The facts proved at the trial did not sustain either of the common counts. They do not establish the loan, advance, or payment of money by the plaintiff for the defendant, nor do they show that the latter had received money for the use of the former, or that he was indebted to him upon an account stated. It appears that Bunn and one of the beneficiaries in the deeds of trust marked the cotton of the former with the initials of the defendant’s name, shipped it to Messrs. D, S & Co., and informed him thereof. To reimburse the plaintiff for his advances, the order in question was addressed to the consignees.
It will be observed, that the defendant never did take the cotton into his possession; it was merely shipped in his name for sale, and there is no proof that he ever assented to the transaction by undertaking to supervise the sale and withdraw the proceeds, to be appropriated for the purposes provided by the deed. The reasonable inference from the case as presented to us, is, that the defendant gave the order to the plaintiff merely to carry out the agreement of the grantor in the deeds, and his sureties. No previous obligation rested upon the defendant in respect to the cotton or its proceeds, and the order, under the circumstances, did not impose on him the legal duty of coercing payment of Messrs. D, S & Co., if they refused to honor it. It is not pretended that any consideration moved to the defendant, which could make him liable to make good the default of the drawees; and the order, especially when connected with the extrinsic proof, shows a case in which the defendant was employed as a mere instrument for *7414he performance of a gratuitous duty, which others had devolved upon him.
The defendant has done every thing which he undertook to do. He has directed the payment of the money to the person entitled to it; whether paid or not, his legal and moral duty is at an end, and he cannot be required to compel the consignees to account for the proceeds of the cotton. This conclusion seems to us, to result so clearly from the nature and extent of the defcnd- ■ ant’s engagement as trustee, that the argument to sustain it, will not admit of amplification.
- Without stopping to inquire whether the last count is unobjectionable, we are inclined to think that it is not sustained by the proof. It alledged that Messrs. D, S & Co. « had received said cotton for sale from said defendant, for the benefit of plaintiff and Bevill, as aforesaid,” &c. Now although it is alledged that Bunn had agreed to give the plaintiff the control of his cotton crop, yet we have seen that the agreement was not performed, and that instead of placing it in the defendant’s possession, or shipping it to his order, Bunn and Bevill merely marked it in his name, and shipped it to the consignees. This proof does not sustain the allegation that the defendant was the shipper of it, or that Messrs. D, S & Co. received it from him. It does not appear that the consignees were instructed to sell for the account of the defendant, or to place the proceeds to his credit. There is then, a defect in the proof, in showing that the cotton was placed under the defendant’s control. Whether he might not, by the employment of legal coercion, have compelled Messrs. D, S & Co. to account to 'him, we need not consider, as he was under no obligation to adopt such measures. And perhaps, if such an inquiry were now proper, no satisfactory conclusion could be attained from the facts in the record. The statement in the order, that the defendant had shipped the cotton, as trustee, does not conclude the defendant against the facts proved at the trial.
The discrepancy noticed between the allegation and the proof, relates to a part of the account as material as any other, if indeed all of it together states a legal duty. From this view of the case, it results, that the plaintiff did not sustain his declaration, that he ■was not entitled to a verdict, apd whether the charge to the jury laid down the law correctly or not, it worked no injury to him, *742and the error, if any, does not authorize a reversal of the judgment.
The conclusion expressed, relieves us from the necessity of inquiring whether, if the special count be bad, yet supported by the evidence, a general charge against the plaintiff would furnish a ground for a reversal, or whether the plaintiff should not have prayed the Court to instruct the jury on that count alone. See Cullum v. The Branch Bank at Mobile, 4 Ala. Rep. 39.
We have only to add, that the judgment of the Circuit Court is affirmed.