
    Ogilvie v. Hallam.
    1. ^Replevin: accord and satisfaction: condition precedent. A contract entered into between the parties after the commencement of the action, which provided for the delivery of certain property and the dismissal of the action, in the nature of accord and satisfaction, construed: Held, that the delivery of the property was a condition precedent to the dismissal of the case.
    2. -- — :-: -: instruction. In such case, there being evidence tending to show that the property' described in the agreement was not the same claimed by the plaintiff in his petition, an instruction that if defendant was the owner of the property in controversy the plaintiff could not recover, unless the property was the same described in the agreement, and which defendant had failed to deliver, was correct.
    
      Appeal from Muscatine Circuit Court.
    
    Tuesday, June 13.
    Action to recover possession of one sorrel mare and one colt, the increase of said mare, on tbe ground tbe plaintiff was tbe owner and therefore entitled to possession. Tbe defendant denied the allegations of the petition and in a supplemental answer pleaded accord and satisfaction since tbe commencement of tbe action. Trial by jury, verdict and judgment for tbe plaintiff, and tbe defendant appeals.
    Hoffman, Pickier cfe Brown, for appellant.
    
      Cloud do Cloud, for appellee.
   Seevers, Ch. J.

I. After defendant bad filed bis answer tbe parties entered into a written agreement, and upon it is based the accord and satisfaction pleaded by the defendant, and his counsel insist the court erred in not holding it was‘a bar to the action. There is some question made as to the meaning of the agreement, and the original has been submitted to us for inspection. In our opinion the following is a correct copy. “I, T. J. TTfl.Ha.Tn and O. B. Ogilvie, of the county of Muscatine and State of Iowa, do hereby agree to settle all matters between us as follows, to-wit: that I, T. J. Hallam, do hereby agree to deliver to O. B. Ogilvie his sorrel mare, three years old, white in the face, to be delivered within one week from this date and 1, O. B. Ogilvie, do hereby agree to dismiss all suits against the said Hallam that is now pending against said Hallam, on delivery of the said mare: I, T. J. Hallam agree to pay all the witness fees that I had subpoenaed in justice’s court and Ogilvie agrees to pay balance of costs. August 23, 1880.”

Counsel for the appellant insist, as we understand, that upon the execution of the agreement both the accord and satisfaction became an accomplished fact without the delivery of the mare. The agreement took the place of the old debt or right, and the pending action must be dismissed, and an action brought on the agreement to enforce it, if it was not performed on defendant’s part. In support of this position Hall v. Smith et al., 15 Iowa, 584, and Merry v. Allen, 39 Id., 235, are cited. If the premises are correct it is probable the conclusion is. But the Circuit Court held the agreement was conditional, and that the plaintiff did not absolutely agree to dismiss this action, but that he agreed to do so only upon the defendant’s performance of the agreement on his part. That is to say, the delivery of the mare was a condition precedent to the dismissal of the action, the delivery being the satisfaction agreed upon. We think the ruling of the Circuit Court is undoubtedly correct.

II. Counsel for appellant object to the second paragraph of the charge upon the ground it is misleading. We do not concur in this view. On the contrary we think it is not only correct but the legal propositions embraced therein are well and concisely stated. The objection to the fourth paragraph of the charge has been disposed of in the first point of this opinion. The objection to the sixth paragraph is more in the nature of a criticism on the language employed than a substantial objection. We think the instruction correct. The fifth paragraph of the charge is as follows:

“Defendant claims to be the owner of the mare and colt ■in controversy and legally entitled to the possession thereof. Fie does not plead nor prove a tender of said property, that is, the property claimed by the plaintiff, and the question for you to determine is that of the ownership of the identical property sought to be recovered. If plaintiff is the owner of the mare and colt described in his petition, he can recover if defendant wrongfully took and detains said property; if defendant is the owner he can recover, upless the mare he agreed to deliver to plaintiff is the same inare claimed by the plaintiff; if it is, then he cannot recover if he failed to deliver said mare as provided by said agreement, and plaintiff will be entitled to your verdict.”

The objection made to this instruction is that plaintiff is permitted to recover on the written contract, when no such claim is made in his pleadings and it was made long after the action was commenced. We do not so understand the instruction. Under the instruction the plaintiff must recover, if at all, on the ground stated in the petition that he was the owner of the mare. But there was evidence tending to show the mare'described in the agreement was the same as the one the action was brought to recover, and there was evidence ■tending to show the mare described in the agreement was not the one claimed by the plaintiff. To meet this phase of the case the latter part of the instruction was given, that the defendant could recover, that is, defeat the plaintiff if the defendant was the owner, unless the mare he agreed to deliver was the one claimed in the action, and which the plaintiff owned. If the mare was the same then the defendant could not recover unless lie bad delivered ber as be agreed. We think tbe instruction correct, and that the right of tbe plaintiff to recover is not based on tbe agreement. It is urged tbe evidence does not sustain tbe verdict. But upon tbe only real point in controversy tbe identity of tbe mare claimed by tbe plaintiff, tbe evidence was seriously conflicting. It is not for us to say which- way it preponderated.

Affirmed.  