
    L. E. FOUNTAIN v. CALVIN JONES.
    (Filed 2 March, 1921.)
    1. Bills and Notes — Vendor and Purchaser — Sale and Return — Conditions.
    Where the note given for the sale of a horse stipulates that it must worh all right or the maker of the note could return it in seven days from its datej it is called a “contract for sale and return” .passing title to the maker subject to the right under the¡ conditions stipulated for, to return within the time fixed, and demand cancellation of the note: and upon his failure to do this the sale becomes absolute.
    3. Same — Instructions—Burden of Proof — Appeal and Error.
    Upon the admission of the execution of the note sued on, “for the sale and return” of a horse, within a specified time, upon certain conditions, the burden of proof is on the defendant to show such facts, in compliance with the contract to return the horse in the time specified, as will avoid his obligation upon the note, and an instruction placing it upon the plaintiff, is reversible error.
    3. Same — Waiver—Agreements.
    Where there is evidence that the defendant offered to return a horse he had purchased from the plaintiff within the time stipulated in the note given for the purchase price, and thus avoid obligation thereon, but was twice persuaded by the plaintiff to give the horse other trials, the fact of such agreements would be a waiver of the return of the horse within the period specified in the note, and the second waiver prevents the plaintiff’s objecting that the second offer to return the horse was not in a reasonable time, but thereafter the defendant could not use and keep the horse for six months without further tender of its return, if he had had reasonable opportunity to have done so.
    Appeal by plaintiff from Cranmer, J., at November Term, 1920, of Edgegombe.
    This is an action to recover a mare, and tbe balance due on a note.
    Tbe defendant executed to tbe plaintiff a note for $250, wbicb sum represented tbe purchase price of tbe mare. Tbe note was dated 29 March, 1918, and by its terms tbe plaintiff retained title to tbe mare to secure tbe purchase price. There was also written into tbe note tbe provision that tbe mare “must work o. k., if not (defendant) can return her in a week’s time, seven days from date.” Tbe note matured on 1 November, 1918. Defendant did not pay the note or any part of tbe same at maturity. Plaintiff duly demanded payment of tbe note, and upon defendant’s failure to pay instituted this action of claim and delivery, asking that be be declared entitled to the immediate possession of tbe mare for tbe purpose of selling her according to law and applying tbe net proceeds of sale'on tbe note. He also asked for judgment against defendant for balance of note, after crediting on same tbe net proceeds from tbe sale.
    
      Defendant admitted the execution of tbe note, and also admitted that he had not paid same, but claimed that he returned the mare within the seven days provided for in the note; that plaintiff persuaded him to try her again, and that after a sixteen days trial he again returned the mare, and was again persuaded by plaintiff to try her further; that he again took the horse home and tried her and found her unsatisfactory, but that he never saw plaintiff again, and was in possession of her when this action was started.
    The first issue, addressed to the question as to whether plaintiff was the owner and entitled, to the immediate possession of the mare, by virtue of the note retaining title, was answered in plaintiff’s favor by consent.
    The jury returned the following verdict:
    “1. Is the plaintiff the owner of and entitled to the immediate possession of the horse in controversy? Answer: ‘Yes.’
    “2. What amount, if any, is the defendant indebted to the plaintiff? Answer: ‘Nothing.’
    “3. In what sum, if any, is the plaintiff indebted to the defendant on his counterclaim. Answer: ‘Nothing.’”
    His Honor charged the jury on the second issue as follows, to which the plaintiff excepted: “I charge you that as to the second issue, the burden rests upon the plaintiff to satisfy you ,by the preponderance, that is, the greater weight of the evidence, that he is entitled to have same answered in his favor. Now, if you find by the greater weight of the -evidence that the defendant did not return the horse within seven days from the date of the note, then I charge you that it would be your duty to answer the second issue in such sum as you may find to be due. But if you do not so find, then you should answer the issue ‘Nothing.’ ”
    There was a judgment in favor of the defendant, and plaintiff appealed.
    Or. M. T. Fountain & Son for plaintiff.
    
    
      No counsel for defendant.
    
   AlleN, J.

The contract covered by the note offered in evidence is called in the law books a “contract for sale and return,” and under its terms the title to the mare passed to the defendant, subject to the right of return within the time fixed, and to demand the cancellation of the notej and if he failed to exercise this right the sale became absolute, and the purchase price could be recovered.

As said in 35 Cyc., 237, and approved in Mfg. Co. v. Lumber Co., 159 N. C., 510: “Where the contract provides for a return of the goods if not satisfactory, the buyer cannot relieve himself from liability for tbe price, unless be returns or offers to return tbem, and tbe offer to^ return must be unconditional.”

It follows, therefore, as tbe defendant admitted tbe execution of tbe note, and as it was incumbent on bim to prove a return of tbe horse-witbin seven days in order tbat be might be relieved from responsibility,, it was error to place tbe burden of proof on tbe plaintiff on tbe second issue, and to require bim to prove the negative — tbat tbe defendant did not return tbe borse witbin seven days — before tbe issue could be answered in bis favor.

It was also erroneous to instruct tbe jury to answer tbe issue “Nothing” unless they found tbat tbe defendant did not return tbe borse witbin seven days, because this ignores tbe evidence to tbe effect tbat although an offer to return was made, tbe defendant agreed to give the-horse another trial, and again after sixteen, days and complaint made, concluded to try the borse further, and thereafter made no further objection and no further effort to return tbe borse.

If the defendant offered to return tbe borse witbin seven days, and was persúaded to make another trial of tbe horse, this would be a waiver-of tbe stipulation for tbe return witbin seven days, and if after sixteen days be again offered to return tbe borse, and it was agreed tbat there-should be a further trial, this would prevent tbe plaintiff from objecting tbat tbe second offer of return was not witbin a reasonable time, but tbe defendant could not thereafter keep and use tbe borse for a period of six months without further tender of return, if there was reasonable opportunity to do so, and then avoid liability on tbe note, under tbe stipulation in tbe note giving tbe right to return tbe horse if' not satisfactory.

There must be a new trial because of error in tbe charge.

New trial.  