
    Daniel J. Pollock, appellant, v. Philip Pearson et al., appellees.
    Filed May 19, 1917.
    No. 19454.
    Trial: Direction of Verdict. It Is the duty of the trial court to instruct the jury to find for defendant when the evidence is not sufficient to sustain a verdict for the plaintiff.
    Appeal from the district court for Scott’s Bluff county: Ralph W. Hobart, Judge.
    
      Affirmed.
    
    
      L. L. Raymond, for appellant.
    
      Wright & Al other sead, contra.
    
   Morrissey, C. J.

Plaintiff agreed with defendant, a piano salesman, for the purchase of a piano of a specified make for $340, and executed his promissory note for that amount, the note being payable to defendant. Defendant agreed to have the piano shipped from the factory to plaintiff’s home at Scott’s Bluff, where plaintiff should have the right to inspect the instrument, and, if it was found to be satisfactory, the note, which by agreement between- the parties had been deposited in the hands of a third party, was to be delivered to defendant. Defendant ordered the piano shipped to plaintiff, but had the bill of lading sent to himself. Before the piano reached Scott’s Bluff, defend-, ant concluded that the note might be uncollectible, and notified the railroad company that the piano should not be delivered to plaintiff. Plaintiff then brought this action in replevin against defendant Pearson, the railroad company, and'its agent, alleging ownership and right to immediate possession. On the trial it was stipulated that neither the railroad company nor its agent had any interest in the litigation, and the trial proceeded against defendant Pearson. At the conclusion of the testimony the court instructed a verdict for the defendant, and plaintiff appeals.

There is little, if any, dispute in the evidence so far as the material issues are concerned. If the. verdict returned is the only one which the evidence would sustain, there can be no error in the direction of the court. And in this respect it is necessary to consider only the testimony of plaintiff. His statement of the agreement is substantially as heretofore detailed. He says it was agreed that the note should be held by a third party, one Telander, until such time as plaintiff inspected the piano and notified Telander to turn the note over to defendant. This shows that the parties had merely entered into an executory contract, Avhich defendant might rescind before delivery, and thus prevent the title passing. Whatever plaintiff’s right might be to recover for breach of the contract, the title to the property had not passed.

The verdict returned is the only one that could be sustained by the evidence, and the court did not err in directing a verdict.

Affirmed.  