
    Henry H. Hall et al., Appellants, v. Henry Carpen, Appellee.
    APPEAL FROM MORGAN.
    A and B, each sent cattle to market, which were sold by the same broker, who, in accounting to the parties, paid A too much, and B, by precisely the same sum, too little; B sued A, to recover his deficit. Held, that there was no such privity between these parties, as would create a liability.,
    In June, 1860, appellee and appellants each shipped a lot of cattle to the city of New York for sale. On reaching the city, they separately employed to sell their respective lots of cattle, a cattle broker by the name of Wm. Florence. On the 25th and 26th of the same month, Florence sold by small lots, both lots of cattle, and in settling with the parties for the proceeds of their respective lots of cattle, Florence by mistake paid appellants $171 more than was due them on their cattle, and also paid appellee $171 less-than was due him for his cattle.
    Appellee sued appellants for the said sum of $171, in assumpsit, for so much money had and received for appellee’s use. Appellants plead non-assumpsit, upon which issue was taken.- By consent of the parties, the case was tried by the court without a jury, and the court gave judgment for the plaintiff below, $183.82 and costs; from which the appellants appealed, and the parties made this an agreed case, upon the clerk certifying the same, to be reviewed by the Supreme Court without any other or fuller record, and without exception to matters of form. The only question to be made is, whether such privity of contract’exists between the parties as that the plaintiff below can rightfully recover anything in the case.
    The error assigned in this case is, that the court erred in rendering a judgment for the plaintiff below, and in not rendering judgment for the defendants below.
    Morrison & Epler, for Appellants.
    D. A. Smith, for Appellee.
   Caton, C. J.

The appellants consigned to a cattle broker in New York, a lot of cattle for sale, which were sold, and upon settlement, the broker by mistake paid them $171 too much; and about the same time, the appellee also placed in the hands of the same broker, a lot of cattle for sale, and upon settlement with him, the appellee was hot paid enough by the sum of one hundred and seventy-one dollars, and Carpen sued the Halls for this amount, on the supposition that they had got his money. This is quite a mistake. The Halls have got the broker’s money, and he has got Carpen’s. There was no privity between these parties in any way, to connect the two transactions. They were as distinct and separate, as if they had been five years apart, and one mistake five times as large as the other; or as if one party had consigned hops, and the other corn, or even two separate brokers had been employed. But for the accidental circumstances that both parties consigned cattle to the same broker, about the same time, and that in their settlements, mistakes to the same amount were made, no one would have dreamed that the. Halls had got Carpen’s money. This money had no ear-marks to distinguish it. Who shall say that had no mistake been made, the same one hundred and seventy-one dollars which was paid to the Halls, would have been paid to Carpen ? But even though this were capable of proof, and were actually proved, it would make no difference. There was no privity between these parties, which could make one liable to the other. Trumbull v. Campbell, 3 Gilm. 502. The judgment must be reversed, and the cause remanded.

Judgment reversed.  