JOHN HUNTER, Plaintiff in Error, vs. IRA WARNER, Defendant in Error, 1 Wis. 141

By the Court, Cbawfokd, J. This was an action of replevin, instituted before a justice of the peace in the county of Columbia, by Ira Warner, the defendant in error, against John Hunter, the plaintiff in error, to recover the possession of a horse. A trial by jury, before the justice, resulted in a verdict and judgment in favor of the defendant below. From this judgment an appeal was taken to the County Court of Columbia county, and at the May term, 1852, of said court, the case was tried by a jury.

It appeared in evidence, on the trial in the County Court, that an agreement was entered into, concerning this horse, on the 13th day of December, 1851, between Gaius E.

La Monte and the defendant in error, which is thus described in the bill of exceptions : “ The agreement was on the part of La Monte to sell a black horse, with a star on the forehead, and one white hind foot, to Warner, on conditions prescribed in the contract, which were, that Warner was immediately to have possession of the horse, to keep and use until paid for, in pursuance of the provisions of the agreement, which were twenty-five dollars, in two weeks from the date of the agreement, the balance, or remaining fifteen dollars, by the fifteenth day of the next May.

That upon the payment of the last sum, as mentioned in the agreement, the home was to become, absolutely, the property of Warner; and until so paid, the right of property was to remain in La Monte.

That in the event of Warner failing to pay either of the sums, or any part thereof, as they shall become due, La Monte might reduce the horse to his own possession.” It further appeared in evidence, that on the 26th day of December, 1851, La Monte had the horse in his possession, and that he. afterwards sold him to the defendant, (the plaintiff in error,) who had the possession at the time of the commencement of this suit, to-wit: on the 17th day January, 1852.

It was also shown in evidence, that on the 25th or 26th day of December, 1851, the horse was taken from the barn of Warner, and that 7 after he (Warner,) had discovered that the horse was taken, he called upon H. Gr. Webb, who was the agent of La Monte, to receive the money to be paid by Warner, under the aforesaid agreement, and told Webb that “ he (Warner) would pay the money on the next day, when it became due ;” to which Webb replied he was “ ready to receive it any time.” This conversation took place on the night of the 26th day of December.

Webb, who was a witness in the case, for the plaintiff, testified that “ the money was not paid then,” (December 26th;) “ never had been paid to him,” and that “Warner said he had the money, and it should be paid when due; that he was ready to pay for the horse whenever he could have him.” There was other testimony in the case, but we do not deem it necessary to refer to it. Upon this evidence the plaintiff below rested his case, and thereupon the counsel for the defendant moved for a nonsuit, which motion was, by the court, denied.

Witnesses were introduced and examined on the part of the defendant, and after argument, the case was submitted to the jury. The charge given by the court is not set forth in the bill of exceptions. A verdict was rendered in favor of the plaintiff’ Warner, and the defendant thereupon moved the court for a new trial, which was denied, and a judgment entered upon the verdict. The only question presented here, is, whether there was error in the refusal of the court below to grant a nonsuit.

It is apparent that the transaction between La Monte and Warner, upon which alone he (Warner) bases bis claim to tbe borse, is an agreement to sell, and not an absolute sale. It vested in bim no right whatever, beyond that of possession, until tbe performance of tbe conditions prescribed.

We believe that Hunter acquired a good title from La Monte, after tbe expiration of tbe time for tbe first payment, if Warner neglected to perform tbe condition imposed upon him by tbe agreement, at tbe time therein specified, because, upon this performance alone bis right depended. ■ By tbe terms of tbe agreement “ tbe right of property” was “ to remain in La Monte” until tbe whole contract price should be paid, leaving only tbe right of possession to Warner, and this latter right, subject to be taken away upon default in payment.

Now, in order to preserve this right of possession, it was incumbent on Warner, either to make tbe first payment in two weeks from tbe date of tbe agreement, or to make a tender of such payment. It is not insisted that any payment was made, and certainly, there is no proof of tender-. To constitute a vahd, legal tender, there must be an actual offer of tbe sum due, unless tbe actual production of tbe money be dispensed with by a refusal to accept or something equivalent thereto, and this offer must be an absolute one, not coupled with any condition. Vide 2 Stark on Ev. 778-9, amd oases there cited; 15.

