By the Court, Jewett, Justice.
The principal question on the trial was one of fact; whether the contract entered into between the parties in relation to the fowls, created the relation of bailor and bailee between the parties, or whether it was a contract of sale of the fowls to the defendant. If the former, the conduct of the defendant in regard to his trust was such as was equivalent to a conversion; but if it amounted to a sale, the action could not he sustained. The evidence jwas conflicting upon the question; and although I am inclined to think the weight of the evidence was against the conclusion to which the justice arrived, the judgment should not have been reversed on that ground.
[16]*161. Only one year of the term of bailment had expired at the time of the commencement of the suit (see Case, folios 16, 22 and 45).
2. No identity of the fowls was in any manner shown, nor was any evidence given tending to show such identity, by which a question of fact for the consideration of the justice was in the least established.
3. There were “ a great many” of the fowls “ killed or carried off by foxes,” or “ got away” otherwise; and no negligence of the plaintiff in error was proved, or even pretended (see Case, folios 31 and 35; 2 Kent. Com. 585-6 and 7).
III. No conversion of the fowls by the plaintiff in error, was in any manner shown; nor was there any evidence given tending to establish such conversion, so as to make it a question of fact, for the consideration of the justice; and the justice erred, in deciding that a conversion was proved.
1. The contract contained no stipulation or reservation, requiring the plaintiff in error to keep the fowls upon the farm occupied by lum.
2. But' if it contained such restriction, there was no evidence given tending to show that they were removed therefrom by the plaintiff in error, or by any person in his employ or under his direction.
3. Even were this otherwise, the fowls having come lawfully into the possession of the plaintiff in error, it was necessary to prove a demand and refusal to deliver; no sale or destruction of the fowls being shown (15 Petersdorff’s Abrid. 203; Cow. Tr. 2d ed. 302—3.
IV. The subsequent arrangement made between the parties in January 1845, in no manner changed the rights which the parties had acquired by virtue of the contract in relation to the fowls; nor did it in any manner change the possession, or the rights of the plaintiff in error to the possession of the fowls for the term of two years.
1. The contract in relation to the fowls, was not included in that arrangement; it merely related to the possession of the farm (see Case, folios 29, 33’ 37 and 38).
[17]*172. But if it was, no consideration was paid for the relinquishment of the rights acquired by the plaintiff in error to the possession of the fowls. The $22 was paid for the “ possession of the farm (see Case, folios 28, 29 and 37).
3. But if the fowls were included, and a consideration paid, it was merely an executory agreement and not executed ; the fowls being neither delivered, or so far separated from the others, as to be capable of identity, or so as tp be at the risk of the defendant in error; and did not give the defendant in error such a possession of the fowls, as enabled him to maintain trover for them (McDonald v. Hewett, 15 John. R. 349; 6 East, 614). If it amounted to a resale of the fowls, to the defendant in error, the same formality of delivery was necessary to invest the property in him, as was necessary to pass it from him ( Quincy v. Tilton, 5 Greenl. 277). An unexecuted agreement to rescind a contract will not revest the goods in the vendor, although they may be in his possession {Chapman v. Searle, 3 Pick. 38). And if the plaintiff in error violated his agreement, the remedy of the defendant in error, if any, is by an action upon such agreement, for a violation thereof, and not in trover.
V. The justice erred in refusing to nonsuit the defendant in error upon the application of the plaintiff in error, after the testimony closed. <-
1. The plaintiff in error having established by affirmative proof a defence to the right of action, conclusive in its character, it was his duty to nonsuit.
2. The proof of a settlement of all matters existing between the parties, was affirmatively established by the testimony of the witnesses sworn on the part of the defendant in error; and was conclusive upon the right of the defendant in error to a recovery.
VI. The suit having been commenced by short summons, and the declaration of the defendant in error being in trover, the justice was thereby deprived of jurisdiction over the person of the plaintiff in error; the plaintiff in error being liable to be imprisoned upon a judgment recovered in an action of trover, the suit should have been commenced by warrant.
[18]*18VIL The justice erred in the admission oi immaterial and ■improper testimony, under the objection of the plaintiff in error, ■and the whole case shows that there has been a palpable violation ■of law, upon undisputed facts.
