
    Frederick S. Sage v. Andrew Sleutz.
    1. One who bargains for the purchase of a specific chattel' does not, by the mere payment of a part of the purchase money under an express-contract that no title shall vest in him until all of the purchase money, is paid, acquire any interest therein which is subject to levy and sale-on execution.
    2. Where, in such case, the levy is made upon the property then under the contract rightfully in the possession of the vendor, and in recognition of his rights, the title of the officer .making the levy is not aided, and he does not acquire any Interest in the property, or become entitled to its possession, by tendering to the vendor the amount of tho purchase money then remaining unpaid.
    3. A judgment will not be reversed for error in 'sustaining a demurrer to the reply when the plaintiff, on leave, files an amended reply, presenting, in addition to others, the same issues, and the case proceeds to trial and final judgment upon the issues thus presented.
    Motion for leave to file petition in error to reverse a judgment of the Superior Court of Montgomery county.
    The plaintiff in error brougnt his action in the Superior Court, November 3, 1867, to recover a piano-forte, which he claimed by virtue of a levy made thereon by him, as constable, December 29, 1866, to satisfy an execution in favor of Conner & Brown against one II. C. Weldy. He alleged that he had a special ownership in the piano; that he was entitled to its possession, and that it was wrongfully detained by defendant, Sleutz.
    The defendant answered, alleging that the piano was formerly the property of Philip Phillips & Co., and that they, November 26, 1864, delivered it to Weldy upon the following contract:
    “ Winchester, Ind., November 26, 1864.
    “ Philip Phillips & Co. have this day rented to Mr. II. C. Weldy, of Winchester, Indiana, one seven-octave pianoforte, . . . made by J. P. Hale, of New York, and valued at $350, to be used by Mrs. II. C. Weldy and family in his said residence, and not to be removed therefrom without the written consent of said Philip Phillips & Co. indorsed hereon. The rent is to be $25 per month, payable monthly, in advance, on the 26th day 'of each ensuing month, at the express office, or by draft on New York (less exchange), directed to said Philip Phillips & Co., Pike’s Opera House, Cincinnati, Ohio, without any demand whatever to be made therefor. Said renting may be terminated at any time by said Philip Phillips & Co., at their option .after the failure of said H. O. Weldy to pay said $25 rent when the same shall become due, or by the use of said piano-forte in any manner other than that provided •for above, or by .the removal of said piano from the residence above described, or by tbe abuse of the same, or by any other circumstances that may give said Philip Phillips & Co. reason to fear for the safety or proper treatment of their said property. The said H. C. Weldy is to take good care of said piano, keep the same in good order, and so to return the same to said Philip Phillips & Co. whenever said renting may be terminated, whether at the expiration of twelve months, or by the failure to comply with the terms above named. If the said H. C. Weldy desires to purchase said piano, he may do so at any time during the continuance of the above renting, by the payment to said Philip Phillips & Co. of the sum of $850, in which case all sums paid for rent within twelve months (should said renting so long continue) will be deducted from said sum. But the privilege to purchase said piano shall in no way interfere with the right of said Philip Phillips & Co. to control said piano-forte, all property remaining in them until such purchase money is all paid.
    “1. C. Weldy. [l. s.]
    “Philip Phillips & Co.” [l. s.]
    The answer further averred that prior to December 29, 1866, the date of the alleged levy, Weldy “ had paid all the money called for by said contract except $50;” he had removed the piano to Dayton, Ohio, and had employed one Dubois to repair itDubois had it in possession and was claiming a lien upon it for his charges, $32.25; the contract had been transferred by Philip Phillips & Co., to Sumner & Co.; the latter had demanded said sum of $50, and it had not been paid. On December 29, 1866, Sumner & Co. commenced suit against Weldy and Dubois to recover the piano, before a justice of the peace. The order of delivery was placed in the hands of the plaintiff as constable. Pursuant to its command, he took the piano from Dubois and delivered it to Sumner & Co., the latter giving bond to the defendants in that action as required by law. The plaintiff having in his hands the execution in favor of Conner & Brown, at the time he executed the writ of replevin, seized upon the piano as the property of "Weldy, but left it in the possession of Sumner & Co. He returned the writ of replevin on the same-day, indorsed, “ Property replevied from Weldy and Duboisby E. G-. Sumner & Co. — appraised $300.” He returned the execution January 5, 1867, indorsed, “ Levy made on one piano-forte, subject to claim of E. Gt. Sumner & Co.” The action between Sumner & Co. and Weldy and Dubois was settled by the parties, the defendants therein conceding that they had no right to the piano or to its possession. On January 31, 1867, Sumner & Co,, by the consent of Weldy and Dubois, sold the piano to defendant Sleutz for $250,. and pursuant to the understanding between them and Sumner & Co., the latter retained $50 of the purchase money for themselves. They paid the costs in the replevin suit, paid Dubois the amount of his charges, and paid the remainder of the purchase money for the benefit of Weldy and pursuant to his directions. The answer admitted that the plaintiff, while Sumner & Co. had the piano in possession, and before the sale of same to defendant, tendered to-Sumner & Co. the $50 remaining unpaid upon the contract-; but he alleged that, at the time he purchased, he had no knowledge of the alleged levy, and he denied that he. wrongfully detained the piano, or that the plaintiff hád any interest therein.
    To the answer setting up these facts the plaintiff demurred, and the deriiurrer was overruled.
    The plaintiff then replied, alleging that after the assignment of said contract by Phillips & Co. to Sumner & Co., the latter “ waived and surrendered all their right of property in said piano to Weldy,” and that they instituted the-suit in replevin against Weldy and Dubois, under an agreement between them and Weldy, by which they were to obtain and hold possession of the piano, to save the same-from levy and sale on said execution, and by which they were to sell the, same for the benefit of said Weldy, and after applying $50 of the purchase money to satisfy their claim, were to pay the remainder to him or for his benefit.
    
