#### JED. H. LINDSAY, Trustee, v. JOSEPH D. McCULLOCH.

A contract between parties cannot bo implied in opposition to direct evidence, that the defendant did not get the property from the plaintiff, and does not hold it under him, but adversely, upon a claim of right in himself derived from another person.

Assumpsit, tried before Caldwell, J., at the last Term of Guilford Superior Court.

The action is assumpsit for $175, the price of a horse sold and delivered by the plaintiff to the defendant, with a count on a quantum valebat. On the general issue pleaded, the ' evidence was: that in 1856, the firm of Rankin & McLean, of Greensborough, put into the possession of one Hath, as their agent, two horses, three mules, a wagon and gear, and a lot of tobacco, for the purpose of being taken off for sale, with instructions to make the sales and apply the proceeds to the payment of a certain debt which they owed in Fayetteville, and the surplus to the payment of any other note of theirs, which had become’doe. Hath sold all but two of the mules, and he exchanged those for the horse in question, about the middle of January, 1857. On the 27th of January, 1857, Han-kin & McLean failed and made a general assignment to the plaintiff, for the benefit of their creditors to an amount much exceeding the value of all their effects. The deed included specifically the several articles delivered to Hath for sale, and, if sold by said Hath, is assigned the proceeds of those sales, and also, contained a clause conveying and assigning all their effects, debts and securities. Rankin & McLean were indebted to the defendant in a bond for $277 76, with interest from April 2nd, 1854, and, on hearing of their assignment, the defendant, with a view to saving his debt, went from Greens-borough in search of Hath and met him in Randolph county, and, after informing Hath of the failure and assignment of Rankin & McLean, it was agreed between them that the defendant should purchase the horse at the price of $175, payable in ninety days, and that he should giye a note therefor *327payable to Rankin & McLean. Before the note was given, or the horse delivered, Hath informed the defendant of the authority he had to apply the proceeds of the property in his hands to the debts of Rankin & McLean, and it was then agreed between them, that, instead of giving his note for the price, the defendant should credit the amount on the bond he held, and give Hath a receipt therefor. That being done, Hath delivered the horse to the defendant, and in a day or two afterwards, delivered the defendant’s receipt to the plaintiff. Some short time afterwards, the plaintiff demanded of the defendant that he should deliver to him the horse, or pay him the price, but the defendant refused to do either, alleging his purchase from Hath in part payment of the debt which Rankin & McLean owed him, and this suit was then brought, March 27th, 1857.

On the part of the defendant, it was insisted that upon these facts the action would not lie. But the presiding Judge held the contrary, and under his instructions, the jury found a verdict for the sum of $175, and the interest thereon, and the defendant appealed.

Melea/n and Fowle, for the plaintiff.

Morelieacl, for the defendant.

Rtjfitcet, J.

The Court is of opinion with the defendant— There w-as no special agreement but that between the defendant and Hath, as the agent of Rankin & McLean; and on that the plaintiff cannot recover, because he disaffirms it, and also because, by it the defendant was not to pay money for the horse, but to allow Rankin & McLean a credit on their bond. That contract being thus put out of the way, there is no contract to be implied between these parties from any thing that appears in the case, assuming the property of the horse to be in the plaintiff. If the defendant had converted the horse by a sale, and received the price, the owner might have assumpsit for money had and received. For convenience and the promotion of exact justice, it has, for a long time, been *328held that the tort may be waived, and an action sustained upon the implied promise to pay the owner the price received for his property. Bnt beyond that, the courts cannot proceed, without subverting the very foundations on which the distinctions between actions rest. The law cannot infer a promise to pay the value of property, as upon a sale and delivery to the defendant in the teeth of express proof that he denied the property to be in the plaintiff, and took it by force. It is argued, indeed, that from the possession and use of things belonging to anothei’j a promise may be implied to pay for them, the owner electing not to sue in tort, and to suppose a sale.— But, if that can be true in any case, it is certainly not, when it appears affirmatively, not only that the defendant did not contract with the plaintiff, but that he purchased from another person, and that he took the possession under the purchase, and claimed to use the thing as his own, by force of that express contract. There is no precedent in this State of sueh a use of the action of assumpsit, nor are we aware of any English adjudication to sustain it. There is a case in which the master was allowed to recover in this form of action for the services of his apprentice, against a person who had seduced him, and promised to give him wages. That case has been said to carry the doctrine to the utmost extreme, and it seems to us, that it did. But, possibly, it may be sustained upon the idea that, as his services belonged to the mastei’, the latter might treat the service of the apprentice, while in the employment of the seducer, as work and labor done by the master through his servant. So, in Hill v. Perrott, 3 Taunt. 274, the defendant fraudulently took an insolvent person to the plaintiff, and by false representations induced the plaintiff to sell goods to the insolvent, and the goods went immediately into the possessioii of the defendant, and it was held that assumpsit would lie. But that can only be supported on the idea that, by reason of the gross fraud, the Court took the contract to have been with the defendant in reality. But from those cases, thus turning on peculiar circumstances, no general principle is to be deduced, that the distinction between ac*329tions is abrogated so far as personal property is concerned, and that those founded on tort and contract, are concurrent remedies. A contract between parties cannot he implied in opposition to direct evidence that the defendant did not get the property from the plaintiff, and does not hold it under him, hut upon a claim of right in himself, derived from another person. Presumptions must yield to positive proof to the contrary.

A case in Tennessee, that of Alsbrook v. Hathaway, 4 Sneed’s Rep. 454, was cited for the plaintiff, and it must he admitted to be full and direct to the point. The facts are not stated in the report, but the doctrine is distinctly held by the majority of the Court, that every conversion of goods will support assumpsit, or debt, for the value, as well as trover.— To that doctrine, this Court cannot assent, and the dissenting opinion of Judge McEjotidy refutes it by a short, and unanswerable argument, as it seems to us.

Pee Cueiam, Judgment reversed and a venire• de novo awarded.