¶1The principal question on the trial was one of fact; whether the contract entered into between the parties in relation to the fowls, created the relation of bailor and bailee between the parties, or whether it was a contract of sale of the fowls to the Defendant. If the former, the conduct of the defendant in regard to his trust was such as was equivalent to a conversion; but if it amounted to a sale, the action could not be sustained. The evidence was conflicting upon the question; and although I am inclined to think the weight of the evidence was against the conclusion to which the justice arrived, the judgment should not have been reversed on that ground.”
¶2C. D. Colman, for Plaintiff in error, insisted that the contract, by virtue of which the Defendant acquired the possession of the fowls, was *88one of sale and not a bailment; that there was no understanding or agreement between the parties to the contract, that the identical fowls should be returned at the end of the term. (21 Wend. 83.) That there was an express agreement or understanding between the parties that the Defendant was to return the same number of fowls at the end of the term.
¶3If the contract was one of bailment and not a safe, it was a bailment for the term of two years; the subsequent arrangement made between the parties in January, 1845, in no maimer changed the rights which the panties had. acquired by virtue of the contract in relation to the fowls, nor did it change the possession or the rights of the Defendant to the possession of the fowls for the term of two years.
¶4A. Deam, for Defendant in error, insisted, that the Plaintiff had not parted with the ownership of the fowls, but, that the same fowls were to be returned to him, and that the Defendant had acquired merely a possessory right to be enjoyed while he occupied the farm, and that their removal by Defendant from the demised premises was a conversion.
¶5The questions whether the contract or contracts under which the parties acquired their respective rights constituted a bailment or sale of the fowls, and whether their removal by the Defendant from the demised premises was a conversion, and what amount of damages the Plaintiff had sustained thereby, were questions of fact, controverted on the trial, submitted to and passed upon by the justice, and his decision thereon was conclusive. (18 Wend., 141; 1 Denio, 25, 27.)
¶6This Court (upon the argument) decided, that the questions arising before the justice in the cause, were questions of fact. That evidence was given upon both sides, and that it was for the justice before whom the cause was tried, to decide those questions, and that having done so, the court of common pleas was erroneous in reversing his judgment.
¶7The decision of the supreme court was unanimously affirmed.