Rescript.

Upon the plaintiff’s own version of this matter he bargained all the lumber he had, except what was to go to Thurston & Co., to Trickey, one of the defendants, to be surveyed by a person agreed upon and paid for according to the survey. The car of lumber in controversy Thurston refused to receive. It was the plaintiff’s duty to procure the survey. He did it when Trickey was not present, and Trickey paid according to the contract. The plaintiff now claims that the contents of this car by mistake was not included in the survey, and brings this action of trover therefor against Trickey and his vendee. There is no evidence that Trickey ever saw the lumber after it was surveyed, or had anything to do with it, except to re-sell it on the same day, at the same survey, to the other defendant.

There is no proof that Trickey had any of the avails of the lumber in controversy, or that there was any co-partnership between him and his co-defendant. Under such a state of facts a vendor cannot maintain trover against his vendee.

Motion sustained.