I concur in the judgment in this case, but not on the grounds stated in the opinion of Justice Shaepstein. I am of opinion that if the defendant was entitled to the return of the property, the judgment, as entered, was proper. Under such circumstances he had a right to the return of the property, (for he was then entitled to the possession of it when the action was commenced) and the value was a substitute for the property. Pico could have evaded the payment of the money by returning the property. If Martinez had collected- the money under the *152judgment, he would have held it as he would have held the property if returned to him, liable to account when the three years period, mentioned in the contract, expired.
The judgment should be reversed because the findings are not sustained by the evidence. The evidence shows satisfactorily that the defendant failed to comply with his contract. This contract was a continuing one from the time the defendant first received the sheep, in August and October, 1877. The contract previously made was only reduced to writing on April 6th, 1878, with some modification which does not affect this decision. The defendant, in effect, acknowledges the receipt of 1,989 sheep by the contract as reduced to writing on the 6th of April. The contract distinctly refers to 1,989 sheep, and makes no reference to 1,250, as found by the Court. (See 25th finding.)
It is stipulated, that under no pretext, shall the defendant dispose of any head of sheep, without the consent of plaintiff. It is established by uncontroverted evidence that the defendant did sell some of the sheep without the consent of the plaintiff, of which he never gave any account to him. Upon the evidence, in my opinion, judgment should have passed for plaintiff.
The article of the contract styled “ additional article ” al- ■ lows plaintiff to sell his part of the sheep, or interest, as an entirety, but not any particular sheep or any number of head of sheep. That this is the meaning is evident from the further provision of such article, that ■ defendant may be allowed to take the part or interest, as an entirety, which belongs to him. He is not allowed to take less than his entire part and dispose of them. This additional article thus does not conflict with the views taken in the first portion of this opinion.
For the reasons above given, in my opinion, the judgment should be reversed, and the cause remanded for a new trial.