Bunker v. McKenney

Barrows, J. The case shows that the mare was to remain the property of the plaintiff until the note given for her purchase money was paid. The legal result is that her progeny would also belong to the plaintiff, in the absence of any special agreement to the contrary. Allen v. Delano, 55 Maine, 113. The right of possession followed the property and was in the plaintiff unless he had deprived himself of it by a valid and binding agreement. That right he could enforce by the proper legal steps before the expiration of the term of credit. Tibbetts v. Towle, 12 Maine, 341; Pickard v. Low, 15 Maine, 48. It follows that any instruction which made the plaintiff’s right to maintain the action depend upon a mere extension of the time of payment to a day subsequent to the suing out of the writ must be erroneous. The jury were instructed that “if the plaintiff did so agree to extend the time of payment, then the action could not be maintained till that time had expired, and their verdict must be for the defendant.” The true question for the jury, on this part of the case, was whether, under the verbal arrangements made by the parties, the defendant was to have the right of possession until his return from New York — whether the plaintiff had made a valid agreement to forego such right. The exceptions do not profess to present all the testimony in the case. It may be that the defendant will be ultimately found entitled to prevail upon one or the other of the grounds suggested by him in argument; but, not having the whole case before us, we can only determine that the present verdict in his favor was obtained under erroneous instructions upon what was apparently a vital point. Exceptions sustained. Appleton, C. J., Dickerson, Danforth and Yirgin, JJ., concurred.