BLAND, P. J.
The action is for the alleged conversion of certain railroad ties; answer general denial, and counterclaim for damages accrued on account of loss of lands on which the ties had been placed. Trial was had before a special judge without a jury, who on the evidence found the issues for the defendants and rendered judgment accordingly. Plaintiffs appealed.
[307]*307At the close of all the evidence the plaintiff moved the court in writing to make a finding of the'facts, and also asked for instructions or declarations of the law of the case; the court gave some and refused other of these instructions, but refused to make special finding of facts. This action is as-assigned as error by the appellant. The court was bound when asked to either give or refuse instructions, or to make a finding of the facts; Suddarth v. Robertson, 118 Mo. 286; Dobyns v. Bay State Ben. Ass’n, 144 Mo. 95; but was not required to do both; Kostuba v. Miller, 137 Mo. loc. cit. 173. Appellant got the benefit of the practice prescribed by section 2188, and this court is enabled to see from the instructions given and refused the theory of law upon which the trial court proceeded. This answers all the requirements of the practice act, and the court committed no error in refusing to make special findings of the facts. The evidence discloses the following conceded facts: That the Chester,Farmington & Western Railroad Company is a railroad corporation, without a road or assets; that in 1895 it undertook to build its road, and to that end acquired a right of way through cultivated lands of the defendants in Ste. Genevieve county; that its then pres-. ident, "Mr. Cooper, was vested with authority to build the road, and that he purchased five thousand railroad cross ties from the plaintiff, about half of which were piled and distributed on the right of way acquired from the defendants; that Cooper failed to raise the funds to build the road and resigned in 1896, and C. B. Cole was elected president of the company and given authority by resolution of the board of directors to raise money to build the road from certain stocks and bonds which were placed at his disposal. It seems that Cole failed to raise money also and the construction of the road yet remained for the future. The ties purchased of plaintiffs were never paid for; the right of way procured from the defendants had been forfeited for failure to build the road before the beginning of this action and the land embraced in it had [308]*308reverted to tbe defendants. Defendants have used and sold four hundred of the ties and it is admitted that there were one thousand, seven hundred and sixty of them on the right of way when this suit was commenced, which the defendants refused to deliver to the plaintiffs on demand. The ownership of the ties was controverted on the trial. Plaintiffs introduced evidence tending to show that the sale was originally for cash on delivery; defendants offered testimony that the sale was on thirty or sixty days time. The conduct of plaintiffs after delivery and their failure to demand payment on delivery, are inconsistent with the theory that the sale was for cash on delivery. Even if it were so, the delivery without demand of payment, and their acquiescence in the possession of the ties by the railroad company long after delivery is evidence of a waiver of the condition. 21 Am. and Eng. Ency. Law, p. 484. Plaintiffs also claim that if they parted with their title through the original contract of sale, they subsequently re-acquired it by a contract made with Cole the president; herein arises the principal controversy. The secretary of the company, Mr. Hough, testified that the only action of the board of directors conferring special authority on Cole, was the resolution placing bonds and stocks at his disposal to raise funds to construct the road; that Cole was elected president and given a majority of the stock of the company under an agreement, by the terms of which Cole agreed to pay all the debts outstanding against the company, including the claim of plaintiffs for their ties, and that Cole did pay all of the debts of the company, except this one. On the other hand Cole testified that a list of the debts was handed to him; that he looked it over, saw that plaintiff’s was the largest of them, and said to the board of directors that he would see the plaintiffs and try to get them to agree to let the ties remain on the right of way until the company was ready to use them, and if not used to agree to take themback;that he afterward did make this agree[309]*309ment with the plaintiffs and reported the fact to the board of directors, and that the board acquiesced in the arrangement. J. W. Eristoe, manager of the Moss Tie Company testified that Qole called on him in 1896 about the ties, and that he arranged with Cole to let the ties remain until the first of January,1897, that Cole said he thought by that time he could arrange to use and pay for the ties, but at no time did the Moss Tie Company agree to relinquish its title to the ties. That some such arrangement was made by Cole with Eristoe as manager of the Moss Tie Company, is evidenced by the following correspondence between them. On August 22, 1896, Cole wrote Eristoe as follows:
“Dear Sir: — I am in rect. of your favor 10th to Mr. W. M. Hough, Secty. of O. E. & W. E. which he refers to me. You will no doubt remember a conversation I had with you in regard to these ties about the time I was elected Pt. of the Oo. I have been trying hard to get the Co. started but so far with no good result. I think I have the foundation laid to build the road when the present money question is settled. The ties are where they were distributed. I learn some of them were used for fence posts, but as the party is responsible they can be collected for. Yours’1 truly,
“O. B. Cole, Pt.”