Wend. 637. - We cannot see, therefore, that tbe right of possession remained with Warner, after tbe expiration of tbe time for tbe first payment. It matters not that be was deprived of bis possession by La Monte or any other person; if be desired to preserve bis right under tbe agreement, it was necessary, on bis part, to do what was to be done by bim — to make payment, or that which, the law recognizes as equivalent thereto— a legal tender ; and the improper interference of La Monte, in no respect relieved Warner from performance on his part, unless, indeed, he desired to abandon the agreement altogether.

The case of West vs. Bolton, 4 Verm. R. 558, is in point. In that case an agreement was made between the plaintiff and John Bolton, the father of the defendant, for the sale of a cow.

The price of the cow was $18, of which sum West had, at sundry times made partial payments, amounting in all to $10, hut the sale was not to take effect vmtíl the cow should he paid for mfull, and Bolton “was to have his security upon the property in plaintiff’s hands until fully paid for.” The cow was delivered to West in 1826, and remained in his possession until the spring of 1830, when Bolton, being unable to get the balance, after frequent demands, directed his son, the defendant, to retake the cow, and afterwards sold her.

An action of trespass was instituted against the son, who justified, as the servant of his father. Mr. Justice Williams, in giving the opinion of the court, says : “ The testimony shows, most unequivocally, that the plaintiff had no property in the cow for which the suit was brought; that the sale under which he claims was conditional; that the property was not to vest until paid for, and that it had not been paid for in full. The plaintiff having failed to fulfil the conditions, on the performance of which he was to have the property, all his claim at law was gone.

Whether he had any equitable right is not here the matter in dispute. The owner might retake the property again, and divest the plaintiff of possession, and would not be guilty of any trespass in so doing. Tile performance of the condition was neither rescinded or waived, hnt insisted on, and it was in accordance with the contract that the owner proceeded to take the property into his possession.

As the plaintiff had not performed the condition precedent on the performance of tohich the property was to pass from Bolton to him, the jury was rightly directed that the facts, if believed, entitled the defendant to a verdict.” The only distinction between this case and the one before ns is, that in the former there was a default in payment, upon demand, before the property was retaken, while in the case at bar, the property was taken from the possession of Warner before the time fixed for payment had arrived.

But we think that the neglect of Warner to perform the condition precedent in his case, regardless of the taking away of the horse, is equally fatal, as was the neglect of performance in the case which we have cited above. It follows then, as a necessary consequence, that on the day of the commencement of this suit, the llth day of January, 1852, the plaintiff below (Warner,) had neither a right of property nor a right of possession.

It is very true, as urged by the counsel for the defendant in error, that “ no person can make a better title to property than he has himself,” but in the view which we take of this case, La Monte, when he sold to Hunter, had a good title, and at all events, on the day of the commencement of this suit, Warner had ceased to have any title whatever. The case of Cross, et al. vs. Peters, 1 Greenleaf's R., 378, is distinguishable from the case at bar.

There the property in dispute was proved to have' Tbeen sold to the witness, Parker, on a credit of four months, a/nd was delivered to Mm, after which it was attached by other creditors. The contract of sale was not to become operative at a future day, but on the contrary, the property passed to Parker at the time, and he became indebted to the plaintiffs to the amount of the stipulated price, payable in four months.

It was not insisted in that case, that any conditions appertained to the sale, but the point urged was, that Parker acted framdulenil/y in the purchase, and that the venders could rescind the sale on that ground. The court, in that case, say: “ Where a vender claims the right of rescinding a contract of sale, which has been carried into effect, and executed on his part, by a delivery of the

article sold, it would seem that his right to rescind must be founded on such a fraud on the part of the vendee, as would render him liable to an indictment. This may be very sound, as applied to a case where the vender has parted with the whole property, and seeks to avoid the sale on the ground of fraud, but it certainly has no application to the case at bar, where the objection is, not that fra/ud vitiated the contract, but that a sale never was completed nor a property vested in the plaintiff. Vide Long on Sales, 109.

We hold that the'evidence produced by the plaintiff below did not entitle him to recover, and that it was the duty of the court to have sustained the motion for a nonsuit. For, if from the evidence submitted, there was no cause of action established, and it would have been the duty of the court to have set aside the verdict of the jury, in favor of the plaintiff) as being against the evidence, it certainly was the duty of the court to grant the motion.

A motion of this kind presents a question at law, the facts being admitted with all their proper effect in law, and the j. a. ' defendant can call upon the court to dispose of such a question, for “ questions of the law are to the court.” The court erred in overruling the motion, and therefore, the judgment below must be reversed.