delivered the opinion of this court.,
This was an action brought by the appellees against the appellants, to recover the amount of certain drafts, and a promissory note, drawn and made by Lake &> Co., of New Orleans, and by the appellants endorsed. The drafts and notes were discounted at the Union Bank of Baltimore, for the accommodation of Lake & Co. ' There is no question of sufficiency of demand and notice, nor of the genuineness of the paper. The dispute arises out of a state of facts which may be thus indicated: It appears from the record, that on the 13th day of February 1843, the Union Bank of Maryland, as. collateral security for the payment of a specific liability of Lake & Co., held one hundred and fifty shares of the stock of the Farmers and Merchants Bank of Memphis, Tennessee; and on that day received from Lake & Co., the following letter:
“Baltimore, February 1843. — The President and Directors of the Union- Bank of Maryland, are hereby authorized to hold the one hundred an(l fifty shares of the stock of the Farmers *377and Merchants Bank of Memphis, now standing in their name as a general collateral security for all our liability to the said bank at present existing or which may hereafter be incurred by us. Lake &• Co.”
On the 14th day of June, the bank received the following note:
“Baltimore, June 14th, 1843. — In conformity with the original understanding between Messrs. W. F. & A. Murdock and ourselves, in regard to their paper discounted for our use, by, and now held by your bank, we beg to inform you that any surplus arising either from sale or otherwise of the F. &> M. Bank, of Memphis stock, now held by your bank, and for any other paper of ours your bank deems itself insecure in, is to go towards the liquidation, with your bank of any of our said paper drawn or endorsed by W. F. & A. Murdock. With great respect, &c. Lake & Co.”
On the 8th day of September 1843, Lake &■ Co. authorized the bank to sell the stock which had been hypothecated, and which was accordingly done on the 9th of the same month, realizing therefor $69.50 per share, making in the aggregate $10,425. In notifying Lake & Co. of the sale, Mr, Mickle, the cashier of the Union Bank of Baltimore, after stating the amount of sale, says, leaving “a surplus according to the statement of account herewith submitted, of $2243.44, which surplus has been paid over to Messrs. W. F. & A. Murdock, under your letter to the bank of the 14th of June last,” On the same day the amount ($2243.44) was paid to the Messrs. Murdock, and receipted for by them. In the receipt given by them is the following: — “ We hereby, in consideration of the receipt of the above mentioned sum of money, guaranteeing the said Union Bank of Maryland from all loss or damage they may sustain by reason of the said payment.” After these facts were given in evidence, it was proven, that the bill of exchange, promissory note and draft, to recover the amount of which this suit, was brought, were assigned on the 26th day of August 1843, to the appellees, the bank receiving therefor from them the full amount thereof. It was shown by the receipt of Lake & Co., dated the 15th day of April 1841, that *378the appellees’ notes in their favor, or endorsements of Lake &• Co’s own paper of various dates and sums, in the aggregate amounted to nearly $22,000; all of which notes and endorsements were granted for Lake & Co’s sole use and accommodation; and proved that the notes, or the renewals of such as were stated in the receipt as being in the hands of the Union Bank of Baltimore, continued to be so held.at the time of the sale of the Memphis bank stock. The appellants then proved, that they had stopped payment sometime prior to the sale of the stock; and also, that prior to, and up to the time of the trial, one of the appellees was a director of the Union Bank, and knew and approved of every step taken by the bank in regard to the liabilities of Lake &■ Go., and especially of the arrangement of the 14th of June 1843, and the sale of the •9th of September following.
On this state of case, the appellants submitted two prayers to the court, both of which, were "rejected; the appellees, also, offered two prayers, the first of which was rejected, and the second granted. Both parties appealed; but inasmuch as the appeal of the appellees in this case has since been dismissed, it is not necessary we should review the action of the court below in regard to the first prayer of the appellees.
The theory of the prayer, granted by the court on behalf of the appellees, is, that if the jury should believe the facts, which we have cited from the record, then the appellees were entitled to recover the amount of the note and acceptances sued on with interest, less the proportion to which the same would be entitled, of the sum of $2243, proceeds of the sale of the Memphis Bank stock, having regard to the entire debt due the bank by Lake & Co. at the time when such surplus was paid by the Union Bank to the appellees, and the note and acceptances transferred to the latter.
The first prayer of the appellants is basedupon the ground, that if the jury should. believe that when the bank received the instructions, of Lake & Co., of June 1843, Erskine and Eichelberger’s liabilities to the bank were insecure, and in concert with the appellees, adopted the arrangement of the 26th of August 1843, as a means whereby the said bank should be *379saved harmless in regard to said liabilities, and that Erskine and Eichelberger received no advantage from the sale of the Memphis bank stock, then, there could be no recovery in this action. The second prayer of the appellants declares, that if the jury should find from all the evidence, that the arrangement of August 1843, between the appellees and the Union Bank of Baltimore, was adopted to avoid and evade the contract of the 13th day of 'February 1843, and that of June of the same year, then such arrangement was tortious and wrong, and conferred no title on the appellees to the note and acceptances sued upon.
The ruling of the court in regard to the first prayer of the appellees, the appeal from it having been dismissed, is not now before us; but if it were we would have no hesitation in saying it was erroneous. The cases cited at the bar are explicit, and direct to the point contained in that prayer. They clearly establish this principle, that where a consignee, or remittee, receives goods, or money, with instructions to hand them or pay it over to a third party, such third party cannot maintain either trover, or an action for money had and received, until the consignee or remittee does some act by which he binds himself to such third party; without such act, there is no privity of contract between him and the third party, the title still remaining in the consignor or remittor. The cases we refer to on this point are the following: Williams vs. Everett, 14 East., 582. Grant vs. Austen, 3 Price, (Excheq. Rep.,) 58. Brind vs. Hampshire, 1 Meeson & Welsby, 365. Tiernam vs. Jackson, 5 Peters, 580.
It is impossible for us to perceive any wellfounded objection to the instruction which the court did give. If the appellants have any ground whatever of defence it is derived from the letters of Lake & co. to the Union Bank of Baltimore, of dates 13th of February 1843 and June 14th of the same year. The Memphis Bank stock was pledged specifically for an obligation of Lake & Co’s for ¿8100. The letters of February and June, can bear no other construction than that, after that debt was paid, the surplus should be applied to other liabilities of Lake & Co. The appellants cannot contend *380that it was to be applied exclusively to their liabilities. The letter of June clearly confines the application of the surplus to any paper “drawn or endorsed by W. F. and A. Murdock.” But it was said at the bar this note ought to be construed in connection with the one of February. If this be done the appellants have no right to complain of the court’s instruction. What does that note say? It does not appropriate the stock as a security, exclusively, for the liabilities of Erskine and Eichelberger; on the contrary, it appropriates it “as a general collateral security for all our liability” to the bank, “atpresent existing, or which may be hereafter incurred.” The instruction of the court is in strict conformity with this direction; it allowed the appellants an abatement in the proportion which their indebtedness to the bank stood to the fund to be applied, and the whole amount of liability of Lake & Co.
The first prayer of the appellants, which the court rejected, only denied the right of the plaintiffs to recover, provided the jury found they did not derive “any advantage” from the arrangements made between the Union Bank and Lake & Co. The instruction, given by the court did allow them as great an advantage as that given to any other person or persons who had become liable to the bank for Lake & Có; and they realized this advantage in the verdict of the jury. It follows necessarily, if these views be correct, the prayers on behalf of the appellants were properly rejected. We affirm the judgment.
Judgment affirmed.
Tuck, J., dissented.