In considering this motion, we shall confine ourselves to that part of the plaintiff’s case, which was proved by his own witness, Henry Holdridge, and not disputed by the defendants; and thus avoid any inquiry into the weight of conflicting evidence.
It is to be presumed, that this witness stated the facts as favourably for the plaintiff as truth would justify. The oxen in dispute had been purchased of the plaintiff, by Henry M. *510Holdridge, and placed upon the farm in the joint occupancy of himself and his father, the witness, and, together with other cattle there, had been used in the cultivation of the farm, as well as for other purposes, by the witness, in the absence of his son, who was temporarily engaged in another town.
There was no actual delivery of the cattle to the plaintiff, at the time of the sale, nor at any other time; but by an agreement between the parties, they remained with Henry Holdridge, to be used on the farm as before, or for his personal accommodation. They were kept and used on the farm as formerly, and were there, when they were attached by the defendants, to secure a debt against Henry M. Holdridge.
Although Henry Holdridge, the father, was an agent for his son in making the sale, yet neither the use nor the possession of the oxen was changed; every thing remained as before; nor was any legally sufficient reason given nor pretended, why they continued under the same controul and management.
The jury, in opposition to the explicit instructions of the court, have attempted to sustain this pretended sale, upon what they probably supposed was the bona fides of the matter, without regard to the continued possession and apparent ownership of the property, and without any other explanation or excuse for such possession, than the personal accommodation of Henry Holdridge, the agent. This is an insufficient explanation; and the verdict is in certain opposition to the legal operation of the facts which the plaintiff himself claims to be true, and which are proved by his own witness; and it cannot be sustained, without an abandonment of well settled principles, as recognized in all our cases, and especially in the late cases of Swift v. Thompson, 9 Conn. R. 63. Mills v. Camp, 14 Conn. R. 219. Carter v. Watkins, Id. 240. 243, 4. Osborne v. Tuller, Id. 530.
We think a new trial ought to be granted.
In this opinion the other Judges concurred.New trial to be granted.