In the first count, the plaintiff seeks to recover the price of a certain quantity of hay, as for goods sold and delivered.
In the second count is set forth the claim of the plaintiff to recover, not the price agreed upon as part of a contract of sale, but the proceeds of the same hay received by the defendant and alleged rightfully to belong to the plaintiff, less certain charges for freight, but never accounted for or paid over to him by the defendant.
In the spring of 1860, (the date of the transactions to which the allegations refer,) the plaintiff, a farmer residing in Wiscasset, owned certain bales of pressed hay, not branded in conformity with the requirements of JR. S. of 1857, c. 38, § 35. The defendant was master of a coasting vessel lying at one of the wharves in Wiscasset, and about to sail to Boston.
After an examination of the hay as it wras stored in the plaintiff’s barn, and some negotiations between the parties, a contract of sale was made, the price agreed upon and a day fixed for the delivery at the wharf.
When a portion had been delivered on board in pursuance of such contract of sale, a dispute arose as to the quality of the hay; the defendant refused to receive certain bales which he claimed ■were inferior in quality and value to those shown to him at the barn ; and the plaintiff insisting that it was the same hay examined, declared that it should not be picked, that unless the defendant took the whole lot at the rates originally agreed upon, he should have none of it.
*398Thereupon the plaintiff ceased hauling hay to the defendant’s vessel — made a new sale to one Greenleaf, to whom he delivered all that had not been put on board of the defendant’s vessel, or deposited at the wharf ready for delivery on board. There is evidence tending to show that this new contract of sale to Greenleaf included in terms the entire lot — that already in possession of the defendant as well as the part which had never been delivered to him.
The report of the evidence discloses at length the conversation between the parties pertaining to this transaction. It need not be repeated, but will be important to be considered in its bearing upon the qnestion whether, notwithstanding the alleged sale to Green-leaf, consent was finally given by the plaintiff to the defendant’s retaining the hay delivered to him and proceeding with it to Boston.
The defendant sailed soon after for Boston, where he sold the hay, received the proceeds and on his return promised the plaintiff to pay him; but has never done so.
As to the amount of the verdict, if under the rules of law stated by the presiding justice, the jury should find for the plaintiff, they were directed that they might “return the amount received by the defendant for the sale of the hay, deducting for his freight and all reasonable charges, and add to that interest from the date of the writ.”
The verdict was for the plaintiff, and the case comes before this court on exceptions and motion to set aside the verdict as against evidence.
The first requested instruction was given ; and as it was conceded at the trial that the hay was not branded, that was equivalent to a ruling that the plaintiff was not entitled to recover under the first count. The charge also contained other definite instructions to the same effect.
The first exception, therefore, has reference to the refusal of the presiding judge to give the second instruction requested by the defendant. But upon review of the charge, we are satisfied that while the language of this request was not adopted, its substance, *399so far as material to the issue was clearly embraced in the rulings given.
Upon facts not in dispute, the jury were instructed that the plaintiff could not recover under the first count; and his right to recover under the second count was made by the rulings given, to depend upon their finding that the original contract of sale was rescinded by the parties, prior to the defendant’s sailing to Boston. If such rescission was not proved, then by the instructions contained in the charge, the plaintiff was not entitled to recover. If there was such rescission, the second request predecated as it is upon a subsisting sale became inapplicable.
The defendant secondly excepts to the refusal to give the third requested instruction and to those rulings which were given upon the matters embraced therein.
But we think it clear upon principle and authority that an agreement to sell to Greenleaf the unbranded hay which was in the possession of the defendant, being in direct violation of the statute, and it not having been executed on either side by payment or delivery, conferred no title upon Greenleaf which the law would protect. "Whatever form of remedy he should elect, whatever process he should adopt to sustain such title — whether to enforce delivery according to the terms of the illegal contract, or to recover damages for breach thereof, the maxim — “Potior est conditio defendentis’’ would apply. The sole claim which Greenleaf could urge against the plaintiff, so far as the hay which remained in the possession of the defendant is concerned, would be based wholly upon an unexecuted contract, forbidden by statute. If the plaintiff delivered to him only a part of what he had agreed to deliver, Green-leaf could have accepted it or rejected it and refused to pay; and if he adopted the latter course, the failure to deliver the whole as well as the illegality of the contract would have afforded ample defence to Greenleaf in any proceeding by the plaintiff against him. But if he chose to accept a part of what had been illegally agreed to be sold and delivered to him, he thereby acquired no title to the portion not delivered and not paid for.
