On Rehearing.
(229 Pac. 903.)
For respondent there was a brief over the name of Messrs. Botts <& Winslow, with an oral argument by Mr. George Winslow. BURNETT, J.This case was originally submitted on briefs and reversed in an opinion reported in 223 Pac. 745. On a lengthy petition for rehearing accompanied by a bumptious brief the court granted the prayer of the petition and the case has been again argued. As before, the citations and arguments of counsel have had careful consideration.
It seems to be the contention for the plaintiff that in considering the sufficiency of the complaint, no notice whatever should be taken of the admitted contract between the parties out of which the transaction arose and which appears in the answer. The complaint therefore will be examined upon that basis.
The pleading in question is as follows:
“Plaintiff for cause of action against defendant alleges:
“1. That on or about the 7th day of April, 1920, plaintiff and defendant entered into a contract wherein and whereby defendant promised and agreed to sell to plaintiff the following described personal property,_ to wit. One five-passenger Nash touring car. Serial Number 160417, for the purchase price of $1830.00, the sum of $730.00 being paid by plaintiff upon said purchase price at the time of entering into the agreement, and the balance of said purchase price to wit, $1100.00, plaintiff agreed to pay defendant, and in pursuance of said contract and payment made on the purchase price, defendant delivered possession of said property to plaintiff.
“2. That on or about the 7th day of July, 1920, plaintiff delivered said property to defendant, upon the express understanding and agreement that defendant would take said car and try to sell the same, said defendant being engaged in the general garage and automobile lousiness at Tillamook City, Oregon, and would try and obtain for said property the best *445available price, and that from the proceeds of said sale plaintiff should receive all that was obtained over and above the $1100.00 which was still owing by plaintiff to defendant upon the purchase price of said car.
“3. That at the time of the delivery of said car to defendant by plaintiff as aforesaid, and at the time of the conversion and appropriation thereof as hereinafter set forth, said car was of the reasonable value of $1650.00.
"4. That defendant without selling said car except as hereinafter stated, on or about the 20th day of July, 1920, willfully appropriated and converted said property to defendant’s own use, and has ever since said date used said property as his own property, and plaintiff waives any tort committed by defendant in said conversion and appropriation of said property, and elects to charge defendant with the reasonable value of said property, less the balance owing on the purchase price thereof by plaintiff, as for an implied purchase by defendant of plaintiff’s interest therein.
"5. That defendant fails, neglects and refuses to pay plaintiff any part thereof, and the whole thereof is now due and owing from defendant to plaintiff.”
This declaration concluded with a demand for judgment against the defendant for $500 with interest thereon at 6 per cent per annum from July 20, 1920, and for the costs and disbursements of the action.
The plaintiff attempts to declare as for trover and conversion. It is said that he delivered the property to the defendant on July 7, 1920, of course with the understanding alleged. This being true, the defendant was in the lawful possession of the car by the consent of the plaintiff. The attempted declaration of trover and conversion is not laid in the cepit in this instance. If it lies at all, it must have been in the detinet. The difference between the two is that in the first the action is grounded on the unlawful taking of the property without the consent *446of the owner. In the second instance it is based on unlawful detention, and before a cause of action will arise upon the detention of the property which had its origin in the consent of the plaintiff, it must appear that a demand was made for its return.
It is said, 38 Cye. 2032:
“Trover will not lie against one rightfully in possession. Such a possession must first be transformed into a wrongful one by a refusal to surrender property. Hence a demand and refusal are necessary for the maintenance of trover in all cases in which the defendant was rightfully in possession. Demand and refusal are superfluous however, whenever a conversion can be otherwise shown and evidence thereof may be omitted only if one of the following circumstances is proved: Unavailability of a demand and possession maintained in violation of one’s contract and tortious taking and tortious levee or attachment; acts of ownership; retention of money which it was the defendant’s duty to pay to plaintiff; diversion of property from the special purposes for which it was received; an unfulfilled promise to return the goods or another distinct act of conversion in general. ’ ’
We are considering at present only the sufficiency of the complaint without reference to any other writing in the record. Having shown in the early part of his complaint that the defendant was rightfully in possession of the chattel, the plaintiff must then aver something to obviate the necessity of demand in order to constitute conversion. In the absence of some such allegation dispensing with demand, the plaintiff cannot prove an excuse for not demanding a return for the proofs must correspond with the. pleading.
