On a careful examination of the evidence, I think the referee was justified in his findings of fact. The defendant’s possession of the horse in question was under and by virtue of a contract for the purchase of both real and personal property, resting in parol only. This contract was never performed, nor partly performed, except to the extent of the defendant’s taking possession of the horse in question, which was a part of, and included in, the parol contract. This contract being for the sale of real estate, and also for the sale of personal property of the value of above $50, without any writing, or written memorandum, subscribed by the vendor, or vendee, was void at law. But the contract (if such it should be called) was void for another reason; or rather, was void because it was no contract; the minds of the parties never met upon the whole and exact terms of the contract itself. This not only appears from the referee’s report, but from the evidence. It is hardly necessary to cite authority to this proposition. And it follows that whatever is done between the parties under a supposed agreement, when there is mutual misunderstanding, is not binding; and though both parties consented, at the time, to the delivery of the horse in. question from the plaintiff to the defendant, each supposing that such delivery %nd acceptance was to be a part performance of the supposed contract, and that the defendant would only become the absolute owner when the whole contract should be performed, yet the referee does not find, nor will the law imply, that either of the parties intended that the horse was to be absolutely the defendant’s in case he did not comply with the whole agreement. There was no oral agreement, even for a forfeiture of the horse; or of anything else. And the defendant showed no other claim or title to the horse than that of a partial and conditional one, under a void contract. Being in such possesion, with only such'title, each party refusing to perform, *240except according to his own understanding df the terms of a void contract, the title of the horse had never changed, and the plaintiff was entitled to his property upon legal demand; and after such demand the defendant was wrongfully in possession, and his use of the horse afterwards was a conversion of the plaintiff’s property, to his own use. Though the plaintiff in his testimony did characterize the letting the defendant have the horse as a lending to him, the facts show, as does the referee’s report, that the act was not a legal lending, and the plaintiff was mistaken in the use of terms. Uor do I think the defendant’s criticism upon the complaint to be good, under the system of pleading introduced by the Code. If the complaint states facts sufficient to show that in law the defendant’s holding the property was unlawful, that is sufficient; especially after judgment. And when the parties go down to trial, and a cause of action is proved, though the complaint might be defective, tested merely as a pleading, upon demurrer, it would be the duty of the referee, or a court, to conform the pleading to the facts proved, in furtherance of justice; and after judgment, if it be entered according to a case duly proved, it would be the duty of the court to amend, ór regard the pleading as duly amended. If we are right in this view, the omission in the complaint, if it be one, to allege a demand of the property before suit brought, is cured by the proof, by the report of the referee and the judgment.
[Third Department, General Term, at Binghamton, December 6, 1870.Upon the whole view of the case, I think the judgment is in accordance with the justice of the case, and with plain rules of law, and should be affirmed.
Judgment affirmed.
Miller, P. J., and Potter and Parker, Justices.]