Under the evidence and pleadings, the question arose between the parties to this action whether plaintiff was entitled to recover the price of fourteen car loads of timber alleged to have been sold and delivered by him to defendant. In the month of March, 1902, plaintiff made an agreement with defendant, selling to it all the timber to be cut during the following season from certain land owned by him, at the price specified, and to be shipped as agreed. At the-time of making this agreement, plaintiff informed defendant that he handled a portion of such timber on com*617mission for one Alberts, wbo bad agreed to cut and prepare it for market under an agreement whereby plaintiff was to receive $50 for the stumpage, and $5 per car load for selling it. The court held that fourteen car loads of the timber included in plaintiff’s demands in this action were not ■owned by plaintiff at the time this sale was made to defendant. Whether plaintiff became the owner of these fourteen ■car loads of timber after such sale^ or of the proceeds thereof .after delivery, we are not informed. There is no averment in the pleadings on the subject, nor was there any determination of this question by the court or jury under the proof.

There is evidence in the case tending to show that plaintiff had sold this timber to one Alberts, and that he treated it as Alberts’ timber at the time of its shipment and delivery to ■defendant. It also appears that Alberts made claim of ownership, and so notified defendant after delivery, and claimed that payment of the purchase price should be made to him. On the other hand, there is evidence supporting the contention that Alberts had released his interest and claim to the proceeds of the sale of this timber to plaintiff. The pleadings, as framed, do not aver a transfer of the proceeds of the fourteen car loads of timber to plaintiff, nor was there a determination of this question by the special verdict. The court, Tiowever, awarded judgment in plaintiff’s favor for the full amount due, including the fourteen car loads in dispute. 'Since the court found that plaintiff did not own this timber when defendant purchased it, and there was no finding that plaintiff subsequently became the owner of the proceeds of sale, the only other theory upon which judgment could be awarded in plaintiff’s favor is that the evidence showed without dispute that he was entitled to the amount due for the fourteen car loads. As above stated, this is not the case, since the evidence is in sharp conflict upon this question. Under such circumstances, it was error to award plaintiff judgment for tire ¿mount due on the sale of the fourteen car loads of *618timber. This requires that a new trial be granted, and obviates any necessity of considering the exceptions to the charge, and to the refusal of the court to change the answer to question No. 2 of the special verdict.

By the Court. — Judgment of the circuit court is reversed,, and the cause is remanded for a new trial.