“He.who seeks to recover in trover must prove that he was in actual possession of the chattel converted at the time of conversion or that he had the *447right of immediate possession thereof.” 38 Cyc. 2044.
In Pacific Livestock Co. v. Isaacs, 52 Or. 54, 70 (96 Pac. 460, 466), the action was in conversion for the value of a quantity of hay. Concluding the discussion of the various phases of the case, the court used the following language:
“In any event, because of these decisions it cannot be said (what must necessarily be said to entitle plaintiff to recover in this action) that at the time defendants purchased, plaintiff had possession or the right of immediate possession,”
The same doctrine is taught in Johnson v. Oregon Steam Nav. Co., 8 Or. 35. In the present instance, according to the complaint the property was never to be returned to the plaintiff. On the contrary, the defendant was to try to sell it and the only right respecting the property was that the plaintiff should have the surplus of the proceeds of sale over what was necessary to liquidate the balance of the original purchase price of the car. No act of the defendant is pleaded which amounts to a conversion, or which excuses the lack of demand or the necessity of the plaintiff being in possession or entitled thereto at the commencement of the action unless it be the following:
“That defendant, without selling said car except as hereinafter stated, on or about the 20th day of July, 1920, willfully appropriated and converted said property to defendant’s own use, and has ever since said date used said property as his own property.”
As already pointed out, where the matter lies in the detinet no conversion can be predicated on the transaction until there has been a demand. So far, therefore, as the phrase “willfully appropriated and converted said property to defendant’s own use” is concerned, it must be laid aside in face of the fact, *448otherwise appearing in the same pleading, that the possession of the property was voluntarily delivered by the plaintiff to the defendant. The averment that the defendant has used the property as his own property does not show that a demand for its return would have been vain.
In Owens v. Weedman, 82 Ill. 409, according to the syllabus it is said:
“To maintain trover the plaintiff must show a tortious conversion of personal property and that at the time of such conversion he had a right of property in the chattel converted and also had the possession thereof or a right to its immediate possession.”
The court there quoted with approval 1 Chitty’s Pleading, 167, as follows:
“To support this action the plaintiff must at the time of the conversion have had a complete property, either general or special, in the chattel and also the actual possession thereof or the right to the immediate possession thereof.”
The mere use of the property constitutes no more than a trespass which may be compensated by the actual damage inflicted upon the owner, which would be covered by the reasonable value of the use to which it was put. It would be grossly unjust to lay down as a hard-and-fast rule that because A had used the property of B to some extent, he should be compelled to buy the same or what is in the same effect, to pay as damages the full value of the property. The effect of a judgment in trover and the satisfaction thereof is to transfer to the defendant as of the date of the conversion, the title of the property converted: 38 Cyc. 2112; Hepburn v. Sewell, 5 Har. & J. (Md.) 211 (9 Am. Dec. 512); Backus v. West, 104 Or. 129, 146 (205 Pac. 533). The pleading and proof must go further and show that the use was *449in complete defiance of the plaintiff’s title and with an intent permanently to deprive him of his property therein.
A leading case on this subject is Lee Tung v. Burkhart, 59 Or. 194 (116 Pac. 1066). The subject is exhaustively considered in the opinion written by Mr. Justice Bean. The essence of the decision is found in the syllabus as follows:
“In order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiff’s rights, or else a withholding of the possession under a claim or right or title inconsistent with that of plaintiff.
“In trover it is not enough that the facts show a trespass, it not being a conversion, unless defendant’s dominion is a denial or a repudiation of the owner’s right or title.
“In actions in the nature of trespass or case for misfeasance, plaintiff recovers only the damages suffered by the wrongful acts of defendant.
“In trover the general rule of damages is the value of the property at the time of conversion, diminished, when the property has been returned, by the value of the property at the time of return.”