On April 12, 1897, Fristoe wrote Cole the following letter:
“Mr. O. B. Cole, Y. P. & M. W. O. & W. E. E.,
“Chester, Ills.
“Dear Sir: — With reference to the ties which we furnished the Chester, Earmington & Western Eailroad, and which you were to return to us in the event you did not construct the road, beg to say that there are two or three parties, among them, a Mr. Kreilieh, and a Mr. Boeckert, who have already used a number of these ties and who refuse to allow our people to haul back to the river a number that were distributed [310]*310on the right of way running through their land. Will you please see that we are put in possession of these ties at least, at once? Our man advises us that already a large number of them have been used for fence posts and other purposes, and the parties mentioned above are claiming the balance of the ties, on the grounds that the right of way has reverted to them on account of lapse of time in which the road was to be built, and that we are trespassers on their land in having our ties there. This matter has been to us a constant source of annoyance and one of considerable expense, and we trust that you will take immediate steps to see that we are at least put in possession of the property. Tours truly,
“J. W. Eristoe, Mngr.”
On April 19, Cole replied as follows:
“T. J. Moss Tie Oo., St. Louis, Mo.,
“Dear Sir:- — I find your favor 12th on my return home this a. m. I am sorry to learn that the -parties are making trouble about the ties. I have written to Mr. T. B. Whitledge and Mr.
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BLAND, P. J.
The action is for the alleged conversion of certain railroad ties; answer general denial, and counterclaim for damages accrued on account of loss of lands on which the ties had been placed. Trial was had before a special judge without a jury, who on the evidence found the issues for the defendants and rendered judgment accordingly. Plaintiffs appealed.
[307]*307At the close of all the evidence the plaintiff moved the court in writing to make a finding of the'facts, and also asked for instructions or declarations of the law of the case; the court gave some and refused other of these instructions, but refused to make special finding of facts. This action is as-assigned as error by the appellant. The court was bound when asked to either give or refuse instructions, or to make a finding of the facts; Suddarth v. Robertson, 118 Mo. 286; Dobyns v. Bay State Ben. Ass’n, 144 Mo. 95; but was not required to do both; Kostuba v. Miller, 137 Mo. loc. cit. 173. Appellant got the benefit of the practice prescribed by section 2188, and this court is enabled to see from the instructions given and refused the theory of law upon which the trial court proceeded. This answers all the requirements of the practice act, and the court committed no error in refusing to make special findings of the facts. The evidence discloses the following conceded facts: That the Chester,Farmington & Western Railroad Company is a railroad corporation, without a road or assets; that in 1895 it undertook to build its road, and to that end acquired a right of way through cultivated lands of the defendants in Ste. Genevieve county; that its then pres-. ident, "Mr. Cooper, was vested with authority to build the road, and that he purchased five thousand railroad cross ties from the plaintiff, about half of which were piled and distributed on the right of way acquired from the defendants; that Cooper failed to raise the funds to build the road and resigned in 1896, and C. B. Cole was elected president of the company and given authority by resolution of the board of directors to raise money to build the road from certain stocks and bonds which were placed at his disposal. It seems that Cole failed to raise money also and the construction of the road yet remained for the future. The ties purchased of plaintiffs were never paid for; the right of way procured from the defendants had been forfeited for failure to build the road before the beginning of this action and the land embraced in it had [308]*308reverted to tbe defendants. Defendants have used and sold four hundred of the ties and it is admitted that there were one thousand, seven hundred and sixty of them on the right of way when this suit was commenced, which the defendants refused to deliver to the plaintiffs on demand. The ownership of the ties was controverted on the trial. Plaintiffs introduced evidence tending to show that the sale was originally for cash on delivery; defendants offered testimony that the sale was on thirty or sixty days time. The conduct of plaintiffs after delivery and their failure to demand payment on delivery, are inconsistent with the theory that the sale was for cash on delivery. Even if it were so, the delivery without demand of payment, and their acquiescence in the possession of the ties by the railroad company long after delivery is evidence of a waiver of the condition. 