Mr. Justice Shepard
delivered the opinion of the Court:
1. The written instrument under which de Mitkiewicz received and held the furniture is more precise and restrictive in its terms and conditions, as regards the retention of title, than that passed upon by the Supreme Court of the United States in Harkness v. Russell, 118 U. S. 663. In accordance with the doctrine of that case, it must be held that no title whatever passed to de Mitkiewicz. His right to demand a conveyance was conditioned upon his payment of the instalments specified in the lease and the further payment of one dollar. If he has any equities growing out of the part payments that he has made, or out of other transactions connected with this one, they cannot be asserted in this action at law. Default having been made by de Mitkiewicz, the right of B. J. Horner & Co. to recover the furniture by an action of replevin cannot be denied.
2. The next inquiry is, whether the plaintiff Wall had such title under the transfer from B. J. Horner & Co. as would authorize his recovery?
The written transfer vested the legal title in the furniture in Wall, and enabled him to bring the action. It was not necessary that he. should have the absolute title. National Bank Green Bay v. Dearborn, 115 Mass. 219, 223.
It is immaterial to the defendants whether the plaintiff held the legal title subject to a trust that could, or could not, be enforced against him. Brookline v. Sherman, 140 Mass. 1, 5; Bisbee v. Fadden, 140 Mass. 6; Tyler v. Freeman, 3 Cush. 261; Garrett v. Carleton, 65 Miss. 188. No matter what may have been the object of the transfer to Wall, it is sufficient for the defendants that the result of the litigation must conclude R. J. Horner & Co.
The court erred in permitting the defendant to introduce evidence tending to show that the transfer was colorable and [123]*123intended for the purpose of enabling Wall to maintain the action. It passed the legal title as to them, and they were in no attitude that authorized its impeachment. Curtis v. Galvin, 1 Allen, 215. That the property may have been out of the possession of R. J. Horner & Co. did not affect their right to convey it. Tome v. Dubois, 6 Wall. 548.
3. The right of Wall to recover was not affected by his assignment, pending the suit, of his interest therein and of the right to prosecute the cause in his name, and it is an irrelevant fact.
4. The situation of the American Security and Trust Company as a mere warehouseman, holding the goods by virtue of a delivery in the name of both R. J. Horner & Co. and de Mitkiewicz, entitled it to a certain demand before the commencement of suit.
The evidence that demand was so made was perfectly satisfactory. It is not apparent that the plaintiff could have done anything more. The duty of the Trust Company was to safely keep the goods until their return should be demanded. The purpose of the rule of law in such cases is, that the party charged with a duty shall have an opportunity to discharge it before suit. There was no right until demand. In this case the Trust Company refused delivery because the title was in controversy, and the books of the warehouse showed that de Mitkiewicz had an interest in it. It is now contended, in support of the judgment below, that the demand should have been accompanied by a legal tender of the money necessary to pay the storage charges to date. The point is without merit, because it appears that the plaintiff offered to pay the storage charges, if any, at the time of demand. No technical tender was necessary, because the Trust Company refused upon other distinct grounds to make delivery.
5. It is questionable if de Mitkiewicz was entitled to have demand made at all. He had shown his inability to pay [124]*124for the furniture, and had suggested its removal to the warehouse as the property of R. J. Horner & Co.
As regards so much of the furniture as was actually delivered to the Trust Company, it may be regarded as his agent; and it is to be observed that its refusal to recognize the plaintiff’s right was founded on an adverse right claimed by de Mitkiewicz.
As to the items of furniture that he retained without the knowledge of Horner & Co. and removed without their consent to other premises, in direct violation of the contract, they had the right, by express stipulation of the contract, to seize and take possession thereof without demand or notice; and there was nothing to show a waiver of the right.
But it appears that the plaintiff went with his attorney to the house of de Mitkiewicz to demand the furniture which had been retained. The servant who received their cards said that she would see if he was in. After going up stairs and conversing in a low tone with some one, she returned and said that he was out and she thought had gone to New York. Asking to see Mrs. de Mitkiewicz they were informed that she was dangerously ill. They then called upon de Mitkiewicz’s attorney and told him their purpose. He proposed to them that de Mitkiewicz would surrender the furniture and release all claim to it upon the payment of $1,000 to him and all the expenses of storage. This the plaintiff refused to do, and on the same day brought his suit. This evidence was neither contradicted nor explained.
If de Mitkiewicz secreted himself so as to prevent demand being made of him, or had left the jurisdiction, or if he had asserted an adverse title to the property and denied the plaintiff’s right of possession, actual demand in person was not necessary. 5 A. & E. Encyc. Law, 5285, and cases cited; Cobbey on Replevin, Secs. 447, 448; Wells, Replevin, Sec. 372; Cranz v. Kroger, 22 Ill. 74, 81.
6. The judgment cannot be supported on the ground of the failure of Horner,,- & Co. to return the notes given by [125]*125de Mitkiewicz. These notes seem to have been given in amounts and with due dates as stipulated in the lease contract, though not required by any condition thereof.