We remember that the allegation of the complaint is not that the defendant agreed actually to sell the car but only that he would try to sell the same and would try to obtain for it the best available price. For all that appears on the face of the plaintiff’s declaration, the defendant may have been all the time trying to sell the car. His mere use of it would not be inconsistent with that duty so as to amount to more than a trespass. The complaint has not charged the defendant with not trying to sell the car. In order to make his possession wrongful and so *450support an action in trover, there must he some breach of the contract imputed to him which necessarily means to deprive the owner of his property in the chattel. In brief, the complaint goes no further than to show a possible trespass in using the car. It does not show that the defendant challenged the title of the plaintiff or sought to deprive him thereof, neither does the mere use of the property excuse the necessity of a demand for its possession in order to support trover. It is true that some authorities on pleading say that it is sufficient in trover to aver that the plaintiff, at a certain time and place, was the owner of and entitled to the possession of the chattel in question and that at the time the defendant wrongfully converted the same to his own use to the damage of the plaintiff in a sum stated. This probably would be sufficient although our Code, Section 67, requires that the first pleading shall contain “a plain and concise statement of the facts constituting the cause of action without unnecessary repetition.” The plaintiff has not completely pursued either method of pleading. He has not shown that he was entitled to the possession of the property at any time after he surrendered it to the defendant. Neither has he shown that he demanded the return of the property or that its return was refused by the defendant. On the contrary, he has shown that the defendant was rightfully in possession of the property. In such case, no cause of action in trover or conversion will lie against him without a demand for the return of the property unless it should further appear that the defendant has put it beyond his power to comply with the demand so that a demand would be useless. In other words, having gone so far in a statement of facts, as distinguished from the common-law forms of pleading, as to show that the defendant was *451rightfully ih possession of the property, the plaintiff, if he would recover, must go further in his pleading and show something that as a matter of law would break up the rightfulness of that possession. Even if we concede that the allegation of conversion is sufficient if considered alone, yet when it is disclosed elsewhere in the complaint that the property is rightfully in possession of the defendant, a condition is presented rendering it impossible for the plaintiff to prove conversion for want of a demand for possession or in the alternative that some pleaded facts exist rendering a demand’ vain. A complaint showing, as this one does, the rightfulness of the defendant’s possession, yet charging conversion without averring a demand for a return of the chattel is as incongruous as the phrases “white blackbird” or “truthful liar.”
In Wilson v. Curry, 149 Ala. 368 (42 South. 753), it is said:
“The possession having been acquired lawfully, in order to make his detention wrongful there must be a demand.”
Louisville etc. Ry. Co. v. Kauffman, 141 Ala. 671 (37 South. 659), was a case of trover and conversion brought by a shipper for a barrel of whisky shipped by the railroad company but not delivered by it to the consignee. The court there said, treating of the subject:
“To make out the alleged conversion, it was upon the plaintiff to prove a demand for the property on the defendant and a refusal by the defendant to surrender it.”
In McLain v. Huffman, 30 Ark. 428, the winner of some money bet on a horse-race brought action *452against the stakeholder to recover the same. The court said:
“No right of action accrues in any case against a bailee unless there has been some wrongful conversion or some loss by gross negligence on his part until after demand made upon him and a refusal made by him to deliver the deposit,” citing Story on Bailments, 107.
In Songer v. Lynch, 72 Ill. 498, the plaintiff had taken some corn to mill and had put it in possession of the miller. Some contention arose about the matter and he brought trover concerning which the court said:
“Having placed the corn in possession of appellant, he cannot claim there was a conversion unless he had made a demand and there had been a refusal which would have been evidence of a conversion. ’ ’
Again, in Carleton v. Love joy, 54 Me. 445, the syllabus reads thus:
“When personal property comes rightfully into the possession of the defendant, a demand and refusal are prerequisites to the maintenance of trover for its value.”
We find this language in Temple Co. v. Penn. Mutual Life Ins. Co., 69 N. J. Law, 36 (54 Atl. 295):
“The defendant being lawfully in possession of the property, that possession could not become tortious until it had refused upon demand made to deliver them to the plaintiff.”
Goodwin v. Wortheimer, 99 N. Y. 149 (1 N. E. 404), was an action in trover by a vendor against the assignee of the vendee based upon the fraud of the latter in the purchase of goods. The court said:
“The original possession of Wortheimer being lawful and not tortious, it was necessary to change the character of his possession by a demand and refusal, *453before the plaintiff could maintain an action against Mm for conversion or to recover the goods.”
