There can be no question, under the testimony most favorable to appellants, that the contract by which Fry & Co. purchased one thousand bundles of cotton ties from Cunningham, was executory. The testimony of Fry and Cunningham prove that, in unmistakable terms. Save as they were delivered, on Fry’s order, in part performance of the contract, they never were delivered, or separated from the bulk, or set apart for Fry. Even when the savings bank, through its president, made the purchase, the two hundred and fifty-two bundles, constituting the unpaid balance due Fry, lay undistinguished in a mass or bulk of four hundred bundles, and no one could have distinguished, or pointed out any particular bundles as belonging to Fry. The title to the undelivered ties never vested in Fry.—Mobile Savings Bank v. Fry, 69 Ala. 348.
After this cause returned to the circuit court, the complaint was amended by adding a count in case. Rees v. Coats, 65 Ala. 257, is relied on in support of this form of recovery. In that case Coats, the plaintiff, proved that he had a contract lien, or equitable, verbal mortgage, on the cotton alleged to have been converted by Rees. Having a jus in re — an interest in the thing itself- — and that interest being equitable, we held that an action on the ease lay for its conversion. This case is different. Fry’s claim, if claim he have, is purely legal. If he acquired any title to the property, he acquired the whole title — a legal title. There is not an element of equitable title in it. He has a right of action against Cunningham, not for the ties; for he never acquired any title to them; his action is ex, contractu, for non-compliance by Cunningham with his promise to deliver.—Mobile Life Insurance Co. v. Randall, 74 Ala. 170. He has no cause of action-against the Mobile Savings Bank.
Having ascertained that under the uncontroverted facts of *475this case the plaintiff never can recover, we need not inquire as to the several rulings . rejecting testimony, and refusing charges requested. Even if there was error in such rulings, which we do not decide, it did not and could not injure plaintiff. 1 Brick. Dig. 780, §§ 96, 97, 98.
Affirmed.