Opinion
September Term, 1900.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
This judgment should be reversed and a new trial ordered. The referee correctly stated in his opinion that the question was narrowed to the inquiry as to whether the lost barley was bought for Nester or for some one else. It was difficult to get at the truth with reference to the matter, by reason of the death of Markell, and the consequent incompetency of the defendant, as a witness, under section 829 of the Code of Civil Procedure. It does appear, however, that Markell reported to Nester that October 20, 1886, he bought 550 bushels of Mensury barley to be delivered at the Himrods warehouse, and December 8, 1886, 220 bushels of the same kind of barley to be delivered at the same warehouse. The amounts were estimated and it appeared by Exhibit 1 that October ____, 1886, there was delivered at the said warehouse 594 bushels 2 pounds of such barley; and December 8, 1886, 174 bushels 24 pounds of such barley. These were the only crops of this kind of barley which Exhibit A shows were purchased to be delivered at the said warehouse, or which Exhibit 1 shows were delivered there. So that there were engaged and delivered in the said warehouse of this kind of barley 768 bushels 26 pounds for Nester; and Exhibit 2 shows that the only barley of this kind delivered to Nester from this warehouse was 87 bushels 9 pounds taken out after the warehouse collapsed. So that 681 bushels 17 pounds of this kind of barley bought for Nester were lost in the storehouse. This barley Nester never paid for, whatever may be said as to any other barley that was lost. It cannot under these exhibits be claimed that this barley was bought for and delivered to the said warehouse for any one else than Nester; and this being so, the referee erroneously concluded that no part of the barley lost was shown to have been bought for Nester. Whether it will ever be possible to get at the whole truth with reference to the matter may well be doubted, but it would seem that the referee was in error in denying the plaintiff all right of recovery, and dismissing her complaint. The judgment appealed from should be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event. All concurred.