Chamberlain v. Wolf

Given, J. I. Defendant’s first contention is that fbo agreement was for an exchange of properties, that it was fully executed, and that by tbe transaction title to tbe mares passed to tbe plaintiff, and title to the land to tbe defendant. If this is true, clearly tbe plaintiff cannot maintain this action, as in that case tbe land is fully paid for, whether avc call tbe transaction a sale or exchange. Plaintiff claims [180] that, it is not an executed agreement, but that it remained for the defendant, in executing it, to deliver the mares on demand, after the colts were weaned, and that, delivery being refused on demand, he has a right to recover as claimed. The issues joined by the answer to the petition are whether the agreement was that title to the mares should pass to the plaintiff at once, or whether it was to pass upon delivery on demand, and whether demand was made. Upon these issues the court instructed as follows: “If you find from the evidence that at the time of delivery of the deed to the defendant the parties ha.d reached a full agreement as to the terms of the exchange, and the mares had been identified, and nothing remained to be done but to deliver them to the plaintiff, and you further find from the evidence that the parties understood and intended the title and right to the possession to pass without actual delivery of the mares to the plaintiff, then the sale was complete, and the title of the mares passed to the plaintiff, and he cannot recover in this action, and you should so find. If, on the other hand, you fail to find that it was the intention and understanding of both parties at the time that the title should pass before actual delivery of the mares to the plaintiff, then the plaintiff will be entitled to recover in this action, provided you find that before commencing this action he demanded of the defendant the mares in question.” Defendant’s counsel insist that there is no evidence to sustain plaintiff’s claim that the contract was executory, and that the title to the mares did not pass, because there was no delivery. We will not extend this opinion by discussing the evidence as to what the contract was. It is sufficient to say that we think there was evidence to justify the submission of these'questions to the jury. Concede that, under the evidence, the jury should have failed to find that it was the agreement of the parties that title to the mares should pass before actual delivery, and that demand had been made, and that the defendant refused to deliver them; still [181] we liavo the inquiry whether in this action the plaintiff will be entitled to recover. The plaintiff’s petition contains the following: “And plaintiff avers that the sum of $2,000, as a part of the purchase price of the land aforesaid, which, under the provisions of said contract, was to have been paid in property, by delivering the mares aforesaid to the plaintiff, became at the time of such demand by the plaintiff and refusal by the defendant, and now is, a money demand existing in favor of the plaintiff against the defendant, no part of which has been paid.” He asks judgment for $2,000 and interest. The petition throughout shows that the claim of the plaintiff is for the recovery of $2,000 and interest, as unpaid purchase price of the land. Plaintiff was to take the mares in part payment for the land, and if, upon demand, the defendant wrongfully refused to deliver the mares, the plaintiff’s loss has been the mares, or their value; and his remedy was for the recovery of the possession of the mares by replevin, or an action for their value. This being true, we think the court erred in instructing the jury that in any event the plaintiff could recover in this action on account of the purchase price of the land. II. It will be observed that the verdict is in favor of the plaintiff in the sum of $2,000, “with interest at six per cent, from demand of mares • up to present time,” and that in rendering judgment the court computed the interest at $193.33; and of this the appellant complains. As for the reason already stated the judgment must be reversed, and as this contention will not arise on a retrial, wo do not further consider it. Our conclusion is that, for the reasons stated, the judgment of the district court must be REVERSED. 'Granger, O. J., not sitting. Siierwin, J., taking no part.