21 Am. and Eng. Ency. Law, p. 484. Plaintiffs also claim that if they parted with their title through the original contract of sale, they subsequently re-acquired it by a contract made with Cole the president; herein arises the principal controversy. The secretary of the company, Mr. Hough, testified that the only action of the board of directors conferring special authority on Cole, was the resolution placing bonds and stocks at his disposal to raise funds to construct the road; that Cole was elected president and given a majority of the stock of the company under an agreement, by the terms of which Cole agreed to pay all the debts outstanding against the company, including the claim of plaintiffs for their ties, and that Cole did pay all of the debts of the company, except this one. On the other hand Cole testified that a list of the debts was handed to him; that he looked it over, saw that plaintiff’s was the largest of them, and said to the board of directors that he would see the plaintiffs and try to get them to agree to let the ties remain on the right of way until the company was ready to use them, and if not used to agree to take themback;that he afterward did make this agree[309]*309ment with the plaintiffs and reported the fact to the board of directors, and that the board acquiesced in the arrangement. J. W. Eristoe, manager of the Moss Tie Company testified that Qole called on him in 1896 about the ties, and that he arranged with Cole to let the ties remain until the first of January,1897, that Cole said he thought by that time he could arrange to use and pay for the ties, but at no time did the Moss Tie Company agree to relinquish its title to the ties. That some such arrangement was made by Cole with Eristoe as manager of the Moss Tie Company, is evidenced by the following correspondence between them. On August 22, 1896, Cole wrote Eristoe as follows:
“Dear Sir: — I am in rect. of your favor 10th to Mr. W. M. Hough, Secty. of O. E. & W. E. which he refers to me. You will no doubt remember a conversation I had with you in regard to these ties about the time I was elected Pt. of the Oo. I have been trying hard to get the Co. started but so far with no good result. I think I have the foundation laid to build the road when the present money question is settled. The ties are where they were distributed. I learn some of them were used for fence posts, but as the party is responsible they can be collected for. Yours’1 truly,
“O. B. Cole, Pt.”
On April 12, 1897, Fristoe wrote Cole the following letter:
“Mr. O. B. Cole, Y. P. & M. W. O. & W. E. E.,
“Chester, Ills.
“Dear Sir: — With reference to the ties which we furnished the Chester, Earmington & Western Eailroad, and which you were to return to us in the event you did not construct the road, beg to say that there are two or three parties, among them, a Mr. Kreilieh, and a Mr. Boeckert, who have already used a number of these ties and who refuse to allow our people to haul back to the river a number that were distributed [310]*310on the right of way running through their land. Will you please see that we are put in possession of these ties at least, at once? Our man advises us that already a large number of them have been used for fence posts and other purposes, and the parties mentioned above are claiming the balance of the ties, on the grounds that the right of way has reverted to them on account of lapse of time in which the road was to be built, and that we are trespassers on their land in having our ties there. This matter has been to us a constant source of annoyance and one of considerable expense, and we trust that you will take immediate steps to see that we are at least put in possession of the property. Tours truly,
“J. W. Eristoe, Mngr.”
