The opinion of the court was delivered by
Kellogg, J.On the trial of this case in the county court, the defendant made several requests to the court in respect to the charge to the jury, and the refusal of the court to charge the jury in accord*708anee with the first and third of these requests is the ground of exception now insisted on. The first request was that the jury should be instructed that, if they found the contract about the sow to be as claimed by the defendant, and that Flanders, the defendant’s tenant, purchased the sow as the defendant’s, and for him, and so notified the defendant soon after the purchase, and, in January thereafter, delivered the sow to the defendant as his property under the circumstances detailed in the testimony, the sow became and was the property of the defendant, and that Flanders could make no sale of her to the plaintiffs which would defeat the defendant’s right to her. This request was made on the assumed ground that the evidence tended, to show that when Flanders purchased the pig of Kenny, he was acting as the agent of the defendant, and in his behalf ; but we think that the defendant’s evidence as stated in the bill of exceptions had no tendency to show this. The evidence only shows that the defendant expressed to Flanders a wish or preference that he should procure the sow pig, which Flanders was to deliver him, of Kenny, and that he, the defendant, had spoken to Kenny about the matter ; but it had no tendency to show that the defendant selected or indicated any particular pig of Kenny’s which he wished Flanders to purchase. The utmost which the evidence could be considered as tending to show was that Flanders bought the pig of Kenny, intending to let the defendant have it in fulfillment of his contract. There was no obligation on the defendant, at the time when this pig was purchased of Kenny, to receive it from Flanders ; and, by the contract, he had no claim on Flanders for the delivery of the pig which he was to receive from him until the end of the year. If the pig had died after Flanders had purchased it, and before it had been accepted by the defendant, the loss would have been the loss of Flanders, and the liability of Flanders for the price of the barrow pig would have been the same after as before the purchase from Kenny. The intention of Flanders, at the time of making the purchase, to let the defendant have the pig in satisfaction of his contract with the defendant, did not invest the defendant with any property in the pig at that time, nor make Flanders the agent of the defendant in making the purchase. We think that the defendant’s evidence did not tend to show that Flanders, in making the purchase of Kenny, acted as *709the agent or in behalf of the defendant; and, if the evidence did not tend to show this, there was no error in the refusal to charge the jury agreeably to the defendant’s first request.
The third of the defendant’s requests was to this effect, — that the jury should be charged that if the plaintiffs knew, at the time when they purchased the sow, that she was the property of the defendant, they were not entitled to recover. The bill of exceptions states that the evidence on the part of the plaintiffs tended to show that they had no knowledge of any claim, right or interest of the defendant in the sow, at the time they bought her of Flanders, and that there was no evidence on the part of the defendant tending to show the contrary. Under this statement, it is clear that there was no evidence in the case upon which this request could be predicated or supported, and that this ground of exception has no foundation to rest upon. A compliance with the request would have allowed the jury to find a material fact upon mere conjecture, without evidence ; and the request was very properly refused.
Judgment of county court for the plaintiffs affirmed.