Purdy v. McCullough ( 1846 )

Per Curiam.

Trover is founded in property; and unless the plaintiff proved a prima facie case of it, he broke down at the start. What was his title ? He produced a note, equitably assigned to him, for “ one hundred and forty-seven dollars’ worth of lumber” — in other words, a note for money payable in lumber. But that gave no right to any lumber in particular. It was drawn by Eldred in favour of Wright, who passed it as a collateral security without endorsement to McCullough, (the defendant,) who afterwards sent it by Wright to Eldred, with a request that he would pay it in money or send lumber. Wright delivered the message, but not the note; and Eldred sent the lumber, but not before Wright had endorsed the note to Purdy, (the plaintiff.) Now, it is obvious, that Purdy had no other remedy than an action on the note, which was ■an executory contract, and not a sale, which is a contract executed. Besides, as an equitable assignee, Purdy stood exactly in the place of Wright, who could not dispute the title to property which had been delivered by his own order in payment of his debt. The plaintiff) therefore, failed to make out the shadow of a case.

Judgment affirmed.