Wolf brought an action against Esteb, before a justice of the peace, to recover a mule colt. On appeal to the Common Pleas, there was a trial by jury, and a verdict and judgment for the defendant. The evidence conduced to prove that the plaintiff gave a mare with foal by an ass, to one Thomas, stipulating that if she
The Court instructed the jury, in effect, that the reservation of the colt by Wolfe, being inconsistent with the gift or sale, was void; that the colt being unborn, there was no property in it separate from the mother; that the plaintiff, by parting with the mare, parted with the property in the colt; and that having no general or special property in the subject of the action, he could not recover.
The jury were further instructed, that if the defendant had no knowledge of the reservation when he purchased the mare from Thomas, the plaintiff could not recover.
We think both the instructions were erroneous. A gift is a contract, based upon a good consideration. It was the mare that was given, and not the colt. Animals unborn may be the subject of contract. The subject of a contract need only have a potential existence. 2 Kent’s Comm. 468, and note, and authorities cited.
The second instruction sought to apply the doctrine of bona fide purchaser of real estate to a sale by the bailee of personal property. Thomas was the bailee of personal property. Thomas’s possession of the colt was a bailment. The sale by the bailee of property bailed, confers no title upon the purchaser, as against the general owner, although he had no notice of the bailment. His remedy is against the vendor, for breach of warranty of title implied in a sale of chattels.
The judgment is reversed with costs. Cause remanded, &c.