
    Paul R. Towne, as Executor, etc., of John R. Foley, Deceased, Appellant, v. Elisha Sniffin, Respondent.
    
    
      Pg^p&rshipraeemntpng^ sale&emdash;Option. gimw,fine. partner (o purchase fufntfure-j ti; evince rypr^ufinption of' owner flip from possession after empproffon of opfion.^
    
    Y-iA-ppeaLfroiti part óf .a judgment of-the..Supreme Gburt, entered .on. the.:17th day iofi.February,! 1908.". ;. ." ¡ .. .. . '. In j.. . in .-; ...’ - - .."-.i-.-.i
    " .'Judgment affirmed;• with-costs.. .No-opinion., -.Present r-rJngraham,MclLatigbj lin;■ Clarke;'Houghton-and--Seótt,,,JJ,:; HoUghtonX-,'dissenting..-’' v.)
   Houghton, J. (dissenting):

Plaintiffls -testator and clef enclant-were .copartners-in •the real-estate, ahd.ihsuraüce.busmess'and-dissolved their-r.elatioha-bymutual'.con;sent in the year 1900..Plaintiff’S'testator continued in occupation .of the offices ¡and defendant executed- to-: him* bill .of .-sale» of.all-offi.ee fixtures and-.furniture.-and he gave bacld to defendant a.chattel mortgage for-$538.28.to secure-the .purchase' •price.'- SuhséqUentlyiplamtiffís testator In.satisfac'tion.of such mortgage;, tranm ferred such furniture and fixtures .hack to,defendant, who'at the same time gave to plaintiff’-S testator an ag-re.ement.that .upon,.payment w-ithin.one -year of-.the sum-'0f»|538.23, •wlth'interest, -he' would .sell- all such -property, to " him; . ..During all'these- transactions the property.ihad not been.removed, from the office and plaintiffs testator.continued in possession of the office and of,-the .furniture from April- 190Í, when -the agreement’.to sell .Was..executed .and delivered, until his decease'in March, 1907; - At the. time'of the dissolution and afterwards, ..plaintiff’s, testator. Was indebted to the defendant, and ¡to:secure such indebtedness he assigned, a policy of life insurance -to defendant.' .The proceeds, -of• this ¡policy came.- to. deféñdaht’s- hands-, and in addition; to. the Undisputed indebtedness ,he. withheld, ■th¿ purchase price Of the. office-furniture with interest.. This, action .was brought to obtain án accounting 'as'.to;the -funds.-ctimingto defendant’s hands, andlresulted in-ah a'djudication-'thát plaintiff’s testator had.purehased but' had not paid for -the furnitufe and1 that, defendant. Was entitled to- retain 'the: $538'. 23, withintérest, tad the plaintiff,-appeals from-that part of, the. -judgment. so¡ adjudicating.; There was-no'affirmative'evidencie-as to Whether -plaintiff’s, testator,availed himself -of the privilege of buying.the furniture and fixtures at .the:,stipulated,price, nor was the¥e any evidence that he paid or did not..pay.. ..The only' ground, -upon, which to--base a finding that plaintiff’s testator-availed himself of the., privilege of .pur? chasing and- did purchase and not pay is-the fact that he remained in exclusive possession: of the property for nearly two years,after.the.expiration of: the. time within whicli he had the privilege-of-purchasing. : -It does.-not -seemvto. .-me; that such • possession ■ -is - sufficient .to warrant the conclusion . that 'he .availed himself of' the privilege-of purchasing tad - did not .pay the stipulated price.,. It is true that in T904-'the'fúrniture andffi-xtures belonged absolutely to the defendant. ■He voluntarily permitted them; however; to remain in the possession óf plaintiff’s testator, giving him an option of one year to purchase at. a .stipulated- .price.:. :If ■retention of possession after the expiration of the option is to he deemed proof of the fact that plaintiff’s testator availed himself of the option and did purchase it' seems to -me that the presumption must be carried further and it must he assumed that he complied with the terms of the option by paying the cash st'ipulated. The property was not to belong to the plaintiff’s testator at the end df a ■ year, unless ■ lie- paid -the-1538.23 with interest. If -he continued in the undisturbed possession of the property, as the proof showed he did, after the expiration’ of the option, the presumption would be just as strong that he paid -the ■money"stipulated as that he- accepted the- "privilege to buy. If the defendant had- given no option to purchase and the plaintiff's testator-had- retained' possession "and exercised exclusive dominion- the-situation- Would have been quite' different. ■In" that case it might "be assumed that plaintiff’s testator had1 purchased and1 the -burden would be on plaintiff to show that he had made payment. - On the facts -disclosed, however, the presumption of purchase cannot be indulged in without assuming also that the-terms of the purchase Were complied with and the' cash payment required actually made. The-finding, therefore, that plaintiff’s testator purchased but did not. pay cannot be- upheld; and-1; think that, part of the judgment -appealed from should be reversed and a; new trial granted of. that issue alone, with costs to the appellant to abide the event. , . • ; >  