
    James Price v. Peter Jones.
    
      1. Contract. Title retained. Pbssession delivered. A contract for the sale of personal property, by wbieb the possession- is delivered to- the-purchaser, but the title retained in the seller until the purchase money is paid, is valid, and will be enforced. And if the purchaser dispose of the property, by sale, before the title is vested in him by paymen# of the purchase money, the original' owner may follow it in the hands of such third person.
    '2. Same. Same. Same. The injured party may sue. If a purchaser who has thus failed to perfect h-is title, by payment o-f the purchase money, sells the property to a third person, such third person may, upon application- of the original owner, deliver up the property, and sue his vendor and recover damages for the injury done him.
    
      ■S, Same. Same. Innocent purchaser. Caveat emptor The payment of the purchase money by the second purchaser, does not place him in the attitude of an innocent purchaser without notice. It is a question of -right, and not one of notice. The maxim, caveat emptor ap-iles ; and if the person from whom the purchase is made has no title, his vendee can acquire none. The fact that the first purchaser was in possession of the property does- not change the principle,
    
      4. Same. Same. Evidence. Admissions of a party to the contract. The-declarations of the parties to a contract, made at ai time when they are the only parties i-n interest, is competent evidence. And such evidence is admissible on, trials between third persons when the terms of such contract become material.
    •5. New Teial. Surprise. Practice. The affidavit of a party, stating that he was taken by surprise, by the testimony of a material witness, whose statements he can disprove, unsupported by the affidavit of the-witness by whom he can disprove them, is not sufficient to authorize the granting of a new trial. The affidavit of the person possessing the knowledge, or, at least, the affidavit of some disinterested individual to whom the information was communicated, should he produced.
    PROM HAWKINS.
    In the summer of 1856, Grigsby, as the agent of a company, sold a safe to Winstead, upon condition that the title was to remain in the company until the purchase money was paid. The safe was delivered to Winstead, who afterwards sold it to one Willis. Willis sold the safe to Price, and Price sold it to Jones. Jones paid Price the purchase money. Win-stead failed to pay the company for the safe ; and Grigsby, as their agent, demanded it from Jones, who yielded to the superior title. Jones then purchased the safe of Grigsby, the ■agent, and sued Price for damages. The cause was heard before Pattehson, Judge. On the trial the Court permitted the declarations of Winstead, as to the terms of the contract between him and the company, made while he had the safe in possession, to go to the jury as evidence. There was a verdict and judgment for Jones. Price moved for a new trial; and, in support of said motion, presented his affidavit, in which he stated that he was taken by surprise by the testimony of Grigsby, and that he could disprove his statements. His affidavit was unsupported by the affidavit of any other person. The Court refused to grant a new trial, and the defendant appealed.
    R. Abnold, for the plaintiff in error.
    Hall, for the defendant in error.
   WRight, J.,

delivered the opinion of the Court.

It appears, in this case, that Price sold Jones a safe, the title to which failed, and the latter sued the former for damages in consequence of such failure, and had verdict and judgment in his favor, from which Price has appealed in error to this Court.

The facts of the case are these: One Grigsby, as the agent of a company to whom the safe belonged, sold and delivered it to Winstead upon a credit of one year; but the title was not to pass to him, but was to remain in the company until he paid for it; and if he failed to do so, the trade was to be at an end. While thus in his possession, he sold it to one Willis, in payment of an antecedent debt, and Willis sold it to the defendant, Price, who sold it to the plaintiff, Jones, as before stated.

Winstead having failed to pay Grigsby for the safe, he, as the agent of the company, demanded it of Jones, who yielded to their superior title, and again purchased the safe of Grigs-by, and paid him for it.

Upon these facts the Circuit Judge did not err in instructing the jury that Winstead had acquired no title to the safe, and could communicate none to Willis, or a purchaser under him. Even if Willis had so paid the purchase money as to be enabled to claim the position of an innocent purchaser, without notice, still that doctrine can have no application here. The contest was a question of right, and not of notice. The maxim, caveat emptor applied; and, of course, if the person from whom the purchase is made have not the legal title, the purchaser can acquire none. It can make no difference that Winstead was in possession of the safe. The cases of Bradshaw v. Thomas, 7 Yer., 497, and Gambling v. Read, Meigs’ Rep., 281, furnish direct authority upon this question.

It"is next insisted that the Circuit Judge erred in permitting the declarations of Winstead to be proved and go to the jury. But in this also we are satisfied he did not err. These declarations — if we understand aright those to which the objection refers — consisted of what Winstead said, as to the terms of the trade between him and Grigsby, to the witness, Huntsman, in whose care the safe had been left, when he came to get it. They were made at a time when the company and Winstead were the only parties in interest, and previous to the sale made by him to Willis, and, upon well settled principles, were admissible in evidence. 1 Greenl. Ev., secs. 180, 189, 190. Nor do we. think the Circuit Judge erred in refusing to grant a new trial upon the affidavit of Price, the plaintiff in error, that he was taken by surprise in the admission of Grigsby’s evidence, and that, upon a second trial, he can prove the same untrue; because, passing by the inquiry as to whether, upon the facts disclosed in this record, the party has any legal ground to say he was surprised; and without inquiring whether it is probable, if Grigsby’s testimony were overthrown, the result would be different. It is sufficient that Price does not produce the affidavit of any witness, contradicting the statement of Grigsby, or offer any reason for not doing so; but rests the application upon his own affidavit. In Scott v. Wilson, (Cooke’s Rep., 315,) Judge Overton, in delivering the opinion of the Court, says: On a motion for a new trial, on any ground, resting on the information of others, the mover’s own affidavit alone cannot be sufficient. The affidavit of the person possessing the knowledge, or, at least, the affidavit of some disinterested individual, to whom the information was communicated, should be pro-uced.”

The action of the Circuit Court is also sustained by Riley v. The State, 9 Hum., 646.

Upon the whole, we see no error in this judgment, and affirm it.  