I concur with Mr. Justice Montgomery in his conclusions upon the points discussed.
I am not satisfied that replevin can be maintained under the facts stated by Mr. Justice Grant, and for that reason, also, the verdict should have been directed for defendant.
McGrath, C. J.I do not agree with Mr. Justice Grant that the testimony in this case shows that plaintiff, before the replevin suit was brought, had surrendered possession of the chairs in controversy to defendant, or had voluntarily put defendant in possession of them. The controversy respecting the chairs had been going on for a year or more, and other litigation had been had upon the same subject. The contract was dated October 2, 1890. The chairs had been furnished prior to March, 1891. The claimed surrender of the chairs to defendant occurred *467February 3, 1892. The parties and their attorneys had had frequent interviews. The opera-house season was on. Defendant had threatened to take possession of the chairs, and plaintiff had denied its right to so. do. In the last of these interviews, Mr. Montgomery, plaintiff’s attorney, said to Judge Cahill, who was the attorney for defendant, and who went with Mr. Perigrine to the opera house on the morning in question: “We will never let you have these chairs; we don’t intend to.” Judge Cahill replied: “I understood you to sajr, if we wanted these chairs, we could have them without replevying them.” Mr. Montgomery responded: “We will open the opera house for you, but we propose, in ease you take them out, to replevy them.” It was this conversation to which plaintiff referred when Judge Cahill and Mr. Perigrine came to take the chairs. -The court very properly submitted this very question to the jury, with the following instructions:
“ It is claimed on the part of the defendant that plaintiff substantially delivered the goods to it, of his own free will and accord. It is claimed On the part of plaintiff that he did not deliver the chairs to defendant. It is a question for you to determine, because it is the law that if, just prior to bringing this suit, of his own free will and volition, he delivered these chairs over to the company, he cannot maintain the suit. If it was his'intention to have the company go and get the chairs, and let it take them as a matter of right on its part, then he could not maintain this action. If, on the other hand, it amounted substantially to this: that he said, 'There is the opera-house door open, but you must not take these chairs,’ and forbid it to take them, and it appeared properly so understood,— then it is not material whether a demand was made or not. What yon want to determine is what the intention of plaintiff was, as manifested by all the circumstances in the case.”
The court was clearly right in this instruction. The-jury were entitled to take into consideration the understanding of the parties, from all the conversations, and the circum*468stances. They bad the right to infer that Judge Cahill fully understood the position which plaintiff toolc; that plaintiff denied defendant’s right to take the chairs, and intended to replevy them if defendant took possession. Defendant was not misled. It was informed, in effect, that an opjiortunity to take without a breaking would be afforded, but if it undertook to avail itself of the opportunity, and take the chairs, suit would be instituted to recover the possession. No such consent to the taking could be inferred from such conduct as would deprive defendant of its right to bring an action of replevin.
I concur with my Brother Montgomery on the other points in the case.
Hooker, J\, concurred in the result.