It was insisted for the plaintiff that it was a case of bailment, and the contract having been rescinded, it was the same as though the property in the horse had remained in the plaintiff. There was a verdict for the plaintiff, subject to the opinion of his Honor, upon the question whether the action could be maintained; and upon the said question *Page 368 reserved, his Honor being of opinion against the plaintiff, set aside the verdict, and entered judgment of nonsuit, from which the plaintiff appealed to the Supreme Court. The attempt on the part of the plaintiff to convert the original contract between him and the defendant into a bailment, cannot be sustained. It bears no feature of such a transaction, but was a sale out and out of the horse, whereby the absolute title vested in the (399) defendant; for, although the defendant, in consequence of his infancy, was not bound by the contract, the plaintiff was. Finding he was in danger of losing the horse, he consented to the proposition to take him back, and surrender the note. In substance, it was a resale by the defendant to the plaintiff. While the horse was so the property of the defendant, he was injured, and to recover damages for such injury, the action is brought: — it cannot be maintained. There is no error in the opinion of the court, and the judgment is affirmed.
PER CURIAM. Judgment affirmed.
Cited: Morris Plan Co. v. Palmer, 185 N.C. 117.