Duff

This is an ordinary action of replevin by which plaintiff obtained judgment for the possession of certain cattle theretofore delivered to defendant under an agreement of purchase and sale. Defendant appeals.

1 By the terms of an agreement which bears date April 3, 1918, respondent agreed to sell, and appellant to buy, thirty-five dairy cows for $4,375. Upon the execution of the agreement $1,000 was paid. The balance, with interest at eight per cent per annum, was payable within one year in any event, and installment payments were to be made on account in the sum of $150 per month on the fifteenth day of each and every month, commencing May 15, 1918, title to remain in seller until the purchase price was fully paid. The purchaser was given possession of the cattle upon the execution of the agreement, and was to receive a bill of sale upon full payment of the contract price.

The following covenant was inserted in the agreement: “The said stock and all thereof shall be held for six months from the date hereof and subject to what is commonly called Tubercular Test made in conformity to the laws of said State. All cows passing such test shall be accepted by the second party at that…