1. By the terms of the written contract, which is conclusive, as between plaintiff and James Putney, he had no right to sell the colt, at all. As between them the very act of sale by Putney, terminated the bailment and gave plaintiff the right to take immediate possession and to retain it until paid the balance of the purchase money.
*4362. So too Ms baying taken possession, under a claim of right, and this being acquiesced in by Putney, the plaintiff’s possession is sufficient to enable him to maintain trespass against defendant for his retaking the animal, unless he can show a better right.
3. The defendant’s right is based upon his purchase, whichis so tinctured with fraud, as to be voidable at the election of the vendor, Putney, if he had a right to sell under a power from plaintiff, might himself avoid his own sale for such a fraud as was shown in this case, or plaintiff might do it, as the principal vendor, and on this ground alone the defendant’s right would thus terminate.
4. The defendant claims no benefit of Putney’s right of possession, for he did not profess to buy that. Iiis claim, if maintained at all, must stand upon the power of sale, which he proved, and Putney’s sale to Mm failed in meeting either alternative of the power. It was neither a good trade, or without being cheated.
Had the written bill of sale, contained in express terms, a power in Putney to sell the beast, although restricted to a certain price or in other respects, no doubt a sale made by him, which was valid as against him, would be also valid as against the plaintiff. But in this case the sale to the defendant was so fraudulent, as not to be binding upon Putney had he owned the property, and if not upon him, then the plaintiff, as the principal, might well assume to rescind it. Judgment affirmed.