the 15th of March, 1862, and the Springfield | congregational church was vested in five trusand Continental companies, recognizing their tees, and that, to give validity to their acts, liability, paid to the trustees two thirds of the they must act jointly in whatever they do for loss sustained by the fire. The Howard com- the benefit of the property. pany declined to pay, were sued by G. M. Chase, the payee in the policy, for the remaining third, and this writ of error is brought to review the proceedings of the trial, which resulted in a verdict and judgments against them. A recovery in this case is strenuously resisted, because it is said the individual interest of William Chase was insured, and not his interest as a trustee; and, as his only interest was that of a trustee, it follows that the contract of insurance was a gaming one, and void from considerations of public policy. A contract of insurance is intended to in demnify one who is insured against an uncer tain event, which, if it occurs, will cause him | loss or damage. The assured must therefore 513*] have an interest in the property insured; otherwise, there is a temptation to destroy it, which sound policy condemns. If, then, the Howard company did not insure the interest of William Chase as a trustee (it is conceded he had no other), the policy is void, although he was a creditor of the church, paid | a fair premium for the policy, and disclosed everything to the underwriter. But the recovery in this case is based on the ground that William Chase had an insurable interest as trustee, and insured the property for the benefit of the society. The declaration expressly avers that William Chase, being the owner and possessor in trust of the Union Congregational Church, for a premium paid in money, effected an insurance on the property in the Howard Insurance Company. If this were true, and the proofs sustained it, the verdict and judgment of the circuit court cannot be disturbed. It is unnecessary in this case to discuss the general law of insurance with reference to what interests are or are not insurable. The courts of this country, as well as England, are well disposed to maintain policies, where it is clear that the party assured had an interest which would be injured, in the event that the peril insured against should happen. That a trustee having no personal interest in the property may procure an insurance on it, is a doctrine too well settled to need a citation of authorities to confirm it. As early as 1802, the judges of the exchequer chamber, in the case of Lucena v. Craufurd, 3 Bos. & P. 75, held, that an agent, trustee or consignee could insure, and that it was not necessary that the assured should have a beneficial interest in the property insured, and the rule established by this case has ever since been followed by the courts of this country and England. Col. Ins. Co. v. Lawrence, 2 Pet. 25; 10 Pet. 510; Swift v. Mut. Ins. Co. 18 Vt. 313; Goodall v. N. E. Ins. Co. 5 Fost. 186; Putnam v. Merc. Ins. Co. 5 Met. 386; Craufurd v. Hunter, 8 T. R. 13; 2 Greenl. Ev. § 379; Pars. Merc. Law, ch. 18, § 3; Ang. Life & Fire Ins., §§ 56, 57, 73. 514*] *A trustee, therefore, having the right, is justified in insuring the property, even to its full value, although there is no obligation on him, in the absence of express directions, to insure at all. Page v. Western Ins. Co. 19 La. 49; Lewin, Trusts & Trustees, 383; 1 Phil. Ins. 163; Ang. Fire & Life Ins. § 73. But it is argued that the legal title to the | It is true, that in the administration of the trust, where there is more than one trustee, all must concur, but the entire body can direct one of their number to transact business which it may be inconvenient for the others to perform, and the acts of the one thus authorized are the acts of all, and binding on all. The trustee thus acting is to be considered the agent of all the trustees, and not as an individual trustee. Tiff. & Ball., Trusts & Trustees, 539, 540, and cases there cited. If, within the scope of his agency, he procures an insurance, it is for the other trustecs, as well as himself. If he does it without authority, still it is a valid contract, which the underwriter cannot dispute, if his cotrustees subsequently ratify it. Blanchard v. Waite, 28 Me. 59. In fact, so liberal is the rule on this subject, that where a part owner of property effects an insurance for himself and others, without previous authority, the act is sufficiently ratified, where suit is brought on the policy in their names. Finney v. Fairhaven Ins. Co. 5 Met. 192. It is contended that the contract of insurance, being in the name of William Chase, could only cover his individual interest, or, at the furthest, but the fractional part of the interest which he had as trustee. But the law of insurance is otherwise; for, as any one having any legal interest in property can insure it as his own, and in his own name, without specifying the nature of his interest, it follows that if William *Chase insured the church [*515 with the assent of his cotrustees, for the benefit of the cestui que trust, that the insurance company