Alden did not become a purchaser of the horse, because the parties stipulated that he should not be until the price should be paid. The property had not passed to him at the time of the attempted sale to the defendant, because the full price had not been paid. Alden was only a bailee for hire, with the right to purchase if he paid the price within the year. The contract which gave him the right to purchase, gave him no right to sell. By selling what he did not own, he lost his right to the possession and thereby terminated the bailment.
But he had an assignable interest in the horse, a right to hold and use him for a year, and to acquire an absolute title to him provided he paid the price within the year as the monthly installments fell due. This interest he had a right to sell, that is, a right to sell the horse subject to the claim of the plaintiffs. As it does not appear that the bailment rested on any personal confidence, as in the case of a valuable chattel, or valuable for special reasons, a sale of his interest to the defendant would entitle the latter to hold the horse as Alden had held it, and would confer on the defendant the right to acquire an absolute title by completing the payment of the purchase-money. But this was not what Alden did. He did not dispose of his interest merely in the horse, — *Page 558 his right to hold and use him during the year, with the right to complete the payment of the purchase-money and thereby acquire an absolute title to him, — but he made an unconditional sale of the horse to the defendant without regard to the plaintiffs' rights. He undertook to sell what he did not own and therefore could not convey.
The defendant might perhaps have protected himself when demand was made for the horse by tendering the balance due. Instead of recognizing the plaintiffs' ownership and superior title, he denied their right entirely, and refused to return the horse. The plaintiffs were therefore entitled to treat the contract with Alden as violated and the bailment at an end, and to resume the possession at once. Sargent v. Gile, 8 N.H. 325; Bailey v. Colby, 34 N.H. 29; McFarland v. Farmer, 42 N.H. 386; King v. Bates,57 N.H. 446. These decisions go upon the ground that the bailee, by undertaking to sell the property of his bailor, is guilty of a breach of the trust reposed in him, which authorizes the bailor to treat the trust as at an end, and to resume the possession of his property.
If any demand was necessary, the case finds that one was made upon the defendant before the suit was brought, and the defendant made no request for time to investigate the plaintiffs' title.
The tender of $3 by Alden after the suit was brought was insufficient, even if he otherwise had the right to apply in the way he claimed the amount due him on account from the plaintiffs, because the case also finds that he had previously made a different application of a portion of the same indebtedness.
Exceptions overruled.
STANLEY, J., did not sit: the others concurred.