      To this reply the defendant demurred, and the demurrer •was sustained.
    The plaintiff, on leave of the court, filed an amended reply denying (hat Dubois ever replevied the piano, or had any lien thereon; alleging that Sumner & Co., at the time they instituted their suit in replevin against Weldy and Dubois, “did not therein, or otherwise, claim any right of property in said piano, but only asserted a claim thereon for $50, for the purchase money due to them from Weldy.” lie alleged that he tendered that amount to them; admitted that the levy was made subject to their claim, but denied that they had any lien upon the piano, or any special or other ownership therein, and alleged, among other things, that the suit against Weily and Dubois was instituted pursuant to an agreement substantially as stated in the original reply.
    The trial resulted in a verdict for the defendant. Plaintiff filed his motion for a new trial, alleging as causes, among others, that the verdict was against the evidence, and that the court erred in its charge to the jury. The motion was overruled. The plaintiff excepted, and took a bill of exceptions, setting out the evidence and the charge of the court.
    It is now insisted, on behalf of the plaintiff, that the court erred : 1. In overruling the demurrer to the answer; 2. In sustaining the demurrer to the original reply; and, 8. In its charge to the jury.
    That part of the charge now complained of, was as follows. The court, proceeding upon the hypothesis that the contract, and the rights of Phillips & Co. in the piano, had been, by them, assigned to Sumner & Co., said to the jury : “If the written contract stands unmodified by any subsequent contract or agreement of the parties thereto, and Sumner & Co. rightfully regained the possession upon Weldy’s default. Sumner & Co. had the right to sell the piano, and the power to coufer a good title upon the purchaser.”
    
      Young & Gottschall, for plaintiff in error :
    
      I. The general ownership of the piano was in Welcly; Sumner & Co. only claimed a special ownership or interest to the extent of $50. This sum was by plaintiff tendered to Sumner & Co., and thereby their interest was ex tinguished. Benjamin on Sales, 528; Jordan v. James, 5 Ohio, 88.
    The title of Sumner & Co. was not strengthened by acquiring the lien of Dubois for repairs; that was extinguished by the replevin and change of possession, and was not transferred to Sumner & Co.
    The subsequent compromise with Weldy and Dubois did not affect the plaintiff’s rights under his levy. "Wright, 259.
    The averment that he had no notice of the levy, or of plaintiff’s claim, can not help defendant; he held no better title than Sumner & Co. Ballard & Sampson v. Burgett, 40 N. Y. 314; Roland v. Gundy, 5 Ohio, 202; 1 Smith’s Lead. Cas. 892, 893.
    The levy was continued by issuing orders, under section-178 (S. & C. 801), and the delay of sale was reasonable under the circumstances. Acton & Woodnutt v. Knowles, 14 Ohio St. 18; Morgan et al. v. Spangler, Ib. 102.
    “Weldycould not hold it in lieu of a homestead under the facts stated in the pleadings. Frost v. Shaw et al., 3 Ohio St. 270; Sears v. Hanks, 14 Ohio St. 298; Gwynne on Sheriffs, 215.
    II. The demurrer to the answer should have been sustained, and that to the reply ought to have been overruled. It appeared by the answer itself that the entire claim and interest of Dubois in the piano had been extinguished by the replevin suit before the levy was made.
    III. The verdict should have been for the plaintiff. The evidence established that Sumner & Co. had no interest, except the claim for $50, which was tendered them; the piano was then "Weldy’s property, and plaintiff’s right under the levy is good, unless by temporarily leaving it with Sumner & Co. he held them out as owners and contributed to defraud the defendant. His own statement shows that he knew it did not belong to Sumner & Co. and that Weldy was the owner, and that she was to share in the proceeds of the sale.
    IV. The written contract set out in the answer was a sale; and the provision as to rent, an attempt to avoid the necessity of taking a chattel mortgage. But whether this be so or not, the unqualified charge of the court that, “if the written contract stands unmodified by any subsequent contract or agreement of the parties thereto, and Sumner & Co. rightfully regained possession upon Weldy’s default, Sumner & Co. had the right to sell the piano, and the power to confer a good title upon the purchaser” was erroneous.
    The court ought to have said to the jury in this connection, that if Sumner & Co. had received the amounts paid by Weldy as payments of purchase money, and only claimed of him $50 more to complete the purchase and make Weldy the absolute owner, that was the extent of their interest, and that a payment or bona fide tender of this amount to them by the plaintiff, divested them of this interest and gave the j lain tiff the right to the possession and sale of said piano-under his levy.
    
