In what way the assignment was made by the plaintiffs to Terhune does not appear from the case, other than by the remark of Terhune that he assigned what was transferred to him back again to the plaintiffs, by handing the bill back to them. All that I can say upon so imperfect a statement as this, is, that a delivery back to the plaintiffs of the instrument or paper, by which the claim was or was intended to be transferred to Terhune, and the accepttance of it by them with an understanding mutually assented to, that the former transfer was to be void and of no effect, would be good, as an equitable reassignment of any interest which may have vested in Terhune (2 Story, Eq. Jur. § 1047), and such would seem to have been the case here; but, if it was not, and, as would seem from the result of Terhune’s suit, no valid contract, binding Larkin and Ross to pay the price agreed upon or the value, existed; then the title to the drawers had never passed from the plaintiffs; nothing had been transferred to Terhune, and the plaintiffs were entitled at any time to repossess themselves of the property.
I think that, in any aspect of the case, the justice was authorized in presuming from the evidence that a proper demand had *557been made of the defendant Ross, and that the possession being joint, his refusal was sufficient to warrant the action against both.
I presume that the difficulty, or rather the necessity, for the action has arisen from a misconception of the law on the part of the justice, in giving judgment in the suit brought by Terhune. That judgment, as it stands, is a judicial determination to the effect that no contract existed binding upon Ross and Larkin; whereas, having failed, after a reasonable time for inspection, to return the drawers, or to give the plaintiffs notice to take them back, they became liable for the real value, whatever it might be, and judgment should have been given against them for the value. That judgment is no bar to the present action, which is in the nature of the former action of trover, and is brought to recover the value of the property on account of its unlawful detention, and not to enforce a contract of sale.
There was conflicting testimony as to the value of thó drawers, and, in such cases, we rarely interfere with the finding of the justice. The judgment should be affirmed.
Judgment affirmed.