#### FLOYD C. McLEAN, Trading as McLEAN SUPPLY COMPANY, v. A. F. POPE and HENRY WHITEHEAD.

(Filed 10 May, 1939.)

Sales § 21—

Where the seller seeks to recover chattels from a third person which had been placed in the possession of the buyer under an alleged consignment agreement, he must identify the chattels as those subject to the agreement, and in the absence of such evidence, whether the transaction was a conditional sales or a consignment is immaterial.

Appeal by plaintiff from Bivens, J., at October Term, 1938, of SCOTLAND.

Civil action to recover the value of tires and tubes, possession of which defendants are alleged to have wrongfully and unlawfully acquired.

Plaintiff alleges in substance: That, on 20 April, 1938, when Frank Weaver abandoned a service station operated by him, near Erwin, N. O., there were in the station eight tires and twenty-one tubes of the value of $95.15, which plaintiff had placed with Weaver for sale under a consignment agreement which had existed between them and under which they had operated for two years; and that defendants, with notice of contract, knowingly and unlawfully, took possession of same, and refuse upon demand to return same or to pay therefor.

Defendants deny any knowledge or information as to a consignment agreement between plaintiff and Weaver. They admit that in the latter part of April, 1938, they received from Frank Weaver five tires and nineteen tubes of the value of $47.00, but aver that they paid full value therefor, and deny any knowledge or information as to where or from whom Weaver obtained the tires and tubes. They admit refusal to comply with demand of plaintiff, but deny right of plaintiff either to possession of tires and tubes received by them from Frank Weaver, or to be paid therefor.

*598Upon tbe trial below tbe only evidence introduced by plaintiff came from tbe witness, Frank Weaver, whose pertinent testimony is as follows : “I know Mr. Floyd C. McLean of Laurinburg and have bad dealings with him. My first dealings with him were in 1936, when I entered into a contract with him.” Witness then identified bis signature to tbe contract. Plaintiff, admitting that it was not registered, offered to introduce same in evidence, but upon objection by defendant it was excluded. Plaintiff excepted. Thereupon tbe examination continued. Q. “. . . Did you receive any tires under this contract?” Objection. Sustained. Exception. Q. “What was your contract with tbe McLean Supply Company?” Objection. Sustained. Exception. Q. “Mr. Weaver, were any tires consigned to you by tbe McLean Supply Company? A. Yes.” Plaintiff rests.

From judgment as of nonsuit at close of plaintiff’s evidence, plaintiff appealed to tbe Supreme Court, and assigns error.

Joe M. Gox for plaintiff, appellant.

J. A. McLeod for defendant, appellee.

Pee Ctteiam.

We are unable to find error in tbe judgment below. Why debate tbe question as to whether tbe contract between plaintiff and Frank Weaver be of conditional sale or of consignment, when there is no evidence in tbe record identifying any tires and tubes defendant received from Weaver as those, or any of those, plaintiffs may have delivered to Weaver? There must be proof as well as allegation.

Tbe judgment below is

Affirmed.