¶1Opinion,
¶2Both parties agree in their testimony that the title to tbe horse was not to pass to plaintiff below until he had paid for it. He paid $40, and then, being unable to make the next payment, he gave a note for the rest of the purchase money. He says this note was for the convenience of both parties; the defendant below says it was for the accommodation of the plaintiff, but neither of them make any suggestion that it was to change the terms of the original bargain, except as to the time and mode of payment. The title to the horse was still in the vendor, and the giving of the note did not make any change in that respect. A note given for an existing debt is not payment, unless it be expressly accepted as such. The presumption is that it is not to be payment unless it is itself paid, and the testimony in this case contains nothing to overcome this presumption of the law. If there had been any conflict as to this point, the case should have been left to the jury to find what was the intention of the parties ; but, as there was no conflict, the jury should have been told that the title to the horse was still in the vendor under the original contract.
¶3The note was not paid, and a renewal note for three months longer was also due and unpaid, when the horse was brought back to the vendor’s stable. The time for payment in full, not only by the original agreement, but by the second extension, had more than passed; the title was still in the vendor, and the jury might well have found that the peaceable resumption of possession, under the circumstances, was a reasonable *64exercise of tbe right of rescission of tbe conditional sale. But, even if they did not on this ground find for the defendant, the plaintiff’s whole interest in the horse was the amount he had paid; and the jury should not, in any view of the ease, have been allowed to go beyond that amount in the assessment of damages.
¶4Judgment reversed, and venire de novo awarded.