This suit was brought to recover a piano to which the . plaintiffs claimed title. The jury found for the defendant; the plaintiffs moved for a new trial: it was refused, and on that refusal error is assigned.
*232There was a contract in writing between the parties, whereby the piano was leased for ten months to the defendant, on consideration of the sum of four hundred and twenty-five dollars, to be paid at certain times therein stipulated, and at the expiration of that time, and upon the payment of that money, the plaintiffs were to make a title to defendant to the piano. Various sums of money were paid by the defendant, before the expiration of the lease and after-wards, running through a period of two or three years, and there is evidence tending to show that the contract was treated as a sale after the expiration of the lease. But the entire purchase money was not paid by the defendant, and she pleaded that the instrument was not such as was represented or warranted in law to be, and that its value had been paid in full — three hundred and sixty-five dollars having been paid thereon. The pleas of defendant, in so far as they contradicted the written instrument were, of course, illegal; but they seem to have been the construction put upon that instrument by the defendant; and in that view, and in the view that the defendant had the right to show that the piano was not a good one, and that she had paid fully its worth, the court was right not to strike them.
The view we take of the case is, that the paper made a conditional sale of the piano, the condition being the payment of the price agreed upon, to be paid at the expiration of the lease; but as the instrument was warranted in law to be merchantable and good, the defendant had the right to show that it was not such as it was sold for, and that, owing to its defects, she had already paid more than its value, and that the title in her thus became fixed. In other words, that she had the right to recoup the damage resulting from its defects, against the price she agreed to pay for it, if it had been a good merchantable piano. The jury had the legal authority to find that thus the piano- had been full paid for, and that thus the title was in her, and we think that the evidence authorized such a verdict. But error is assigned upon the charge of the court, and we think that the court *233erred in charging the jury that the plaintiffs conld not recover unless they tendered back the purchase money already paid, and as there was no shadow of evidence that it had been so tendered back, it is probable that this charge controlled the verdict. The action for trover is a suit for damages, and the question is what is the plaintiff’s damages ? 30 Ga., 121. The real questions in the case are, therefore, first, has the purchase price agreed upon been paid ? and the answer to this being, necessarily, in the negative from the evidence ; secondly, was the instrument sold not a good article, according to representation or implied warranty, and if not, has its value been paid? If its value has been paid in its defective condition, then the verdict should be for the defendant; if not, then for the plaintiffs the remainder of the purchase price, which might be discharged by the delivery of the piano within a limited time.
Our view of the law is, that the title to the piano is in the plaintiffs until the defendant has paid therefor, and that the plaintiffs have the right to recover it unless the balance of the price be paid, which payment may be in money or by showing that the piano was a faulty instrument, and thatthé plaintiffs had got all that it was worth owing to its defects. The charge of the court, which did not permit the jury to pass upon the questions as above presented, but interdicted any recovery unless the purchase money already paid was tendered back to the defendant, was erroneous, and we are constrained to award a new trial therefor. The jury may find again possibly as they did before, but the case should be presented to them, in the opinion of this court, under the view above taken. • '
No other error of any consequence appears in the record. See 27 Ga., 96.
Judgment reversed.