*400These considerations apply as well to any proceedings by Green-leaf against the defendant as against the plaintiff. For unless the verdict is against the evidence — which we shall consider later — the defendant can only be regarded as the bailee of the plaintiff with reference to the hay which forms the subject matter of this suit. Under the instructions given, the jury must have found that the defendant was not a vendee under an illegal sale; for they were told in effect that the plaintiff was not entitled to recover in such case.
The verdict also negatives the theory that the defendant was a trespasser or wrongdoer in his conduct relating to the hay. For it appearing that a previous action of trover for the same hay had been determined in favor of the defendant, the jury were instructed that — “If the defendant took the hay without the consent of the plaintiff, if he took it tortiously to Boston and there sold it, and then came home and offered to pay the plaintiff the amount of the proceeds, the plaintiff would not be entitled to maintain this action for the reason that the tortious taking has once been solemnly adjudicated between the parties,” &c.
Under the verdict, then, the defendant was neither vendee nor trespasser. He was bailee of the plaintiff; and the same considerations which would forbid Greenleaf to assert title against the plaintiff or claim damage of him, would apply with equal force to any claim made by Greenleaf upon the defendant, in regard to this hay. No title in Greenleaf then intervenes to prevent the plaintiff from maintaining this suit; and the refusal to give the second request, as well as the instructions given on this subject were correct.
Tire remaining exception is to the following ruling: “If this hay did thus go into the possession of the defendant with the plaintiff’s consent and did leave Wiscasset in the defendant’s vessel with the plaintiff’s knowledge and consent, and the defendant did take it to Boston and sell it, and came home and promised to pay the proceeds to the plaintiff, deducting the freight, the plaintiff is Entitled to recover.”
This is conceded to be correct as an abstract proposition, but it is claimed that there is no evidence on which to base it.
*401The consideration of this exception therefore is closely connected with that of the motion to set aside the verdict as being against evidence.
It is contended that the instruction assumes one fact which the jury were not authorized to find from the evidence — to wit — the plaintiff’s consent to the defendant’s act in taking and removing the hay to Boston.
Were the jury justified in finding such assent ? Or is the verdict on this point so clearly opposed to the evidence as to require the interference of this court to correct an error of fact ?
There is undoubtedly testimony strongly tending to show that the plaintiff did not assent to such action on the part of the defendant ; but it can by no means be said upon the evidence reported to be a matter about which there is not a real controversy.
The plaintiff at one time said that unless the defendant took the whole of the hay, he should have none. But there is also testimony tending to show that the hay immediately upon its delivery at the wharf was put on board the vessel in the plaintiff’s presence ; and it appears that the plaintiff never demanded the possession of it again, nor forbade the defendant to sail with it; but on the contrary told the defendant — “you take what you have got and go to hell with it” — which the defendant might construe into a permission to take what hay was already on board and go wherever he pleased with it.
The plaintiff says he sold the whole lot to Gfreenleaf, including what had been delivered to the defendant; and the first action brought by the plaintiff was trover alleging conversion. Both of these facts are strongly opposed to any theory of consent on the part of the plaintiff to the taking of the hay by the defendant.
But in determining the question whether the taking by the defendant was tortious in such sense as that judgment in favor of the defendant in the action of trover should bar this action, regard should be had not so much to what were the,real wish and intent of the plaintiff as to what was the manifestation of his will by word and act in his dealing with the defendant.
*402Were his language and conduct, or his silence and failure to act, such as reasonably to give the defendant to understand that he might retain and remove to Boston the hay which had been put on board his vessel, accounting therefor on his return ? If so, the defendant was guilty of no tort, and the judgment in trover should not bar this action.
The interview between the parties on the return of the defendant from Boston, as detailed by both, tends strongly to show that the plaintiff did not complain of the defendant for proceeding to Boston with the hay, that he charged him with no wrong except the non-payment of the money. Whether the court might Or might not arrive at a different result upon the same evidence, we are satisfied that no such manifest error in the action of the jury is shown as requires us to grant this motion and re-open this long pending controversy.
And if on this point the verdict is not unwarranted by the evidence, the last instruction to which exception is taken, admitted to be correct in the abstract, becomes pertinent to the facts in controversy.
A somewhat peculiar state of facts is developed by the testimony reported. It is not a question of the legal relation existing between parties to, a contract made in violation of law. It was only upon proof of the rescission of the contract of sale, the taking of the hay by the plaintiff’s consent, the receipt of the proceeds by the defendant upon sale thereof in another state, and a subsequent promise made on his return to pay, that under the rulings given the defendant became liable.
Without attempting to determine what would have been the legal rights of the parties had no rescission been proved, we regard the instructions to which exceptions have been taken as free from any error by which the defendant has been prejudiced.
Motion and exceptions overruled.
Appleton, C. J., Dickerson, Daneorth and Peters, JJ., concurred.