Given, C. J.
I. The main question to be determined in this case was whether the sale was upon condition that title should not pass to the defendant until payment was made, or, in the language of the special interrogatory submitted to the jury: . “Was the sale of the team in controversy made on condition that cash was to be paid before title passed ?” The jury answered this special, interrogatory in the • affirmative, — an answer which is fully sustained by the evidence.
2. replevin • defendant not in possession • evidence. 2. sale • con- ' garnishment of vendee. II. There was no error in refusing the instructions asked. The only testimony tending to show that the defendant was not in possession of the team at the time the suit was commenced was his statement that, in dividing his property, between the tenth and fifteenth of May, his son got the team. This was long after the demand for and refusal to return the team, and such mere colorable possession could not defeat the action. The third instruction was properly refused, because, if the sale was on condition ^at title should not pass until full payment was ma^e> defendant could not be garnished g0 as to defeat that condition. In that case the property did not pass until payment, and until it passed there . was no indebtedness. The fourth does [307]*307not state tbe law correctly. Where the agreement is that the property is to be paid for in cash on delivery, and the property is delivered, the sale is not complete until payment is made. The garnishment of the defendant was not a bar or defense to this action, if the sale Was on the condition claimed and found, and, if not upon that condition, the plaintiff was entitled to recover; hence there was no error in refusing the fifth instruction asked.
3. sfeciau inter-submission to counsel, III. The abstract fails to show that the special finding was submitted at the request of the counsel for plaintiff? or without the knowledge of the counsel for the defendant.' If submitted by the court on its own motion, as we may presume from the record it was, it is not required that it be submitted to the inspection of counsel. Clark v. Ralls, 71 Iowa, 189. There was nothing in the special finding that tended to lead the mind of the jury from other issues, or mislead them.
IV. The verdict is in accordance with the law as given by the court, and fully sustained by the evidence. Finding no error in either of the respects assigned, the judgment of the district court is
Affirmed.
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