cannot complain that the character of the interest was not incorporated in the policy, unless, if described, it would have had an influence on them not to underwrite at all, or not to underwrite except at a higher premium than the one actually paid by the insurer. Pars. Merc. Law, ch. 19, § 3; 1 Phil. Ins. 165, 30; Col. Ins. Co. v. Lawrence, 10 Pet. 516. It has been held in some cases that the party applying for insurance need not disclose his interest, unless asked by the insurer. Whether the disclosure of the interest was material to the risk incurred, and would have enhanced the premium, is always a question of fact for the jury. Applying these rules and principles of mercantile law to the facts of this case (for evidence is properly receivable aliunde the policy to explain the character of the interest insured), is it not apparent that the defense interposed cannot avail the insurance company? Could Munger, who issued the policy, and was a cotrustee with William Chase, have been in ignorance that the property was insured for the benefit of the parish? If so, why was he not called to contradict William Chase, who testified that although he paid the premiums on the original policy, and for each renewal, out of his private funds, yet it was done for the parish and with the assent of the trustees. If this statement was untrue, and Munger did not authorize the payment of the premium on account of the parish, it was surely his duty to the company he represented to have denied it. Not having done so, the inference is irre in Err., Washburne. (See S. C. 5 Wall. 689-704.) Proof must correspond with the pleadingvariance, when material-party misled-evidence to sustain action to refund price of goods-agent binding himself in writing, cannot contradict his liability. Proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved. sistible that William Chase told the truth. If | NOAH G. NASH and Emery G. Chapin, Plffs. he did, there is an end of the controversy, for an assent on the part of the trustees to the payment of the premiums, is an assent to the pro- LEONARD TOWNE, Jr., and George W. curement of the policy of insurance. Besides, this authority was a continuing one, for the policy was several times renewed, and each time for the benefit of the parish. The jury had no right to disregard the evidence of Wil516*] liam *Chase, for he was called by the defense, and was the only witness sworn on the trial. And why was the sum for which each policy was given inserted in the other, unless to show that it was one and the same transaction? If the insurance to William Chase was not a part of the general plan of the trustees to insure the church property, it is not easy to see why the fact of such insurance is recited in the policies issued by the other companies. On what ground, then, can the Howard company resist the payment of this demand? William Chase swears he acted for the parish with the assent of the trustees; confirmatory evidence is furnished by the policies of insurance, and there is not a particle of countervailing testimony. Why the trustees, in insuring the church for $15,000, allowed one policy to issue in the name of William Chase, payable, in case of loss, to G. M. Chase, is not disclosed by the record; but it is a fair inference, from the evidence, that it was designed, if the peril insured against should occur, to appropriate the money to the use of William Chase, and thus discharge No variance ought ever to be regarded as material where the allegation and proof substantially correspond, nor where the variance was not of a character which could have misled the defendant at the trial. There is no variance between proof of acceptance and payment of a draft, and the allegation of pay ment of money. Sale of goods, reception of price, refusal to deliver and conversion of the goods by defendant constitute full evidence of an implied promise to refund the price paid, and an action for money had and received is an appropriate remedy for the plaintiffs. allowed to contradict the writing by proving that The agent who binds himself in writing is never he contracted only as agent, and not as principal. [No. 117.] in part the indebtedness of the society to him; Argued Jan. 23, 1867. Decided Feb. 13, 1867. and that William Chase, under the direction of the trustees, chose to have the money paid to his creditor, furnishes no defense to the insurer. As we have seen, William Chase, with the assent of the trustees, could insure the trust title in his own name, and whether the party appointed by him to receive the money, after having recovered it, can retain it to his own use, or must pay it to the trustees, is wholly immaterial to the insurer. This depends on the private arrangements between the trustees, William Chase and Grenville M. Chase, with which the Howard company had no concern. King v. State Mut. Ins. Co. 7 Cush. 7. If the trust property was insured, and the benefit of the insurance goes to the society, and there was no concealment or unfair dealing which could avoid the risk, then the underwriter is concluded from any further inquiry. That there could have been no