DISSENTING OFINION.
Cockrill, C. J.The consideration for the new safe was a sum of money and the old safe. The title to the new safe was to remain in the vendor (the plaintiff) until the defendant fully complied with his contract of purchase. He paid the money consideration, but failed to deliver the old safe at the railway station house as his contract bound him to do.
It is settled by the decision of this court that the defendant did not forfeit his right to the new safe by a failure to deliver the old one until there was a specific demand therefor in accordance with the terms of the contract. Nattin v. Riley, ante p. 30. Forfeitures are not favored, and the party claiming a right by virtue of a forfeiture should be held to strict proof of the facts which work the forfeiture. The question in this case then is, Did the plaintiff prove a demand for the delivery of the old safe in pursuance of the contract of purchase ? A demand for delivery not in pursuance of the terms of the contract would not work a forfeiture of the defendant’s right to the new safe. The terms of the contract called for delivery of the old safe at the railway station-house. Standing alone, that is, without other directions by the owner or purchaser, that meant delivery for shipment to the owner or purchaser at his place of residence, Cincinnati in this case. If therefore there had been a demand for delivery in accordance with the terms of the contract, the defendant could not have excused himself by answering that he had no directions for shipment. The agreed statement of facts is that the plaintiff’s attorney urged the defendant to put the safe on the platform at the railway station-house. Did that mean that it should be placed there for shipment to the plaintiff at Cincinnati, or to await the order of the plaintiff? It appears that the defendant placed the latter construction upon the request; and if that was a proper construction, the request was not a demand in accordance with the terms of the contract; and as the defendant was prevented from complying with the request by the refusal of the railway agent to permit the safe to be stored on the platform, the forfeiture should not be declared. There is room for a difference of opinion as to the inference which might be fairly drawn from the conceded facts in reference to the demand. The issue was therefore one of fact (Robson v. Tomlinson, ante p. 229; 1 Shearman & Red. on Neg., sec. 54), and the finding of the court is conclusive. The finding was general for the defendant, and, taking it most strongly for the defendant, it was in effect that the plaintiff’s demand was to deliver the old safe at the railway depot, not for shipment, but to remain there subject to- the plaintiff’s order. It may be correct to say that it was the defendant’s duty to notify the plaintiff that the railway agent would not permit him to leave the safe on the platform without directions to ship, but'such failure could not work a forfeiture of the defendant’s right to the possession of the new safe. The judgment for the defendant is right, and ought to be affirmed. As it is reversed, the defendant can doubtless be relieved of the effect of the forfeiture by a proper appeal to equitable doctrines.
Mansfield, 'J., concurs in this opinion.