The giving of these notes did not affect the terms of the contract. There is no pretence that they were given or received as payment, or upon any new agreement of the parties. As no title to the furniture could pass except upon compliance with the terms of the contract, the failure to return the notes cannot, in law, change its effect. Any claim that the defendant might have growing out of those notes or any disposition that may have been made of them is an equitable one strictly.
The cases cited on behalf of the appellees are not applicable. Kavanaugh v. Brodball, 59 N. W. Rep. 517, is a case where a first mortgagee, after having assigned the notes and the mortgage to a bank as collateral security, brought an action of replevin against a subsequent mortgagee. He was denied the right to maintain the action because he had parted with his legal title. Oskamp v. Crites, 59 N. W. Rep. 394, is a case where the sale and delivery were made subject to a forfeiture of the title conveyed by nonpayment of the purchase-money notes. It was held, first, that the title passed by virtue of the contract of sale; and, second, that in order to have any right .under the contract, the plaintiff ought to have returned, or offered to return, the notes.
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Mr. Justice Shepard
delivered the opinion of the Court:
1. The written instrument under which de Mitkiewicz received and held the furniture is more precise and restrictive in its terms and conditions, as regards the retention of title, than that passed upon by the Supreme Court of the United States in Harkness v. Russell, 118 U. S. 663. In accordance with the doctrine of that case, it must be held that no title whatever passed to de Mitkiewicz. His right to demand a conveyance was conditioned upon his payment of the instalments specified in the lease and the further payment of one dollar. If he has any equities growing out of the part payments that he has made, or out of other transactions connected with this one, they cannot be asserted in this action at law. Default having been made by de Mitkiewicz, the right of B. J. Horner & Co. to recover the furniture by an action of replevin cannot be denied.
2. The next inquiry is, whether the plaintiff Wall had such title under the transfer from B. J. Horner & Co. as would authorize his recovery?
The written transfer vested the legal title in the furniture in Wall, and enabled him to bring the action. It was not necessary that he. should have the absolute title. National Bank Green Bay v. Dearborn, 115 Mass. 219, 223.
It is immaterial to the defendants whether the plaintiff held the legal title subject to a trust that could, or could not, be enforced against him. Brookline v. Sherman, 140 Mass. 1, 5; Bisbee v. Fadden, 140 Mass. 6; Tyler v. Freeman, 3 Cush. 261; Garrett v. Carleton, 65 Miss. 188. No matter what may have been the object of the transfer to Wall, it is sufficient for the defendants that the result of the litigation must conclude R. J. Horner & Co.
The court erred in permitting the defendant to introduce evidence tending to show that the transfer was colorable and [123]*123intended for the purpose of enabling Wall to maintain the action. It passed the legal title as to them, and they were in no attitude that authorized its impeachment. Curtis v. Galvin, 1 Allen, 215. That the property may have been out of the possession of R. J. Horner & Co. did not affect their right to convey it. Tome v. Dubois, 6 Wall. 548.
3. The right of Wall to recover was not affected by his assignment, pending the suit, of his interest therein and of the right to prosecute the cause in his name, and it is an irrelevant fact.
4. The situation of the American Security and Trust Company as a mere warehouseman, holding the goods by virtue of a delivery in the name of both R. J. Horner & Co. and de Mitkiewicz, entitled it to a certain demand before the commencement of suit.
The evidence that demand was so made was perfectly satisfactory. It is not apparent that the plaintiff could have done anything more. The duty of the Trust Company was to safely keep the goods until their return should be demanded. The purpose of the rule of law in such cases is, that the party charged with a duty shall have an opportunity to discharge it before suit. There was no right until demand. In this case the Trust Company refused delivery because the title was in controversy, and the books of the warehouse showed that de Mitkiewicz had an interest in it. It is now contended, in support of the judgment below, that the demand should have been accompanied by a legal tender of the money necessary to pay the storage charges to date. The point is without merit, because it appears that the plaintiff offered to pay the storage charges, if any, at the time of demand. No technical tender was necessary, because the Trust Company refused upon other distinct grounds to make delivery.
5. It is questionable if de Mitkiewicz was entitled to have demand made at all. He had shown his inability to pay [124]*124for the furniture, and had suggested its removal to the warehouse as the property of R. J. Horner & Co.
As regards so much of the furniture as was actually delivered to the Trust Company, it may be regarded as his agent; and it is to be observed that its refusal to recognize the plaintiff’s right was founded on an adverse right claimed by de Mitkiewicz.
As to the items of furniture that he retained without the knowledge of Horner & Co. and removed without their consent to other premises, in direct violation of the contract, they had the right, by express stipulation of the contract, to seize and take possession thereof without demand or notice; and there was nothing to show a waiver of the right.
But it appears that the plaintiff went with his attorney to the house of de Mitkiewicz to demand the furniture which had been retained. The servant who received their cards said that she would see if he was in. After going up stairs and conversing in a low tone with some one, she returned and said that he was out and she thought had gone to New York. Asking to see Mrs. de Mitkiewicz they were informed that she was dangerously ill. They then called upon de Mitkiewicz’s attorney and told him their purpose. He proposed to them that de Mitkiewicz would surrender the furniture and release all claim to it upon the payment of $1,000 to him and all the expenses of storage. This the plaintiff refused to do, and on the same day brought his suit. This evidence was neither contradicted nor explained.
