It appears that the plaintiff delivered the horses, wagon and harnesses to Waby to be used, and under a contract of sale when the stipulated price should be paid. The price was to be a gross sum for the whole property, and payable in labor. The articles were to remain the property of the plaintiff till the whole amount should be paid. After the payment, the plaintiff was to give Waby a bill of sale. The loss of one of thi *357horses, by its death without any fault on the part of Waby, was the plaintiff’s loss, and disabled him from performing the contract on his part. Nor would he be entitled to receive the gross sum for the rest of the property. Whatever right the circumstances might have given him to rescind the contract, he did not exercise it, but allowed the property to remain in Waby’s hands, and accepted from him a further payment of $18 in cash. This operated as a severance of the original contract; and by retaining the property that remained, Waby would be liable to pay for that property, and not the gross sum agreed upon for the whole.
When the plaintiff took the other horse, he thereby reduced his claim against Waby; and as he sold the horse for $40, it was at least reduced by that amount.
The wagon and harnesses were then the only property remaining in Waby’s hands; and if he had paid the plaintiff the full value of it, he was entitled to hold it as his own. A bill of sale would not be necessary to pass the title. A jury would be authorized to find that it was his, and that he had a right to sell it to the defendants. The evidence offered should have been admitted. Exceptions sustained.