delivered the opinion of the Court:
To maintain trover, the plaintiff must show a tortious conversion of personal property by defendant, and that, at the time of such conversion, the plaintiff had a right of property in the chattel converted, and also had the possession thereof, ■or a right to the immediate possession.
This right to possession must be absolute and unconditional. It is said in 1 Chitty’s Pleadings, 167: “ To support this action the plaintiff must, at the time of the conversion, have had a complete property, either general or special, in the chattel, and also the actual possession thereof, or the right to the immediate possession of it.” In the second volume of the same work, 618, it is said: “ It is essential in trover that the plaintiff should have the possessory title—that is, the right to the immediate possession of the goods.”
In Bloxom v. Saunders, 4 Barn. & Cres. 941, it was held, that the vendee of undelivered goods who has not paid or tendered the price, and has not, therefore, acquired the right of possession, can not. maintain trover against the vendor who wrongfully sells them. Saunders sold hops to Saxby, to be paid for, by the usage of the trade, on the second Saturday after the sale, and gave him bills of sale, but the hops remained *418in possession of Saunders until Saxby became bankrupt, and Bloxom was made his assignee. Saunders then sold the hops, rendering account of sale as made on account of Saxby, and charging warehouse rent from the date of purchase by Saxby. Bloxom brought trover. Held, it would not lie for want of right of possession in plaintiff at the time of the conversion. The court assume that the right of property passed by the sale, but his right of possession was not absolute.' In such case, it is said, the property is vested in the buyer by such sale, so as to subject him to the risk of accidents, but he has not an indefeasible right to the possession.
Again, in the case of Bloxom v. Morley, (Eng. C. L. 872,) certain hops were sold by Morley to one Saxby, on a credit. The hops remained in the possession of Morley until the time for payment expired. Saxby had paid £700 towards the price, but a part of the price remained unpaid. Saxby, in this condition of affairs, became bankrupt, and Bloxom became his assignee in bankruptcy. Morley afterwards sold the hops to a stranger without demanding payment of the balance due upon the hops, and without returning or offering to return the £700. Bloxom brought trover, and it was held by the court that the right of property in the hops passed to Saxby by the sale, and the right of possession also, but on the failure to pay the full price, the property remaining in Morley’s possession at the expiration of the time of the credit, Saxby lost his right to possession, and had no right to possession until the full price was paid or tendered. It was also held, that the sale by Morley without returning the £700 was wrongful, but the court held that an action of trover would not lie in the case, because, at the time of the conversion, the right of possession was not in the plaintiff. The court say, in substance, that a special action on the case might have been maintained against Morley for the wrongful sale, but not trover.
In the case of Wilmshurst v. Bowker, 5 Bingh. N. C. 541, defendant had sold to plaintiff a quantity of wheat, and shipped the same to plaintiff, and sent plaintiff the invoice and bills of lading. The wheat was, by the contract, to be paid *419for by plaintiff by remitting to defendant a draft of a London banker, on the receipt by plaintiff of the invoice and bill of lading. The plaintiff received the invoice and bills of lading, but failed to send the banker’s draft on London, but sent in lieu his own draft. The defendant, without further notice, stopped the wheat vn transitu, and sold the same to a stranger, and Wilmshurst brought trover. The court say, admitting that the contract of sale vested the property in the wheat in the plaintiff, * * * the failure of plaintiff to send the banker’s draft prevented the right of possession from vesting in him, and held that the action of trover could not be maintained.
In the case at bar, the evidence tends to show that the contract of sale under which plaintiff claims right, was for two car loads of hogs, to be delivered on Friday and to be paid for on delivery. Weedman and Owens, who made the contract, so testify, and the testimony of Lewis, the only other witness who testifies on the subject, is to the same effect.
The hogs were all weighed and set apart for Weedman under this contract, and it may well be that the right of property thereby became vested in Weedman, so as to render him liable to loss or injury by accident; but he did not pay the whole price, and hence never had the right of possession.
It is insisted, that, from the nature of the transaction and the circumstances, it was a part of the agreement that the hogs were to be delivered in installments, and paid for in insta i - ments as the weighing progressed, and that, so far as concerns the hogs weighed at McLain’s scales, the placing of them in McLain’s yard for the plaintiff, and the payment of the checks for the price of the same by plaintiff’s agent, gave plaintiff the actual possession and the right to retain the possession of these hogs—and so the court charged the jury.
This position is not sound. The contract was an entirety, and embraced the two car loads. The parties did not make separate contracts as to each installment of hogs. The plaintiff, in such case, did not, under the most favorable view of the circumstances, get an indefeasible right to possession even *420of these hogs. It may be conceded that the delivery of the whole two car loads was begun, and that the payments kept pace with the delivery a while, and even that the entire delivery to Weedman was completed, under the supposition that the concurrent acts of payment were in course of execution; still, when Owens found that Weedman had failed to perform the concurrent act of full payment, he had the lawful right to resume the possession of all the hogs which were the subject of the contract, and hold them until full payment was made. He did resume the possession—and that he had lawful right to do—and, having done so, the plaintiff had neither the possession nor the right to immediate possession.
This was the condition of this property when Drybread united with Owens and shipped all the hogs to Chicago. It may be conceded that Owens had not the lawful right to thus dispose of this property, without first refunding to Weedman the money he had received under the contract, but, as was held in Bloxom v. Morley, supra, for this wrong trover will not lie, for the simple reason that, at the time of the conversion, Weedman did not, in any view of the subject, have the lawful right to the immediate possession of the property.
