drew up the opinion of the Court. On the exceptions to the instructions of the judge at the' trial, two objections have been made to the plaintiffs’ right of action : 1. That no right of property in the wagon passed by the assignment to the plaintiffs, as against third persons, as there was no delivery, actual or constructive ; and 2. That if the property did pass, the plaintiffs have no right of possession.
That to maintain trover the plaintiff must have a right of possession as well as a right of property, is a well established rule of law. It was so decided in Gordon v. Harper, 7 T. R. 9; Smith v. Plomer, 15 East, 607 ; Wheeler v. Train, 3 Pick. 258 ; Ayer v. Bartlett, 9 Pick. 156. In Gordon v. Harper, goods had been leased as furniture, with a house, and had been wrongfully taken by the sheriff; and it was decided, that the landlord could not maintain trover against the sheriff, pending the lease, because to maintain such an action he must have the right of possession, as well as the right of property, at the time.
The same rule of law was laid down by Lord Ellenborough in Smith v. Plomer. In that case it appeared, that the goods had been let to hire, not for any precise time, nor for any certain sum. And it was held, that it made no difference, whether the hiring were for a time certain, or so long as the parties pleased ; for until the contract in the latter case were terminal ed, the property would be out of the person letting it, for the time ; and that a notice to determine the contract given to the sheriff’s officer, who took the property as the property of the husband of the person to whom it was let, and not to the other contracting party, was not sufficient for that purpose.
The case of Wheeler v. Train, was an action of replevin ; and it was laid down as a well settled principle of law, that in replevin, as well as trover, the plaintiff, to maintain his action, must show a right of possession as well as a right of property.
*539The case of Ayer v. Bartlett, was in all respects very similar to the case under consideration. In that action it appeared, that there had been a conditional sale by the plaintiff to one Scholfield, and certain notes were given as the consideration ; and it was agreed, that so long as Scholfield continued to pay the notes as they became due, he should have the possession of the property. Before the first note became due, the property was attached on a writ against him, and it was held on these facts, that the plaintiff could not maintain trover against the sheriff, unless the contract were rescinded. It was held also, that the taking of the property by the sheriff did not determine the contract of letting and Scholfield’s right of possession, as the proceedings of his creditors and the sheriff were in invitum ; but that if he had undertaken to sell or dispose of the property, such conduct would have been unlawful, and might have been considered as a putting an end to the contract on his part.
The principles of law established by these cases, (and more might be added recognizing the same principles,) we consider decisive of the present action. By the terms of the contract, Shewbrooks was to take the wagon and use it, and whenever he paid to Potter & Allen $ 80, the wagon was to become his. This was a letting of the wagon for an indeterminate time ; and until the purchase money or the wagon were demanded, he continued to have the right of possession ; and if, upon such a demand, he should pay the rest of the price, the property would immediately vest in him absolutely. From the report of the evidence it appears, that no demand of the wagon has been made, nor any demand of the purchase money, with the view of terminating the contract. It is true, that Potter requested Shewbrooks to pay the price agreed, but this request was complied with in part, and Potter, by accepting part payment, impliedly waived his request for any further payment at the time, and confirmed the sale subject to the condition. If he had intended to terminate the contract of sale, he would have declined receiving any part of the price, and would have nsisted on the restoration of the wagon. Considering these circumstances, we are of qpinion, that the request of payment by Potter did not operate so as to rescind the contract as to *540the use of the wagon, and the possession of Shewbrooks continued to be lawful; and, consequently, that the plaintiffs have no right of possession, whatever may be their right of propei ty, and that this action cannot be maintained. This being the opinion of the Court, it is unnecessary to consider the other objection as to the plaintiffs’ right of property.
Judgment of the Court of Common Pleas reversed, and a new trial granted in that court.