#### FERDINAND F. LONG v. SHEPHERD R. SPRUILL.

Where one contracted, for a lot of corn to be delivered on a certain day, and in payment therefor, delivered without endorsement, a note on a third person, then in good credit, but in realty insolvent, and who became notoriously so before the day fixed for the sale, it was Held that the loss fell upon the purchaser of the note, in the absence of proof that the seller knew of the insolvency of the maker.

Where plaintiff bought and paid for a lot of corn, to be delivered on a day certain, but failed to apply for it at that time, and the bargainor afterwards resold it, it was Held that he might recover, upon a count for money had aDd received, the price received on such resale, although the corn remained in bulk with other corn, and was never set apart, or identified as the property of the plaintiff.

This was an action of assumpsit, tried before Ellis, J., at Spring Term, 1858, of Martin Superior Court. Tbe plaintiff declared that be liad purchased of defendant a quantity of corn in December, 1855, which defendant agreed to deliver to plaintiff at defendant’s landing on Roanoke river, by tbe last of February, 1856; that lie bad paid defendant $1529 83, and that defendant had failed and refused to deliver said corn to plaintiff’s damage, &c. He also declared upon a count for money had and received for plaintiff’s use, and in tbe common counts in assumpsit. Plaintiff produced in evidence, an agreement signed by defendant, as follows; “Received of F. F. Long fifteen hundred and twenty-nine dollars and eighty-three cents for four hundred and thirty-seven barrels of corn, to be delivered by tbe last of February, 1856, to biin or order, at my landing in merchantable order. Dec. 3d, 1855.”

(Signed)

S. R. Spruill.

It was proved that plaintiff never sent any boat to defendant’s landing, or made any demand for the corn during the month of February, 1856, nor until the 13th of March, when he did make such demand, and sent a boat to receive tbe corn when defendant refused to deliver it. It was also proved that during the whole of February, 1856, defendant had, at his barn, about one and a half miles from the landing, more than *97437 barrels of corn, and that be afterwards sold tbe same.— It was also proved that plaintiff gave to defendant, in payment for the corn purchased of him, a note of Samuel S. Simmons for $1469, dated --, due one day after date, payable to plaintiff, and not endorsed by him. Said Simmons was in good credit at the time of the purchase, and generally believed perfectly solvent; he failed and made an assignment in trust for certain of his creditors, on the 22d of February, 1856, and, as it afterwards appeared, was insolvent at the time of the purchase, and since 22d of February, has continued notoriously so. The defendant endorsed the note to one Cb-llen E. Spruill without value, and for the purpose of enabling said Collen to bring suit on it, to the usd of plaintiff, in Martin County Court. He brought suit to January Term, 1856, and recovered judgment, but neither the noie nor judgment has ever been paid, either in whole or in part. At the trial, defendant offered to surrender the note and assign the judgment to plaintiff. It further appeared, that the value of the corn, and the amount of the note were equal. Plaintiff contended that he was entitled to recover, either on the special contract, or on the count for money had and received. Defendant contended that he could not recover on the special contract, because he had not applied for the corn according to the terms of the contract, nor on the other counts. The Court being of opinion with the plaintiff, so instructed the jury, who found for plaintiff. Judgment. Appeal by defendant.

II. A: Gilliam, E. W. Jones and Donnell, for plaintiff.

Winston, Jr., and Rodman, for defendant.

Pkarson, C. J.

The note of Simmons is the bone of contention. Which of the two must bear the loss by reason of bis insolvency ? The defendant received the note in payment for the corn, and had become the owner of it; consequently, the loss falls on him ; as in Willard v. Perkins, Busb. Rep. 258, the loss of the rosin, which was burnt, fell on Williams ; for although he did not take it into possession, yet he ought to *98have done so ; and it became so far his property as to be then at his risk. Suppose the corn had been delivered to the plaintiff at the time of the sale, the loss of the note would then certainly have been on the defendant; he could not have maintained an action for the price of the corn ; that had been paid; nor for money had and received in respect of the note ; it was genuine ; so he got what he bargained for ; and herein it differs from the cases where that action has been sustained, the note received being counterfeit or forged ; nor for a deceit ; because there is no proof of fraud or of a scienter. So the question is, as the plaintiff did not call for the corn “by the last of February,” was it in the power of the defendant to avail himself of that circumstance, and by refusing to deliver it when it was afterward called for, shift the loss from himself, upon the plaintiff? We concur with his Honor, that he could not.

Admit that the count for “money had and received,” in respect of the note cannot be sustained, for it was not in fact money, and the agreement of the parties to treat it as such, was only for the purposes of the trade, and extended no further; admit, also, that in strict law, the count on the special contract cannot be sustained, as the plaintiff was in default by not calling for the corn “by the last of February,” although, by the by, there is room to contend that these words do not fix a day certain, but leave the time open, so that the plaintiff might call for it during the latter part of February, or within a reasonable time thereafter, and the 13th of March was a reasonable time, under the circumstances, as the article to be delivered, was corn, which, at that season of the year, was housed and not particularly liable to be destroyed, or very inconvenient to keep, still the count for “money had and received,” can be sustained on the proof that the defendant had afterwards sold the corn. Whose corn was it ? The plaintiff had bought and paid for it, and and certainly did not forfeit his right to it by neglecting to call for it at the preciso time stipulated. The defendant was at liberty to charge storage for keeping it, and it was then at the plaintiff’s risk; so *99that had it been destroyed, the loss would have been his, as is held in Willard v. Perkins, supra; but, nevertheless, the plaintiff had a right to the corn, and, as the defendant sold it, the plaintiff had his election to sue him in a special action on the case for the conversion, or in assumpsit for the price received.

The objection, that the corn was never set apart and Identified as the property of the plaintiff, although at first blush, plausible, is fallacious, in this: it was not incumbent on the defendant to measure up and set apart for the plaintiff four hundred and thirty-seven barrels of tlie corn; in hie absence, it would have been trouble for nothing; still, the plaintiff having- paid the price, had a right to four hundred and thirty-seven barrels of corn in the barn, at, and after the last of February, and the defendant, in selling all the corn in the barn, of necessity sold that to which the plaintiff had a right, and thereby subjected himself to the action for “money had and received,” which is based on the principle de bono et equo, and the defendant surely could not keep all of the money with a good conscience. Test it in this way: suppose the plaintiff, instead of the note of Simmons, had paid the price in actual money, would it have occurred to the defendant or any one else, possessng ordinary moral perception, that he could sell the corn or keep the whole of the price, so as to be paid twice for the same corn?

If the defendant, instead of selling, had used the-corn, he would have been liable to a special action on the case.

In Waldo v. Belcher, 11 Ired. Rep. 609, the corn was destroyed before the day when it was to 'have 'been delivered, which distinguishes it from Willard v. Perkins, and from this case. Had Spruill sold the com before the last of February, upon the authority of Waldo v. Belcher, the plaintiff could have maintained an action on the special contract, and as he sold it after the day, upon the authority of Willard v. Perkins, he can maintain -an action for the price received on the re-sale.

Per Curiam,

.-Judgment affirmed.