I agree that as the case stands there must be judgment on the report for the defendant.
It has been suggested by the plaintiffs' counsel, in argument, that *Page 104 at the negotiation between James Forristall and the plaintiffs, March 12, it was in fact agreed that the plaintiffs might go and see the wagon the next day, and take it, if they chose to, at the price of $70. If that fact was so, I do not now see why the familiar doctrine would not apply, that where the owner of a chattel sells it to two purchasers, neither having knowledge of the sale to the other, the one who first gets possession will hold it.
The facts found by the referee are, as suggested by the chief-justice, quite meagre, and I am, on the whole, inclined to think the plaintiffs should have leave to move in the circuit court for a rehearing before the referee on this point. Unless such motion is granted, there must be judgment on the report for the defendant.
SMITH J., concurred.
Unless the plaintiff obtains leave in the circuit court for a rehearing, the defendant is entitled to
Judgment on the report.