By the Court,
Coleman, J.:This is an appeal by defendants Jurich, McDonald, and Smithson from an order denying a new trial and from a judgment against them.
The record is the same as that in the case of Studebaker Brothers Company of Utah v. Witcher, et al. (No. 2399) 44 Nev. 442, 195 Pac. 334, and the points *471urged on that appeal are, with one other, urged on this appeal. For a detailed statement of the facts we refer to that case. However, it may not he out of place to give herein a skeleton outline of the facts.
On April 3, 1917, one Flamm, a resident of Salt Lake City, entered into a contract with respondent for the purchase of an automobile, agreeing to pay therefor a fixed sum, in installments. It was agreed that title to the car should remain in respondent until full payment of the purchase price, and that the car should not be removed from the state. Prior to full payment being made, Flamm took the car out of the State of Utah and into the State of Nevada. After arriving in Nevada with the car, Flamm was sued and the car attached. In due course of time a judgment was rendered against him, and the car sold to satisfy the judgment; defendant Witcher becoming the purchaser thereof.
Respondent brought this action of replevin to recover possession of the car, claiming ownership thereof. All of the defendants resisted the action, upon the theory that the contract between plaintiff and Flamm was a mere chattel mortgage, and that, having no notice thereof, Witcher was an innocent purchaser for value, and that he and those claiming through him should be protécted. We decided adversely to this contention in the Witcher case, supra, and that decision is binding upon this appeal. We adhere to all that was said therein.
1. We deem it proper to consider only two questions, the first of which is that plaintiff cannot prevail, since no demand was made for possession of the car before the action was brought. The contract in question between respondent and Flamm being merely a conditional sale, as held in the Witcher case, supra, the defendants could not acquire any rights through Flamm superior to the respondent company, and demand in an action of this kind is not always necessary for every purpose; and, even though the defendants came into possession of the property innocently, where the right *472of possession was in respondent, appellants were entitled to have a demand made only for the purpose of affording them an opportunity to deliver the property without being subjected to court costs in connection therewith.
2. It is apparent from the record that a demand would have been fruitless. The defendants contested the action in the trial court upon the merits, and, that court having decided adversely to them, they have appealed to this court, where they insist that the judgment should be reviewed upon the merits, as well as for the technical reason that there was no demand prior to the bringing of the action. The law does not require vain or fruitless things of any one, nor will it tolerate another shielding himself by insisting upon a right which his conduct shows he would not have availed himself of had an opportunity been offered. The rule which we have enunciated is not only sustained by reasoning, but is sanctioned by the great weight of authority. 23 R. C. L. 888; 34 Cyc. 1410. The rule which we have stated is analogous to that declared by this and other courts — that a tender of money is not necessary when such a tender will avail, nothing. Irvine v. Hawkins, 20 Nev. 384, 387, 22 Pac. 240. In Wertz v. Barnard, 32 Okl. 426, 122 Pac. 649, it is said:
“ Tf no demand is made, and the original possession of the defendant be lawful, and he tenders the property to the plaintiff, and upon its delivery by proper answer or plea discharges the action, costs should be taxed against the plaintiff. If the defendant does not pursue this course, and contests the action, the writ will be sufficient demand, and defending the suit a refusal’—citing Chipman v. McDonald, 9 Kan. App. 882, 57 Pac. 252; Dearing v. Ford, 13 Smedes & M. (Miss.) 274; 24 Am. & Eng. Ency. Law (2d ed.) 510; footnotes 4 and 6, Shinn on Replevin, sec. 316; Cobbey on Replevin, sec. 450.”
This rule is in line with the policy of this state as declared by our legislature, which has enacted:
“The defendant may at any time before trial or *473judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the * * * property, or to the effect therein specified. * * * if the plaintiff fail to obtain a more favorable judgment he shall not recover costs, but shall pay the defendant’s costs from the time of the offer.” Rev. Laws, 5265.
If defendants had claimed no right to the automobile superior to that of the plaintiff, they could have protected themselves by proceeding under this’ statute. But they do not come within the statute. They are not persons intended to be protected by it, for the reason that they defended, asserting a superior right tq that of the plaintiff.
The second contention is that the appellants are mere agents of Witcher, and that a different rule should apply to them than to him. Whatever may be the correct rule of law applicable where an agent is sued alone while in the exclusive possession of property, as such agent, we are not called upon to determine. Such is not this case. The facts of this case are not only unusual but unique, to say the least. Flamm bought the car April 2, 1917. On June 30 it was sold under execution. The undisputed testimony is that on July 21 the car.was red and not in need of repainting. When next seen on August 29 by a representative of respondent (less than three months after the purchase), it had been painted green. On the date last mentioned two of the appellants disclaimed ownership of the car, one of them saying it was owned by some fellows at the “flat,” but that he had an interest in it. The trial court found that at the time of and prior to the bringing of the action, and at the time of the trial, the defendants, all of them, “did unjustly hold and detain” the possession of the car. The fact that Smithson and McDonald were in possession of the car on August 29 is consistent with the theory of agency. It may also be said that an inference may be drawn that the possession of the car was being juggled for the purpose of making its discovery and recovery impossible. We think, too, *474that there is nothing in the record inconsistent with- the finding of the court that all of the defendants were in possession of the car at the time the action was brought.
3. The appellants should not complain of this finding, especially since they did not request a finding that they were the agents of Witcher, and in view of the further fact that neither of the defendants went upon the stand in their own behalf and testified as to the real facts.
4. The failure of a party- to an action to give testimony as to facts peculiarly in his knowledge gives rise to the inference that his testimony would be contrary to his theory of the case. Sherman v. S. P. Co., 33 Nev. 385, 402, 111 Pac. 416, 115 Pac. 909, Ann. Cas. 1914a, 287.
5, 6. In fact, so far as we are able to ascertain from the record, the theory of agency now contended for was not urged upon the trial court, and therefore cannot be raised for the first time on this appeal. In any event, there being no finding by the trial court of agency on the part of these appellants, none will be implied to overthrow the judgment. Wilson v. Wilson, 23 Nev. 267, 45 Pac. 1009.
For the reasons given, the judgment is affirmed.