
    Louis Kindelberger, Respondent, v. Fred D. Kunow, Appellant.
    Fourth Department,
    November 12, 1907.
    Conditional sale — defense of tender — facts raising questions for jury.
    In an action to replevy property sold under a conditional contract whereby the title remained in the seller, when the buyer gives proof that his tender of payment was refused by the seller, who insisted upon retaking his property unless another debt was paid, it is error to direct a verdict for the plaintiff.
    A direction of a verdict for the plaintiff Under such circumstances is also erroneous where the defendant tenders the balance due at trial hut refuses to pay costs, for if the defendant’s testimony lie true, the plaintiff was not justified in' bringing replevin, and hence was not entitled to the costs.
    Appeal by the defendant, Fred D. Kunow, from a judgment of the Supreme.Court in favor of the plaintiff, entered in the office: of the clerk of the county of Tates on the 6th day of June, 1907, upon the verdict of a jury rendered by direction of the court, and also from ail order entered in said clerk’s office on the 29tli day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      M. A. Leary, for the appellant.
    
      Thomas Carmody, for the respondent.
   Kruse, J.:

This controversy is over twenty sheep. The plaintiff made a conditional bill of sale of the sheep to the defendant, retaining the title until the purchase price of $172.25 was paid. On- the day that -the purchase price became due the plaintiff demanded the possession of the sheep, the purchase price not having been paid in full.

There is no question .that the plaintiff was entitled to the possession of the sheep, and had the right to sell them under the provisions of the statute relating-to conditional sales, if the defendant was in default in paying for them. It is contended on behalf of the defendant, however, that an absolute and unconditional offer was made on behalf of the defendant to pay for the sheep, but the plaintiff insisted Upon taking them, notwithstanding such offer, unless another debt was paid by the defendant, which the plaintiff claimed was owing to him: A verdict was directed for the plaintiff.

We think a question of fact was presented upon the evidence which, should have been submitted to the jury. "It appears that each of the parties made claims against the other, the defendant for certain matters, for which lie had presented an itemized statement to the plaintiff, and the plaintiff for hay besides the purchase price of the sheep. The plaintiff claimed that the defendant refused to deliver the sheep without deducting from the purchase price the defendant’s claim and the defendant claimed that the plaintiff refused to take pay for the sheep unless the defendant also paid for the hay, and insisted upon holding the sheep for both claims. It is contended, however, on the part of the defendant that eventually the defendant’s wife (who seems to have represented him), stated that she would pay for the sheep, but not for the hay, and that the defendant refused to take pay for the sheep unless he was paid for the hay also; that he insisted upon holding the sheep for both claims, and the evidence tends to support the defendant’s contention in that regard.

Whether true or not was a question of fact for the jury in the first instance. If true, it was sufficient in connection with the other facts and circumstances to have warranted a finding that the plaintiff waived a formal tender of the amount unpaid upon the purchase price of the sheep. (Murr v. Western Assurance Co., 50 App. Div. 4, 11; Allen v. Corby, 59 id. 1.)

Upon the trial the defendant again offered to pay the balance due for the sheep. The plaintiff’s couhsel stated that the plaintiff would accept the offer if the defendant paid the costs of the action, which the defendant refused. ■

If there was a waiver of the tender, as'has been stated, owing,to the plaintiff’s refusal to accept the unconditional offer of the defendant to pay for the sheep, and the plaintiff insisted upon taking and holding tlie sheep for his claim for the hay, in addition to that for the purchase price pf the sheep, then the plaintiff was clearly in the wrong and not justified in bringing an action to-replevy the sheep, and so"was not entitled to the costs of. the action.

The.judgment and order appealed from should be reversed and a ' new trial granted, with costs to the apjiellant to abide the event.

All-concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. ; 
      
      See Lien Law (Laws of 1897, chap. 418), §§ 116-118, as amd. by Laws of 1900, chap. 762.— [Rep.
     