— Construing the charge given by the court in reference to the evidence, we regard it as presenting the question, whether an action of trespass is maintainable, by one for whom a wagon has been manufactured, for the taking of it before its delivery, or before any act of acceptance or appropriation of it by the plaintiff.
To the maintenance of an action of trespass, it is necessary that the plaintiff should have had actual or constructive possession. If the plaintiff has title, it draws to it the possession, and he is by construction deemed to have had possession. — 1 Chitty on Pleading, 168-169; Shipman v. Baxter, 21 Ala. 456. The plaintiff in this case never had actual possession, and whether he ever had constructive possession depends upon the question of title.
The title to an article manufactured for one, in pursuance to a contract, does not vest upon the mere completion of the article. It is requisite that there should be some express or implied acceptance of it. — Chitty on Contracts, 840-341; Wilkins v. Bromhead, 6 Man. & Gr. 963; Atkinson v. Bell, 8 Barn. & Cres. 277; Rhode v. Thwaites, 6 Barn. & Cres. 388; Moody v. Brown, 24 Maine, 107; 2 Kent’s Com. 504; Clark v. Spence, 4 Ad. & El. 448 ; Addison on Contracts, 223; Rose v. Story, 1 Penn. State R. 190.
The charge given authorized the plaintiff to recover, although there had been no delivery of the wagon which was the subject of the suit, no acceptance of it, no. appropriation of it by the plaintiff, and no consent by him that the wagon was his in pursuance to the contract with the manufacturer. Until there was such acceptance, delivery, or appropriation, the title remained in the manufacturer, and the wagon might have been sold for his debts; as was decided in the case of Atkinson v. Bell, supra. The chai’ge was, therefore, erroneous.
The judgment of the court below is reversed, and the cause remanded.