The following precedents teach the same doctrine: Moynahan v. Prentiss, 10 Colo. App. 295 (51 Pac. 64); Semon v. Adams, 79 Conn. 81 (63 Atl. 661); Auld v. Butcher, 22 Kan. 400; Fairbanks v. Phelps, 22 Pick. (Mass.) 535; Macdonnell v. Buffalo Loan Co., 193 N. Y. 92 (85 N. E. 801); Converse v. Sickles, 146 N. Y. 200 (40 N. E. 777, 48 Am. St. 790); Castle v. Corn Exchange Bank, 148 N. Y. 122 (42 N. E. 518); Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261 (80 N. E. 933).
The precedents cited by the plaintiff have had our consideration. For instance:
Geren v. Hollenbeck, 66 Or. 104 (132 Pac. 1164), was a case where the defendant loaned the plaintiff’s automobile to a third party without the plaintiff’s consent and it was wrecked by the borrower. It was held to be no defense to the action that the car was subject to a chattel mortgage which had since been foreclosed.
French v. Osmer, 67 Vt. 427 (32 Atl. 254), was a case between the vendor and a third party, a stranger to the contract for the sale of the property.
Stotts v. Puget Sound Traction, Light & Power Co., 94 Wash. 339 (162 Pac. 519, L. R. A. 1917D, 214), was a case where the plaintiff had possession of a truck under a conditional sale contract upon which he had made some payments and it was damaged in a collision with one of the defendant’s street-cars. It was held that he could maintain an action against the defendant. All these are eases between one of the parties to the contract and some stranger, and do not affect the present contention.
In Reinkey v. Findley Electric Co., 147 Minn. 161 (180 N. W. 236), the action was between parties to the *454contract to recover damages for the wrongful taking of certain personal property sold by the defendant to the plaintiff on a contract of conditional sale. The company had taken the property from the possession of the plaintiff against her consent counting upon a default in making payments upon the property. The plaintiff excused her default by the allegation that the defendant had extended the time of payment to a date subsequent to the time the property was taken from her. Opposing this extension the defendant urged that there was no consideration for it, concerning which the court said:
“The defendant is seeking to enforce a forfeiture of the payment made and absolute title to the property sold. It cannot make nonpayment which it induced a ground of forfeiture. The doctrine may be rested upon the ground of estoppel or of waiver.”
Nothing of that sort appears in the present contention.
In Carvell v. Weaver, 54 Cal. App. 734 (202 Pac. 897), the terms of the conditional sales contract are not given in the report but the court said:
“The legal title is not always necessary to an action for conversion but any special valuable interest in the property accompanied with the right of possession is sufficient to form a basis of such an action.”
In the instant case at bar the plaintiff does not show that his interest in the property, whatever that may be, was “accompanied with the right of possession.” On the contrary, his pleading puts the right of possession in the defendant with the plaintiff’s consent and nothing is averred which would defeat that rightful possession.
Clark v. Clement, 75 Vt. 417 (56 Atl. 96), was a case where the wrongfulness of the taking depended *455on. a violation of the Vermont statute requiring a sale of property at auction in such eases. Hence it is not here applicable.
Roper Wholesale Grocery Co. v. Favor, 8 Ga. App. 178, 181 (68 S. E. 883, 884), contains this language:
“It is not necessary, in order to maintain an action of trover, that the plaintiff have title. If he have either such a title or property as to confer right of possession he may maintain trover against one who wrongfully deprives him of his right. ‘To maintain an action of trover, the plaintiff must show title in himself or the right of possession wrongfully withheld from him by the defendant.’ ”
As before pointed out, the complaint here does not show that the possession is wrongfully withheld from the plaintiff.
In Roberson v. Withers, (Tex. Civ.), 152 S. W. 1160), the vendor took possession of the property before there was any default of the buyer and without the consent of the latter. Here the property was in possession of the defendant by the consent of the plaintiff and the plaintiff has not shown that he performed his part of the executory contract for the sale of the automobile so that he could put the defendant in default. These precedents cited by the plaintiff in his “additional points and authorities found since writing his brief” are not in point in the present contention.
Considering the complaint wholly with reference to its own language, it does not state facts sufficient to constitute a cause of action against the defendant and this having been suggested to the court as a basis for an involuntary nonsuit, the motion should have been allowed; for the objection is never waived and, granting that the plaintiff had proved everything he had alleged, his cause was not suffi*456cient to be submitted to the jury. This error is specified in the assignments and cannot escape our consideration.
