42 Iowa 38 | Iowa | 1875
The plaintiff introduced in evidence the receipt, a copy of which is attached to the petition, and proved the delivery to the defendants, in their warehouse, of the quantity mentioned in the receipt, that the same had been demanded, and the demand was refused, and the value of the wheat.
The defendants proved that the elevator burned on the 15th of February, 1874, containing 5900 bushels of wheat, and more than enough to cover the amount they had received in store.
the defendants gave when they received the . , . .. . , , wheat m question, is a contract as well as a receipt, and by its terms the defendants were bound to keep
“ 2. The question of fact, therefore, for the jury to determine from the evidence is, whether at the time of the burning of the defendants’ elevator the wheat in question, or the mass with which it was mingled at the., time it went into the elevator (if the mingling was with plaintiff’s consent), was present in said elevator and destroyed in said fire. If you find from the evidence that neither the wheat delivered by plaintiff nor the mass with which it was mingled was destroyed in said fire, your verdict should be for the plaintiff, and the measure of damages is the value of the wheat at the time the same was demanded by plaintiff, with six per cent interest from that date. But if you do not so find, your verdict will be for defendants.”
The defendants asked the following instruction, which the court refused to give: “ If the jury should find from the evidence in the case that the wheat was mixed with that of other parties and of these defendants, they must further find that the mixture was made by defendants, and was made without the consent of plaintiff, before you can find for plaintiff.”
The giving of these instructions and the refusal to give that
The j udgment is
Affirmed.