Suit on a replevin bond. Verdict, and judgment were for defendant and plaintiff appealed. February 24, 1902, Dennis had a public sale of his persona] property at his farm in Grundy county. Plaintiff attended and bid off three cows at the price of $68, and a quantity of oats at $31.05. The terms of the sale announced by the auctioneer permitted purchasers to give their negotiable promissory notes due nine months after date, with security to be approved by a Mr. Wolz, who had agreed to purchase the notes of Dennis and was present at the sale. Plaintiff claimed Dennis owed him an account and desired to have it credited on his purchase. After some discussion, the parties agreed that the amount of the account was $5 and that sum was allowed as a credit. Plaintiff paid five cents to reduce the purchase price to even dollars, and a note for $94 was made out in accordance with the terms of the sale and given him. He signed it and agreed to have it signed by a solvent surety and then to deliver it to Dennis the nest day. He was permitted to drive away the three cows and to-take a load of oats. The next day, plaintiff’s son came to Dennis for the remaining load of oats, but failed to bring the note. With some hesitation, Dennis permitted him to take the load, but sent back a note to plaintiff urging him to send the promissory note at once. This, plaintiff failed to do and Dennis brought a replevin suit before a justice of the peace and, by giving bond, regained possession of the cows but not of the oats. Plaintiff won that suit in the justice court and Dennis appealed to the circuit court where the action was dismissed on the ground of lack of jurisdiction in the court where it was brought. We affirmed the judgment on appeal (104 Mo. App. 638). Plaintiff then brought suit on the replevin bond to recover the value of the cows and his expenses, etc., in defending the replevin suit. The defense tendered by the answer is that plaintiff is not entitled to recover because at the time the replevin suit *97was brought, the title and right to possession of the property were in defendant, Dennis, and not in plaintiff. Defendants also filed a counterclaim for $37.50, the value of the oats they claim were wrongfully converted by plaintiff.
We think defendants are right in their contention that the dismissal of the replevin suit for- want of jurisdiction did not preclude them from meeting the claim of plaintiff that he had been injured and damaged by breach of the replevin bond with the showing that plaintiff had not thus been injured and damaged, for the reason that at the time the replevin suit was begun, he was not entitled to the possession of the property, but the right of possession and ownership were vested in defendant Dennis. It is provided in section 3924, Revised Statutes 1899, that in cases of this character, where the action is dismissed for want of jurisdiction, the defendant shall have a right of action on the bond, but that in such action, the defendants therein “shall have the right to set up as a defense the ownership or the right of possession of the property involved in the original replevin suit.” This statute clearly authorizes the defense here tendered, and we turn to the contention of whether the facts in proof show or tend to show that ownership and right of possession were in Dennis and not in plaintiff.
It is our conclusion from a careful consideration of the evideuce, and particularly the testimony of plaintiff himself, that the learned trial judge would have been warranted in peremptorily directing the jury to find for defendants on the issue under consideration. Unquestionably, plaintiff obtained possession of the property on the well understood condition of the terms of the sale that -immediately he would give his note signed by a solvent surety. The manifest intention of the parties was that the title of the property would not vest in plaintiff until the performance of this condition *98and all the circumstances of the delivery show there was no thought on the part of the vendor of waiving that condition by accepting the promise of his vendee. The rule thus is stated in Oester v. Sitlington, 115 Mo. 247: “There can be no doubt that the owner of personal property may place his own conditions upon its sale and transfer. He may require that the contract price shall be paid in cash or satisfied by note or bill before the title shall vest in the vendee, and, as between himself and his vendee, the conditions will be upheld and enforced though the possession may have passed to the buyer.” Another very lucid statement of the rule is to be found in the opinion of Senator Edwards in Russell v. Minor, 22 Wend. 659: “When on the delivery of property sold, an act is to be done by the purchaser, and the seller delivers the property without requiring it to be done, the delivery is a waiver, and the property is transferred to the purchaser, although he has not complied with the terms of the contract; but where something is to be done by the purchaser simultaneously with the delivery, which has not been “waived by delivering the property without requiring it to be done, the delivery .is conditional and does not become complete so as to change the right of property until the condition is complied with.”
Under this rule, we must hold the delivery conditional in the present case and since this conclusion is based on the admissions of plaintiff himself, we find it unnecessary to discuss other questions raised by him. Whether or not the court should have heard evidence on the counterclaim is immaterial for the reason that the verdict and judgment were against defendants on the counterclaim and, therefore, plaintiff could not have been injured by error committed with reference to that issue.
Finding no error in the record prejudicial to plaintiff and believing that the judgment is for the right party, we affirm it.
All concur.