¶1The parties traded horses on Sunday. The exchange was even and there was immediate delivery. The plaintiff became dissatisfied and, wishing to trade back, went the next morning to the defendant’s place and made several offers of money to induce him to do so, but he refused. After some bantering however the defendant gave the plaintiff five dollars and a tobacco pipe, for the purpose, as explained at the time, of averting ill feeling. The plaintiff then returned home, but wishing, on further consideration, to undo what had been done, he again called on the defendant and peremptorily insisted on trading back, and he offered to restore the money he had received and someting more than the value of the pipe. The defendant refused to listen to any overture.
¶2The plaintiff then brought replevin before a justice and obtained judgment and the defendant appealed. The circuit judge, on the close of the evidence, took the case from the jury and ordered a verdict for the defendant. This ruling went on the theory that the transaction on Monday amounted to a new contract by which the title became established in defendant, and that no room for any other view existed.
¶3We think this was error. ■ The case made by the evidence was not necessarily of the character assumed. The transaction on Sunday passed no title. As a trade it was void, and the evidence of what took place on Monday was not conclusive that there was anything more than an attempt to ratify and validate the Sunday negotiation ; and of course a ratification of that trade was impossible; unless there was a new contract the plaintiff was entitled to reclaim his horse against the void negotiation. No new contract could be made without a mutual assent of the parties, and unless the plaintiff intended to make one the title was not affected by the occurrences subsequent to the transaction on Sunday, and whether there was such new contract was a question for the jury on the whole evidence under proper instructions.
¶4The judgment must be reversed with costs and a new trial granted.