Michael sued Bradley in replevin for a lot of cattle. The defendant pleaded the general issue and property in himself. Issues of fact were raised and submitted to the Court for trial. Judgment for the plaintiff. Motion for a new trial denied. The evidence is upon the record.
The plaintiff below claimed the cattle under a purchase from the defendant. The defendant refused to surrender them to the plaintiff upon the claim of a lien for unpaid purchase-money. The evidence seems to us to establish the following facts: Bradley, the defendant below, a resident of Johnson county, had sixteen head of fat cattle. Michael, a butcher of Indianapolis, the plaintiff below, purchased the cattle for 400 dollars, and as much more as they should come to at 4 cents a pound, when weighed, after being slaughtered, at Indianapolis. He paid 350 dollars down and took away with him to Indianapolis, six of the cattle on the day he made the purchase. He was to return in a few days for the remainder, and was to pay an additional 50 dollars, to make up the sum of 400 dollars, on receiving the cattle. He returned, as, per agreement, but did not take with him the 50 dollars. Bradley refused to part with the cattle without receiving the money. Michael brought replevin, and, as we have said, recovered. This was wrong. Although, by the contract of purchase, the property in the cattle passed into Michael, the right of possession to the ten in controversy in this suit did not, and would not till payment or tender of the 50 dollars stipulated to be paid on their delivery. The payment of that sum was a condition precedent to Michael’s right to possession. Bradley had a lien on the cattle for it. Bell’s Contract of Sale, 15. — Chitt. on Cont. 374, 375. To sustain replevin, the plaintiff must have a right to possession of the property replevied.
The judgment is reversed with costs. Cause remanded, &c.