Mr. Justice Denison
delivered the opinion of the court.
These cases together with Nos. 10,316, and 10,318, Clay, Robinson and Company v. Atencio, and Clay, Robinson & Company v. Casias, (74 Colo. 17) were in replevin for sheep. The plaintiffs had judgment for possession or their value and the defendants, Clay, Robinson & Co., bring error. In the cases of Martinez, Moeller and Bards[12]*12ley the court is unanimous in the conclusions reached in this opinion; in the cases of Atencio and Casias it is divided, and a separate opinion is filed concerning them. All five cases were tried together; one abstract and one set of briefs are filed in this court. The essential facts are as follows:
In January, 1921, one Jordan mortgaged 50,000 ewes to Clay, Robinson & Co. to secure $150,000 of which $60,000 was a previous debt and $90,000 was cash. In May Jordan wanted more money; Clay, Robinson & Co. lent him more, but required him to turn over the sheep to them. The sheep were turned over to one McClure for Clay, Robinson & Co.; they were all held by various men to whom they had been delivered by Jordan under partido contracts.
1. It is claimed that these contracts are of no avail to plaintiffs, because not recorded under the act of 1887. C. L. § 6429. A majority of the court are of the opinion that such record is not necessary to preserve the rights of an owner under a partido contract, from which opinion the Chief Justice and the writer of this opinion dissent, but a decision upon that point is not necessary to the conclusions here reached. The point is discussed in the opinion in the Atencio and Casias cases, mentioned above. It may be said, also, that a majority of the court think the partido transaction not properly a bailment; yet a majority think we are bound by the weight of authority in other [13]*13jurisdictions which, is that it is a bailment. The Chief Justice and the writer do not agree that we are so bound but this opinion proceeds upon the holding of the majority upon that point;
2. By the terms of the contracts, except Bardsley’s, the sheep were not yet returnable when demanded, nor when a suit was begun. Plaintiff in error claims, therefore, that there is no right of possession in plaintiffs, and no right in Martinez for the additional reason that Jordan might pay money instead of returning the sheep. This claim is sound, unless Jordan has done something to forfeit the right of possession. Delivery under a partido contract, however, constitutes a bailment. Page v. Jones, 26 N. M. 195, 190 Pac. 541, 10 A. L. R. 761; Encino Bank v. Tenorio, et al., (N. M.) 206 Pac. 698; Magoon v. Eastman, 86 Vt. 261, 84 Atl. 869; Williams v. McGrade, 13 Minn. 174; Bellows v. Denison, 9 N. H. 293; Wetzel v. Bank, 30 Utah, 62, 83 Pac. 570; Turnbow v. Beckstead, 25 Utah, 468, 71 Pac. 1062; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848; Robinson v. Haas, 40 Cal. 474; Simmons v. Shaft, 91 Kas. 553, 138 Pac. 614; 6 C. J. 1086. See also Ludvigh v. Am. Woolen Co., 231 U. S. 522, 34 Sup. Ct. 161, 58 L. Ed. 345. These transactions are therefore bailments.
Even an option to purchase in the holder of a chattel will not destroy his character as bailee. Sargent v. Gile, 8 N. H. 325; Ludvigh v. Am. Woolen Co., supra. So the Martinez transaction is a bailment notwithstanding Jordan might pay $3.00 per head and take the sheep.
A use of the chattel by the bailee in a manner unauthorized by the contract of bailment gives the bailor the right of immediate possession, and he may maintain trover or replevin. Lippincott v. Scott, 198 Pa. St. 283, 47 Atl. 1115, 82 Am. St. Rep. 801; Brown Bros. & Co. v. Billington, 163 Pa. St. 76, 29 Atl. 904, 43 Am. St. Rep. 780; Bretz v. Diehl, 117 Pa. St. 589, 11 Atl. 893, 2 Am. St. Rep. 706; Sanborn v. Colman, 6 N. H. 14, 23 Am. Dec. 703; Sargent v. Gile, supra.
There is a clause in each of the contracts except Bards[14]*14ley’s, that Jordan shall not sell or dispose of the sheep. By his mortgage and delivery to Clay, Robinson & Co., Jordan violated this clause, and so gave the bailors the right of possession, although the right of possession had not matured under the contract, and by such violation of the Martinez contract the right to pay the $3.00 per head was forfeited. Partridge v. Philbrick, 60 N. H. 556. The claim, therefore, that the plaintiffs cannot maintain their suit, because they have no right of possession until after the maturity of their contracts is not sound.
