
    Samuel Whitwell et al. versus Benjamin Vincent.
    Goods sold on condition that the vendee should give a note for the price, with a sufc ficient indorser, were taken away by the vendee without objection on the part a the vendor, the vendor’s clerk telling the vendee, that if an indorser named by him should not be satisfactory, he must furnish another; which however, upon the rejection of the one named, he failed to do. Held, that the property in the goods was not changed.
    Such vendee having sold the goods and taken the purchaser’s negotiable note, transferred the note as security to a creditor, who had knowledge of all the facts, and who, on a demand by the first vendor, refused to deliver him the note. Held, that while the note remained in such creditor’s hands unpaid, the first vendor could not maintain assumpsit against him for the amount of it, for that bringing an action in that form was an affirmance of the first sale.
    Assumpsit for money had and received, goods sdld and delivered, and on other money counts. Trial was had before the chief justice upon the general issue.
    The plaintiffs proved, that on the 27tli of October, 1825 they, being auctioneers, offered for sale 40 hogsheads of gin The condition of sale was, that the purchaser should give a note payable in four months, with a sufficient indorser The gin was bid off by one Bryant, and was on the same day removed by him to the store of Bryan & Mitchell, where it was stored for him. The removal was known to the plaintiffs and not objected to by them, it being necessary to remove the gin from the street. The plaintiffs’ clerk, when Bryant was about removing it, inquired whom he intended to give as indorser. Bryant answered, Vincent the defendant, and asked if that would be satisfactory. The clerk said he could not tell, but that if it were not, he must furnish a good indorser. Bryant applied to Vincent to become his indorser for the purchase, and Vincent consented, on condition that the notes or other proceeds of the gin, as Bryant should sel it, should be deposited with him. On the 11th of November the note was indorsed by Vincent and sent by Bryant to the plaintiffs ; who immediately sent it back, informing Bryant that the indorser was not satisfactory. Afterwards some conversation took place relative to procuring another indorser, but nothing further was done, and no note was given to the plaintiffs.
    
      
      March 15th
    
    On the day of the auction and before the gin was removed fr0111 the street, Bryant, without the knowledge of the plain-so]c] four hogsheads to Withington & Russell, at a small advance, and took their note payable in four months, and the four hogsheads were delivered to them and were afterwards disposed of by them in the course of business.
    On the 13th of November, Bryant failed, and being indebted on account to Vincent, delivered to him the note of Withington & Russell, which when due, and since the commencement of this action, was paid by them to Vincent. On the 23d of November, Bond, one of the plaintiffs, called on Bryant for the gin, and Bryant gave him an order on Bryan & Mitchell for all that was in their store,- which was delivered accordingly. Bond then asked Bryant for the note given by Withington & Russell, and was informed that Vincent had it. At the plaintiffs’ request, Bryant asked Vincent for the note, but he declined parting with it, because, though his indorsement was not received, he had a right to keep the note on account of a balance due to him from Bryant. On the 3d of December, Bond demanded the note of Vincent; which he refused to deliver, claiming to hold it for the purpose above mentioned.
    Vincent knew, before the note of Withington & Russell was delivered to him, that his name was not received as indorser, and he also knew that no other security had been given to the plaintiffs for the gin. A verdict was taken for the plaintiffs by consent for the amount of Withington & Russell’s note, with interest from the date of the writ; and if on the foregoing facts the plaintiffs ought to recover, judgment was to be entered on the verdict ; otherwise the plaintiffs were to become nonsuit.
    
      W. Simmons, in support of the verdict,
    contended, that as between the plaintiffs and Bryant, the property in the gin was not changed, the condition of the sale not having been per formed nor waived. Hussey v. Thornton, 4 Mass. R. 405, Spring v. Coffin, 10 Mass. R. 31; Marston v. Baldwin, 17 Mass. R. 606; Palmer v. Hand, 13 Johns. R. 434. And if Bryant might be sued for the gin, the defendant, being conusant of all the facts attending the sale, is liable to a suit for the note. It may be objected that the action she Jd be in tort, but it is settled law, that where one has goods or money of another, which he has no right to retain, assumpsit will lie. Cummings v. Noyes, 10 Mass. R. 436; Mason v. Waite, 17 Mass. R. 563. It may likewise be said that money had and received cannot be sustained, a negotiable note on credit having been passed to the defendant; but such a note stands on the same footing as a bank note, and when given for an antecedent debt, is considered as payment. Hall v. Marston, 17 Mass. R. 578; Winchester v. Patterson, mid. 64; 1 Dane’s Abr. 172, 182. [ Wilde J. Suppose the signer had failed, who would have been answerable to the plaintiffs ?] The defendant’s intermeddling was a fraud on the plaintiffs, and by refusing to deliver to them the note, he made himself liable in all events. On the principle of assumpsit being sometimes a fictitious action, the defendant may be held on the count for goods sold.
    