A. Dean, for defendant in error.
I. The questions whether the contract or contracts under which the parties acquired their respective rights, constituted a bailment or sale of the fowls; and whether their removal by the defendant from the demised premises was a conversion, and what amount of damages the plaintiff had sustained thereby; were questions of fact, controverted on the trial, submitted to and passed upon by the justice, and his decision thereon was conclusive (Noyes et al v. Hewitt, 18 Wend 141; Carman v. Newell, 1 Denio, 25, 27).
II. The evidence in the case was sufficient to warrant the finding on the several questions in issue. For the evidence tending ■to establish the contract of bailment and the conversion ol the fowls by their removal in violation of such contract, and the1 .damages thereby resulting to the plaintiff, _ the court is referred to the following:
1. Evidence tending to establish the bailment. Jacob Moak, defendant’s father, testified (fol. 22 of Case), that the defendant had hens of the plaintiff; that there might have been forty, and there might not have been half of that number. This witness states the proportions each party was to receive of the eggs (fol. 25 and 26). By the agreement to divide the eggs, the defendant recognized the ownership of the hens in the plaintiff. A bailment and not a sale was clearly indicated.
This witness after stating upon information derived from the defendant the terms on which the division was to be made of the eggs during a specified period, added that the defendant was to have nothing more to do with the hens “ until the two years had expired that defendant had hired plaintiff’s place” (fol. 26).
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By the Court, Jewett, Justice.
The principal question on the trial was one of fact; whether the contract entered into between the parties in relation to the fowls, created the relation of bailor and bailee between the parties, or whether it was a contract of sale of the fowls to the defendant. If the former, the conduct of the defendant in regard to his trust was such as was equivalent to a conversion; but if it amounted to a sale, the action could not he sustained. The evidence jwas conflicting upon the question; and although I am inclined to think the weight of the evidence was against the conclusion to which the justice arrived, the judgment should not have been reversed on that ground.
[16]*161. Only one year of the term of bailment had expired at the time of the commencement of the suit (see Case, folios 16, 22 and 45).
2. No identity of the fowls was in any manner shown, nor was any evidence given tending to show such identity, by which a question of fact for the consideration of the justice was in the least established.
3. There were “ a great many” of the fowls “ killed or carried off by foxes,” or “ got away” otherwise; and no negligence of the plaintiff in error was proved, or even pretended (see Case, folios 31 and 35; 2 Kent. Com. 585-6 and 7).
III. No conversion of the fowls by the plaintiff in error, was in any manner shown; nor was there any evidence given tending to establish such conversion, so as to make it a question of fact, for the consideration of the justice; and the justice erred, in deciding that a conversion was proved.
1. The contract contained no stipulation or reservation, requiring the plaintiff in error to keep the fowls upon the farm occupied by lum.
2. But' if it contained such restriction, there was no evidence given tending to show that they were removed therefrom by the plaintiff in error, or by any person in his employ or under his direction.
3. Even were this otherwise, the fowls having come lawfully into the possession of the plaintiff in error, it was necessary to prove a demand and refusal to deliver; no sale or destruction of the fowls being shown (15 Petersdorff’s Abrid. 203; Cow. Tr. 2d ed. 302—3.
IV. The subsequent arrangement made between the parties in January 1845, in no manner changed the rights which the parties had acquired by virtue of the contract in relation to the fowls; nor did it in any manner change the possession, or the rights of the plaintiff in error to the possession of the fowls for the term of two years.
1. The contract in relation to the fowls, was not included in that arrangement; it merely related to the possession of the farm (see Case, folios 29, 33’ 37 and 38).
[17]*172. But if it was, no consideration was paid for the relinquishment of the rights acquired by the plaintiff in error to the possession of the fowls. The $22 was paid for the “ possession of the farm (see Case, folios 28, 29 and 37).
