While there was evidence in this case to show a sufficient delivery of the horse to Parker to pass the title, the defendant, a bailee of the plaintiff, having been notified of the sale, there was also evidence from which the jury might have found that, when the defendant refused to deliver up the horse, after the plaintiff tendered him all that was due him under the bailment, the plaintiff and Parker rescinded the sale, and that the title to the horse was in the plaintiff when this action was brought. Or the jury might have found, on the evidence, that the absolute sale was by agreement of parties changed into a conditional sale, the condition being that the plaintiff should recover possession of the horse. In either case the plaintiff would, be entitled to maintain this action, unless the fact that the money paid for the horse was not returned makes a difference. But the evidence shows that the plaintiff offered to return the money to Parker, and that the latter told him if he could get the horse for him he might keep the money. The fact that the plaintiff kept the money wa,s, therefore, of no consequence.
The judge rightly refused to rule that on all the evidence in the case the plaintiff was not entitled to recover.
Exceptions overruled.