The opinion of the court was delivered by
Kellogg, J.This is an action of trover for certain sheep and wool. The plaintiff, to prove his title to the property, gave in evidence a receipt executed by the defendants to the plaintiff, and also evidence of a demand of the defendants for the property and of their failure to deliver the same. Upon the evidence, the court below decided, as matter of law, that the plaintiff was not entitled to recover; and the correctness of that decision is now the subject of enquiry.
Whether the decision of the county court is sustained, or not, must depend upon the construction, that is given to the receipt, or contract, referred to in the bill of exceptions. If it is to be construed as a sale of the property to the defendants, or even a bailment with the power to sell the same, (and such the defendants insist is the legal effect of the contract,) then the decision of the county court was undoubtedly correct.
It is a well settled rule in the interpretation of contracts, that the intention of the parties shall prevail and be carried into effect, provided it can be done consistently with the rules of law. Hence the inquiry arises, was it the intention of the parties, that the plaintiff, by the contract, should be divested of the ownership of the property, and the same be vested in the defendants ? Or was it a bailment of the property for a certain period, with a stipulation for its return at the expiration of the bailment? We are inclined to think, that the latter was intended by the parties, and that this is apparent upon the face of the contract. The defendants, in express terms, agree to keep the sheep for the period of three years ; which is inconsist*351ent with the idea of an absolute sale of the property. If the parties had intended a sale, we can hardly believe, they would have inserted such a stipulation in the contract. The plaintiff could have had no motive for requiring it, and the defendants would not have been likely to have submitted to it.
But it is said, that by the contract the defendants were allowed “ to return the same sheep, or others in their place as good as they wereand this has been urged as giving the defendants an unqualified right to dispose of the same. But the fact, that the obligation of the defendants in relation to the return of the sheep is in the alternative, does not necessarily determine the character of the contract and convert it into a contract of sale. Such a contract is not inconsistent with the continued ownership of the property by the plaintiff. It was so held in Smith v. Niles, 20 Vt. 315. That was a lease of cows for three years, with a stipulation by the lessee to return the same cows, or those worth as much, and it was held not to be be a sale of the cows, or to give the bailee a right to sell; that it was simply a provision, in the event that any of the cows were lost under such circumstances, as to render the bailee liable, that he might replace them with other cows of equal value. So in the case of Grant v. King et al., 14 Vt. 367, it was held, that where cattle were leased, with a provision in the contract, that the lessee should return the cattle at the expiration of the term, or fay a certain sum in lieu thereof, it did not amount to a sale of the property.- These decisions are founded upon the supposition, that the parties, by the terms- of the contracts, intended a bailment and not a sale.
We are aware, that the case of Hurd v. West, 7 Cow. 752, cited at the argument, is opposed to the view, which we take of the case before us. There the court seem to consider, that the alternative words in the contract determine its character, — that the right of the party to return other sheep of equal value makes the contract operate as a sale, — that such is the legal effect of the contract, and that upon the delivery of the property it vests in the bailee, or vendee. This decision is admitted to be in direct conflict with the case of Seymour v. Brown, 19 Johns. 44, — which last case is said to be overruled. Which of thfe two cases is the better law, I do not deem it necessary to inquire, as I think the case at bar must be *352controlled by the decisions of our own court. It is analogous to the case of Smith v. Niles, and I think, in principle, cannot be distinguished from it.
It may be asked, if the property at the time of the bailment does not pass, when does it vest in the bailee? We answer, certainly not until the bailee performs bis part of the contract, by returning other sheep of equal goodness. That sufficiently secures to the bailor a return of the property bailed, and affords to the bailee all that he could claim, upon the most liberal construction of the contract. This construction of the contract is most beneficial to the defendant, and carries into effect, we think, the obvious intention of the parties.
Judgment of the county court reversed.