This is an action for goods sold and delivered. The plaintiff is a corporation doing business in Chicago as a wholesale marble dealer, and the defendant is in the marble business in Council Bluffs. In September, 1900, the plaintiff shipped to one W. E. Lewis, who was then in the marble business in Council Bluffs, the goods the price of which it is sought to recover. Before the goods reached Council Bluffs, Lewis failed and went into bankruptcy. The goods were stopped in transit by the plaintiff, acting through one Benjamin, an attorney of Council Bluffs. While they were lying in the hands of the railroad company at Council Bluffs, together with two other shipments made to Lewis at an earlier date, Benjamin testifies Teetzel Avas at his office, and that he gave Teetzel copies of certain bills of goods he was notified were at the depot; that Teetzel agreed to take the goods and pay for them, but the price was not definitely agreed upon, and that he gave Teetzel an order on the railroad company for the marble shipped by plaintiff to Lewis. Lewis testifies that Teetzel *530paid, the freight on all the marble shipped him, took it from the railroad station and used it in his business, and that he was with Teetzel and his employees when this was done. Teetzel denies that he bought this shipment of marble. He testifies that he did buy from Benjamin two other bills that had been shipped to Lewis, and paid for those. He further testifies that this lot of marble, or a part of it, was taken to his place by his drayman Bridenberg; that his men did some work on it under the direction of his foreman, but that this Avas done for LeAvis; that the goods were taken from the railroad company by Lewis, and shipped.out by him, and the Avork upon the marble paid for by Lewis. Upon this conflicting evidence the jury found for the plaintiff, and there is sufficient evidence to support the verdict.

Error is assigned as to the exclusion of certain exhibits. These exhibits all refer to the other tAVO bills of goods shipped to LeAvis and taken and paid for by Teetzel. Teetzel testified that he bought and paid for these goods, and that they did not include those the price of which is sued for in this action, AAdtich is not disputed by the plaintiff. While the admission of these papers might have been proper, yet the defendant could not be prejudiced by their exclusion, since there was no dispute over the matter they evidenced.

The instructions are complained of as being based upon the theory that there Avas a contract of sale betAveen the parties, while no such contract was proved. The order upon the railroad company gNon to T»Hze] by Benjamin was to deliver to him “the marble whicb was shipped by Davidson Bros. Marble Company to W. E. Lewis.” It is admitted in defendant’s brief that if Teetzel used tins order to obtain the goods the price of which is sued for, even if they were not included in the contract of sale, he would be liable for their value, but it is said, “not on a contract, but in tort for a conversion.” The plaintiff, however, might waive the tort and sue upon the implied contract of sale, which is what it lias done in this case. When the defendant obtained possession of the goods by virtue of the *531order, there was an implied agreement upon his part to pay the plaintiff the reasonable and fair market value of the same. This value was proved at the trial, and upon this implied contract the instructions were based. We find nothing prejudicial to the defendant in the record, and recommend that the judgment of the district court he affirmed.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.