delivered the opinion of the court.
I. W. Scarborough held a trust deed on the crop to be grown by Kern during the year 1878. Kern desired to buy goods of Irving & Co., who refused to extend credit to him, unless Scarborough would release in their favor his lien on the crop. At the mutual request of Irving & Co., and of Kern, Scarborough signed and delivered to the former a statement that, if they chose to sell goods to the latter, he would agree *452to postpone his lien in their favor to the extent of ninety dollars ; but he was to be in no manner personally responsible to them. Acting upon this, but without themselves taking any mortgage or lien of any sort on Kern’s crop, Irving & Co. sold goods to the latter amounting in value to eighty-nine dollars. During the year Irving & Co. were adjudicated bankrupts, but before the appointment of an assignee, or before such appointment, if made, was known to Scarborough, Kern brought to town and delivered to Scarborough two bales of cotton, which comprised his entire crop for the year. Scarborough deposited the cotton at the railroad depot with the cotton-weigher of the town, from whose possession it was taken, in some way that is not explained, by one Carter, and sold, and the proceeds by said Carter appropriated to his own use. Scarborough was in no manner responsible for or connected with this act of Carter’s, nor, so far as disclosed, did he obtain any benefit of the proceeds. This suit is brought by R. R. Webb, the assignee of Irving & Co., to make Scarborough responsible for the account due by Kern to Irving & Co., or for the value of the cotton.
The suit being without written pleadings, it is somewhat difficult to apprehend its exact scope, but we cannot see that the facts impose any liability upon Scarborough in any point of view. Manifestly he is not liable upon the account, as to which he had expressly declined to assume any liability, nor can we see how he has made himself liable for the value of the cotton. He is not liable in trover for a conversion, as to Irving & Co., because the latter had no title to the cotton, nor any lien or claim upon it in any form. They had taken no mortgage upon it, nor was it pledged to them in any way. They were mere creditors at large of Kern, and unless the cotton was delivered by him to Scarborough for them, it is impossible to perceive how they could assert any claim with regard to it. If their account against Kern had been reduced to judgment, and the cotton levied on, Scarborough could not have set up his trust deed against them, and if in the mean time he had appropriated the cotton to his own use, he might have been liable to them for its value, but certainly such liability must accrue, if at all, from his defeat of the lien *453of their judgment in violation of the implied obligation of his written waiver in their favor. Without a judgment they had no right to seize the cotton at all, although Kern had the right to deliver it to them, and of such delivery Scarborough had estopped himself to complain.
If, on the contrary, Scarborough received the cotton for them (which does not appear with distinctness) then he made himself their bailee without hire, and could be made liable for the subsequent loss of the cotton only by showing some act of negligence or bad faith on his part. Nothing of the sort is shown. So far as appears from the record, he was guilty of no bad faith or neglect, nor did he obtain any portion of the proceeds. If the cotton was in fact delivered to him for Irving & Co., and taken possession of by Garter without authority, the remedy of the assignee is against the latter. Nothing in the proof establishes any liability on Scarborough.
Reversed and remanded.