McDaniel v. . Allen

Davis, J., (after stating the case). The first exception was to the exclusion of the evidence of the plaintiff offered to show that after the cotton was seized the defendant Parker promised that he should have three bales of cotton. This is not an action against Parker for a refusal to comply with a contract or promise to deliver three bales of cotton, but an action of claim and delivery, and the only issue presented is as to the right of the plaintiff to the possession of three bales of cotton of the crop made by “ ‘ Bob’ Allen during the year 1883 on the land of the defendant.” If Parker had agreed to deliver three bales of cotton to the plaintiff under a contract of sale, or if he had conveyed to the ■plaintiff by mortgage three bales of cotton, or if, as was pro *138 posed to be shown in this case, he had promised that the plaintiff should have three bales of cotton, it would only have given to him the right to sue for the value of three bales of cotton if not delivered. There were no specific three bales of cotton identified and separated from all other cotton conveyed to the plaintiff, or promised to him, and to which he was entitled to possession. To entitle him to claim and delivery the cotton must be identified. This has been well settled since the “ Buggy Case.” Blakely v. Patrick, 67 N. C., 40; Atkinson v. Graves, 91 N. C., 99, and cases cited. Concede that, as against Allen, who executed the agricultural lien, the crop to be raised “ during the year 1883 on the lands of J. C. Parker or elsewhere,” was sufficiently definite, as insisted by the plaintiff, to-enable him to maintain claim and .delivery against Allen for the crop so raised, it could give no such right against Parker upon his alleged promise that the plaintiff should “ have three bales of cotton”; as against him, the plaintiff at most could only have a chose in action, and it was in this view only that the case of Threadgill v. McLendon, 76 N. C., 24, and other cases cited by counsel for the plaintiff, were applicable. The evidence offered was properly excluded as irrelevant to the issue. We can see no error in the instruction of his Honor that upon the testimony the plaintiff was not entitled to recover, nor can we see any error in the refusal of the Court to give judgment against the sureties on the undertaking given by the defendant. Only the crop was replevied by the defendant Parker, and as to that the plaintiff was not entitled to possession. The other property had been delivered to the plaintiff and sold by him. No error. Affirmed.