The opinion of the court was delivered by
Bennett, J.It is not questioned, but that the plaintiff was at one time the owner of the oxen in dispute. The case shows that the defendant on the trial offered to prove that, prior to the date of the first contract, (September 8th 1841,) the oxen in question were absolutely and unconditionally purchased by him of the plaintiff, and by him sold to Smith. It is not said directly in the bill of exceptions, that this testimony was excluded, but it is stated that the court decided, upon the facts found, that the plaintiff was, entitled to recover nominal damages, notwithstanding the testimony offered by the defendant. It is to be taken that the testimony was excluded, and probably it was thought to be immaterial. Whether it was immaterial or not must depend upon the effect of the written contract made by the parties to this suit on the 23d of January, 1842, If this necessarily must have the effect to divest the defendant of the ownership of the oxen and vest the, title to them in the plaintiff, then the testimony offered could have had no effect.
*390The plaintiff, under that contract, had no right to take the possession of the oxen, without first paying the defendant for what he had done towards the job. This was a condition precedent to the exercise of the right, and there is no pretence in the case that this had been done. The contract, it is true, admits the receipt of the oxen by the defendant; but this might have been, in order that the plaintiff might hold a sort of lien upon them for the payment of the purchase money, which probably was to have been paid in the performance of the job, as the contract provides for “ turning in ” the property, which went into the hands of the defendant.
If these oxen had been absolutely and unconditionally purchased by the defendant before the making of the contract of January, 1842, the plaintiff could not maintain trover against this defendant for the sale of them to Smith, unless that contract should have the effect of a re-sale of the oxen back from the defendant to the plaintiff. We think it cannot have that effect, and, under the contract, the plaintiff’s right to the oxen is made to depend upon his having paid the defendant for what he had done towards completing the job.
The result must be that the judgment of the county court is reversed.