undue concealment is very evident, because Munger, the agent 517*] of the underwriter, was a cotrustee* with William Chase, and had equal knowledge with him of the whole transaction. The foregoing views dispose of this case, and it is unnecessary to refer in detail to the charge of the circuit court, because it was in conformity to them. The instructions asked by the insurance company were properly refused. A portion of them were right in the abstract, but would have misled the jury, there being no evidence in the case applicable to them. The rest were inconsistent with the law of the case as given in this opinion. The judgment of the Circuit Court is firmed, with costs. Dissenting, Mr. Justice Miller. af N ERROR to the Circuit Court of the United The letter of the plaintiffs in error and the receipted bill varied from the contract set out in the first count in the declaration as to the time of the delivery of the flour, and as to the agreement to furnish a steamer upon which to ship the flour, and the agreement to ship it. These variances are to the legal signification of the contract, and are fatal. Sheehy v. Mandeville, 7 Cranch, 208; Covington v. Comstock, 14 Pet. 43. These papers were also inadmissible under the general counts, as they tended to prove an existing agreement to deliver flour, which must be counted upon specially. Chitty, 346, 347; Spratt v. McKenney, 1 Bibb. 595; Brooks v. Scott, 2 Munf. 344; Burrall v. Jacot, 1 Barb. 165; Cochran v. Tatum, 2 Mon. 404. The circuit court erred in overruling the objection of the plaintiffs in error, to the question, "What was said by the defendant, Chapin, at that interview, as to where the flour described in the letter and bill was stored, as to whether it had been delivered, and if not, as to why it had not been delivered?" The plaintiff had averred a contract to deliver flour at a future time. He had proved that one, different from that he had alleged, had been made between the parties, touching the same property. Proving a breach of that contract would not prove the breach of his first count, nor of any of his counts. Cook v. Munstone, 1 Bos. & P. (N. R.) 351; 1| and judgment were for the plaintiffs, and the T. R. 136; Weston v. Downes, Doug. 23; Lin- defendants excepted and sued out this writ of ningdale v. Livingston, 10 Johns. 36; Clark v. error. Exceptions were taken by the defendSmith, 14 Johns. 326; Robertson v. Lynch, 18 ants to certain rulings of the court during the Johns. 451; Miller v. Watson, 4 Wend. 267. trial, and to certain instructions of the court There is no contract to pay back tnat money as given to the jury after the testimony [*697 between the parties. It could only be recov- was closed, which will be considered in the ered in a case where the defendant had received order they are exhibited in the record. money of the plaintiff which, ex æquo et bono, he should return. Straton v. Rastall, 2 T. R. 367. Again; if we concede that the plaintiffs in error would be concluded by a contract, the writings read in evidence are neither separately nor collectively a contract. Not the letter certainly, for it says expressly that the contract was made the day previous to the writing; not the receipted bill, for that was made the day after the sale, and is a mere receipt and not a contract. Filkins v. Whyland, 24 N. Y. 328; Allen v. Pink, 4 Mees. & W. 140. I. Plaintiffs produced and offered to read in evidence, to prove the issue on their part, a certain letter, dated Milwaukee, February 5, | 1863, and written by the defendants to the plaintiffs, and a bill of sale of the flour, executed at the same time and place, and signed by the defendants, and which was inclosed in the letter of the defendants so offered in evidence. Material parts of the letter were as follows: "Your Mr. W. left here yesterday, and before going off we sold him 1,000 barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and inand will value on you at sight Messrs. Jason Downer and O. H. Waldo, sured, for defendants in error: for the amount." Inclosed in that letter was the following bill of sale, which was also signed by the defendants: "Messrs. Towne & Washburne, "(Signed) It is maintained by the plaintiffs in error that the circuit court erred in refusing to permit them to prove that they, at the time of the sale of the flour, only acted as agents for Bur- "Bought of Nash & Chapin, general commisdick, and so told Towne and Washburne. This sion merchants, 1000 barrels of flour, Empire ruling was right; for the reason that the bill | Mills, Iowa, round hoop, 51, $5,500. of sale and letter constituted a written contract "Received payment, sight draft, by which the defendants below had made themNash & Chapin." selves personally liable, whether they were or were not agents; and such written contract could not be varied or modified by prior or contemporaneous declarations. The only purpose for which the testimony was offered was, to procure the release and discharge of Nash & Chapin from their personal liability on, or growing out of, the contract. For such purpose the testimony was not admissible. Story, Ag. §§ 269, 270, and