Fountain v. . Jones

AlleN, J. The contract covered by the note offered in evidence is called in the law books a “contract for sale and return,” and under its terms the title to the mare passed to the defendant, subject to the right of return within the time fixed, and to demand the cancellation of the notej and if he failed to exercise this right the sale became absolute, and the purchase price could be recovered. As said in 35 Cyc., 237, and approved in Mfg. Co. v. Lumber Co., 159 N. C., 510: “Where the contract provides for a return of the goods if not satisfactory, the buyer cannot relieve himself from liability for *29 tbe price, unless be returns or offers to return tbem, and tbe offer to^ return must be unconditional.” It follows, therefore, as tbe defendant admitted tbe execution of tbe note, and as it was incumbent on bim to prove a return of tbe horse-witbin seven days in order tbat be might be relieved from responsibility,, it was error to place tbe burden of proof on tbe plaintiff on tbe second issue, and to require bim to prove the negative — tbat tbe defendant did not return tbe borse witbin seven days — before tbe issue could be answered in bis favor. It was also erroneous to instruct tbe jury to answer tbe issue “Nothing” unless they found tbat tbe defendant did not return tbe borse witbin seven days, because this ignores tbe evidence to tbe effect tbat although an offer to return was made, tbe defendant agreed to give the-horse another trial, and again after sixteen, days and complaint made, concluded to try the borse further, and thereafter made no further objection and no further effort to return tbe borse. If the defendant offered to return tbe borse witbin seven days, and was persúaded to make another trial of tbe horse, this would be a waiver-of tbe stipulation for tbe return witbin seven days, and if after sixteen days be again offered to return tbe borse, and it was agreed tbat there-should be a further trial, this would prevent tbe plaintiff from objecting tbat tbe second offer of return was not witbin a reasonable time, but tbe defendant could not thereafter keep and use tbe borse for a period of six months without further tender of return, if there was reasonable opportunity to do so, and then avoid liability on tbe note, under tbe stipulation in tbe note giving tbe right to return tbe horse if' not satisfactory. There must be a new trial because of error in tbe charge. New trial.