This is an action of detinue. Cohn Bros. & Co. sold the goods sued for to J. A. McKinstry, as *245J. A. McKinstry & Co. McKinstry soon after the sale and delivery of these goods made an assignment, covering this with other property, to Stringfellow for the benefit of his creditors. The sellers claimed and seek by this suit to assert and effectuate the right to rescind the sale and recover the goods on the ground that McKinstry’s fraud vitiated the sale. Stringfellow having taken possession of the property under the assignment is made defendant. He pleaded the general issue, and that he held “the possession of the goods sued for by virtue of an assignment made by J. A. McKinstry & Co., on the 7th day of March, 1891, for the bbnefit of their creditors.” To this special plea plainffs replied that “by reason of fraud in the contract of sale with plaintiffs the said McKinstry obtained no title to these articles and conveyed no title to defendant by said alleged assignment.” Plaintiffs joined issue on defendant’s plea of not guilty, and defendant joined issue on plaintiff’s replication to said special plea, and the trial was really of these issues only. No claim of bona fide purchase from McKinstry without notice was made by the defendant. He stood in the shoes- of McKinstry and depended alone on McKinstry’s right which, whatever its quality-or degree, passed to him by the assignment. On the other hand, the theory of the plaintiff’s action, upon which alone a recovery could be had, was that they had title to the property as against both McKinstry and the defendant; they sued, not as creditors of McKinstry, but as owners of the property. On this state of the pleadings it was wholly immaterial whether the assignment by McKinstry to Stringfellow, ostensibly for the benefit of the creditors of the former, was bona fide and valid or simulated, fraudulent and void as to such creditors. If the sale by plaintiffs to McKinstry was vitiated by the latter’s fraud no title passed to him and plaintiffs were entitled to recover though the assignment were perfectly fair and valid, since Stringfellow did not pretend to be a purchaser in good faith for value; and if the sale was not avoided by McKinstry’s fraud in buying the goods, plaintiffs were not entitled to recover however vicious the assignment may have been as against McKinstry’s creditors. The inquiry of fraud vel non in the assignment was, therefore, wholly foreign to the issues in the case; and the trial court properly excluded certain evidence offered by plaintiffs which was addressed solely to this inquiry.—Trawidi v. Keeble Co., 93 Ala. 498. This conclusion disposes of all the exceptions to rulings on the admission of evidence which are assigned as error or insisted on by counsel.
*246No exceptions were reserved to the court’s general charge given ex mero moiu.
Of the charges requested by the plaintiffs and refused, those numbered 2 and 4 were bad because addressed to the immaterial inquiry referred to above, and also for the reasons given in the case of Richardson Bros. & Co. v. Stringfellow, (in this volume,) with reference to requests for like instructions.
Charge 3 refused to plaintiffs is in the following language : “If the jury find from the evidence that McKinstry &Co. concealed their financial condition from plaintiffs at the time said goods were purchased, then that would be equivalent to a false representation upon the part of J. A. McKinstry & Co. as to their financial condition, if they further find that said concealment was done to deceive plaintiffs, aud did deceive them.” This instruction would probably have been understood by the jury as referring to the time at which the contract of sale was made in January, 18'Jl, and not to the time when the goods were delivered to the purchaser the latter part of the succeeding month, and, indeed, we are not prepared to say but that that would have been the true interpretation of the language employed when referred to the evidence. There was no evidence whatever that at the time of the contract McKinstry made any concealment of his financial condition, or even that he was then insolvent or in failing circumstances. The charge, therefore, while correctly asserting in substance that a fraudulent concealment is the equivalent of a false representation in this connection, was abstract, as the jury might have understood it and perhaps properly understood it; and so understood its tendency was to mislead them. For these, if not for other, reasons the court committed no error in refusing to give it.
The judgment of the Circuit Court must be affirmed.