following also, § 279; Jones y. Littledale, 6 Ad. & E. 486; Higgins v. Senior, 8 Mees. & W. 834; Rex v. Atkins, 2 Mees. & W. 289; Stackpole v. Arnold, 11 Mass. 27. Mr. Justice Clifford delivered the opinion of the court : Controversy in this case grew out of a contract for the purchase, sale and delivery of one thousand barrels of flour, and the parties concur that the flour was never delivered by the original defendants. Special count, as amended, alleged, in substance and effect, that the defendants, on the 5th day of February, 1863, at Milwaukee, in the state of Wisconsin, in consideration of $5,500, sold to the plaintiffs one thousand barrels of flour, stored at Neenah, in that state, and agreed to deliver the same, when requested, free of charge, to the plaintiffs, on board of a steamer to be by them procured or furnished at the place where it was stored, after navigation should open, and a reasonable time before the 31st day of May following, to be conveyed to the plaintiffs, at Boston, in the ordinary manner of transportation. They also alleged demand and refusal to deliver the flour as agreed, and claimed damages for the nonfulfilment of the contract. Declaration also contained the common counts as set forth in the record. | Such being all the evidence offered by the plaintiffs, under the special count, the defendants objected that the evidence was not admissible in the case, because it intended to prove a different contract from that set out in the declaration, but the court overruled the objection, and the letter and bill of sale were read in evidence to the jury. Defendants excepted to the ruling of the court, and that exception raises the first question presented for decision in the record. Obviously, the exception involves the construction of the special count, and of the contract exhibited in the letter and bill of sale offered in evidence. Argument of the defendant is that the contract offered in evidence varied from the allegations of the special count in two particulars: 1. That it differed from the declaration as to the time when the flour was to be delivered. *2. That it also differed from the dec- [*698 laration as to the shipment of the flour, and because it contained no agreement to furnish a steamer. Undoubtedly, the rule is that the proofs must correspond with the allegations in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved. 3. Allegations of fact in the pleadings, affirmed on one side and denied on the other, must in general be tried by a jury, and the purpose of the rule which requires that the allegations and the proofs must correspond, is that the opposite party may be fairly apprised of the specific nature of the questions involved in the issue. Formerly, the rule in that respect was applied with great strictness, but the modern decisions are more liberal and reasonable. Decided cases may be found, unquestionably, Plea was the general issue, and the verdict where it has been held that very slight differ ences were sufficient to constitute a fatal vari- | ance. Just demands were often defeated by such rulings until the Parliament interfered, in the parent country, to prevent such flagrant injustice. Taylor, Ev. § 173, p. 187. Federal courts have possessed the power, from their organization to the present time, to amend such imperfections in the pleadings, except in cases of special demurrer set down for hearing, and are directed to give judgment ac cording to law and the right of the cause. 1 Stat. at L. 91. of charge to the plaintiffs, before the spring season of navigation closed. Such being the true construction of the contract as to the time the delivery of the flour was to be made, it is evident that the objection that there is a variance in that respect between the proofs offered in evidence and the special count cannot be sustained. Averment of demand and refusal in the count is not unusual in such cases and even if not strictly necessary, it certainly can afford no ground to support the present exception. 2. Second objection taken at the argument is that the contract, as proved, does not support the allegation that the defendants agreed to procure or furnish a steamer at the place of delivery, or to ship the flour on board a steamer free of charge to the plaintiffs, as alleged in the special count. Recent statutes in the states also confer a liberal discretion upon courts in allowing amendments to pleadings, and those statutes, together with the change they have superinduced in the course of judicial decision, may be said to have established the general rule in the state tribunals that no variance between the allegations of a pleading and the proofs offered Express words of the contract are, "Free, on to sustain it, shall be deemed material, unless board steamer at Neenah," and the terms of it be of a character to mislead the opposite the contract also show that the flour, at the party in maintaining his action or defense on date of the contract, was safely stored in a the merits. 