On the agreed statement of facts in this case the question is whether the law implies a contract on the part of the defendant to pay for the keeping of the horses. The burden of proof is on the plaintiff, and no inferences of fact can be drawn in his favor. Old Colony Railroad v. Wilder, 137 Mass. 536.
It has been said that, when a vendee returns or declines to receive property sold him, the vendor has his choice “ of either one of three methods to indemnify himself: (1.) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2.) He may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3.) He may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the contract price.” Dustan v. McAndrew, 44 N. Y. 72, 78. Haines v. Tucker, 50 N. H. 307. Girard v. Taggart, 5 S. & R. 19. Rosenbaums v. Weeden, 18 Gratt. 785. Holland *50v. Rea, 48 Mich. 218, 224. Cook v. Brandeis, 3 Met. (Ky.) 555. Bagley v. Findlay, 82 Ill. 524.
Where the vendee contends that the1 property is not his, and treats it as belonging to the vendor, and the vendor elects to keep it for the vendee and sue for the entire contract price, there is no implied contract on the part of the vendee to pay the vendor the expense of keeping it. Whiting v. Sullivan, 7 Mass. 107. Earle v. Coburn, 130 Mass. 596. In such cases, when there is a controversy about the title, the election of the vendor to take care of the property is often more for his own benefit, in view of the risk that the main question in dispute may be decided against him, than for the benefit of the vendee, and the attitude of the vendee is equivalent to an express prohibition of the keeping on his account and at his expense. If the vendor wishes to avoid the expense of keeping, and at the same time to avail himself of the value of the property, he may sell under an implied agency for the vendee, and sue for the balance above what he obtains after paying the reasonable expenses.
In the present case the plaintiff elected to sue for the entire contract price, and, in the opinion of a majority of the court, there is no principle of law which permits him now to maintain a second suit for the expense of keeping the horses, either during the whole time while the litigation was pending, or for that part of it which would have been required to enable him properly to dispose of the horses, if he had chosen to sell them on the defendant’s account, and, after applying the proceeds, to sue for the balance due him.
Judgment for the defendant.