Jones v. Morris,, 29 N.C. 372, 7 Ired. 372 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 372, 7 Ired. 372

MICHAEL JONES vs. WILLIAM B. MORRIS, Ex’r. &c.

Where the defendant, in consideration of a debt he owed, agreed to let the. plaintiff have a bed. and furniture of the value of $S8, but no particular bed and furniture were conveyed or delivered, and afterwards the defendant r.efused to deliver any bed and furniture, Held, that the action of trover tyould,not li? for the plaintiff.

Appeal from the Superior Court of Law of McDowell-County, at the Spring Term, 1847, his Honor Judge. Dicic presiding.

This was trover for a bed and furniture, tried on not guilty. The case was, that Morris was found to be indebted to Jones, on a settlement, in the sum of $60; and they agreed that the former should give the latter his note for $32, (which he did,) and also should give him a bed and furniture at the price of $28, being the residue of the debt, when Jones should apply for it at the house of Morris. Shortly afterwards, Jones went there for the purpose of getting the bed and furniture, and met Morris at the gate going from the house, who,requested plaintiff to go to the house, saying he would be back soon. The plaintiff went in but was ordered out by Mrs. Morris, and went away without seeing Morris, and then brought this suit. The Court expressed the opinion, that the plaintiff could not recover, because he made no demand on Morris for the bed and furniture, and also because he failed to prove a conversion, and in submission thereto the plaintiff suffered a non suit and appealed.

Guión, for the plaintiff.

Edney, for the defendant.

Ruffin, C. J.

A demand was really immaterial, for if it had been made and refused, it would not have entitled the plaintiff to recover in this form. His case fails, because he has not shewn a property in any bed and furniture, which could be converted to his prejudice. The agreement between the parties was merely executory, obliging Morris to convey and deliver to the plaintiff some bed and furniture of the value of $28, and not amounting to a conveyance or delivery of any bed and furniture in particular, so as to vest the title in the plaintiff. The action was therefore misconceived and cannot be sustained.

Per Curiam,. Judgment affirmed.