3 Phil. Ev. 4th Am. ed. 148; Har-warehouse at the place where it was to be demony v. Bingham, 1 Duer, 210; Catlin v. Gun-livered. Those words necessarily imply that ter, 11 N. Y. 368. the flour was in the possession and under the control of the defendants, and that the delivery was to be made in the future. Terms of the contract also imply as clearly that the place of delivery was on board a steamer at that port as they do that the delivery was to be made by the defendants. Freight was to be paid by the plaintiffs, but the delivery on board the steamer was to be made by the defendants, and it follows, in the absence of any stipulation to the contrary, that the defendants were to procure or select the steamer to transport the flour down the bay, and to the place of transhipment, over the usual route. Our conclusion is that the allegations of the special count, and the proofs given in evidence were substantially the same, or, in other words, that the differences between them, if any, were not of a character which could have misled the defendants at the trial, and therefore the objection must be overruled. 699*] *Irrespective of those statutes, however, no variance ought ever to be regarded as material where the allegation and proof substantially correspond. Contract in this case was executed in midwinter, when the navigation was closed, and both parties knew that the flour could not be transported until the navigation opened in the spring. "Free, on board the steamer at Neenah" meant that the defendants should deliver the flour on board the steamer without charge to the plaintiffs. Time of delivery is not specified, but it was to be on board a steamer at Neenah, and it would be unreasonable to suppose that the parties contemplated that it should be withdrawn from the warehouse where it was stored in safety and insured and deposited in a steamer, even if one was there, before the navigation opened in the spring. Courts, in the construction of contracts, look to the language employed, the subject-matter and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. Add. Cont. 846; Shore v. Wilson, 9 Clark. & Fin. 569; Barreda v. Silsbee, 21 How. 161, 16 L. ed. 91. Applying those rules to the case, it is quite clear that the parties did not contemplate that the flour should be withdrawn from the warehouse, where it was safely stored and insured, until the navigation opened in the spring, because the withdrawal of the same before that time would have been worse than useless, as it could not be earlier transported to the place of destination, and if withdrawn and delivered it would involve unnecessary expense and the necessity of rewarehousing it and procuring a new insurance. Plain inference, therefore, is that it was to remain in the storehouse where it was until the navigation opened in the spring, 700*] *but that it was to be withdrawn and delivered on board a steamer at that place, free *II. Evidence was also introduced by [*701 the plaintiff's showing that the defendants drew on them for the whole amount of the purchase money, in a sight draft, and that they paid the draft, as given in evidence, when it was presented. Exceptions were taken by the defendants to the rulings of the court in admitting that evidence, but the rulings of the court were so clearly correct that it seems unnecessary to remark further upon the subject. III. Plaintiffs also proved that the flour, at the date of the contract, was stored in a railroad warehouse at Neenah, and that the defendants had admitted that it had been sold' and delivered to a third person prior to the commencement of the suit. They went further, and proved demand and refusal, and showed that the defendants, at the date of the contract, had but one thousand barrels of flour stored in that warehouse, and that the whole of that parcel was sold and delivered prior to the suit, with the defendant's knowledge and consent. Witnesses were examined on the subject, and in the course of their examination two other exceptions were taken by the defendants to the rulings of the court in admitting testimony. Substance of the testimony objected to and introduced was that the flour was withdrawn from the warehouse where it was stored, at the date of the contract, under the orders of the defendants, and deposited in another place, and finally delivered to other parties, in part fulfilment of a much larger contract. Testimony previously introduced showed that the plaintiffs accepted the sight draft, and paid the same for the purchase money, and that the defendants refused to deliver the flour; and the evidence objected to was doubtless offered to show that they had converted the flour to their own use, and, in our judgment, it was properly admitted for that purpose. Where the seller of goods received the purchase money at the agreed price, and subsequently refused to deliver the goods, and it appeared at the trial that he had converted the same to his own use, and it was held at a very early period that an action for money had and received would lie to recover back the money, and it has never 702*] been *heard in a court of justice since that decision that there was any doubt of its correctness. Anonymous, 1 Str. 407; 2 Greenl. Ev. 124. Assumpsit for money had and received is an