The court instructed the jury:
“ 1st. That if they believe, from the evidence, that Owens sold to Weedman about ninety head of hogs, that said hogs were weighed and put in the pen for Weedman, and that checks to the amount of $710 were drawn by Owens upon the banking house of Thomas Bros. & Weedman, and were paid-at said bank out of money belonging to Weedman, and $20 in addition was paid to Owens by Weedman, and if they believe, from the evidence, that defendants took said hogs from said pen without the consent of Weedman, and that they sold said hogs and converted the proceeds thereof, then they should find for the plaintiff the value of the hogs in Chicago, less the necessary expenses of disposing of them.”
The proof shows that the sum of $730.55 paid by Weedman was not the full price of the two car loads which he agreed to *421take (and of which this lot of about ninety hogs was a part), and tends to show that it was not full payment, even for the hogs so weighed and put in the pen from McLain’s scales.
The instruction, then, is erroneous, in telling the jury that if $730 was paid on this lot of hogs (though not the full price even of that lot of hogs), and the hogs were weighed and put in the pen for Weedman, that invested Weedman with such possession and absolute right of possession, that, although he neglected to pay the full price, Owens had no right to stop the hogs m transitu, before Weedman had assumed control of them, and resume the possession until full payment was made.
If, in the ease of Wilmshurst v. Bowker, supra, the vendor, after he had delivered the wheat on a ship for the vendee, and sent him the bill of lading, had the right, on the failure of the vendee to send him the London banker’s draft, to resume the possession of the wheat, surely Owens, on the failure of Weedman to make full payment, had a right to resume the possession of the hogs, which, as suggested, he had put in the pen for Weedman, and -especially as Weedman had done no act accepting the supposed delivery.
In the fourth instruction, the jury were told that Drybread and Owens had no right to intermeddle with Weedman’s hogs, if the hogs were Weedman’s, unless so directed by Weedman; and if the jury believe, from the evidence, that Drybread and Owens did, without the consent of Weedman, ship to Chicago and sell the hogs that belonged to Weedman, then they are liable to Weedman for the value of the hogs so shipped, less, etc.
This instruction is erroneous in assuming, as an ascertained fact, that some of the hogs mentioned at the trial were Weed-man’s hogs. The court speaks of “ the hogs that belonged to Weedman,” when it was, on the evidence, a mooted question whether Weedman had, at any time, the right of property in any of these hogs.
But the great error in the instruction consists in assuming that the right of property in plaintiff was sufficient to support this action, without showing a right to possession in plain*422tiff and a tortious conversion. The court says, in substance, that “if defendants, without the consent of Weedman, did ship to Chicago and sell the hogs that belonged to Weedman, then they are liable.” This is not the law of this case. It maybe that Weedman, by his contract of purchase, and by the weighing and setting apart in pens of the hogs for him, became the general owner of these hogs, and yet it maybe that his contract was for the purchase of two car loads of hogs to be paid for on delivery, and that, by his failure to make payment, he failed to acquire the right to the possession. There is surely proof tending to show that this was so. If Weed-man, by the contract, bought two car loads of hogs, to be delivered on Friday to him, by Owens, and the mode of delivery was to be made in parcels as they were received from the farmers, and Owens had the hogs at the places agreed upon, and the delivery begun, and the payments kept pace for a while with the progress of delivering, and, before it was completed. Weedman stopped the payment, and Owens went on and weighed all of the hogs, and still Weedman neglected to complete the full payment, in such case, Owens had the lawful right to resume the possession of all the hogs, and hold them as Weedman’s hogs, and at Weedman’s expense, until full payment was made; and if payment was not made in a reasonable time, he would have the right to dispose of the hogs, and account to Weedman for the proceeds.
If he, in such case, should make an improper sale (wrongful, by reason of being too hasty or without proper notice), he would be liable to a special action on the case, but not in trover; for, at the time of the wrong, Weedman, in the case supposed, could not show a right to the possession. If he should fail to account for the proceeds, he might be sued in assumpsit, and possibly in trover, for a conversion of the money. This action is for the conversion of the hogs, and not for the conversion of the money.
This fourth instruction is fatallv wrong.
The fifth instruction is equally faulty. The court there tells the jury, in substance, that if any of the hogs had been *423paid for and received by Weedman, and defendants took these hogs and shipped them with other hogs belonging to defendants, and sold them on their own account, and failed properly to account to plaintiff, then the verdict should be for the plaintiff.
This instruction, like the fourth, ignores the proofs tending to show the entirety of the contract of purchase, and the right of the vendor to reclaim the hogs paid for and received, if, before the whole transaction was completed, Weedman refused to make the payments required. By receiving and paying for part of the hogs as the delivery proceeded, Weedman did not get an indefeasible right to the possession of the hogs so received.
' The sixth instruction was calculated to mislead the jury. It had no relation to any matter in issue. The action was for the conversion of the hogs, not for failure to properly account for the money received.
The two instructions given by the court, on its own motion, are faulty, in ignoring the right of Owens to resume possession of all the hogs, for failure to pay in full for the hogs, or, perhaps, in failing to recognize the rule that, to maintain trover, the plaintiff must have had the unconditional right to possession at the time of the alleged conversion. It is the more important that this rule of law should be enforced in behalf of Mr. Drybread, who seems to have been drawn into the complication of this case by the failure of plaintiff to com-
ply with his contract with Owens, and seems to have embarked in the matter with no other motive than to secure himself and some of his neighbors from apprehended loss. It is not clearly shown that he committed any error in paying out the proceeds, or that he acted in bad faith. If it be so, he can be held in assumpsit, for what is justly due, but can not be held in trover where the measure of damages is the full value of the property taken, and opposing accounts can not be adjusted.
The judgment of the circuit court is reversed, and the cause remanded.
Judgment reversed.