3. But if the fowls were included, and a consideration paid, it was merely an executory agreement and not executed ; the fowls being neither delivered, or so far separated from the others, as to be capable of identity, or so as tp be at the risk of the defendant in error; and did not give the defendant in error such a possession of the fowls, as enabled him to maintain trover for them (McDonald v. Hewett, 15 John. R. 349; 6 East, 614). If it amounted to a resale of the fowls, to the defendant in error, the same formality of delivery was necessary to invest the property in him, as was necessary to pass it from him ( Quincy v. Tilton, 5 Greenl. 277). An unexecuted agreement to rescind a contract will not revest the goods in the vendor, although they may be in his possession {Chapman v. Searle, 3 Pick. 38). And if the plaintiff in error violated his agreement, the remedy of the defendant in error, if any, is by an action upon such agreement, for a violation thereof, and not in trover.
V. The justice erred in refusing to nonsuit the defendant in error upon the application of the plaintiff in error, after the testimony closed. <-
1. The plaintiff in error having established by affirmative proof a defence to the right of action, conclusive in its character, it was his duty to nonsuit.
2. The proof of a settlement of all matters existing between the parties, was affirmatively established by the testimony of the witnesses sworn on the part of the defendant in error; and was conclusive upon the right of the defendant in error to a recovery.
VI. The suit having been commenced by short summons, and the declaration of the defendant in error being in trover, the justice was thereby deprived of jurisdiction over the person of the plaintiff in error; the plaintiff in error being liable to be imprisoned upon a judgment recovered in an action of trover, the suit should have been commenced by warrant.
[18]*18VIL The justice erred in the admission oi immaterial and ■improper testimony, under the objection of the plaintiff in error, ■and the whole case shows that there has been a palpable violation ■of law, upon undisputed facts.
A. Dean, for defendant in error.
I. The questions whether the contract or contracts under which the parties acquired their respective rights, constituted a bailment or sale of the fowls; and whether their removal by the defendant from the demised premises was a conversion, and what amount of damages the plaintiff had sustained thereby; were questions of fact, controverted on the trial, submitted to and passed upon by the justice, and his decision thereon was conclusive (Noyes et al v. Hewitt, 18 Wend 141; Carman v. Newell, 1 Denio, 25, 27).
II. The evidence in the case was sufficient to warrant the finding on the several questions in issue. For the evidence tending ■to establish the contract of bailment and the conversion ol the fowls by their removal in violation of such contract, and the1 .damages thereby resulting to the plaintiff, _ the court is referred to the following:
1. Evidence tending to establish the bailment. Jacob Moak, defendant’s father, testified (fol. 22 of Case), that the defendant had hens of the plaintiff; that there might have been forty, and there might not have been half of that number. This witness states the proportions each party was to receive of the eggs (fol. 25 and 26). By the agreement to divide the eggs, the defendant recognized the ownership of the hens in the plaintiff. A bailment and not a sale was clearly indicated.
This witness after stating upon information derived from the defendant the terms on which the division was to be made of the eggs during a specified period, added that the defendant was to have nothing more to do with the hens “ until the two years had expired that defendant had hired plaintiff’s place” (fol. 26). A reasonable inference arises that at the expiration of the two years he was to have other rights, and in the absence of proof what these rights were, it may well be inferred that he was [19]*19to resume an absolute and unconditional control of the fowls, and that any interest the defendant had acquired therein would cease and be extinguished. The period during which the defend^ ant was to retain possession of the fowls, was subsequently abridged, as will afterwards appear.
It is tru'e this witness (the defendant’s father), on his cross-examination, in reply to leading questions by the defendant’s counsel, so modified his testimony as to state that it was not said that the defendant was to “ leave the same hens,” yet his testimony on his direct examination was competent testimony, and tended to establish the point in issue.
Zachariah Foland testifed (fol. 31 and 32) that he saw sixty or seventy hens about the defendant’s barn. He remarked to the defendant that he had a great number of hens. The defendant replied that he had; but when his (the defendant’s) father took away his hens and “ Hank’ (the plaintiff) “ his” hens, there would be but few left. The defendant’s father had eighteen hens (fol. 35).
It appears from the testimony that by the terms of the original contract, the hens, which the defendant received with other personal property of the plaintiff, a fanning mill, a grind stone,.a stove and a pair of andirons (fol. 39), on leasing the farm, were to be kept during the two years for which he hired the farm. The period of two years is alluded to in the testimony as the period of the bailment merely as being contemporaneous with the tenancy of the farm. The proof in effect, was that the.defendant was to keep the hens while he occupied the farm. It was afterwards agreed between the parties that -the defendant should leave the farm before the two years had expired, for which it was originally leased (see testimony of Jacob Moak, Zachariah Foland and James Foland). With the determination of the tenancy the bailment was determined.