equitable action to recover back money which the defendant in justice ought not to retain, and it may be said that it lies in most, if not all, cases where the defendant has moneys of the plaintiff which, ex æquo et bono, he ought to refund. Counts for money had and received may be joined with special counts; and where, as in this case, the special counts are for damages for the nondelivery of goods, it is perfectly competent for the plaintiff, if the price was paid in money or money's worth, to prove the allegations of the special counts and introduce evidence to support the common counts; and if it appears that the defendant refused to deliver the goods, and that he has converted the same to his own use, the plaintiff, at his election, may have damages for the nondelivery of the goods, or he may have judgment for the price paid and lawful interest. Evidence in this case was clear, not only that the plaintiffs paid the price in money, but that the defendants refused to deliver the flour, and converted the same to their own use, by selling and delivering it to other persons. Allen v. Ford, 19 Pick. 217; Jones v. Hoar, 5 Pick. 285. Such a reception of the price, refusal to deliver, and conversion of the goods, constitute plenary evidence of an implied promise to refund the price paid, and an action for money had and received, is an appropriate remedy for the plaintiffs. Principal defense was, that the flour belonged to one Samuel G. Burdick and that the defendants, in negotiating the sale, acted merely as the agents of the owner of the flour; and that they, during the negotiation for the sale, informed the plaintiffs of their agency, and gave to them the name of their principal as the owner of the flour. They also claimed that the plaintiffs agreed at the sale of the flour to take the warehouse receipts of their principal for 703*] the flour, *and that the defendants merely held those receipts at the request of the plaintiffs, and for their benefit, and were there fore under no obligations to deliver the flour. Such was the theory of the defendants, but there was no proof of any such agreement, except that one of the plaintiffs testified that the defendants, when the demand was made for the delivery of the flour, claimed that such was the understanding of the parties at the date of the contract. Defendants introduced no testimony, but offered to prove that in negotiating the sale they acted as agents, and that they so informed the plaintiffs, and gave them the name of their principal. Plaintiffs objected to the testimony, and it was excluded by the court, and the defendants excepted. They still insist that the ruling of the court in that behalf was erroneous, but they admit the general rule that parol evidence is not admissible to supply, contradict, enlarge, or vary the words of a written contract; and it is equally well settled that when a contract is reduced to writing all matters of negotiation and discussion on the subject antecedent to and dehors the writing are excluded as being merged in the instrument. 2 Kent, Com. 11th ed. 746; 1 Greenl. Ev. 12th ed. § 275. Parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written contract in which he appears as principal, even though he should propose to show, if allowed, that he disclosed his agency and mentioned the name of his principal at the time the contract was executed. Higgins v. Senior, 8 Mees. & W. 844. Where a simple contract, other than a bill or note, is made by an agent, the principal whom he represents may in general maintain an action upon it in his own name, and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal. Such evidence, says Baron Parke, does not deny that the contract binds those whom on its face it purports to bind, but shows that it also binds an- [*704 other, and that principle has been fully adopted by this court. N. J. Steam Nav. Co. v. Merch. Bk. 6 How. 381; Ford v. Williams, 21 How. 289, 16 L. ed. 37; Oelricks v. Ford, 23 How. 63, 16 L. ed. 538. Cases may be found, also, where it is held that the plaintiff may prove by parol that the other contracting party named in the contract was but the agent of an undisclosed principal, and in that state of the case he may have his remedy against either, at his election. Thomson v. Davenport, 9 Barn. & C. 78. Evidence to that effect will be admitted to charge the principal or to enable him to sue in his own name, but the agent who binds himself is never allowed to contradict the writing by proving that he contracted only as agent, and not as principal. 1 Pars. Cont. 5th ed. 64; Jones v. Littledale, 6 Ad. & E. 486; Titus v. Kyle, 10 Ohio St. 444; 2 Sm. Lead. Cas. 6th Am. ed. 421. Exceptions were also taken to the charge of the court, but they involve, for the most part, the same questions as are presented in the objections taken to the admissibility of the evidence, and therefore do not require to be further answered. Slight as the evidence was to show that the plaintiffs accepted the warehouse receipts in lieu of the flour, still the court left that question to the jury, and their finding upon the subject is conclusive. Complaint is |