This was an action of detinue, brought by appellee, Parks, for two bales of cotton. They were raised by plaintiff’s son and delivered by him to his father in payment of rent due the latter, and upon an agreement that he should pay fifty dollars of the proceeds of their sales to one Dixon who had a mortgage on them for that sum.
Parks, the father, bargained these two bales and three others of his own crop, to appellents at a price agreed on, the transaction being a cash sale; and having delivered the cotton as directed, he demanded the price. Appellants then declined to pay for the two bales, and insisted on appropriating the price of them to payment of a debt of Parks, the son, to themselves. In the dispute which followed, according to the testimony for defendants, it was agreed that they should pay the fifty dollars to Dixon, who was there present and received that sum, and apply the residue upon Parks, the son, to them; while according to the testimony for plain*412tiff, the agreement was that the fifty dollars should be paid to Dixon, and the residue of the price to plaintiff. Which o'f these was the correct version it was left to the jury to decide.
For appellants, who were defendants below, it is contended that the circuit judge erred in charging the jury that if they should find the issue in favor of the plaintiff, Parks, they should in assessing the value of the cotton deduct the fifty dollars paid by defendants to Dixon. If this was error, it certainly was not one of which defendants can be heard to complain. It was a charge not to their injury but in their favor.
The only other question presented by the record, is founded on charges asked on behalf of defendants and refused. By these the judge was asked to instruct the jury that if plaintiff authorized or directed the payment of the fifty dollars to Dixon, he thereby placed himself in a condition in which he could not bring the action of detinue. The argument is that by so doing he made the transaction a sale, and divested himself of the title which he must have to maintain detinue.
The charges concede that but for the payment of the fifty dollars to Dixon by authority of plaintiff, the latter was entitled to bring the action; and the question is as to the effect of the payment so made on that right.
Two versions, as we have seen, of what passed between plaintiff and defendants concerning payment for the two bales, were submitted to the jury, and their verdict, which we must of course accept as correct, established that for which the plaintiff contended. According to this, there was no new agreement respecting the price or sale of the cotton, but only a consent on plaintiff’s part that fifty dollars of the price should be paid, as he intended to pay it to Dixon, and the residue be paid to himself. If, as the charges requested concede, the title to the two bales remained up to that time, in plaintiff so that he might maintain detinue for them, could defendants invest themselves with his title by paying to Dixon only a part of the cash price and refusing to pay the residue to Parks ? If we say, yes, we enable the defendants to take advantage of their own wrong, by getting from plaintiff his cotton, without his consent, for a part only of the price, and putting him to an action for the residue; which he may be prevented from recovering,-by the insolvency of defendants, or the provisions of the exemption laws.
Parks is put by the charges and exceptions in the situation a merchant would be in, who should offer to sell goods *413at a certain price for cash, to a person who lays down a part of the price and without consent of the merchant, or paying the residue, takes and claims the goods as his own. Clearly the merchant would not be thereby divested of his title.
Let the judgment of the Circuit Court be affirmed.