I concur. The action is trover against two defendants to recover the value of certain wheat of the plaintiff, alleged to have been converted by the defendants to their own use.

The court below finds that at the commencement of the action “the defendant Baker was in the lawful possession of said wheat, as master of said ship, for the purpose of transportation to Cork aforesaid, and did not unlawfully convert the said property to his own use, and that said Baker is entitled to judgment in his favor in this action.” This was an adjudication in this action that at the commencement of the action the plaintiff was not entitled to the possession, and judgment was entered in favor of the defendant, Baker, on this ground. From this judgment the plaintiff has not appealed, and it, therefore, stands as finally adjudged that the plaintiff was not entitled to the possession at the commencement of the action.

But the court finds certain facts from which it concluded, as a matter of law, that the other defendant, Meyer, had con*43verted the wheat, and entered a judgment against him for its value, and from this judgment Meyer appeals.

In this class of action the rule is of universal application that the plaintiff cannot recover unless, at the commencement of the action, he was entitled to the immediate possession of the property: Bouvier’s Institutes, secs. 3519, 3520, 3524, and authorities there cited.

In this action, it having been adjudged that the plaintiff was not entitled to the immediate possession, and this adjudication not having been appealed from, and remaining still in force, the plaintiff is concluded by it, and it results that the plaintiff was not entitled to recover, in this form of action, against the defendant, Meyer„

At the trial it was admitted: “The plaintiff and his assignors delivered the wheat described in the complaint to Morgan’s Sons, to be shipped by them to England for sale. Morgan’s Sons placed the same on board *42the ‘Pride of the Port’ for shipmént in accordance with said agreement. ’ ’

The wheat was shipped by Morgan’s Sons, and the bill of lading ran to them.

The defendant Baker was in actual possession of the wheat, with the right to earn the freight thereon. Neither the plaintiff nor his assignors have had the right to the immediate possession of the wheat at any time since the same was shipped. In this class of actions the principle is of universal application that the plaintiff must prove himself to be entitled to the immediate possession of the goods alleged to have been converted.

The court below properly entered judgment in favor of one defendant, but should have rendered a like judgment in favor of the other.

Judgment and order reversed and cause remanded with an order to the court below to enter judgment in favor of the defendant Meyer.

I concur: Niles, J.

I dissent: Rhodes, J.