The law seems well settled that where one receives goods and chattels of another on a contract, by which he has a right to return them or pay a stipulated price for them, the property passes and he is regarded as the purchaser.
And in all the cases to which wc have been referred, the contract was in the alternative, to return or pay the stipulated price. In Dearborn v. Turner, 16 Maine, 17, the contract was to return or pay. “We are very clear,” observes Weston, C. J., “that the security of the plaintiff vested in contract; and that Nason having the alternative to return or pay, the property passed to him, and he was at liberty to sell the cow.” In Buswell v. Bicknell, 17 Maine, 344, it was decided, when an election is given to the party receiving a chattel to return it or pay a sum of money, by a given day, the property in the chattel vests in him. “It is the option conceded to the party receiving,” observes Weston, C. J., “which produces this effect. lie may do what he will with the article received. If he pays, he fulfills his contract. If he neither pays nor returns, he is liable to an action.” In Holbrook v. Armstrong, 10 Maine, 31, the cows were to be delivered at the end of two years or their value in money. In Perkins v. Douglas, 20 Maine, 317, the contract was to return the oxen or pay the stipulated price. “It is in the alternative,” observes Shepley, J., “and permitted Burton to return the oxen, or pay the money, at his election.” To the same effect is the case of Hurd v. West, 7 Cow. 752.
In the present case the defendant, Joseph H. Burdick, received horses and other property of the plaintiff, for which he and the other defendant gave the following receipt: “Dexter, July 1,1873. This day received of W. A. Frye two black horses, called Hiram *412and Indian, two bay horses, called Fairbrother and Jenkins, two two-seated wagons, two single harnesses, the above property val" ued at eight hundred dollars, which I agree to keep in good order and condition and return the same to W. A. Frye, at the end of two years, unless paid for. (Signed.) Joseph IT. Burdick, Y. Mason Burdick, surety.”
Here no bargain for the sale of property is shown. The property is “received” not “bought.” No price for each or all of the articles is agreed upon. They are only valued. There is no promise to pay.
The contract between the parties, embodied in the writings was one of bailment, not of sale. It .is not in the alternative. It is to keep the property in good order and condition and return the same at a stipulated time “unless paid for.” The principal in the contract is not absolved from his promise to keep and return except, upon payment. He is bound to return the articles received unless paid for. The principal has no title unless on payment. Y. Mason Burdick is surety — for what? That the property received shall be kept in good order and condition and returned unless paid for. The promise then to return the goods is obligatory unless something else is done, that is, unless it is paid for. The surety is not liable for the price, for none has been made. He is surety only that the contract should be performed, and he is not to be relieved except upon its performance.
The contract contains no words of sale. In Sargent v. Gile, 8 N. H. 325, it was decided that, where one receives goods upon a contract by which he is to keep them a certain period, and if he pays for them, he is to become the owner, but otherwise, he is to pay for the use of them, he receives them as bailee and the property in the goods is not changed, until the price is paid. In Porter v. Pettengill, 12 N. H. 299, one Russell gave the plaintiff the following contact. “Received of Porter and Rolf one cooking stove and furniture, at twenty-eight dollars, for which I am to pay $3 per month or return the same, if I do not comply as above.” Parker, C. J., in delivering the opinion of the court says: “Russell signs an agreement by which he acknowledges the receipt of the stove, the value is fixed, and he is to pay so much a month, or *413return it. If lie failed to pay, it became bis duty to return the property, and there are no words of transfer, or auy thing to indicate that the parties intended any thing more than a bailment, until the price was paid.” In Billings v. Tucker, 6 Gray, 368, 369, in a lease of a farm and stock, including a yoke of oxen and several cows, the lessee covenanted to take good and prudent care of the stock and to faithfully return said stock in quantity and quality to the lessor, or the value of the same in money, as the lessee may elect; said property, if retained, to be appraised by disinterested persons at the close of the contract.” The lessee sold the oxen and two cows and substituted others in their stead ; Held that he had no right, before the expiration of the lease, to sell the oxen and cows so substituted.
There can be no reasonable doubt as to the meaning of the parties. The one did not intend to part with his title. The other did not suppose he was acquiring one. If the title to the property has changed, the change has taken place without the knowledge or expectation of either party and against the intention of both. But no such change has taken place. The contract to safely keep and return was explicit. The defendants cannot be relieved from their liability, unless upon payment. But payment has not been made. The contract, then, is in full force to keep in good order and condition and return, and the defendants are liable in damages for its violation.
By the Revised Statutes of the United States, § 3963, it is enacted that “no contractor for transporting the mail within or between the United States and any foreign country shall assign or transfer his contract, and all such assignments or transfers shall be null and void.”
What the contract of the plaintiff was no where appears in the evidence. The contractor has the right to employ others to aid him in the performance of his contract. The statutes of the United States do not debar him from having the assistance of servants. No assignment or transfer of the plaintiff’s contract is shown. The case is to stand for trial.
Walton, Barrows, Danforth, Virgin, Peters and Libbey, JJ., concurred.