¶1The opinion of the court was delivered, January 4th 1869, by
¶2The court below erred in ordering a peremptory nonsuit. The effect was to take from the jury the fact which bore upon the performance of the contract. That performance at the day may be made of essence in a contract is too well settled to be disputed: 2 Penna. R. 454; 9 Watts 49; 5 W. & S. 485; 3 Barr 13. It is not in the nature'of a penalty against which equity will ordinarily relieve, but a stipulation which lies at the root of the agreement, and which the party makes the very condition on which he contracts. Such is the stipulation in this contract.
¶3Becker desired to sell his foundry to Linn, but the judgments against it were larger than the price; and Becker had to make provision for their reduction. The means of accomplishing this is to be found in the terms of the contract as to the personal estate. The stock on hand, tools, wagon and horses, were evidently valued at the sum of $4250, as this was the sum at which it was supposed they could be sold, and the property was to go into the hands of Linn to enable him to dispose of it and apply the proceeds to the payment of the judgments. The stock on hand, consisting of castings, new and old metal, ploughs, &c., could be sold to better advantage by the party carrying on the foundry. Hence the contract provided that the entire stock should be bailed to Linn, to be sold on commission; the new and old metal to be converted into castings for sale in like manner, and after allowing 25 per cent, commission for compensation, storage and sale; the balance to be applied to payment of the judgments. It was only in the event that the $4250 should be realized by the sales of stock, the remainder of the stock and other personal property were to become the property of Linn, the other property being delivered to him upon a contract of bailment for use till that event happened. How, clearly, this was not a mere conditional sale to Linn, but a bailment for legitimate purposes, recognised by repeated decisions as not falling within the principle which subjects personal estate delivered upon a contract of sale to the execution-creditors of the purchaser.
¶4It is well settled that where delivery accompanies a'sale of chattels, the mere reservation of a lien or of a right of property *473will not protect them from the executions of the vendee’s creditors: Martin v. Mathiot, 14 S. & R. 214; Jenkins v. Eichelberger, 4 Watts 121; Waldron v. Haupt, 2 P. F. Smith 408. But where the delivery is upon a mere bailment for a proper purpose, the law is otherwise: Myers v. Harvey, 2 Penn. 479; Clark v. Jack, 7 Watts 375; Rowe v. Sharpe, 1 P. F. Smith 26. In reference to the peculiar features of this contract, to wit, the bailment to sell on commission, and to manufacture and sell, there are two cases directly in point. In McCullough v. Porter, 4 W. & S. 177, it was held that an agreement to furnish goods to an insolvent to be sold at invoice prices, he returning the invoice price after sale to the consignors and retaining all above that sum for the support of himself and family, is a bailment; and the goods are not subject to the executions of the insolvent’s creditors. Gibson, C. J., refers to the case of Jenkins v. Eichelberger, and distinguishes it from the case before him. King v. Humphreys, 10 Barr 217, was a case where Humphreys delivered to Ensign, under a contract with him, certain rags at 5 cents per pound, to be manufactured into paper for Humphreys, for which he was to furnish his note to Ensign at 10 cents per pound, the usual mode of the trade in working rags into paper. It was there held, affirming the judgment of Brother Sharswood in the District Court, that the paper manufactured from the identical rags was not subject to an execution against Ensign. The delivery of the stock on hand for sale on commission, and of the metal to be converted into castings also to be sold on commission, and the proceeds of the sales deposited with a banker for the purpose of paying off the judgment, was clearly a bailment only; and the property thus bailed was not subject to the executions of Linn’s creditors.
¶5The next question arises upon the form of action, which was trespass vi et armis de lords asportatis. It is undoubtedly true that a plaintiff, to support this action, must have the rightful possession of the goods or a general right of property in them, and a constructive possession. Therefore, an owner who has parted with his goods by a hiring for a limited time, cannot recover in trespass: Ward v. McAuley, 4 Tenn. R. 489; Corfield v. Corryell, 4 Wash. C. C. 371; Garven v. Hanger, 7 Tenn. R. 10. But if the person in possession is a mere servant or custodian, the owner may maintain the action: Trovillo v. Tilford, 6 Watts 468; 2 Saunders on Pl. & Ev. 862. And if the owner be entitled to immediate possession, the goods being wrongfully withheld, his general right of property draws to him the constructive possession, and he can maintain trespass: 2 Greenl. Ev. §§ 614, 615; Thomas v. Snyder, 11 Harris 515; Lewis v. Cousan, 3 Id. 34; Waldron v. Haupt, 2 P. F. Smith 410; King v. Humphreys, 10 Barr 217; 2 Saunders Pl. & Ev. 862; 6 Watts 471.
¶6The question in this case, therefore, depended on the right of *474Becker to an immediate return of the goods from Linn. It is here where the ordering of the nonsuit peremptorily took from the jury the determination of facts necessary to solve the question. The plaintiff had given evidence that Linn had had. the goods from March to July, without depositing a dollar arising from sales with the hanker selected in the contract to receive the money, and he had also shown that he made a demand of Linn for the return of the property, and had given notice to the sheriff of his right to it. It was therefore a question of fact whether Linn had failed to perform his contract, and thus determined the bailment by the terms of the agreement; and whether the plaintiff had put himself in a position to be entitled to the possession immediately by his demand of the property.
¶7By withdrawing the facts from the jury, the court assumed to decide the whole case as a question of law, and in this we think there was error.
¶8Judgment reversed, and a procedendo awarded.