Asa Johnston, Plaintiff in Error, vs. Benjamin D. Wright, Executor of C. P. Knapp, Deceased, 12 Fla. 478

WESTCOTT, J., delivered the opinion of the court: The matters of law stated in the demurrer assume that the facts stated in the declaration disclose a case wherein the Confederate government had acquired title to the cotton by a sale from the plaintiff, and that he subsequently simply retained possession as a bailee, the title having passed. The argument upon this assumed case is, that the title having passed out of the plaintiff, the United States by the results of the contest had title, and that the transaction was a fraud.

While the case has been argued here by the counsel for the demurrer xxpon the assumption that the case made in the declaration is one in which the title passed, it has been argued by the representative of the declaration in a contrary view. There may have been what was -deemed to be under existing local regulations a sale and trams-mutation of title by the plaintiff, but the declaration, given a fair construction, does not make that case, and if that case is. sought to be made it should be raised by proper pleading.

While it is remarkable that persons would, in consideration of a simple naked contract to deliver twenty-five bales of cotton, j>ay what had at the time a substantial value for all purposes of local trade, with the understanding that the title remained with the party who received the value, yet such is the case stated. The plaintiff avers that the cotton was his property, even according to what was then the accepted law in the locality; avers that there was nothing more than a contract to deliver, and that it was neither in intent or effect a sale.

If in fact, as alleged in the declaration, this was the property of the plaintiff, and there was no bad faith or misrepresentation, lie has suffered a damage which comes within the meaning of the agreement under all the facts of the case as he represents it.

If, however, lie received in his dealings with the persons representing the existing local power, what was deemed at the time a compensation and consideration and payment, and a title passed to others, wo do not perceive that he has suffered a damage within the meaning of the sqiecial agreement; and if title passed and a consideration was paid and accepted, subsequent insolvency of the vendee or worthlessness of the paper accepted by the vendor cannot divest the title or give the vendor in possession as a bailee a lien for the purchase money; but the declaration does not disclose the price.

It may or not be true that plaintiff cannot be said to suffer any damage within the meaning of this agreement when he loses that which was not his own, and when his loss is the result of a recovery from him by the party entitled to it, if such was. the case here, but we can only pass upon the case made by the-declaration. The legitimate effect of this declaration is, that at the time of sale plaintiff represented to Knapp the facts to be as lie describes them in the declaration. If he did not, his representations were untrue, and in this view he must fail.

The grounds of demurrer argued in this court are applicable to a different state of facts, and if they represent the true state of the case the matter should be raised by other pleadings than a demurrer. Let the judgment of the court upon the demurrer be reversed, and the case be remanded for further proceedings as the parties may be advised.