The referee found that the defendant did not take nor wrongfully detain the property replevied by the plaintiff, and assessed the defendant's damages. If the facts reported warrant this finding, or if on the pleadings the facts are not sufficient to give a title and right of possession of the property to the plaintiff, the defendant is entitled to judgment on the report. There was no unlawful taking of the property by the defendant, for he took possession of it by the consent of the vendor, under an agreed right to take and use the property and acquire title by payment within a year. There was no unlawful detention, if the defendant had the right of possession until the property was paid for. The vendor extended the time of payment, and made no demand for the property. He did not assert his right to take it, nor claim a forfeiture of the defendant's right to retain the property and complete the payment. He afterwards received money, and applied it upon the unpaid balance; and the finding was warranted, that the defendant was induced to make payment after the year expired, with an understanding that he still had the right of possession and to acquire full title by completing payment, and that the vendor was estopped from denying that right. The defendant having the right of possession, the vendor had no right to reclaim the property until demand was made, and a reasonable time give the defendant after demand to complete his title. Davis v. Emery,11 N.H. 230; Bailey v. (Colby, 34 N.H. 29, 37; Windsor v. Boyce, 1 Houst. 605; Ingalls v. Bulkley, 13 Ill. 315; Lewis v. Masters, 8 Blackf. 244.
The sale to the plaintiff gave him no greater rights than the vendor then had. The plaintiff never demanded the property of the defendant, and never made a distinct demand for payment of the amount then due upon the engine and boiler. His offer to sell and relinquish his right in the chattels, if the defendant would not only complete the payment but also pay two other claims, was not a demand of the amount due on the chattels. If it was such a demand, it was one the plaintiff had no right to enforce (Bailey v. Colby, 34 N.H. 37), for the defendant had the right to pay the amount due on the chattels, and make his title perfect. The defendant's silence when the plaintiff's proposition was made was not, as matter of law, a consent nor agreement to the proposition. It was a proposition which the defendant was not bound to accept *Page 351 or consider. It not being his duty to speak, his silence did not estop him from denying the acceptance of the plaintiff's proposition. Having the right to complete his title to the engine and boiler by paying the remaining sum due according to the terms of the contract with the vendor, the defendant's tender of that sum was payment, and vested the entire title to the property in him. The finding that there was no unlawful taking nor detention of the property by the defendant is supported by the facts in the case.
Judgment for the defendant.
STANLEY, J., did not sit: the others concurred.