When there is no estoppel, the question whether a transfer of goods is a sale or a gift, is a question of the understanding of the parties.
DOE, C. J.
There being no estoppel, the liquors were sold, if the understanding of the parties (proved by competent evidence) was that they were included in the sale: they were a gift, if the parties understood they were a gift. A transaction, intended and understood to be a sale, would be a sale, whatever pretence of a donation might be made. The instruction requested was properly refused, because the parties understood that the defendant was to have the liquors, whether they were sold or whether they were given to him.
Judgment on the verdict.
SMITH, J., did not sit.