
    DANIEL TRIPP, Respondent, v. GERMON W. PULVER, Appellant.
    
      Trover — when action will lie — Demand—when must he alleged and proved.
    
    The plaintiff agreed to sell a horse to the defendant for $140, receiving forty dollars at the time of sale, and delivering the horse to him. On the same day plaintiff demanded the remaining $100 of the defendant, who refused to pay the money, claiming that the price of the horse was only forty dollars. Plaintiff offered to return the forty dollars, and demanded the horse, which defendant refused to deliver. In an action to recover the value of the horse, 7¿eM,that, as the minds of the parties had never met, there was no sale of the horse, and that an action of trover would lie.
    Where a person has come lawfully into the possession of personal property, a demand must be made before trover will lie. Where a demand, though not alleged in the complaint, is proved upon the trial, an amendment to the complaint should be allowed, inserting such allegation; and this will be done even on appeal to the General Term.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      Isaac D. Garfield, for the appellant.
    
      Wm. C. Ruger, for the respondent.
   Opinion by Mullin, P. J.

Judgment affirmed.  