#### Buckland vs. Wilson and McDowell.

(1) *Pleading: Vm'iance disregarded.*(2) *Question for jury.*(8) *Advances on B’s wheat in store, generally;*TV’s *right to a share of such advances, for wheat delivered ly him to B,*

Action on a note. Answer, 1. A general denial. 2. That defendants had delivered to plaintiff wheat exceeding in value the amount of the note, to he sold hy plaintiff and the proceeds applied in payment of the note; and that plaintiff accepted the wheat “ for the purpose aforesaid, and in full satisfaction and discharge” of the note. *JSeld,*

1. That under this answer the defendants might show either that the plaintiff had *sold*the wheat, or that he had received an *ad/oomce*thereon. The omission to allege specifically that plaintiff sold the wheat, cannot mislead him, and may he supplied hy amendment before or after judgment.

2. There being evidence tending to [show that plaintiff had stored the wheat received by him from defendants, and had received money ■ from the warehouseman on that and *other*wheat so stored; the questions whether he had received any and how much money on account of defendants’ wheat, should have been left to the jury (unless the proof was so clear that the court could fix the sum by computation); and the amount should have been allowed as a payment on the note.

3. If plaintiff, not having sold defendants’ wheat, received advances *generally*on wheat stored by him with such warehouseman, defendants . should be allowed such proportion of the whole amount of such advances as their wheat bore to the whole amount of wheat on which the advances were made.

APPEAL from the Circuit Court for *Bodge*County.

The defendants appealed from a judgment in favor of the plaintiff. The facts are stated in the opinion.

*F. Hamilton,*for appellant.

*J. H. Bawes,*for respondent.

LyoN, J.

Action upon a promissory note given by the defendants to the plaintiff. *McBowell*signed the note as surety for *Wilson.*The defendants answered separately. Both answers contain a general denial; and that of *Wilson,*who was the principal debtor, alleges as a further defense, that before *582tbe action was commenced be delivered to tbe plaintiff a quantity of wheat, tbe value of wbicb exceeded tbe amount of sucb note, to be sold by tbe plaintiff at Eox Take, and tbe proceeds of tbe sale to be applied in payment of tbe note; and that tbe plaintiff accepted and received sucb wheat from Wilson, “ for tbe purpose aforesaid, and in full satisfaction .and discharge of said note.”

It .seems to be conceded that *Wilson*delivered to tbe plaintiff a quantity of wheat, tbe value of which exceeded tbe amount of tbe note in suit, and that tbe plaintiff delivered tbe same into tbe storehouse of one Livingston at Eox Lake. It seems also to be conceded, and, if not conceded, the testimony introduced on tbe trial tended to show, that tbe plaintiff received money from Livingston on account of tbe wheat wbicb be received from *Wilson}*and of certain other wheat wbicb be bad delivered into Livingston’s storehouse.

Tbe circuit judge directed tbe jury to return a verdict for tbe plaintiff for tbe full amount of tbe note. This appeal is from tbe judgment entered upon sucb verdict.

We think tbe question as to whether tbe plaintiff bad drawn money on .account of tbe wheat delivered to him by *Wilson,*and, if so, tbe sum so drawn, should have been submitted to tbe jury, unless tbe proof was so clear that tbe court could by computation fix tbe sum; and in either case tbe amount so drawn should have been allowed on tbe note as a payment. If be drew tbe money generally on account of wheat delivered to bin by *Wilson*and of other wheat, the sum drawn should be divided *pro rata*upon tbe basis of tbe quantities of each lot of wheat upon wbicb it was so.drawn. When tbe quantities are ascertained, this is a matter of mere computation. Because of this error there must be a new trial.

We are also inclined to think that there was sufficient testimony tending to show a sale of tbe wheat by the plaintiff, to make it the ditty of tbe circuit judge to submit that question to tbe jury. But as there is to be another trial, it is unnecessary to discuss this point.

*583We think that the answers are sufficient to entitle the defendants to show under them, or ratber under tbe answer of *Wilson,*either a sale of the wheat by the plaintiff, or that he received an advance thereon. The substance of that answer is, that the plaintiff had received payment of the note out of wheat delivered to him by Wilson; and if it fails to state specifically that the plaintiff sold such wheat, it is an omission which cannot prejudice or mislead the plaintiff, and may be supplied by amendment before or after judgment.

*By the Court.*— The judgment of the circuit court is reversed, and a *venire de novo*awarded.