On April 19, Cole replied as follows:
“T. J. Moss Tie Oo., St. Louis, Mo.,
“Dear Sir:- — I find your favor 12th on my return home this a. m. I am sorry to learn that the -parties are making trouble about the ties. I have written to Mr. T. B. Whitledge and Mr. Leon Bogy at St. Mary to do all in their power to induce the parties to let go and think under the circumstances they will be able to do so. I regret that you should have such trouble in the matter and will do my best to assist you.
“Tours truly,
“O. B. dole, Pr.”
Again on April 23,, 1897, Oole wrote as follows:
“T. J. Moss Tie Co.,
“Dear Sirs: — I am advised by Mr. Whitledge of St. Mary that Mr. Kreilich will turn over the ties to any one you may send with an order for same. Mr. W. will render your agent such assistance as he can in the matter.
“Tours truly,
“O. B. Oole.”
Other correspondence with reference to the same matter was had, not necessary to set out in this petition. T. B. Whit-ledge referred to in Cole’s letter, was at the time the attorney [311]*311of the railroad, company and is one of the attorneys for the respondent in this action. Mr. Bogy referred to was an officer of the company. Neither testified on the trial. Armed with the letters of Cole, Miller, an ag’ent of the Moss Tie Company, accompanied by Mr. Rozier, their attorney, called on the defendants for .leave to enter their premises and take away the ties, and both testified that defendants granted them leave to take away the ties; that they then employed H. G. Roseman to haul off the ties, but Roseman was denied access to the premises for that purpose and threatened with á prosecution for trespass if he entered the premises to take away the ties. One of the defendants denied that he agreed to let Miller, agent of appellant, have the ties, and demanded that he first produce the affidavit of The Moss Tie Company that they owned the ties; that he did not know who owned the ties at that time; but on the trial said he knew the appellants owned the ties because they had brought suit for them and swore to it. The authority of Cole to turn the ties back to appellant is also controverted. Cole testified that he was general manager of the company; that he succeeded Cooper, who had express authority to build the road; that he reported the arrangement he had made with appellant to the board of directors and that his action was approved by the board. No witness contradicted this evidence and in the light of all the facts we do not think there is room to doubt but that it was tacitly understood when Cole was elected president to succeed Cooper, that he succeeded to all the powers and authority with which Cooper had been theretofore clothed, .that is to do all things necessary to build the road.
Finding against the evidence. The learned trial judge of his own motion gave an instruction to the effect that Cole as president of the railroad company had authority to turn the ties back to appellants, but that he did not do so. The fíndjng 0f †]16 latter fact, that Oole did not turn the ties back to the appellants, is not only against the weight of the evidence, but is in the teeth [312]*312of all the evidence on that point. Tbe letters of Cole to Eristoe are conclusive that he did authorize appellants to take the ties; this was enough to turn them back; it was not necessary that Cole should have gone on the premises of defendants with one of the appellants and formally or ceremoniously turned over the ties; their identity was not in doubt, their location was well known to both parties, and all that was necessary in the circumstances to transfer the ties to appellants in pursuance of the previous agreement — to turn them back if not used in the construction of the road — was a manifestation of the assent of the railroad company acting by its president, that appellants had permission to take possession of the ties; this was clearly and unmistakably given in the letters of Cole to Eristoe. Groff v. Belche, 62 Mo. 400; Glass v. Galvin, 80 Mo. 297; Bobb v. Bobb, 76 Mo. 419; Nance v. Metcalf, 19 Mo. App. 188. The testimony does not disclose that the defendants ever took formal possession of the ties (except the four hundred they used and sold); no one ever delivered possession to them; they are not bailees of the ties by an agreement nor contract, and if bailees at all are so by casualty, because the lands on which they were reverted to them, and as such bailees were bound to deliver them to the true owner on demand. But if the title to all the ties was in the railroad company when the four hundred were converted, respondents are not liable to appellants for the value of these four hundred; the others they held at their peril, and can only escape liability by showing that appellants did not own the ties when demand for their delivery was made and the suit was begun. Eor the errors herein noted, the judgment is reversed and the cause remanded.
All concur.