Where by the terms of a conditional sale of oxen the vendee was to keep them without cost to the vendor, and return them in two years if not paid for, the vendor cannot maintain replevin for the cattle against a purchaser of the vendee's interest before the expiration of the two years.
CARPENTER, J.
By the terms of the contract it was at Mitchell's election to pay the plaintiff $50 and interest at any time within two years from the 5th day of May, 1881, or to return the steers at the end of that period. Although the property in the steers remained in the plaintiff, Mitchell was entitled to their custody until the expiration of the 5th day of May, 1883. G. L., c. 1, s. 32; Osgood v. Blake, 21 N.H. 550; Knowlton v. Tilton, 38 N.H. 263; Ricker v. Blanchard, 45 N.H. 39.
The sale by Mitchell of his interest only in the steers was no wrong to the plaintiff, and did not terminate the bailment. The defendant by his purchase became entitled to hold them in the same manner as Mitchell held them. Bailey v. Colby, 34 N.H. 29; McFarland v. Farmer, 42 N.H. 391, 392.
Exceptions overruled.
SMITH, J., did not sit: the others concurred.