Page:North Dakota Reports (vol. 2).pdf/437

 liam H. Doyle. On that day McKee and Conrad came to the barn, and the former stated to Doyle, in the presence of Conrad, that the horse had been sold by him (McKee) to Conrad. Had Conrad from this time exercised exclusive control over the stallion, there would have been a sufficient delivery to satisfy the requirements of the statute. It has been repeatedly held, and the doctrine stands upon a sound basis, that when the property sold is at the time of sale in the possession of a third person as bailee, it is sufficient that the former owner notifies such third person of the sale, and abandons all claim to or control over the property, and the bailee thereafter holds it for the vendee. Potter v. Washburn, 13 Vt. 558; Worman v. Kramer, 73 Pa. St. 378; Morse v. Powers, 17 N. H. 286; Stowe v. Taft, 58 N. H. 445; Bump, Fraud. Conv. (3d Ed.) 170; Wait, Fraud. Conv. § 260; Kroesen v. Severs, 5 Leigh 434. But the plaintiff failed to keep that exclusive control over the stallion which the statute requires. It is uncontroverted that after the sale McKee continued to drive the animal, just as before the sale, and apparently controlled him in all respects the same as before. The plaintiff himself testitied that when he purchased the horse he did not take him away, but left him at Doyle's stable; and that McKee paid the horse’s board at Doyle’s until January 1st, after plaintiff purchased him; that the understanding was that McKee was to have the use of the horse until the 1st of January. Mr. Doyle swore, in substance, that McKee had the same charge and control over the stallion after October 1st—the time of the sale—that he had before that date. He said that he thought that there was no change in the relationship of McKee to the horse from October 1st to November 12th, when the seizure was made, more than from the spring to October 1st; that the same relationship existed all the time; that prior to October 1st McKee drove the horse, paid his board, and handled him; that was about all he did with the horse; and that, after October Ist, McKee drove the horse, and paid his board all the time he was in the stable of the witness Doyle. It appears that McKee drove out with the horse repeatedly after the sale. We do not think there was, under these facts, a sufficient change of possession to comply with the statute, nor