      March 26th
    
    
      Morey and H. H. Fuller, for the defendant,
    cited 6 East, (Day’s ed.), 627 and note; Long on Sales, 151 ; Montag. on Lien, 12 ; — 2 Com. on Contr. 5 ; 5 Burr. 2589 ; 2 W. Bl. 684 ; 2 Stark, Ev. 99, 106 ; 3 East, 169 ; 5 Esp. R. I.
   Wilde J.

delivered the opinion of the Court. This is an action of assumpsit, brought to recover the proceeds of sale of four hogsheads of gin, alleged to be the property of the plaintiffs. The gin was sold by them to one Bryant, on condition of his giving security for the purchase money. The security was not given, but the defendant contends that there was an absolute delivery of the property after the sale, amounting in law to a waiver of the condition. But it is quite apparent, from the evidence reported, that the plaintiffs did not intend to waive their security ; on the contrary, the per formance of the condition was insisted on by their clerk at the time of the delivery, and the vendee acquiesced. It is not necessary, in order to make the delivery conditional, that an express declaration should be made to that effect at the time of delivery. It is sufficient if enough appears to show that such was the understanding of the parties. We are therefore of opinion, on this point, that the property cf the goods in question was not divested by the conditions sale.

We are also of opinion, that as Bryant has since sold the goods and received payment by a promissory note of hand, the plaintiffs may waive the tort and maintain assumpsit against him for the proceeds of sale. It does not appear by the report, that the note given to Bryant was negotiable, out it has been treated as such by the counsel in the argument. It is not, however, material to inquire as to this point, because the defendant had no concern or agency in the sale made by Bryant. ■ All that appears to charge him is, that he received the note taken by Bryant, as security for a debt, and that on demand made by the plaintiffs, he refused to deliver it over to them.

This refusal is the only ground of liability on which the plaintiffs can maintain their action. For it cannot be pretended that, without a demand; the plaintiffs could maintain an action against the defendant in any form. And it seems also to be equally clear, that they cannot, in an action of assumpsit, avail themselves of the liability, if any there be, arising from the demand and refusal. If the note demanded may be considered as the property of the plaintiffs, (as to which however we give no opinion,) then the refusal to give it up was a tort, and if the plaintiffs waive the tort, they thereby waive also their right of action. This appears to be an insuperable difficulty to the plaintiffs’ recovery in this form of action. If the plaintiffs had a right to demand the note, they may maintain trover. Or if the defendant had sold the note, they might maintain this action by waiving the tort. So also, as the defendant has received payment of the note in question since the commencement of the present suit, a new action against him might be maintained, either in the form ol assumpsit, or of trover , unless he could show that the note was the property of Bryant, and that the plaintiffs’ remedy is only against him, or by pursuing the goods into the hands of the person to whom Bryant sold them. These however are questions which are not raised in the present case.

The cases cited by the plaintiffs’ counsel do not support them. In the case of Floyd v. Day, 3 Mass. R. 403, the defendant was the plaintiff’s agent to collect for her a demand she had against one Pilsbury. Bay received in payment a promissory note, which was indorsed to him ; and the Court held that he was liable to the plaintiff in assumpsit, he having discharged the demand against Pilsbury. In the case at bar the defendant has never acted as the plaintiffs’ agent. He has neither discharged nor compromised any demand due to them, nor was it competent for him so to do. So that the principles laid down in Floyd v. Day do not apply.

The case of Oughton v. West, 3 Stark. R. 331, was also a case of agency.' The defendant had undertaken to get a bill of exchange discounted for the plaintiff, and had passed the bill to a creditor in discharge of his own debt. It was considered that this was a discounting of the bill, and that he was liable in the same manner as he would have been if he had received the amount in money. We can perceive no bearing that this case can "have upon the one under consideration.

Upon the whole, whatever equity there may be in the plaintiffs’ claim, it is, we think, clear that this action cannot be maintained.

Verdict set aside and plaintiffs nonsuit. 
      
       See Corlies v. Gardner, 2 Hall, 345; Reeves v. Harris, 1 Bailey, 563; Barrett v. Pritchard, 2 Pick. (2d ed.) 516, n. 1; De Wolf v. Babbett, 4 Mason 294; Copland v. Bosquet, 4 Wash, C. C. R. 588; Ward v. Shaw, 7 Wendell, 404; Reed v. Upton, 10 Pick. 522; Ayer v. Bartlett, 9 Pick. 156.
     
      
       See Jones v. Hoar, 5 Pick. 285; Stockett v. Watkins, 2 Gill & Johns 326; Cromwell v. Lovett, 1 Hall, 56; Cummings v. Noyes, 10 Mass. R (Rand’s ed.) 436, n. (b). As to payment by promissory note, see ante, 231 n. 1; 447, n. 1.
     