This judgment is sought to be reversed on the ground that the evidence under the plea in abatement shows that there is another action pending, wherein the parties and their privies are the same, and that the subject matter of the two causes of action is the same. The fallacy *225of this contention becomes evident from a mere inspection of the statement of facts. The shingles were loaded on the cars at Split Nock by Mrs. Aschinger, and billed to herself, at Marion. While so in the possession of the railroad company, plaintiff went to the station agent at Marion, and billed the car to Badford Bros., at Oshkosh, and took the agent’s receipt. As soon as the agent became aware of the true situation, he notified the plaintiff that the company refused to recognize any obligation to forward the car under the bill of lading. Whatever the relation was between plaintiff and the company, created by the bill of lading, it was thereby canceled. The company saw fit to deny the plaintiff’s right to have the car forwarded to his consignees,. and it could not thereafter be considered his bailee. We need not inquire as to the reasons for its refusal to deliver the shingles to Mrs. Aschinger. Its refusal to deliver the shingles on plaintiff’s order put an end to their relations, and they thereafter stood as adversaries, so far as the possession of the property was concerned. If Mrs. Aschinger had desired to test the question of title and possession with the plaintiff, she might have made him a party to her suit, and thus have made an end to the contest. Under the facts disclosed, we feel certain that the rulings of the trial court ought not to be disturbed.

It is further insisted that the evidence fails to show any sale or delivery of the property in controversy from the Aschingers to plaintiff. This was one of the sharply contested issues on the trial. It was fairly submitted to the jury, under instructions correctly stating the law. The evidence was in dispute, but to our minds it seems fairly to support the conclusion arrived at by the jury.

No other question in the case seems to call for discussion.

By the Court.— The judgment of the circuit1 court is affirmed.