Wachstetter v. Brown

Cook, J.,

delivered the opinion of the court.

Appellant instituted an action of replevin against appellee for the recovery of a gasoline launch. On the trial, the jury were peremptorily instructed to find for the defendant.

L. A. Waehstetter was the owner of an automobile, and H. W. Brown the owner of a launch. Brown called at the home of Wachstetter, and, after an inspection of the automobile, offered to exchange the launch for the automobile. Wachstetter agreed, provided the launch was what Brown represented it to be; so it was agreed that Wachstetter was to go to Logtown, Miss., and there inspect the launch. He did go, arrriving there on Sunday, and after an inspection was satisfied. It was then agreed that he should do some work on the automobile. In the meantime, Brown agreed to deliver the launch to a schooner, to be by the schooner towed to New Orleans, and there delivered to the appellant. The automobile Was never delivered to Brown, and the launch was never delivered to Wachstetter.

We think the action of the court in peremptorily instructing the jury to find for the defendant was correct. Appellant never gained title to the launch, and therefore the action of replevin'will not lie. This was an executory contract, and, while the appellant may have had a right to institute a suit for damages for the nonperformance of the contract, manifestly he had no right to institute replevin. Williams v. Sayers, 70 Miss. 50, 29 South. 995; Berry v. Waterman, 71 Miss. 497, 15 South. 234. Affirmed.