¶1This case, in its principal features, does not differ from the case of Ketchum v. M. Watson, ante, 591, and must be decided in the same way. There are, however, some instructions necessary to be noticed.
¶2The plaintiff asked this instruction, which the court gave : “ If the plaintiff sold Outlaw a horse, conditioned that it should not be his property until paid for, and that Ketchum was cognizant of such contract, they will find for the plaintiff, unless the property was in the possession of Outlaw, and the indebtedness accrued to Ketchum before such notice, and while Outlaw had said horse in possession ; and if such be the case, you will find for the defendant.”
¶3We think the court erred in giving it without this material qualification, namely, that Ketchum was cognizant of the contract, before he gave credit to Outlaw.
¶4This view rendered it necessary that the court should have given the third instruction asked by the defendant, that unless they believe, from the evidence, that Ketchum had notice of the sale to Outlaw before he purchased the notes, they will find for the defendant. It was error to refuse this instruction.
¶5The judgment is reversed, and the cause remanded.
¶6Judgment reversed.