The opinion of the court was delivered by
Kellogg, J.The only question, presented for the consideration of this court, arises upon the decision of the county court in relation to the plaintiff’s right to the possession of the property. If it be true, as is assumed by the court below, that, by force of the contract, the plaintiff had parted with his right to the possession of the property for a term, which had not expired at the commencement of the plaintiff’s suit, it is very manifest, that this suit cannot be maintained. For it is well settled law, that, to maintain the action of trover, which is founded upon property and possession, the plaintiff must have, at the time of the taking and conversion, either the actual possession, or the right to immediate possession. Now, whether the decision of the court below can be sustained must depend upon the construction of the contract between the plaintiff and John A. Batchelder.
By the terms of that contract it is very obvious, that the articles deposited by the plaintiff with John A. Batchelder, and such as he might receive in exchange, were at all times to be and remain the property of the plaintiff. By the terms of the contract it is stipulated, that the property might remain in the custody of John A. Batchelder for the period of three years, the plaintiff, however, reserving to himself the right, at all times, of putting an end to the bailment. The words of the contract, after the enumeration of the property bailed to John A. Batchelder, are “ All of which he (the plaintiff) will take back, if requested, after three years, and before, if parties can agree, or if the said D. K. Batchelder shall request.” From these expressions it would seem to be quite obvious, that, *378while John Á. Batchelder could not compel the plaintiff to take back the property and put an end to the bailment before the expiration of the three years, yet, if the parties should agree, or if the plaintiff should desire it, he could at any and all times, upon his own mere will and pleasure, resume the actual custody and possession of the property.
We have been referred to the case of Soper v. Sumner, 5 Vt. 274, as decisive of the case at bar j but we think that case clearly distinguishable from the present. In the case cited,, by the terms of the contract, Soper had a right, if at any time he “should became dissatisfied loith the manner of keeping or using the oxen, to take them back.” This was not an absolute and unqualified authority to Soper, to take back the property at his mere pleasure; but it was only in the event of his becoming dissatisfied with the manner of keeping and using the oxen, He could not claim it as a right, unless his dissatisfaction was founded upon good and justifiable cause. No such restriction is imposed upon the plaintiff by the contract in the case at bar. He had a right to put an end to the bailment at pleasure, and consequently was entitled to immediate possession of the property.
The case of Putnam v. Wyley, 8 Johns. 432, is an authority that fully sustains this position. The court say, that the plaintiff, at the time of the alleged taking of the property, “ must have such aright, as to be entitled to reduce the goods to actual' possession when he pleases.” The doctrine of the case last cited is believed to be well sustained and conceded to be sound law, . Indeed, we are not aware, that it has ever been doubted, but what the owner might maintain trover for the taking and conversion of the property, provided he was entitled to the immediate possession at the time of the conversion.
The county court adjudged, that, by the contract, the plaintiff had parted with the property for three years, which, had not expired at the commencement of this suit. This, we think, was clearly erroneous, The terms of the contract do not warrant that construction, but, on the- contrary, by the very terms of the contract, the plaintiff was entitled to reduce the property to actual possession^ when he pleased.
The result is, that the judgment of the' county court must be reversed^ 7