Vasser v. J. A. Buxton & Co.

Smith, C. J., after stating the facts. It is manifest the purchase of the two horses in Petersburg and the payment therefor with the plaintiff’s money, was intended to be, and was on behalf of the plaintiff, and the delivery to Story, as bis bailee, for the purpose of conveying them thence to the 'plaintiff. It no more put the title to the mare than the title to the horse in the agent, Story. The sale and its terms were concluded subsequently at the plaintiff’s house, and the terms were that the property should remain where it already was, in the plaintiff, until the price secured in the note was paid. The testimony is explicit on this point, and the agreement to avoid all misunderstanding of its terms is embodied in the memorandum, then entered upon the foot of the note. The selling is the act of the plaintiff, and conditional upon the payment of the price; the note is the contract of Story to pay the residue of the purchase money. These constitute and give character to the entire transaction. Its validity is not open to controversy in view of the repeated adjudications of this court, sustaining such conditional sales. Clayton v. Hester, 80 N. C., 275. 2. The exchange and delivery of the mare, it is insisted, detached the condition and gave to Story the absolute title. The real character of this transaction and the intent of the parties are left somewhat obscure and uncertain upon the testimony. The note seems not to have been credited with the difference in value between the exchanged animals. The plaintiff admits the' mare did work well in the gin, but he says “ the trade was not final,” nor does it appear except inferentially that Story assented to the terms pro *339 posed. The court therefore was correct in leaving to the jury to inquire and find from the evidence what were the facts of the transaction, and the intent of the parties to it, with appropriate instructions for their guidance in making up their verdict. The subject is considered in Shaw v. Burney, ante, 331, and further comment is needless. There is no error, and the judgment must be affirmed. No error. Affirmed.