It is well at this time to make a few observations on the remainder of the record in addition to the consideration of the complaint. In his further and separate answer, the defendant avers:
“That on or about the 7th day of April, 1920, the plaintiff and the defendant entered into a contract referred to and mentioned in paragraph I of plaintiff’s complaint concerning the purchase by the plaintiff of the defendant, of a Nash Touring Car, therein mentioned which said contract was in writing and being the only contract ever entered into with reference to said car at any time by the plaintiff and the defendant, is in words, letters, and figures as shown by a full, true and correct copy thereof hereto attached and made a part of this answer and marked ‘Exhibit A.’ ”
The reply expressly admits this allegation. It becomes established, therefore, by the pleadings that Exhibit “A” was the only contract ever entered into with reference to said car at any time by the plaintiff and the defendant. On the face of the. pleadings themselves the contention of the plaintiff that there was a new contract made when he returned the car is eliminated from the case.
Attention is here directed to the following language of Exhibit “A.”
“The said property and the whole thereof shall remain the property of said seller and title to said property shall not vest in the buyer until the unpaid balance of the purchase price and any judgment or decree rendered thereon is wholly paid, together with taxes, assessments, insurance, costs and expenses of litigation as above mentioned, and in case the buyer makes default of payment of said amounts or any of them or interest thereon at the time or place above *457specified or shall sell, transfer, assign, or remove, or attempt to encumber, dispose of or remove said property from Tillamook County, State of Oregon, without the written consent of seller, his authorized agent or assigns, or if said buyer shall become insolvent or bankrupt, or said property is attached or seized or levied upon by any creditor of the buyer, or should any condition, stipulation, or agreement herein contained be violated or not kept by the buyer, the buyer shall on demand deliver the property to the seller or his assigns in as good condition as when received, reasonable use and wear excepted, the said seller or his agent or assigns shall have the right, without notice or demand, to take immediate possession of said property and for that purpose may pursue the same wherever it may be found, and may enter the premises with or without force or process of law, and search for same and if found to take possession thereof; and in case said seller, his agent or assigns, shall re-take possession of said property, all money paid on the purchase price thereof shall at the option of the seller belong to the seller or .his assigns as liquidated damages for non-fulfillment of this contract by the buyer and for loss in value of said property and for the use and rental thereof while being in the possession of the buyer and any claim or equity of the buyer in said property shall utterly cease and determine without reclamation or compensation; * *
“In case of the payment of each and every one of said amounts and interest thereon, or payment of judgment obtained thereon, within the time and according to the provisions of this agreement, time being of the essence hereof the full and absolute title to said property shall pass and vest in the buyer, it being, however, expressly understood that title shall not pass to the buyer until any and all judgments obtained hereon are paid and satisfied in full and all conditions and stipulations in this agreement are fully performed. ’T
*458It is not averred anywhere in the pleadings that the defendant waived any of the provisions of this Exhibit “A.” It empowers the seller, without notice or demand, to take immediate possession of the property should any condition, stipulation or agreement therein contained be violated or not kept by the buyer. It was avowedly agreed by the parties that time was the essence of the contract and that title should not pass to the buyer until any and all judgments obtained thereon were paid and satisfied in full and all conditions and stipulations in this agreement were fully performed. Moreover, it is said that no modification of any of the conditions of the agreement and no oral contract shall be deemed binding or operative upon either of the parties unless in writing annexed to and subscribed by the parties. It was competent for the parties to make such a contract. It takes the matter out of the operation of the rules for ascertaining the intention of buyer and seller relative to the passing of the title as expressed in that portion of the Uniform Sales Act codified in Section 8182, Or. L. The following excerpt from Section 8183, Or. L., is controlling here:
“Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be' thus reserved notwithstanding the delivery of goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer.”
