The opinion of the Court was drawn up by
Shepley J.— This case having been again submitted to a jury, and they having found a verdict again for the plaintiff, a motion has been made to set it aside as against the weight of evidence. And it is insisted, that the witnesses introduced by the plaintiff did not agree, but differed materially in their account of the transaction. There may be very good reason to conclude, that some of them were either mistaken, or inclined to misrepresent; but this was a matter for the consideration of the jury; and they may have been satisfied from the attending circumstances, that the witness, who made the bargain with the plaintiff, and must have known, what it really was, stated it truly. And this would have been sufficient to authorize the verdict. It is also insisted, that the contract with Lambert was for a conditional sale, and that there must have been proof, that the plaintiff had rescinded it to entitle him to maintain the action. The testimony of Lambert is in substance, that he agreed with the plaintiff for the purchase of the oxen at the price of $110, and “they were to remain plaintiff’s till paid for.” That he had not fully paid for them; that as soon as they were attached he informed the plaintiff, who “ said the oxen were his, and he should take them back, we then went to Stevens, told him the bargain, and plaintiff demanded the oxen of Stevens.” According to this testimony the right of property had not passed to Lambert; and whatever right he might have had to the possession was determined between him and the plaintiff, when he was informed by the plaintiff, that he should take them back, and afterwards went with him, and without objection heard the plaintiff demand them of the defendant as his property.
Judgment on the verdict.