      J. A. Jordan, for defendant in error:
    1. The constable was not entitled to possession; because, when he levied, Dubois held a lien on it for repairs, and defendant has succeeded to the rights of Dubois.
    2. The same constable, simultaneously with the levy of' the execution, replevied the property for Sumner & Co., of whom defendant purchased it and delivered it to them, and that replevin case was adjudicated in their favor.
    3. The petition and ease show that at the time the replevin suit was instituted, the plaintiffs therein held it under a title which they never had parted with.
    4. The replevin suit adjusted this tit-le in favor of Sumner & Co., and the bond took the place of the property.
    5. The piano was left in the hands of a dealer of pianos, who sold it to defendant. •
   Stone, J.

The question which we regard as the controlling one in this case, was presented by the demurrer to the answer, and arises, also, upon the exception taken to that part of the charge of the court now complained of. That question is, whether in the state of facts alleged in the answer and supposed in the charge, Weldy had any interest in the property in controversy which was subject to levy and sale on execution against him. This question must be answered in the negative. The contract set out in the answer, and referred to in the charge, was, at most, a conditional sale or executory contract of sale. By its express terms the chattel in controversy was to remain the property of the vendors until the purchase money was paid. That was the condition upon which the property was to pass. It was clearly a condition precedent, and until performed or waived, the contract remained executory, and no title vested in the purchaser. ’ Hussey v. Thornton, 4 Mass. 405; Marston v. Baldwin, 17 Mass. 606; Barrow v. Coles, 3 Camp. 92; Barrett v. Prichard, 2 Pick. 512; Herring v. Happock, 15 N. Y. 409; Strong v. Taylor, 2 Hill, 326.

Such, unquestionably, was the effect of this condition as between the parties to the contract, and this is as far as, for the purposes of this case, it is necessary for us to go. For it is to be observed that before the levy in this case was made, Sumner & Co., the assignees of the original vendors, had resumed possession of the property; the possessory interest of Weldy, if such he at any time had, had terminated; and the levy was expressly made subject to the claim of Sumner & Co., thus being, in effect, limited to the interest of Weldy, whatever that was.

The jury were well warranted in finding that the contract remained in force, and that there had been no waiver of the condition. The fact upon this point, apparently much relied upon by counsel, that the piano was delivered to Weldy at the time the contract was made, was no evidence of such waiver,

A conditional contract of sale does not lose its executory character by a mere delivery of the property. Long on Sales, 107; Reed v. Upton, 10 Pick. 522. The terms of the contract, in pursuance of which the delivery is made, qualify and give character to the act and to the subsequent possession. The fact that Sumner & Co., in instituting their suit against Weldy and Dubois, described their interest in the piano as a special ownership,” if any evidence of such waiver, was, certainly, not conclusive. They were at the same time, and in the same instrument, asserting their right to the possession — a right they had wholly lost if they had become bound to treat Weldy as a purchaser, and had by an absolute and unconditional delivery of the property, or otherwise, effectually waived the condition.

It was conceded that a substantial part of the purchase money was due and remained unpaid. Weldy had, therefore, under the contract, no title to the property, and had, .at the time of the levy, neither the possession nor the right of possession. His right to the property, if any he had, rested wholly in contract, and can be regarded only as a claim to the title to be perfected, if at all, by a specific performance in equity or by the consent of the party contracting to sell.

We are not satisfied that the Superior Court erred in sustaining the demurrer to the original reply, but ,we deem it unnecessary critically to examine the questions thus presented, it being evident that their determination can not influence the disposition of the case. No final judgment was rendered upon the ruling then made; and the amended reply, filed on leave of the court, repeated, in substance, the averments of the original, and raised, in addition to others, precisely the same issues. Upon the issues thus presented the parties proceeded to trial. Any testimony, which was .admissible under the original, was equally admissible under the amended reply, and so far as concerned the averments common to both and the questions thereon arising, if no error was committed upon the trial, the judgment is right, although the ruling upon the demurrer may have been wrong. The motion must be overruled.  