One of the grounds of nonsuit was that the complaint was for goods sold and delivered, and that the evidence failed to establish any such sale. No attempt appears to have been made to obviate this objection by amendment, and the question is therefore sharply presented *Page 383 whether a cause of action for goods sold and delivered by plaintiff to defendant was made out. Even though we should be of opinion that some other cause of action might be spelled out of the evidence, it would not aid the plaintiff on this appeal.
We think that under the contract of 1869, between the plaintiff and Gilbert, the legal title to the tools and patterns in controversy became vested in Gilbert, and that all the plaintiff had was the personal covenant of Gilbert to resell the same to him in the events and on the conditions specified in the contract, or to take the plaintiff into partnership at the end of five years if the business should not sooner be given up. We do not think that the plaintiff retained any title to the property, a transfer of which to a third party could be treated as a sale and delivery of goods. The agreement between the plaintiff and defendant, to which the plaintiff testified, although he calls it a sale of his interest, was in substance that the defendant would pay the plaintiff $300 for releasing or transferring whatever rights he had under the contract, to Gilbert, so that Gilbert might convey a clear title to the property to the defendant's son, and the latter might go on with the business in connection with plaintiff, or employing plaintiff as Gilbert had done, but free from any agreement to resell. "Without any drawback or comeback," as the plaintiff expresses it. Even assuming that the plaintiff, under his contract with Gilbert, had some equitable interest in the property which could be enforced against a vendee of Gilbert who had notice of the plaintiff's rights, proof of an agreement by the defendant to pay the plaintiff for a release of such equitable interest could not sustain an action for goods sold and delivered by plaintiff to defendant. The sale and delivery proved, were by Gilbert, who had the legal title, to the defendant's son, and not by the plaintiff to the defendant.
The judgment should be affirmed.
All concur.
Judgment affirmed. *Page 384