
    Frederic W. Dearborn vs. Edwin Turner.
    Where the owner of a chattel delivers it to another, and takes his promise in wilting to return it on a day specified, or pay a sum of money therefor, the property in the chattel passes from the former to the latter.
    TROveb. for a cow and calf, on a statement of facts agreed. The plaintiffj being then the owner of the ców, on the 22d of April 1836, delivered her to one Nason under the following agreement. “ Monmouth, April 22, 1836 ; Rec’d of F. W. Dearborn, one four year old cow, and a calf by her side, which I promise to return to him in Augusta in one year from this date, with a calf by her side, or pay twenty-two dollars and fifty cents. Wm. H. Na-son.” Within the year Nason, without the knowledge of the plaintiff, sold the cow to the defendant, who paid him therefor* The plaintiff has not been paid for the cow. On April 23, 183T, the plaintiff found the cow in the possession of the defendant, with a calf by her side, and demanded the same, but the defendant refused to deliver them.
    
      Fmmons, for the plaintiff,
    contended, that the true construction of this contract was, that it was a conditional one, by which the cow was to remain the property of the plaintiff unless the condition was performed. Nason could be entitled to the cow only on payment of the price by the time agreed on. Tibbets v. Towle, 3 Fairf. 341.
    
      May, for the defendant,
    contended, that by the contract, Náson had the election to consider this a sale, if he pleased. By the sale of the cow, or by the neglect to return her, the election w'as made, that the cow should be his. But the contract amounted to a sale at the time of the delivery. Holbrook v. Armstrong, 1 Fairf. 31; Hurd v. West, 7 Cowen, 752; Story on Bailments, ch. 6, sec. 439.
   The opinion of the Court was subsequently drawn up by

Weston C. J.

The plaintiff delivered to Nason a cowand a calf, for which he took his written promise, to return the samo cow within a year, with a calf by her side, or to pay twenty-two dollars and fifty cents. We are very clear, that the security of the plaintiff vested in contract; and that Nason, having the alternative to return or pay, the property passed to him, and he was at liberty to sell the cow. Tibbets v. Towle, 3 Fairf. 341, was a very different case-. There the plaintiff expressly reserved to himself the title to the oxen, until paid for. The case of Hurd v. West, 7 Cowen, 752, decides expressly, that where an alternative exists, the title to the property, in a case like this, is transferred upon the' delivery.

Plaintiff nonsuit-  