Magill v. Holston ( 1873 )

Freeman, J.,

delivered the opinion of the court.

This case must be reversed for an error in the charge of the court. His Honor assumed that if, while an effort was being made to divide the com made on the rented premises so as to deliver to the plaintiff his . rent, the rain fell, and the overflow occurred so as to damage or destroy the corn, and the defendant was assiduous in attempting to prevent injury to the corn, the plaintiff could not recover.

The true rule is, that until the defendant had complied with his contract to deliver at the crib of the. plaintiff, the corn was at the risk of the defendant. If another place at which the corn should be delivered was agreed on, then the amount due the plaintiff must have been ascertained and separated from the other corn, and tendered or delivered in pursuance of the contract thus made; and until this was done, it was at the risk of the defendant, and the loss must fall on him.

For this error let the case be reversed and remanded for a new trial.