
    Robert W. Jefferson v. James S. Chase.
    A narr in the detmuit in replevin amended to a narr in the detinet on, motion after the jury was sworn.
    If a principal in the sale of goods directs his agent not to deliver them until they have been paid for, and the agent without his knowledge and authority, delivers them to the buyer on trial, to be paid for, or returned by a certain day, and it is not done; there is no change of property in the goods by such delivery of them, and the seller may retake them, notwithstanding he may have afterwards acquiesced in the delivery of the agent, and declared in the mean time that he had:sold them to the buyer.
    Replevin for a horse. The declaration was in the detinuit. After the jury were sworn, the counsel for the plaintiff asked. for and obtained leave,' notwithstanding it was objected to on the other side, to amend, and change it to a declaration in the detinet.
    
    The proof on the part of the defendant was, that the plaintiff had inquired of him if he had not a horse for sale, to which he replied that he had, but if he sold him, he must have the money for him, as he had immediate need of it; and he afterwards instructed his agent, who had the care of the horse in his absence, that if the plaintiff should call for the horse whilst he was away, not to let him have it, unless he paid the money for it, stating the price. During the same day, after the defendant had left home, the plaintiff informed the agent that the defendant had told him that he could take the horse for a few days, to try him, and if he was satisfied with him, he was to pay for him on the following Tuesday, and if not, he was to return him by that time; upon which the agent permitted ■ him to take away the horse, which he kept for a month, without offering to pay for him, or to return him, when the defendant took him out of his possession without his knowledge, or consent, and locked him up in his stable. On the part of the plaintiff in reply, it was proved that during the month he had had the horse in his possession, 1 the defendant had several times stated to different persons that he had sold the horse to the plaintiff, and that he was soon expecting to receive the money for him. The plaintiff also proved a subsequent tender of the price of the horse, and a demand and refusal before he sued out his writ of replevin.
    W. Saulsbury, for the plaintiff,
    contended, that admitting it to be true that the agent of the defendant had delivered the hofse to the plaintiff without authority, and against the positive instructions of his principal, his permitting-him to remain for a month in the possession of the plaintiff', accompanied with the repeated declaration to different persons during that time, that he had sold him to the plaintiff", was a subsequent sanction and ratification of the act of his- agent, and rendered the delivery and- possession of the horse by the plaintiff rightful and lawful. Story on Contr., secs. 160, 161; Add. on Contr. 396.
    
      Robinson, for the defendant:
    The agent in this ease was but a special agent to deliver the horse on a special condition, which he violated. The delivery, therefore, was without authority, and was not the act of his principal. But even if it was, the plaintiff' had failed to comply with the conditions on which the agent himself had delivered him. The defendant, therefore, could not be presumed to have acquiesced first, in the breach of his own terms, and afterwards in the breach of the plaintiff’s own terms, fraudulently suggested, and falsely represented by him to the agent as later instructions from the defendant in regard to the matter. If the payment of the price is a condition precedent to the delivery of goods, it is no sale until the price is paid, and if the party obtains possession of the goods without payment, his possession is wrongful and he has no property in them, for the property of the seller in them is not changed. Story on Contr., sec. 800; 3 Eng. C. L. R. 419; 13 Johns. 434. If the possession is obtained by fraud, the property is not changed; there is no delivery, and the seller, on the refusal to return the goods, may maintain replevin for them. Morris on Replevin, 237; 4 Harr. 327.
   The Court,

Harrington, Ch. J.,

charged the jury: That the plaintiff was bound to prove that the horse was rightfully in his possession as his property, and that the defendant wrongfully took, or wrongfully detained him from his possession ; but if he obtained the possession of him by false representations to the agent, his possession was not lawful, or if he bought the horse on a contract to pay for him before delivery, and the agent delivered him without the authority, or against the instructions of the defendant, before payment, his possession was not rightful and the defendant had a right to retake him again into his posses-" sion, provided he could do it without force and violence. And as the agent in this instance was not a general, but only a special agent for the purpose of taking care of the horse, the law would presume no authority in him to deliver the horse to another without actual instructions from the defendant for that purpose; and therefore, it was incumbent upon the plaintiff to prove such instructions from the defendant, in order to make the delivery the act of the defendant and render his possession under it rightful. If the defendant acquiesced in the delivery of the horse by his agent after he learned that it had been done contrary to his directions, and thereby approved and ratified his act, it made the possession of the plaintiff lawful upon the terms on which he received him from the agent; but if those terms were, that he was merely to take him on trial and, pay for or return him by a certain day, which he failed to do, his keeping him after that time was merely by the permission of the defendant, and gave him no right of possession, and no right of property in the horse as against the . claim of the defendant, unless there was some subsequent sale or agreement between the parties in regard to the matter, as to which, however, there was no proof before the jury. The case, therefore, turned entirely on the right of the plaintiff to the possession of the animal when he was taken from him by the defendant, and should be decided accordingly.  