The opinion
Smith, J. S. B. Kirby & Co. brought replevin against Tompkins for a sewing machine. The answer denied that the defendant unlawfully detained possession, or that the plaintiff' had sustained any damage by the detention. On a trial before a jury the'following facts were proved : On the 15th of March, 1884, the plaintiff had made a conditional sale of the maehine to the defendant at the price of $43, of which $10 were paid, and notes payable at one and two months were taken for the residue. The notes were produced, in which the agreement for sale was thus expressed : “The Wilson sewing machine, style 3, plate No. 202,789, for the use of which, to the maturity hereof, this note is given, is and shall remain the property and under the control of S. B. Kirby & Co., or assigns; and for default of payment, or if the said S. B. Kirby & Co. deem the machine in unsafety by removal or otherwise, it shall on .demand be returned to S. B. Kirby & Co., or assigns, in good order, and with pro rata pay for its use, which shall be three dollars per month. It is understood and adjudged that S. B. Kirby & Co. own this machine absolutely, and the title remains in them until the machine is paid for in full.”
Shortly after maturity of the notes an agent of the plaintiffs demanded payment of the defendant, or the surrender of the machine. The defendant refused payment, and refused also to give up the machine, unless his notes were surrendered at the same time. The agent replied that he had no instructions upon this point. The court in effect told the jury that the plaintiffs could not maintain their action without first surrendering or offering to surrender the notes. The verdict was for the defendant, and that he was entitled to the possession of the machine, the value of which was found to be $32.50, and judgment was entered for the return of the machine or its value.
The judgment is bad because it awards to the defendant the restitution of a chattel of which he had not claimed the return. The right of the plaintiff to recover was admitted by the answer, the only effect of which, if true, was to protect the defendant against damages and costs. Mansf. Dig., sec. 5181; Brown v. Standford, 22 Ark., 76; Neiss v. Gillian, 27 ib., 184; Wells on Replevin, secs. 485,487,491,713.
Passing to the evidence, the uncontradicted facts are that tbe plaintifis were the owners and entitled to the possession of the machine; and nothing in the agreement between the parties required the plaintifis to give up the notes before they could resume possession of the property. Fleck v. Warner, 25 Kansas, 492.
Reversed and a new trial ordered.