
    German Hopkins, Respondent, v. Robert L. Davis, Appellant.
    
      Bale — condition precedent of payment — when the vendors parting with possession-is immaterial — the statute relative to conditional sales is available only to a bona Me purchaser—it cannot he taken advantage of in the first instance on appeal
    
    Where the owner of a mare parts with her possession to a prospective purchaser under an executory agreement that the latter will train her, enter her in races, and, if she wins any stakes in the first three races in which she starts, he will pay for her a price named, the purchaser obtains no title unless he makes full payment, and the owner is entitled to maintain replevin for her against one . who has acquired her from the original vendee.
    
      
      Semble, that the defense that the contract was subject to the law relative to conditional sales (Laws of 1884, chap; 315), and that the sale should be held absolute in favor of the defendant because no copy of the contract of sale was filed as required by the statute, is available only to a bona fide purchaser, and cannot be presented for the first time upon an appeal.
    Appeal by the defendant, Robert L. Davis, from a judgment of the Supreme Court-in favor of the plaintiff, entered in the office of the cleric of the county of Queens on the 14th day of April, 1897, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 13th day of April, 1897, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes,
    
      James P. Niemann, for the appellant.
    
      Augustus N. Weller, for the respondent.
   Cullen, J.:

This is an action of replevin to recover possession of a mare. Plaintiff gave possession of the mare to one Pickhardt for the purpose of trial, and afterwards negotiations were had between the parties respecting a purchase by the latter. The plaintiff’s testimony was to the effect that Pickhardt offered tó buy at the price of $250, which offer the plaintiff refused, demanding $300 ; that thereupon Pickhart ■ proposed that he would train the mare, enter her, and,if she got any of the stakes in the first three races in which she started, he would give $300 for her. The plaintiff acceded to that proposition. Pickhardt never paid for the mare, and the plaintiff brought this action for her recovery from the defendant, in whose possession she was at the time. The defendant- claimed that he had purchased the mare from Pickhardt for the price of $450, paying $180 in cash and the remainder by crediting Pickhardt the amount on a debt due from him to the defendant.

If the transaction between himself and Pickhardt- was as testified to by the plaintiff, then no title passed. It was at most an executory contract of sale, only to be effective upon the contingency that the mare should in.' the first three races succeed in winning some portion of the stake. In case she did not succeed in winning some portion of a stake, there was no agreement whatever between the parties for her sale. Unless credit b.e expressly .or impliedly given, the law presumes that payment is to he made in cash upon the delivery of the article sold. This right may be waived by the vendor by making delivery without exacting payment. In this case it was necessary that Pickhardt should have possession of the mare to determine whether he would purchase her or not. Therefore, there was nothing in either the original delivery of the mare to him, or in his subsequent retention of possession, which tended to show that any credit was extended to him by the plaintiff. If the plaintiff’s account of the transaction is true, no title would pass to Pickhardt until he paid for the mare. The motion to dismiss the complaint was,- therefore, properly denied.

Against the objection and exception of the defendant, the plaintiff was asked: “Have you ever parted with the title V” to'which he answered: “ Of course not.” The question was improper, as its answer involved not only a question of fact, but also a conclusion of law. But we think it harmless; for if the plaintiff’s previous testimony was true, his statement that he never parted with the title was correct. So, all the answer amounted to was a reiteration of his former testimony.

On this appeal the defendant contends that the contract testified to by the plaintiff falls within fhe law as to conditional sales (Laws 1884, chap. 315), and that .the sale should be held absolute as to the defendant, whatever may be its effect as between the original parties, because no copy of the contract of sale was filed as required by the statute. It is sufficient to say that no such ¡mint was raised on the trial. If it be assumed that the contract falls within the terms of the statute (which we do not determine), it would not avail the defendant .unless he was a iona fide purchaser for value. To obtain the benefit of the statute, the burden rested upon him to affirmatively prove that fact. His testimony and that of Pickhardt, they being interested parties, was not conclusive on the question, and the jury were at liberty to discredit them. No request was made to have the jury pass on the question, nor was the point in any manner presented. It is, therefore, not available now.

We can find nothing in the case which justified a verdict for more than nominal damages for the detention of the property. It does not appear how long the defendant had possession' of the mare, and the action is against him, not against Pickhardt.

The judgment and order appealed from should be reversed and new trial granted, costs to abide the event, unless the plaintiff stipulates to remit the damages awarded him for the .detention of the property, in which case the judgment as modified should be affirmed, without costs to either party. .

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulates to remit the damages awarded for the detention of the property, and in case of such stipulation the.judgment as modified affirmed, without costs to either party.  