Boyer v. Tressler

Worden, J. Action of replevin by Tressler, against the Boyers, for a horse. Trial; verdict and judgment for the plaintiff, as against Boyer, Jr.; and verdict and judgment for the defendant, Boyer, Sr. Both the Boyers appealed. It is difficult to conceive that the elder Boyer was injured by any ruling of the Court below, as he obtained a verdict and judgment. There is but one question raised in the case, and that relates to the ruling of the Court, in excluding certain evidence offered by the defendants. It appears that in June, 1860, Boyer, Sr. and Tressler, entered into a written contract, which was lengthy, and need not be here set out, by which Tressler was to build for Boyer a certain house, to be paid for as therein provided. Tressler commenced the work, and after the house was raised and weather-boarded, he received the horse in controversy, in part payment for the work, and executed the following receipt therefor: [261] “Received, August the 30th, 1860, of Daniel Boyer, Sr., by the hands of Daniel Boyer, Jr., one horse at 80 dollars, pay towards building a house, according to an article in the hands of George Gish; and in case I,.Levi Tressler, fail in complying according to the article aforesaid, then the horse shall be Daniel Boyer’s again. Levi Tressler.” The plaintiff kept the horse until the 20th of December, 1860, when Boyer, Jr. came and took him from the plaintiff’s possession, the plaintiff at the time forbidding him. On the trial the defendant offered to prove that Tressler had not done the work according to the contract, and had failed to comply therewith. The testimony was rejected, and .exception taken. "We think by the terms of the receipt, the title to the horse vested in Tressler, but subject, perhaps, to be divested upon his failure to comply with the contract. The condition was clearly not precedent, but subsequent. It does not appear that Boyer, Sr. ever in any manner sought to take advantage of the breach of the condition subsequent. The contract was between him and Tressler, and with which Boyer, Jr. had nothing to do. Boyer, Sr. never took the property from the plaintiff, or took any steps to re-vest the title in himself. It does not appear that Boyer, Jr. took the .horse from the plaintiff by virtue of any authority from Boyer, Sr. He was a stranger to the contract, and, so far as appears, an intermeddler without right. A- stranger to a . deed can take no advantage of the breach of a condition. Cross v. Carson, 8 Blackf. 138. So far as Boyer, Jr. is concerned, it is wholly immaterial whether Tressler complied with his contract or not. Tressler’s failure gave Boyer, Jr. no right whatever to interfere with the property, and the evidence as to him was correctly excluded., Had it appeared, or had the defendant offered to show in connection therewith, that Boyer, Jr., in taking the horse from the plaintiff, was acting as the agent [262] and by direction of Boyer, Sr., a different question would have been presented. F. Walker and J. B. Flynn, for the appellants. I). D. Pratt and D. P. Baldwin, for the appellee. Per Curiam. The judgment is affirmed, with costs.