
    
      Thomas L. Whitlock vs. Ann Heard.
    
    Plaintiff carried on a carriage-maker’s shop, under the control and management of W. as his foreman. W. owed the defendant by note, and contracted with her to make a buggy for the note. The buggy was made and delivered, and the note given up to W. The plaintiff on hearing of the contract, disapproved of it and brought his action for the price of the buggy, alleging it to have been sold. Held, that he could not recover — that, regarding him as having adopted the contract, then he was only entitled to the note; regarding him as having repudiated the contract, then there was no sale of the buggy, and his remedy was, after demand, to bring trover.
    
      Before Wardlaw, J. at Abbeville, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “This was a sum. pro. brought to recover the price of a buggy sold and delivered.
    
      Waller, the plaintiff’s witness.
    For plaintiff called and told defendant, that plaintiff held her responsible to him for the buggy, and wished her to give her note. I saw the buggy in her possession, and know that it was finished in the shop owned by plaintiff, where McNeill carried on business for him — he and McNeill having once been in partnership, but having dissolved before the buggy was got by defendant.
    She refused to give her note* — said that McNeil had agreed to build the buggy for $75, and take in payment a note he owed her. She'then had the note on McNeill, and still had it when I went to see her again.
    
      John McNeil, for defendant.
    Plaintiff and I have been in partnership — dissolved last of 1844. He is not a mechanic. After the dissolution, he owned the shop, and gave wages to me as his foreman. When he was not present, I made contracts, and he generally confirmed my contracts.
    Defendant held a note on me for $65, and, I suppose, apprehended loss. She and I bargained — a buggy was to be built for her with a top, at $87.50, and my note to be taken in payment. The buggy may have been commenced before the dissolution, but I think not. It was built and finished afterwards. In September last, I delivered the buggy to her without a top — the top was afterwards to have been put on. Without a top, it is worth about $75.
    I don’t know that plaintiff knew of the contract I had made. Soon after the buggy was delivered, he came, as if he had just heard of it, and said the arrangement could not stand.
    The note was delivered to me about two weeks before return day — a day or two before this suit was commenced, I think. I gave no receipt for the note, and did not charge myself.
    I never knew of any other case where I sold work to pay my own debts, except one to Klugh, about which plaintiff was specially consulted.
    Plaintiff and I have not settled. I don’t know whether, in the account of my wages, he can save himself.”
    On this testimony, his Honor decreed for the defendant: and the plaintiff appealed, and now moved this court to reverse the decree, on the following grounds:
    1st. Because the proof was clear that the buggy, for the price of which this action was brought, was the property of the plaintiff, and that he never had assented to the contract between the defendant and McNeill, that the proceeds should be applied to the payment of the debt of witness, McNeill.
    2nd. Because there was no evidence that McNeill had any authority from the plaintiff to receive money for work done in his shop, or make any arrangement as to the proceeds.
    3rd. Because the witness (McNeill) had no authority to sell or dispose of the plaintiff’s property in payment of his own debt.
    4th. Because the defendant had notice, before she gave up to the witness (McNeill) his note, that the plaintiff would insist upon the payment of the purchase money to him, and the defendant still retained the buggy, and thereby became liable to pay the purchase money.
    
      McGowen, for the motion.
    Cunningham, contra. .
   Curia, per

Wardlaw, J.

There was no proof that the defendant had information of the various relations which subsisted between the plaintiff and McNeill, and no ground for imputing to the defendant any collusion with McNeill to injure the plaintiff. I thought on the circuit that the evidence authorized the conclusion, that under the circumstances, the plaintiff was bound by McNeill’s contract to barter a buggy for his note, just as if the barter had been for provisions or materials. This court assents to this view; and directs me to assign an additional ground in support of the decree.

If the plaintiff had,a right to disaffirm McNeill’s contract, and has done so, there has been no sale: the buggy is yet the plaintiff’s : — the defendant has not received money for it, and so the plaintiff cannot waive the tort and maintain assumpsit for money had and received: — the plaintiff, instead of holding the defendant responsible for money which she had not agreed to pay, should have demanded the buggy, and brought his action for it.

The motion is therefore dismissed.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.  