Plaintiff was entitled absolutely to the possession of the horse, as against either Carpenter or Bennett, on payment or tender. ( Civil Code, secs. 1748, 1822, 2905, 1504, 1512; Ingersoll & Borick v. Emmerson, 1 Smith's Ind. 77; Satters v. Everest, 20 Wend. 267; Roland v. Gundy, 5 Ohio, 202, and cases; Story on Bailments, sec. 102.) As to the effect of tender, see Kirtright v. Cady , 21 N.Y. 343.)
OPINION By the Court:
Plaintiff had no property, either general or special, in the horse " Chief Crowley" at the time of the alleged conversion, or when this action was commenced. The transaction did not amount to a sale on credit from Carpenter to Cardinell, but a contract whereby it was agreed that the latter should acquire the property on the performance of certain conditions promised by him to be performed.
Judgment and order reversed and cause remanded.