It is not for the court to give an effect to partial payments entirely at variance with the contract and to confer upon the plaintiff any property in the car in the face of his express stipulation that he should *459have no title thereto notwithstanding such payments. The plaintiff explicitly admits that there was no other contract ever entered into about the car except Exhibit “A.” The common-sense view of the writing is that the plaintiff never had any property in the car. Having no property therein he cannot maintain conversion for it. The terms of this only contract respecting the car do not give him the right to return it and compel the defendant to pay full value for it; yet that is the result of the decision of the Circuit Court in sustaining an action in trover. He was in default in his payments. He had no property in the car. In surrendering the possession to the defendant he did no more than he was obliged to do and that furnishes no consideration for his alleged contract even if he had not admitted that Exhibit “A” was the only contract.
The rule is thus stated in 13 C. J. 353:
“The promise of a person to carry out a subsisting contract with the promisee, or the performance of such contractual duty is clearly no consideration, ás he is doing no more than he is obliged to do, and hence has sustained no detriment, nor has the other party to the contract obtained any benefit.”
Illustrating this doctrine is Wendover v. Baker, 121 Mo. 273 (25 S. W. 918), cited in the note to that text, a ease quite similar in some respects to this. There the maker of some promissory notes had given a deed of trust to secure them. Default having occurred, foreclosure was imminent. As a defense to an action subsequently instituted to collect a balance due on the notes, the maker averred that to avoid a foreclosure he had agreed with the trustee to surrender the possession of the premises in consideration of which the former was to cancel and return the notes; that he had given up possession of the land; but that *460the notes had not been canceled or returned. Ruling upon the defense thus stated, Mr. Justice Sherwood said:
“The trustee could have entered at once for condition broken and taken possession of the premises, or brought ejectment and recovered possession. Johnson v. Houston, 47 Mo. 227; Reddich v. Gressman, 49 Mo. 389. * * As defendant had no legal right to retain possession of the premises after condition broken, hence his agreement to surrender possession was a mere nude pact constituting no valuable consideration. ’ ’
See, also, on this point among our own decisions, Nine v. Starr, 8 Or. 49; Meyer v. Livesley, 56 Or. 383, 389 (107 Pac. 476, 108 Pac. 121); Hillman v. Young, 64 Or. 73 (127 Pac. 793, 129 Pac. 124); Muir v. Morris, 80 Or. 378 (154 Pac. 117, 157 Pac. 785); Hoskins v. Powder Land & Irr. Co., 90 Or. 217 (176 Pac. 124) ; Feenaughty v. Beall, 91 Or. 654 (178 Pac. 600); Bagley v. Bagley (Or.), 222 Pac. 722.
True enough, if nothing else is shown, the yielding of possession of personalty is of itself a sufficient consideration to support a contract of bailment; but when the would-be bailor is already bound to surrender sueh’possession to the supposed bailee, giving up the custody of the chattel does not constitute a consideration and the arrangement involving change of possession is nudum pactum. Being confessedly in default, the plaintiff here had no right to retain possession of the car. Hence his return of it to the defendant formed no consideration for the bailment so earnestly pressed in argument.
The fact that the defendant had two or more options about his course of conduct cannot alter the case. They were the defendant’s options and not those of the plaintiff and the latter cannot compel an *461election in the first instance as to which one his adversary shall pursue.
As said by Mr. Justice Bean in First National Bank of Sheridan v. Yocom, 96 Or. 438 (189 Pac. 220):
“The rule adopted in this state upholds the contract of conditional sale as made by the parties themselves. While in some instances the rule may work a hardship upon the buyer, on the other hand where personal property is sold under such a contract, and on account of the leniency of the seller in enforcing payments the property has deteriorated, where the same is machinery, as in the case at bar, it might he worn out and practically worthless, the seller would receive practically no compensation therefor if the rule contended for should he applied. This would tend to render it difficult for people to obtain credit and purchase property under such conditional contracts. ’ ’
Considering the complaint alone, it did not state enough to constitute a conversion but, at most, a mere trespass. Considering the whole case on the pleadings which state that the only contract was Exhibit “A” the plaintiff never had any property in the automobile involved and, having none, cannot maintain trover for its conversion. In face of the admitted allegation that Exhibit “A” was the only contract and the further fact that the plaintiff was in default on his payments on that contract, the cause might well have been decided on a motion for judgment on the pleadings for the defendant. The judgment of the Circuit Court is reversed, with directions to enter judgment of nonsuit in favor of the defendant.
Reversed With Directions. Costs Taxed.
McBride, C. J., and Rand and Brown, JJ., concur.