The opinion of the court was delivered by
Phelps, J.-The sale of the horses by Bigelow to Gray was conditional. This being the case, the general property never passed. These sales are frequent, and it has always been considered that payment of the stipulated price was a condition precedent.
It is argued that such a sale is fraudulent in its effect. But we believe no case can be found, in which a mere conditional sale of thi s character has been held fraudulent in itself. The possession is consistent with the contract. And where there is no deception, the;re is nothing to sustain the suggestion of fraud. False repre-secitations may indeed be made, and where this is the case, the usnal consequences of fraud follow. But the mere circumstance that the vendee is'entrusted conditionally with the goods, and appears as owner, is not sufficient to divest the vendor of his property.
It appears in this case, that Gray called the horses his, with the kr íowledge of the plaintiff; but this does not appear to have been done, under such circumstances, as required of the plaintiff to disclose their real situation.
The more serious question involved in this case, arises out of i the technical objection, that the plaintiff having parted with his 'right of possession, for a limited period, which-had not expired, at the time of the supposed conversion, cannot sustain the action. Upon this point we are not unanimous. Yet there are two different points of view in which the case may be regarded, which have satisfied a majority of the court that the plaintiff is entitled tó re-' '■Cover.
First. We regard the payment of the stipulated price, as a condition ¿precedent. The general property in the horses, therefore, remained in the plaintiff. By virtue QÍ the attachment at the suit of Brown, And the eoasémjent proceeding, the right of possesion also vested in him. These proceedings, although instigated by the -piaintiff, were undoubtedly valid as against Gray; and the- right of the attaching creditor, the officer and the plaintiff, or receiptor, were the same, as if the plaintiff had had no agency in getting up the. proceeding. The general property and the right of possession being thus united, the technical rule of law is satisfied.
*155It may be argued that in this view of the subject, the plaintiff is entitled to recover, only to the extent of his interest as receipt-man. This by no means follows. If the plaintiff be entitled to recover at all, he may doubtless recover to the extent of his interest in the chattels. And if it be admitted, that an action on the case could be sustained, for the injury to the plaintiff’s reversiona-ry interest, there seems to be no reason why, if this action be sustained at all, that injury should not be here considered. Certain it is, that a recovery here would be a bar to such an action hereafter as no two actions could be sustained, by the same person, for one and the same tort. It would certainly be an anomaly in the law, if the plaintiff could recover only a partial compensation in this suit, while at the same time ihe recovery is a bar to a further remedy.
In short, the right of possession being in the plaintiff, the objection fails altogether. The supposed right of Gray can have no bearing on the question of damages. Besides, Gray could maintain no action for the taking by the defendant, he not having, at that time, the right of possession. The reason of the rule therefore fails in this case.
Secondly, Another view of the case is this. The contract being conditional, whatever determines the condition, would revest in the plaintiff the right of possession. A sale by Gray would have this effect; and so, in my judgment, would an attempt to abscond vyith the property, or his becoming bankrupt. Various contingencies might determine the bailment, and in whatever way this is done, the right of the plaintiff to resume the possession accrues.
This, it seems to me, results from the nature of the contract. I see not how the right of the plaintiff can otherwise be protected. And if the creditors of Gray can protect themselves in attaching it, by the technical rule relied on, the conditional contract is converted into an absolute sale; for clear it is, that Gray can maintain no action against his attaching creditor.
There is, in my judgment,"a wide difference between this case- and Gordon vs. Hooper. There the contract was absolute, here it is'conditional. The general property in the horses is retained by the plaintiff for no other purpose than to guard against the insolvency or want of responsibility of Gray. If we hold to the legality of this feature in the contract, it seems to me, we must give it full effect, and consider the plaintiff at liberty- to determine the bailment and resume the possession, whenever it becomes necesa-ry for the protection of his rights.
*156On these grounds, a majority of the court are of opinion, that the decision of the court below was right, and their judgment is affirmed.