37 Minn. 464 | Minn. | 1887
It is found by the trial court that the wheat in question had been stored in one of defendant’s elevators, in the village of Pelican Bapids, in this state; and that, on the 9th day of
There can be no question of the propriety of this ruling. It was competent for the defendant to waive the statutory provisions as to the formal tender of the charges and tickets, and the facts found very clearly show there was such waiver. The conduct of the defendant rendered it unnecessary for the plaintiff to do more. The objections he now makes to the sufficiency of the demand and tender, in order to show a conversion of the wheat, might all have been obviated at the time but for his own conduct in denying plaintiff’s ownership, and placing his refusal to deliver it upon the ground that it belonged to another. He cannot now be permitted to change his position, and place his refusal upon another and different ground, to defeat this action. Railway Co. v. McCarthy, 96 U. S. 258, 267; Holbrook v. Wight, 24 Wend. 169, (35 Am. Dec. 607.) The defendant’s refusal, under the circumstances, must be treated as a conversion, and plaintiff’s rights and remedies are as fully preserved as if a strictly formal tender had been made.
Judgment affirmed.