3. It is suggested that replevin will not lie for these sheep, because they cannot be identified. That is unimportant under the Code. If replevin will not lie, trover will, and our Code action for possession, with the alternative recovery of the property or the value thereof in such a case as this, is equivalent practically to the two together. The plaintiff states the ultimate facts and has such judgment as they justify. If the chattels cannot be delivered, their value must be paid, and the judgments in that respect are right. To hold- otherwise would be to revert to the common law forms of action, happily abolished by the Code.
4. It is argued by plaintiff in error that since the plaintiffs put Jordan in the ostensible position of owner, they are estopped to deny his ownership. The answer is that they put him in the position of bailee, not owner. Control, apparently as owner by reason of possession, is an incident of every bailment, yet every one deals with a bailee at his peril. 3 R. C. L., 142 to 145, §§ 66 and 67. See Schraeder v. Mitchell, 73 Colo. 320, 215 Pac. 147, decided at the present term. No indicium of ownership was conferred in the present case except possession.
5. It is claimed that they permitted Jordan to put out these sheep on partido contracts with other persons, and are therefore estopped to deny his ownership. We do not agree with this conclusion; they had a right to vary their contract with Jordan as they chose. If Jones lends his horse to Smith, and afterwards permits Smith to lend him to Johnson, a purchaser from Johnson cannot claim that [15]*15Jones is estopped to claim title to the horse; neither does such permission justify a claim by Robinson that a mortgage of the horse by Smith to him is valid against Jones.
6. The Moeller contract was not upon shares, but called for a cash rent, and contained a provision that in the event of failure to pay rent, or default or failure in any covenant or agreement “the said party of the first part is to have the right to take possession of all the said sheep and the increase thereof and pay himself from the proceeds thereof in full and pay the balance, if any there be, to the said parties of the second part.
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Mr. Justice Denison
delivered the opinion of the court.
These cases together with Nos. 10,316, and 10,318, Clay, Robinson and Company v. Atencio, and Clay, Robinson & Company v. Casias, (74 Colo. 17) were in replevin for sheep. The plaintiffs had judgment for possession or their value and the defendants, Clay, Robinson & Co., bring error. In the cases of Martinez, Moeller and Bards[12]*12ley the court is unanimous in the conclusions reached in this opinion; in the cases of Atencio and Casias it is divided, and a separate opinion is filed concerning them. All five cases were tried together; one abstract and one set of briefs are filed in this court. The essential facts are as follows:
In January, 1921, one Jordan mortgaged 50,000 ewes to Clay, Robinson & Co. to secure $150,000 of which $60,000 was a previous debt and $90,000 was cash. In May Jordan wanted more money; Clay, Robinson & Co. lent him more, but required him to turn over the sheep to them. The sheep were turned over to one McClure for Clay, Robinson & Co.; they were all held by various men to whom they had been delivered by Jordan under partido contracts.
1. It is claimed that these contracts are of no avail to plaintiffs, because not recorded under the act of 1887. C. L. § 6429. A majority of the court are of the opinion that such record is not necessary to preserve the rights of an owner under a partido contract, from which opinion the Chief Justice and the writer of this opinion dissent, but a decision upon that point is not necessary to the conclusions here reached. The point is discussed in the opinion in the Atencio and Casias cases, mentioned above. It may be said, also, that a majority of the court think the partido transaction not properly a bailment; yet a majority think we are bound by the weight of authority in other [13]*13jurisdictions which, is that it is a bailment. The Chief Justice and the writer do not agree that we are so bound but this opinion proceeds upon the holding of the majority upon that point;
2. By the terms of the contracts, except Bardsley’s, the sheep were not yet returnable when demanded, nor when a suit was begun. Plaintiff in error claims, therefore, that there is no right of possession in plaintiffs, and no right in Martinez for the additional reason that Jordan might pay money instead of returning the sheep. This claim is sound, unless Jordan has done something to forfeit the right of possession. Delivery under a partido contract, however, constitutes a bailment. Page v. Jones, 26 N. M. 195, 190 Pac. 541, 10 A. L. R. 761; Encino Bank v. Tenorio, et al., (N. M.) 206 Pac. 698; Magoon v. Eastman, 86 Vt. 261, 84 Atl. 869; Williams v. McGrade, 13 Minn. 174; Bellows v. Denison, 9 N. H. 293; Wetzel v. Bank, 30 Utah, 62, 83 Pac. 570; Turnbow v. Beckstead, 25 Utah, 468, 71 Pac. 1062; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848; Robinson v. Haas, 40 Cal. 474; Simmons v. Shaft, 91 Kas. 553, 138 Pac. 614; 6 C. J. 1086. See also Ludvigh v. Am. Woolen Co., 231 U. S. 522, 34 Sup. Ct. 161, 58 L. Ed. 345. These transactions are therefore bailments.
