Cardinell

The agreement between Carpenter and Cardinell was not a sale, but an agreement to sell—an executory, not an executed, contract. Cardinell never owned or acquired the title to the horse. It never was transferred to him, and he never had the right to its possession. (Civil Code, secs. 1661,1721, 1726-8; Story on Sales, secs. 1 and 274.) An action of this kind cannot be maintained, unless the plaintiff, at the time of the conversion, is the owner of the property, and entitled to its imme *477 díate possession. (1 Chitty on Pleadings, 148-9 ;z 2 Greenl. on Ev. sees. 561-3.) Replevin or trover was not the plaintiff’s remedy, but an action for damages. (Story on Sales, secs. 430, 450; McDonald v. Hewitt, 15 Johns. 349 .)

Thomas V. O'Brien, for the Respondent.

Plaintiff was entitled absolutely to the possession of the horse, as against either Carpenter or Bennett, on payment or tender. (Civil Code, secs. 1748, 1822, 2905, 1504, 1512; Tngersoll & Boride v. Emmerson, 1 Smith’s Ind. 77; Batters v. Everest, 20 Wend. 267 ; Roland v. Gundy, 5 Ohio, 202, and ■cases ; Story on Bailments, sec. 102.) As to the effect of tender, see Kirtright v. Cady, 211ST. Y. 343.)

Plaintiff had no property,…