If de Mitkiewicz secreted himself so as to prevent demand being made of him, or had left the jurisdiction, or if he had asserted an adverse title to the property and denied the plaintiff’s right of possession, actual demand in person was not necessary. 5 A. & E. Encyc. Law, 5285, and cases cited; Cobbey on Replevin, Secs. 447, 448; Wells, Replevin, Sec. 372; Cranz v. Kroger, 22 Ill. 74, 81.
6. The judgment cannot be supported on the ground of the failure of Horner,,- & Co. to return the notes given by [125]*125de Mitkiewicz. These notes seem to have been given in amounts and with due dates as stipulated in the lease contract, though not required by any condition thereof.
The giving of these notes did not affect the terms of the contract. There is no pretence that they were given or received as payment, or upon any new agreement of the parties. As no title to the furniture could pass except upon compliance with the terms of the contract, the failure to return the notes cannot, in law, change its effect. Any claim that the defendant might have growing out of those notes or any disposition that may have been made of them is an equitable one strictly.
The cases cited on behalf of the appellees are not applicable. Kavanaugh v. Brodball, 59 N. W. Rep. 517, is a case where a first mortgagee, after having assigned the notes and the mortgage to a bank as collateral security, brought an action of replevin against a subsequent mortgagee. He was denied the right to maintain the action because he had parted with his legal title. Oskamp v. Crites, 59 N. W. Rep. 394, is a case where the sale and delivery were made subject to a forfeiture of the title conveyed by nonpayment of the purchase-money notes. It was held, first, that the title passed by virtue of the contract of sale; and, second, that in order to have any right .under the contract, the plaintiff ought to have returned, or offered to return, the notes. Nor is there anything in the case of Segrist v. Crabtree, 131 U. S. 287, that conflicts with Harkness v. Russell, supra, or the doctrine thereof as applied to the facts of this case. In that case Babb had made an absolute bill of sale of the cattle to Crabtree, receiving notes for the purchase money. The cattle were removed from Texas to New Mexico. The notes not having been paid, Babb undertook to sell the cattle to Segrist and others. Without surrender of the notes, the vendees, acting with Babb’s son, who held a power of attorney from his father, seized the cattle and took them away. In defence to the action brought against them by Crabtree, [126]*126they contended that the sale was conditional, and that the title was not to pass until payment of the notes. The jury were told that as against the claim of Babb, the notes were to be regarded as prima facie evidence of payment so long as Babb held them, and that he could not retain them and yet treat them as having no force. It was left to the jury to find whether the sale was an absolute one upon credit merely, or whether the vesting of title was conditioned upon the payment of the purchase money evidenced by the notes; and they were told that, in the latter case, upon the failure to pay the notes when due, Babb had a right to retake the cattle if he did not elect to keep the notes.
Again, it seems from the evidence in this case, that the notes were delivered by Horner & Co. to an attorney whom they had retained early in the controversy; that the attorney had gotten in trouble, resulting in his confinement in jail for a time in Brooklyn, and then disappeared; and that the notes had been lost or carried away by him. On a demurrer to the evidence, it may be inferred that the notes were given to the attorney for such use in the controversy as might be necessary. It does not appear that they were given him for any other purpose, or that they were endorsed.
7. The judgment cannot be supported on the misjoinder of defendants as the question arises here. The action of replevin is substantially ex delicto, and the verdict may be against one and in favor of another. It is not the form of the action that controls, but its substance. Chaffee v. United States, 18 Wall. 516, 538.
Under the facts of this case, de Mitkiewicz may be liable for each item of the furniture replevied, whilst the Trust Company would be liable for such only as it actually received and detained, unless possibly it may have estopped itself by joining its codefendant in the forthcoming bond for all of the furniture. The bond does not appear in the record, but from the recital in the judgment it would seem that it was a joint one. The case is not one where wrongful [127]*127acts of each defendant related to different property, and were distinct and wholly separable from each other. In such case, even, a misjoinder would not be fatal; but the plaintiff might be put to his election, in a proper manner, of the party against whom he would proceed. Powell v. Bradlee, 9 G. & J. 220.
8. The last point of the appellees, that there is a fatal defect in the evidence in that it does not show the separate value of each piece of furniture, must also be decided against them. The form of the declaration in replevin is provided in the statute, and the allegation of value, as therein set forth, is general. R. S. D. C., Sec. 814. There are circumstances which, under the statute, would seem to call for this separate proof, but they do not exist here. Id., Sec. 822. In this case a judgment for the plaintiff would be for the goods, and damages for their detention. They have been delivered to the defendants upon their forthcoming bond, and the remedy is upon that in the event of its breach.
For the reasons given, the judgment must be reversed, with costs to the appellant, and the cause remanded for a new trial.
Reversed and remanded.