Of the multiplicity of questions which appear on this motion it will be necessary to consider but few, as a decision of those will dispose of the casé.
The testimony of the plaintiff as to the agreement between himself and the defendant affords, probably, the most favorable grounds on which to rest the plaintiff’s claim. Giving that testimony the most liberal construction, it fails altogether to prove a contract of sale ; it does not even tend to prove such a contract, but to prove one of a different character — a contract of bailment. Such testimony was not admissible'; it was properly objected to, and should have been rejected.
Looking at the relation of these parties, the subject matter of the contract, and all the surroundings of the transaction, we are enabled to understand very fully the object and intent of the parties in entering into the agreement made by them. Such examination makes nerfectly clear what possibly might otherwise be doubtful.
The property which was the subject of the suit belonged to the estate of Mrs. Godfrey, Who by her last will had bequeathed almost all of her personal estate, subject of course to the payment of her debts, to her three nieces. One of those nieces was a daughter of the defendant, and a minor. The plaintiff was executor of the -will of Mrs. Godfrey. There wore few or no debts, and no legacies payable in money. Now it is perfectly apparent, in this state of facts, that the plaintiff did not mean to sell this property, and equally apparent that the defendant did not mean to buy it. The design of the parties was to make a distribution of the property according to the will. It was for their common advantage to do so. Such distribution was then premature certainly, and it was understood so to be. It was possible, though not probable, that the property distributed might be wanted in the settlement of the estate. That contingency was provided for, and so it was agreed that if wanted it should be restored. The defendant was to be responsible, that is, for his share. No idea of purchase and .sale being in the mind of either party, he was not *75responsible as purchaser, but as bailee. As such he seems to have taken the property; as such he stands chargeable.
The judge at the circuit recognized, and we have no doubt maintained throughout in his own mind, a clear and proper distinction between the liability of the defendant as bailee, and as purchaser, and very correctly instructed the jury that if the defendant received the property merely as bailee, or trustee, the plaintiff could not recover in this action. The jury however were also instructed that the plaintiff would be entitled to recover, if the property went into the hands of the defendant under an agreement that he, the defendant, would return it, in case it should be required to pay debts and charges against the estate, or be responsible to the plaintiff for the value of the property. We think the jury were misled by this instruction, for' without some qualification we think it erroneous.
We think the testimony of the plaintiff, and the other testimony of the same character, in support of the claim for goods sold and delivered, was inadmissible under this declaration.
A new trial therefore is advised.
In this opinion the other judges concurred; except Carpenter, J., who was absent.