Bedell

This action was brought to recover a balance. on account of wheat sold and delivered to defendant.

Plaintiff had judgment, and defendant prosecutes this appeal from such judgment and from an order denying a new trial.

The demurrer to the complaint was properly overruled.

The objections are twofold: —

1. That it showed a sale of two lots of wheat according to sample, and at the same time averred a delivery of a greater quantity than called for by the contract.

2. That the contract was to deliver within ten days, and the averment is that a portion of the wheat was not delivered within the specified time.

*237 The answer to these objections is that the complaint averred the delivery of a larger quantity to defendant through his agent, who accepted it for him and pursuant to his orders. It was the privilege of the defendant to receive a larger quantity than that called for by his contract if he saw fit, and to receive it at a later period than that named in the agreement, and if he did so, he is liable.

The second point made by appellant relates to a variance between the allegations and the proofs.

According to the complaint the plaintiff on the second day of August, 1887,…