An express agreement to determine the bailment was also proven. James Foland (fol. 35) testifies that he- was to leave the farm, and “ to give the plaintiff all he had had of him.” Although no time was specified for the delivery of the personal property it is reasonable to infer that it was to be ‘delivered when the defendant surrendered the possession of the premises. [20]*20The defendant could, not have employed an expression of more comprehensive import than the one employed. It certainly applies as fitly to the hens as to the other personal property, and clearly embraces both. It appears affirmatively that the defendant recognized this agreement by surrendering the andirons (fol. 39).
It is contended that the identical hens were to be returned to the plaintiff. The plaintiff insists,
First, That it clearly appearing that the defendant had the plaintiff’s hens in his possession, which the plaintiff on leasing his farm to the defendant left thereon, if by any agreement under which he received the hens, he had the right to return the same number of hens, and not the identical hens, it was incumbent on the defendant to establish, by proof, his right to return other hens.
Second. The agreement to return the identical hens, was abundantly established by affirmative proof.
The expression of the defendant, “ all he had had of him f is significant as well of the identity of the property as of the universality of the description.
In speaking of the hens in question in numerous conversations (see testimony passim), the defendant invariably refers to them as his (the plaintiff’s hens), fully recognizing the title of the plaintiff to the hens spoken of. The defendant also had hens.or his father.
Jacob Moak, who testifies (folio 34) that he took away seven-, teen of his own hens, and the remaining one of the eighteen he could not catch. In the case then of Jacob Moak, the defendant recognized his (Jacob Moan’s) right to his identical hens.
2. The conversion of the fowls by their removal by the defendant from the premises, after the defendant had left the premises, is established by the testimony of John Race (fol. 40 and 41).
3. Damages. Robert Cady, a witness called on behalf of the defence, testified (fol. 45) that the plaintiff said he had let the defendant have forty hens; thirty of which he was to return at the end of two years, and ten at an earlier period. The plaintiff had received nine, leaving thirty-one in the defendant’s hands. [21]*21It will be borne in mind that at the time of this conversation there was a subsisting agreement for the use and occupation by the defendant of the plaintiff’s farm for two years, and the contemporaneous bailment of the hens, which period was subsequently abridged.
On this point, also, Zachariak Foland testified that he saw sixty or seventy hens about the defendant’s barn (fob 30 and31)> that the defendant said he would have few left after “ Hank” (the plaintiff) had taken away his hens, and Jacob Moak had taken away his hens. The latter had eighteen hens (fob 34). Several witnesses sufficiently attest the value of the hens.
IH. The plaintiff insists that it appearing from the testimony that the plaintiff on leasing the premises to the defendant, left hens on the premises, in the absence of proof of the agreement under which they were left in the defendant’s possession, the defendant would be liable in this action for carrying off the hens on removing from the premises.
IV. Objections were made by the defendant to the requirement by the justice of certain qualifications in the surety who executed^ the bond on an adjournment granted to the defendant. These, if well taken (and they were not), are not available here, as they were waived by the defendant proceeding to the trial of the cause.
Judgment affirmed, unanimously.
Reported in this court, 3 How. Pr. R. 84.
Noth.—Where questions of fact arise in ar cause before a justice of the peace, and evidence is given upon both sides in relation thereto, which is conflicting, it is for the justice to decide such questions, and having done so, this court will not reverse the judgment, although it may seem that the weight of evidence is against his decision.
Thus, where plaintiff let defendant have his farm for two years, and with the farm a number of fowls, and at the end of one year an agreement was entered into between the parties that defendant should give up the farm—which he did, but took away the fowls; and the plaintiff sued him in trover, and the evidence was conflicting on the trial whether the contract between the parties constituted a sale or bailment as to the fowls; held, that the justice having decided such question.upon the evidence introduced on the trial, and given judgment thereon, it should be held conclusive.