Henry Branson v. Joseph Gales.

1 |-From Wake. J

In a conversation between A and B, relative to the purchase of a pair of horses, the price was agreed upon; but A said lie could not spare the horses until they had made another trip in the stage. B agreed to deposit the money with C, and when the horses had made another trip in the stage, and A ascertained that B had deposited the purchase money with C, he was to deliver the horses to the stage-driver for 15. Before the trip was completed, the horses ran away with the stage, and one of them got much injured. A tendered the horses, and demanded the purchase money deposited with C. He is not entitled to the monev, because the right to the horses was not changed, the contract of s:de not being- complete.

This was an action of assumpsit, brought to recover from the Defendant, as agent for one Bailey, the stun of three hundred dollars, the juice of a pair of horses, which the Plaintiff alleged lie had sold to Bailey. The case was, that Bailey had a conversation with. Branson relative to the purchase of a pair of horses, which were then driven in Branson’s stage : they agreed upon the price, but Bran-son said he could not spare the horses until they had taken another trip ; that by the time they should make this trip and return to Fayetteville, Bailey would be ab.e to satisfy him that the purchase money was lodged in the hands of the Defendant, Joseph Gales, at Raleigh: upon the ascertainment of which, Branson was to deliver the horses to the stage-driver upon B alley’s account, the stage-driver having agreed with Bailey to take the horses from Fay-etteville to Raleigh, and to drive them thence to Charleston with Bailey’s family. On the arrival of the stage-driver at Fayetteville, the horses took fright and ran away with the stage, and one of the horses was thereby so injured, that lie was rendered utterly unfit for taking Bailey’s family to Charleston, the purpose for winch they were wanted. The stage-driver left Fayetteville in order to join Bailey at Raleigh, who, he expected, would pro*313cure other horses ; and according to his, the stage-driver’s understanding of the contract, the horses were not to he considered as Bailey’s property until they were delivered to him, the stage-driver, to take to Bailey; which was not to take place until Branson had received the price, or was satisfied as to the deposit. The Jury found a verdict for the Defendant, and a rule for a new tidal was obtained upon the ground, that the contract of sale was complete before the horse received the injury, and the Plaintiff became entitled to the money deposited with the Defendant, as soon as the deposit was made. The rule was sent to this Court ; and