1. The evidence rejected did not tend to rebut the evidence introduced by the plaintiff in reply to the defendants' evidence, and was therefore properly rejected.
2. The verdict of the jury probably settles that the defendant S.E. Bates had received payment for the horses before the conditional vendee, W. C. Bates, sold them to King. When the terms of the sale had been complied with, W. C. Bates became the absolute owner of the horses, and of course could make a valid sale of them to the plaintiff. In this view of the case, the instructions requested and those given were wholly immaterial, and could not in any way have misled the jury.
But if the jury found otherwise, the bearing which the ruling had upon the case was very remote. The plaintiffs evidence tended to prove that the defendant S.E. Bates knew of the sale and transfer of possession of the property by W. C. Bates to King, and did not object or in any way assert his title till October 10, 1873, when he took forcible possession of the property. The plaintiff thereupon brought this suit, and replevied the horses. The plaintiff contended from this that the claim by S.E. Bates that he had not been paid for the property was mere pretence; that if he had not been paid he would not have stood by and allowed King to take and use the horses as his own, knowing all about the trade between W. C. Bates and King. To meet this position of the plaintiff, the defendants contended that by the terms of the conditional sale S.E. Bates had no right to interfere or reclaim *Page 450 the possession of the horses until the expiration of the six month named in the note.
From this it appears that the only question of law raised was, whether the plaintiff, by his purchase from W. C. Bates, obtained any right of possession which would prevent S.E. Bates from demanding and regaining the possession of the property before the expiration of the six months. The bearing is upon the conduct of S.E. Bates in doing nothing to regain the possession of the horses from the plaintiff, from June 10 to October 10, 1872.
It is well settled that a sale by a conditional vendee terminated the bailment, and the conditional vendor may resume immediate possession of the property. Farrant v. Thompson, 2 Dow. Ry. 1; Sanborn v. Coleman,6 N.H. 14; Sargent v. Gile, 8 N.H. 325. The refusal to instruct, and the instructions given, were therefore correct.
Exceptions overruled.