The opinion of the court was delivered by
Ross, J.The question in controversy was, whether the plaintiff retained a lien on a certain pair of oxen when he sold them’ to Ethan A. Hall, which oxen Hall had sold to the defendant, and *511for the conversion of which by the defendant the plaintiff brought this suit. The plaintiff claimed and testified that, by the agreement between him and Hall at the time he sold Hall the oxen, the oxen were to remain his property till Hall paid him for them. Hall claimed and testified that his purchase of the oxen was absolute and unconditional, and that he was to have twenty years to pay for them if he desired. We think on this issue, it was permissible to allow the plaintiff to show that his acts had been consistent with what he claimed the trade was. When, therefore, it turned out in evidence that Hall had failed, and others had brought suits against him, and that these-facts were known to the plaintiff, ho could properly be allowed to testify that he did not bring a suit against him, for the reason that he held a claim on the oxen for the payment of the price at which he sold them to Hall, and, besides the debt for the oxen, Hall owed him but a small sum, which he rather run the risk of losing than be at the trouble and expense of a suit. His neglect to sue, having knowledge of the failure of Hall, and of suits brought by Hall’s other creditors, was an act of the plaintiff, which tended to show he then understood he had a claim on the oxen to secure the payment of the price at which he sold them, and, as such, the plaintiff had a right to have the jury know that he knew of the suits by Hall’s other creditors, but did not sue himself, for the reason he had a lien upon the oxen.
The defendant introduced a composition deed, signed by the plaintiff, with other creditors of Hall. Although the deed never became operative, the fact that the plaintiff signed it, unexplained, would have a tendency to show that the plaintiff did not retain a lien on the oxen for their payment. We think, to rebut the tendency of this act, the plaintiff might show by himself and Spaulding, the trustee in the composition deed, that' he. did not sign the deed with reference to the debt due him for these oxen, but with reference to the small amount due him from Hall aside from these oxen, and that it was understood between him and Spaulding that the debt for these oxen, and his lien on them, should not be included within the operation of the composition deed. The deed was not in issue between the parties, but the plaintiff’s signature *512to it was shown as an act inconsistent with the claim the plaintiff was then making. The plaintiff and Spaulding were allowed to testify as to what debt due the plaintiff it was understood between them at the time the plaintiff signed that the deed was to bo operative upon; not to add to, take from, contradict, or vary the language of the deed, but to explain the plaintiff’s act of signing the deed, which was relied upon by the defendant as inconsistent with the claim the plaintiff was attempting to assort by tbo suit. As explanatory of the plaintiff’s act, tbe question is not what is the legal effect of tbe language used in the deed, but what rights belonging to him did the plaintiff understand were to be affected by his signature of tbe deed, at the time he signed it. To show what rights he supposed he was signing away, he had a right himself to testify, and to call Spaulding to testify, as to what was said between them in regard to the effect of the deed upon Ms rights at the time he placed Ms signature to the deed.
Judgment affirmed.