buck & Greenwood.
    [Filed May 18, 1892.]
    1. Review: Evidence examined, and held, to sustain the verdict for defendants in error.
    2. Conversion by Bailee: Variance. The cause of action set out in the petition is for the conversion of a quantity of broom corn. The evidence proves that the defendants received the corn in question to be sold on commission in Chicago, and that they held it there in anticipation of an advance in the price thereof until the freight and storage charges, together with the amount previously advanced, exceeded the amount realized therefor. Held,, That the variance between the petition and the proofs is material, and that plaintiff cannot recover.
    Error to the district court for Franklin county. Tried below before Gaslin, J.
    
      E. A. Fletcher, for plaintiff in error.
   Post, J.

This was an action for the conversion of a quantity of broom corn. The evidence discloses substantially the following facts: Plaintiff in error delivered to defendants the broom corn in question in pursuance of a contract by which the latter agreed to ship it to Chicago and sell on plaintiff’s account, and to have for their services whatever was realized in excess of a stipulated price. The property was stored in Chicago awaiting a more favorable market until the storage charges and freight, together with the a mount advanced, exceeded the amount realized therefor. The charge of conversion is entirely without support in the evidence.

The question whether defendants are guilty of negligence or want of judgment in holding the corn in anticipation of an advance in the price is not presented by the pleadings. The judgment of the district court is right and is

Affirmed.

The other judges concur.  