delivered the opinion of the court March 1st, 1886.
The plaintiff in his amended narr declared upon the contract in suit in three different wajus. In the'first count he declares upon an absolute sale of.two mares for the specific sum of $250, and charges as a breach the non-payment of that sum. In the second count he declares upon a conditional sale of the mares for a sum of $250, and for the one half of such additional sum, not exceeding $25 as such one half, as the defendant might sell-the mares for, providing he sold them before October 10th, 1881, and if not by that time sold then to pay the plaintiff $250 for them ; and charges as a breach that the defendant did sell them for $300, but did not pay the plaintiff the $275 to which he was entitled under the agreement. The third count declares upon a contract of bailment that defendant agreed to keep the mares in. good and thriving condition, and to handle them in a careful and horsemanlike manner, and to sell them for the plaintiff, and upon the sale to pay the plaintiff $250; and if not sold by October 10th, 1881, to deliver them to the plaintiff in good and thriving condition without charge for keeping them. The breach alleged is that defendant sold the mares and became liable to pay the $250, but did not. The fourth count charges the same bailment upon a contract to sell the mares and to pay the-plaintiff $250 and one half of whatever was received above $250, not exceeding the sum of $25 additional, and if not sold before October 10th, 1881, to deliver the mares in good condition to the plaintiff. The breach charged is the sale of the mares for $300, and an obligation to pay the plaintiff $275, which was not paid. The fifth count charges a bailment to keep the mares in good condition, etc., as alleged in the two previous counts, and upon the sale thereof by the defendant to pay the plaintiff $250 and one half of all money received for them, not exceeding $25 additional, and if defendant could not sell them before October 10th, 1881, he was to deliver them to the plaintiff in good condition without charge for their keeping. The breach alleged is that the defendant did not sell the mares and did not return them.
It will be perceived at once that the narr is incongruous *595and inconsistent with itself in treating the only agreement •there was between the parties as three distinct and independent species of contract which necessarily conferred different rights and imposed different obligations upon the parties. If this contract, which was in writing and under seal, was an absolute sale for >$250 by the plaintiff to the defendant, it certainly could not be a conditional sale for $250 plus the' one-half of another sum, which was to be determined, not by the original sale, but by another and future sale to be subsequently made by the defendant to some third person. Nor if it was either of the preceding kinds of sale could it be a mere bailment for keeping and a possible sale for $250, which was never made, and thereupon an obligation to return the mares to the plaintiff. The contract had some legal meaning, and it was the business of the plaintiff to declare upon it as having such meaning in order that his pleading should be consistent. To us it is entirely clear that in no point of view can it be regarded as an absolute sale. The very fact that tlfe defendant was obliged to return the mares if they were not sold by him by October 10th, and that he had only an option to keep them by paying $275 for them, which option could not become an obligation until exercised, precludes the possibility of the contract being considered an absolute sale for $250. It could not become a sale at $275, unless the defendant subsequently to the making of the contract, and as a matter of fact independently of it, declared his determination to take them at that price and paid the money, and this it is neither alleged in the narr nor proved by testimony that he ever did. In no part of the contract does the plaintiff agree to sell them to the defendant or to any one for $250. The only other event in which the defendant was obliged to pay any money at all for the mares was the event that he should sell them before October 10th, 1881, for a sum exceeding $250. It is manifest therefore that before any obligation of the defendant could be established under this contract it must be established by proof either, first, that he sold them after July 9th and before October 10th, 1881, for a price exceeding $250; or, second, that he determined to take them himself at $275; or, third, that he had not sold them at all by October 10th, and therefore became liable to return them. It is perfectly clear therefore that, when the plaintiff on the trial merely read.his contract and rested, he should have been nonsuited if such an application had been made. It does not appear, however, that a nonsuit was asked for. Instead of that the defendant made his first offer of proof in regard to the condition of the mares when he received them, and what was done with them subsequently, and that one of them died while they .were in charge *596of the plaintiff’s veterinary surgeon before October 10th. This •offer was rejected, but for what reason does not appear, nor can we imagine. If it was upon the theory that the contract was an absolute sale, and there was no warranty of quality, that theory was unsound, because, as we have seen, it was in no sense an absolute sale. If it was a conditional sale or a bailment there was no liability of the defendant without proof that the conditions had transpired which established either of those relations. The plea of covenants performed witli leave could not of itself admit the defendant’s liability under this narr, because the narr was a mere drag-net, setting out three distinct and independent kinds of liability quite inconsistent with each other. The foundation of all liability being a written instrument, it was for the court to declare its meaning, and its meaning could not be an absolute sale. Regarded in any other aspect there was no other liability without proof of additional facts by the plaintiff, and no such proof was given.
We are inclined to regard the contract as a bailment for safe keeping, for sale if possible at a price larger than $250, and for return in good condition if not sold. There was no provision for a change of title from the plaintiff to the defendant, except in the one case that the defendant should pay $275 for the mares. In that event — that is, actual payment of the money, they should be his “exclusive property.” There is no allegation in the narr, and, of course, no proof, that the defendant ever paid the $275, or declared that he would, and hence he could not possibly acquire the title in himself under this contract. The other alternative of a money payment was not upon a sale to the defendant, but upon a sale by the defendant to a stranger, and in that event the amount to be paid depended upon the amount for which the defendant sold them. Such sale, of course, would be for account of the plaintiff. This part of the contract is undoubtedly a bailment for sale. The stipulation for re-delivery in case of no sale makes that aspect of the contract a bailment.
There being neither allegation nor proof of an acceptance by defendant at $275, that part of the contract becomes immaterial; but even as to that, the question at issue being between the original parties only, no creditors being interested, the title could not pass without the actual payment of the money, and hence this part of the contract cannot convert the whole into a sale.
In Chamberlain v. Smith, 8 Wr., 431, the contract was in the following words : “ January 12th, 1858. Received of John Benson one pair of three year old past stags, to keep and work in a reasonable, farmer-like manner for the term of one year: said cattle to be returned in one year. But the said Me*597Whartee has the privilege, bypaying $40 and legal interest at the expiration of the year, to keep the said cattle.” The court below held this to be a sale, but we reversed the judgment, saying (Strong, J.) : “We do not so construe the contract. It was a bailment, not a sale; a bailment with a refusal of the cattle for a stipulated time.”
The same doctrine was applied in Becker v. Smith, 9 P. F. S., 469. An exhaustive note at section 4 of 1 Benj. on Sales discusses the distinction between conditional sales and bailments very fully, and gives instances similar in character to the above, but too numerous to be repeated here. It is unnecessary'to extend the discussion. The first rejected offer of testimony by the defendant should have been received. We see no occasion to receive the others, as they were offers of parol proof touching the contract, when the contract itself was in writing. Under the plea of covenants performed with leave the first offer was clearly admissible, even on the technical state of the pleadings: Tr. & Hal. Pract., sec. 1588. It follows that the learned court below was in error in directing a verdict for the plaintiff, as there was no sufficient evidence to sustain such a verdict. The first-and fourth assignments of error are sustained.
Judgment reversed, and venire de novo awarded.