delivered the opinion of the Court:
We fail to perceive, from the evidence, that Bundle has here any cause of action in trover.
To maintain the action under the circumstances disclosed, there must have been a wrongful taking of the note by Alexander, or a wrongful refusal to deliver it to Bundle when demanded by the latter.
Taking the testimony of Alexander and Howard, there was a virtual surrender of the note to Alexander, but it was left to be deposited in the safe, so that if there should turn out to be an ultimate profit on the contracts, Alexander would pay that much of the note. And although the testimony of Seymour does not go to that extent, yet, taken in connection with his acts and statements, it does not detract from the force of Alexander’s and Howard’s testimony to the effect that the note was to remain deposited in the safe without any right of possession of it by Bundle while there. On Seymour being informed that Bundle had taken the note, he observed, as he himself testifies, to Alexander, that Bundle had no more right to take the note than he had to take Alexander’s horse from his barn. This forcibly declared Seymour’s understanding of the arrangement to have been that Bundle had no present right of possession of the note. Immediately upon Seymour’s getting back the possession of the note from Bundle at the Tremont House, he despatched to Alexander a letter informing him of the fact, and that if he-did not see Alexander to give him the note before four o’clock of that afternoon, he would find it in the safe at 441 Wabash avenue. This recognized Alexander’s right to the possession of the note, and signified to him that if Seymour met him before the time named, he would give to Alexander the note, and that if he did not so meet him, Alexander would find the note in the safe where he could get it. For, although the direction was not expressed in terms, that he could go and get the note from *89the safe, it was implied from the language that he would find the note in the safe. This, we think, in connection with the other language of the letter, was but the fair reading of it, and that Seymour’s whole connection with the note sufficiently evidenced that the letter was by authority from Bundle. Alexander’s going under such circumstances and getting the note as he did, we do not think is to be regarded as an unlawful taking of the note.
Even if the retention of the possession of the note by' Alexander was contrary to the conditions upon which the note was originally deposited in the safe, we cannot think that the refusal to comply with the demand of Bundle to deliver the note to him, was wrongful. There can be no doubt that Alexander had reasonable ground to contest his liability, in whole, or in part, upon the note. The verdict of the jury, it being for only about one-half of the amount of the note, indicates this. The note having a year to run before maturity, it was the purpose of Alexander to secure himself against liability on the note. After several meetings of the parties to that end, the final result at their last meeting was, that the note should be deposited in the safe as before-named. For aught that appears, this was an arrangement entirely satisfactory to Alexander. In view of the whole evidence, the conclusion must be, that this was done hi protection of the rights of Alexander; that the right of possession of the note was withdrawn from Bundle; that Alexander was entitled to rely upon the arrangement as a protection against a transfer of the note by Bundle to an innocent purchaser before maturity; and that in such reliance, Alexander may well have forborne to take steps, which he otherwise might have taken, to enjoin any transfer of the note before maturity. The time of Bundle’s demand of the note, as also that of the commencement of the suit, was some considerable time before the maturity of the note. To hold that Bundle’s demand of the note was rightful, and Alexander’s refusal to deliver it to Bundle was wrongful, would be to admit the latter’s then right of possession of the note, and that the note should have been delivered to *90him, whereby, had that been done, he would have had the power and opportunity to transfer the note before maturity and thereby cut off the defense of Alexander to the note. This would have been in defeat, as we must regard it, of the contrary express arrangement which had been had between the parties which resulted in the depositing of the note in the safe to be there kept. If there was any one at that time, the time of Bundle’s demand, entitled to demand the possession of the note from Alexander, it was Seymour, and not Bundle. To maintain trover by Bundle, he must have had a right to the present possession of the note. 2 Greenl. Ev. secs. 636, 640; Bloxam v. Sanders, 10 Eng. Com. Law, 868.
So far as appears, Seymour acquiesced in the possession of the note by Alexander, and never demanded it from him. Bundle knew of Alexander having the note in a few days after his taking it, September 14th, but made no demand of the note from Alexander until in the winter after.
Finding that there was neither a wrongful taking of the note, nor a wrongful refusal to deliver up the possession of it to Bundle on his demand, we do not see that there was any cause of action in trover in Bundle, and the judgment must be reversed.
Appellant will have judgment here for his costs in the court below, as well as in this court.
Judgment reversed.