Cole v. Propst Bros.

McCLELLAN, J. -If Propst Brothers sold a horse to the defendant on credit and reserved the title thereto until the purchase money whs paid, and there was a further agreement between the parties to. the effect that defendant should have the right, to exchange this horse for another, and this other for another and so on, but that title to any -horse so exchanged for. should vest in Propst Brothers until the original debt was paid to them, such title would so vest upon an exchange, and the defendant would hold the horse exchanged for ■as upon a conditional sale from Propst Brothers, and not as their bailee, whether, he exchanged the original or any other animal as. the property, of .hims.elf or of .Propst Brothers. The question .propounded by plaintiff’s attorney.to the defendant as a witness, and which the court declined to have answered, called, therefore, for irrelevant and immaterial testimony; and the court’s ruling thereon was free from error. [101] We find no direct evidence in tbe bill of '-exceptions that tbe borse involved bere was tbe original animal or that be bad been acquired by tbe defendant, through an exchange -of tbe original borse or a series of exchanges beginning with tbe original horse. At the most that was a matter of inference to be drawn-or not drawn by tbe jury as tbe evidence, assuming their belief of- it, might impress them. On this state of case, tbe question should ’lmve been left to tbe jury. Tbe court erred in taking it away from them by giving tbe affirmative charge for tbe claimant. ' : - ■ Reversed and remanded.