Glasscock v. . Hazell

Shephekd, J.: As the plaintiff does not sue for the specific property; and as the amount claimed by him is over fifty dollars, he can only recover before a Justice of the Peace upon a contract either express or implied. We concur with his Honor that the plaintiff could not recover upon the implied contract — that is, for money had and received — as there was no testimony to show the amount obtained for the wheel by the defendant. Rand v. Nesmith, 61 Mo., 111; Pearsall v. Chafin, 44 Pa. St. Rep., 9. We think, however, that there was some testimony of an express agreement to pay for the wheel if it was the property of the plaintiff, and neither this testimony nor that bearing upon the title of the plaintiff was submitted to the jury. The Court seems to have treated the action as if brought for money had and received — the tort being waived — but we are of the opinion that the informal complaint filed before the Justice was broad enough to have warranted a recovery upon an express promise. The authorities cited by the defendant do not satisfy us that the plaintiff was precluded from asserting title to the property. The plaintiff testified that Hill & Plolden did not buy the wheel, but that it was delivered to them upon the *148 understanding that they might purchase after testing it, upon paying fifty dollars cash and securing the balance. These terms do not seem to have been complied' with, and we do not see, under these circumstances, how the title passed out of the plaintiff. If the jury, however, should believe that it was a conditional sale (and of this there was some evidence), then the plaintiff must fail in this action, as there was no registration, and the condition would be void as to purchasers. Brem v. Lockhart, 93 N. C., 191; The Code, § 1275. Error.