delivered the opinion of the court.
This was an action of replevin by appellee against appellant to recover the possession of 4,955 bushels of corn and 211 bushels of oats which had been stored by appellee in the elevator of Robert T. Harrington at Marseilles, Illinois, and which had been levied upon and seized by appellant as sheriff, under an execution against-Harrington.
The declaration contained counts in the cepit and detinet, and the grain not having been found, there was a count in trover. Appellant pleaded non cepit, non detinet, not guilty, and property in Robert T. Harrington, and also a special plea justifying the taking and detention by virtue of an execution against Robert T. Harrington in favor of the First Rational. Bank of Marseilles, Ill., and alleging the property of the grain to be in Harrington and not in plaintiff. Issues were joined on these pleas and a traverse of the special plea. The cause was tried by a jury who returned a verdict finding appellant guilty and assessing appellee’s damages at $1,241.06. Motions for new trial and in arrest of judgment were interposed, but overruled by the court and judgment entered on the verdict. Appellant prosecutes this appeal.
It appears from the evidence that Harrington was a grain dealer at Marseilles, buying, shipping and selling grain on his own account. That he operated two elevators, one known as the Harrington or Railroad Elevator, and the other as the Schroeder Elevator. Appellee, being the owner of about 3,000 bushels of oats and 5,000 bushels of corn, hauled it to, and stored the same in the elevators operated by Harrington, under an agreement, as appellee claims, that it was to remain his grain, subject to his own order, until such time as he saw fit to sell the same; but subject, however, to a charge of one quarter of a cent per bushel per month, after the first day of Rovember, if left until that time. The grain was delivered from time to time, commencing in June and ending September 29, 1897. In July 2,700 bushels of the oats were sold to Harrington, but there is no evidence he purchased any other portion of the grain, nor does he claim to have done so. The execution upon, which appellant seized the grain, came into his hands on October 1, 1897, and was levied the next day. The property was sold and the proceeds applied in satisfaction of the execution and other executions which appellant had received against Harrington October 1 and 2, 1897. Demand was made by appellee on October 11, 1897, and, on refusal to deliver up the property, this suit was brought.
It is contended by appellant that Harrington was not doing business as a public warehouseman, and that the grain in controversy was not held by him in store for a compensation, and that therefore the elevators were not public warehouses. Appellee offered to prove by a witness who had been in the employment of Harrington for seven years last prior to the levy of the execution, and who was familiar with Harrington’s manner of receiving grain at hís elevators, that he was in the habit of receiving grain during 1897 in store for a compensation, and that a notice was posted in the warehouses to the effect that storage would be charged on all grain in store after November 1st. The court, as we think, erroneously excluded this evidence, which, if true, would have brought Harrington’s elevators within the definition of a public warehouse as recognized in all the cases on that subject. This evidence being kept out on the objection of appellant it seems hardly fair for him to complain now that the evidence does not show that Harrington received grain in store for a compensation. But whatever may have been the fact in other cases a clear preponderance of the evidence shows that the grain in controversy was received by Harrington under an agreement with appellee that it should be stored free of charge until November 1, 1897, and storage should be charged after that time, the grain to remain subject to the control or order of appellee; that there was no sale nor agreement to sell. True, there was probably the expectation by both parties that Harrington would eventually purchase the grain, but the transaction, as proven, did not amount to a contract of sale. Nothing appears to have been said as to whether the grain should be kept separate, or mixed with other grain, of like character, and no doubt appellee knew when he delivered it that it was being mixed with other grain, but we are not inclined to hold that he thereby, lost the title to his individual share of the mass of grain thus commingled. The facts in this case are not materially different to those in Howe v. Munson, 65 Ill. App. 674, except that in the case cited there was more proof that grain was received in store for a compensation than there is in the case at bar. We held in that case, under the evidence, appellee might retain his title to the grain in question even' at common law. And in this case whether Harrington was the keeper of a public warehouse or not, we think upon the facts appellee- did not lose his title to the grain and was entitled to recover. It can make no difference that nó compensation had in fact accrued. Appellant seized the grain before the time arrived when, under the agreement, storage was to be charged. Up to that time the only compensation Harrington received was the probability that he would have an opportunity to purchase and handle the grain. There was nothing to mislead the creditors of Harrington, and there is no just reason why the grain of appellee should be taken to pay Harrington’s debts. We are of the opinion the judgment is right and it must be affirmed.