#### W. C. HILL & CO. vs. WM. M. ROBISON, et. al.

A receipt is not conclusive between the parties, but may be explained.

IVliere ten sacks of salt were bought and paid for with the means of A, and live others were bought with the means of B, and they were all delivered to B unmarked, and without any separation or distinct appropriation of any particular sacks to either, and C, having received the whole from B, converts them, A cannot maintain an action of trover.

Action of trover, tried before bis Honor, Judge Manly, at the Fall Term, 1855, of Haywood Superior Court.

This was an action of trover to recover for the conversion of ten sacks of salt. It appeared in evidence that the plaintiffs, W. C. Hill and Leander Hill, were partners in trade; that four firkins of butter were entrusted to one Ilowell to haul to market, and the following receipt taken, viz: “ Eeceived of W. G. Ilill four firkins of butter, weighing 425 lbs., gross, which I am to deliver to G. F. Masou, at Greenville, S. C. October, 1854.” The butter was not delivered to Mason, hut carried on to Augusta, Georgia, and there, with other produce belonging to Howell, sold by him, and fifteen sacks of salt laid in with the proceeds. It also appeared that Ilowell was arrested and imprisoned in South Carolina for a breach of the peace, whereupon he delivered his wagon and team with the load, including the salt, to the defendant, Eobison, who was his creditor. Ilis instructions to Eobison were, that he should deliver to the plaintiffs their ten sacks, and to his wife as much of the five sacks as she wanted, and to make sale of the remainder of the salt and the wagon and team, and to satisfy his (deft’s.) debt out of the proceeds.

Ilowell stated in evidence that he was indebted to the plaintiff in account, and that the charge for freight which was coming to him for the butter and salt, was settled by this counter charge, which made the plaintiffs and him about even. There was no evidence that the sacks of salt had any marks about them to distinguish which were Hill’s and which were Howell’s; the sacks were of the same appearance, and each contained about the same quantity of salt, to wit, about three *502bushels. There was a demand, and a refusal upon the ground that the salt belonged solely to Howell.

1. The defendant contended that the plaintiff could not recover in the name of the firm, the receipt being given to Hill alone.

2. That Ilowell acted without authority in taking the butter to Augusta ; that plaintiffs were not bound by his acts, and that no title vested in them until they assented to his purchase, and a particular portion of the salt set apart for them.

3. That if the title vested in them, they could not recover without paying or tendering the .freight.

His Honor declared, in the presence of the jury, his opinion of the law to be, that the receipt did not constitute the whole evidence; that, in view of the whole evidence, it ivas a question of fact for the jury to determine whether the agency was undertaken for the linn, or for one of them only ; that it was not necessary, in a case like the present, that the plaintiff should exjiressly ratify the acts of the agent prior to the conversion, or that there should bo a separation of the property ; that a tender of freight for hauling was not necessary under the circumstances of the case ; 1st., because it was not claimed by him to whom it was due; and secondly, because that was not the obstacle in the way of a settlement, as disclosed by the declarations of the defendant on the plaintiffs’ demand. Then, addressing himself to the jury, he told them to enquire whether Ilowell (after Mason had declined receiving the butter) had undertaken to sell it on account of the plaintiffs, and to buy salt for them with the proceeds ; and, if they found he had undertaken such an agency, and had accordingly laid in ten sacks of salt with the proceeds of the butter, the plaintiffs had a property in them, at their option, and might recover for a wrongful conversion of them, although there had been no separation of the sacks of the plaintiffs from those of Howell; that it would be otherwise if, upon the refusal of Mason to take the butter, Ilowell had converted it himself, and laid in the salt with its proceeds, on his own account. The defendant excepted to this charge.

*503The jury found a verdict for the plaintiff. Judgment and appeal.

J. 7F. Woodfin, for plaintiff

Baxter, for defendant.

Nash, O. J.

The plaintiffs’ declaration contains but one count, and that in trover. A man by the name of Howell received from W. O. Hill, one of the plaintiffs, a quantity of butter to haul to market, for which he gave the receipt set out in the case, in which ho contracted to deliver the butter to G. F. Mason, in Greenville, South Carolina. Howell did not deliver the butter to Mason, hut it was taken on by him to Augusta, and there sold; and with the proceeds of the butter, and of other articles belonging to Hwvell, the latter purchased fifteen sacks of salt. Howell, being unable himself to return to North Carolina, delivered his wagon and team, and the salt, to the defendant, Eobison, to whom he- was indebted, with directions to deliver to. "W. O. Hill ten o-f the sacks of salt, as he had purchased that quantity for him, and after delivering to his wife as much of the remainder as she might need,, to sell the residue and the wagon and team, and pay what was due him. Upon demand, the defendant, Eobison, refused to. deliver to the plaintiffs any portion of the salt, and this action of trover was brought.

The first objection raised by the defendant to the plaintiffs’ recovery i's, that the contract of' Howell was not made with the firm, but with W. C. Hill alone. His Honor’s decision on this point was correct, and the plaintiffs were not estopped by the receipt from showing in any other way, if they could, that the butter was the property of the firm. A receipt is not conclusive upon the parties, but it may be explained. See Love v. Wall, 1 Hawks. 313 ; 4th pt. Starkie on Evidence, 1044, 1272.

The second objection is fatal to the plaintiffs’ action. The fifteen sacks of salt were purchased with the joint funds of the plaintiffs and of Howell—five for the latter, and ten for *504the former; but no specific bags were set apart, either by IIow'ell or Robison, as the property of the plaintiffs, and until that was done an action of trover could not be sustained by the plaintiffs for any portion of the salt. In an action of trover the plaintiff must show title to the specific property converted at the time of the conversion, or of his then present right of possession. In this case no portion of the salt has been so set apart as the property of the plaintiffs; no specific part, therefore, vested in him. If A sell to B all tire corn in a particular barn, and afterwards refuses to deliver it, B may maintain an action of trover for the conversion of the corn; but if the contract is for a portion less than the whole, then B could maintain an action for a violation of the contract in the refusal to deliver, but not an action of trover. Jones v. Morris, 7 Ire. Rep. 370. On this part of the case his Honor instructed the jury, that if Howell, as the agent of the plaintiffs, had, with the proceeds of the butter, purchased for the plaintiffs ten bags of salt, the plaintiffs had a property in them at their option, and might recover for a wrongful conversion, although there had been no separation of the sacks belonging to each from the other. In this there is error. All the bags were alike—each holding about three bushels of salt; none of them were marked for the plaintiffs. Until such separation they were tenants in common, and neither could maintain an action of trover.

Eor the reasons assigned by his Honor, the third exception cannot avail the defendant.

Per Curiam.

Judgment reversed, and a venire de novo.