Even an option to purchase in the holder of a chattel will not destroy his character as bailee. Sargent v. Gile, 8 N. H. 325; Ludvigh v. Am. Woolen Co., supra. So the Martinez transaction is a bailment notwithstanding Jordan might pay $3.00 per head and take the sheep.
A use of the chattel by the bailee in a manner unauthorized by the contract of bailment gives the bailor the right of immediate possession, and he may maintain trover or replevin. Lippincott v. Scott, 198 Pa. St. 283, 47 Atl. 1115, 82 Am. St. Rep. 801; Brown Bros. & Co. v. Billington, 163 Pa. St. 76, 29 Atl. 904, 43 Am. St. Rep. 780; Bretz v. Diehl, 117 Pa. St. 589, 11 Atl. 893, 2 Am. St. Rep. 706; Sanborn v. Colman, 6 N. H. 14, 23 Am. Dec. 703; Sargent v. Gile, supra.
There is a clause in each of the contracts except Bards[14]*14ley’s, that Jordan shall not sell or dispose of the sheep. By his mortgage and delivery to Clay, Robinson & Co., Jordan violated this clause, and so gave the bailors the right of possession, although the right of possession had not matured under the contract, and by such violation of the Martinez contract the right to pay the $3.00 per head was forfeited. Partridge v. Philbrick, 60 N. H. 556. The claim, therefore, that the plaintiffs cannot maintain their suit, because they have no right of possession until after the maturity of their contracts is not sound.
3. It is suggested that replevin will not lie for these sheep, because they cannot be identified. That is unimportant under the Code. If replevin will not lie, trover will, and our Code action for possession, with the alternative recovery of the property or the value thereof in such a case as this, is equivalent practically to the two together. The plaintiff states the ultimate facts and has such judgment as they justify. If the chattels cannot be delivered, their value must be paid, and the judgments in that respect are right. To hold- otherwise would be to revert to the common law forms of action, happily abolished by the Code.
4. It is argued by plaintiff in error that since the plaintiffs put Jordan in the ostensible position of owner, they are estopped to deny his ownership. The answer is that they put him in the position of bailee, not owner. Control, apparently as owner by reason of possession, is an incident of every bailment, yet every one deals with a bailee at his peril. 3 R. C. L., 142 to 145, §§ 66 and 67. See Schraeder v. Mitchell, 73 Colo. 320, 215 Pac. 147, decided at the present term. No indicium of ownership was conferred in the present case except possession.
5. It is claimed that they permitted Jordan to put out these sheep on partido contracts with other persons, and are therefore estopped to deny his ownership. We do not agree with this conclusion; they had a right to vary their contract with Jordan as they chose. If Jones lends his horse to Smith, and afterwards permits Smith to lend him to Johnson, a purchaser from Johnson cannot claim that [15]*15Jones is estopped to claim title to the horse; neither does such permission justify a claim by Robinson that a mortgage of the horse by Smith to him is valid against Jones.
6. The Moeller contract was not upon shares, but called for a cash rent, and contained a provision that in the event of failure to pay rent, or default or failure in any covenant or agreement “the said party of the first part is to have the right to take possession of all the said sheep and the increase thereof and pay himself from the proceeds thereof in full and pay the balance, if any there be, to the said parties of the second part. And, in the event the said party of the first part does so take said sheep and the increase thereof * * * and such sheep and the increase thereof is not sufficient to fully pay the party of the first part, said parties of the second part hereby acknowledge themselves jointly and severally indebted to party of the first part for any such deficiency.”
This clause, which appears in this contract alone, makes it a security for indebtedness, that is, a chattel mortgage, (Andrews & Co. v. Colo. Sav. Bank, 20 Colo. 313, 36 Pac. 902, 46 Am. St. Rep. 291) and, since it is unrecorded, it is of no force against the mortgage of Clay, Robinson & Co. The Moeller case will therefore be reversed with directions to enter judgment for the defendant.
7. It appears that Bardsley’s sheep were let out, not, as in the other cases, in Jordan’s name, but in Bardsley’s, to Mexican herders on shares or in some other way, it is immaterial how; that Jordan did this for him, and collected the rents and attended to the business for him. This made Jordan, Bardsley’s agent. The sheep were in possession of the herders — lessees, if we call them such. The sheep, then, not being in Jordan’s possession, and no authority in him to mortgage them being shown, no right, title or interest in them passed to Clay, Robinson & Co. by virtue of Jordan’s mortgage, and the judgment in the Bardsley case should be affirmed.
In the cases against Martinez and Bardsley judgment affirmed. In the case against Moeller judgment reversed [16]*16and judgment for defendants directed.
Mr. Justice Allen not participating.
By a partido (share) contract, sheep or cattle are delivered to be kept on shares, say of wool and lambs annually, for a time, at the end of which, they or an equal number are to be returned.