— We think, under the testimony of the defendant and the undisputed facts, there should have been a judgment for the plaintiff. For the correctness of this view, let us look to the record. As to the manner in which the cattle were shipped and paid for, there is no dispute, and the facts were fully known to the defendant Greenameyer and plaintiff. It is not to be understood in this statement that defendant knew that the cattle were mortgaged to the plaintiff, but he shipped the cattle*to Greenameyer, and drew upon him, a-nd received the cost of the cattle to him before the cattle were sold by Greenameyer. Greenameyer paid the costs of the transportation and keeping. We may better understand the legal status of defendant and Greenameyer, if we take a single shipment of cattle. They are purchased by. defendant, sent to Greenameyer, who refunds the purchase money, and pays all charges, and has the cattle in his possession. Now, take defendant’ s statement as to the contract: ‘ ‘ I made an arrangement with Greenameyer about June, 1887, to buy cattle there and send them here, and that he would sell them on commission, and send the money as fast as he could sell the cattle. I was to draw for the cost of the cattle any time when I needed it.” Again, he says : “I was to pay Greenameyer a commission equal to half the profits.” Now, let it be conceded that Greenameyer pays the defendant’s draft for the cost of the cattle, including charges, and the cattle are unsold. Who owns the cattle? Under the contract, it only remains to sell them, and divide the profits. If Abbott owns them, he must be Greenameyer’s debtor for the money. Such an understanding is not deducible from any language used. He drew for the cattle. The money was paid for the cattle. He says: “I drew on him for the cattle every time I *649shipped, within a few days.” He says all the drafts were paid. Continuing the thought as to the single shipment, if they are sold without profit, who owns the money ? Greenameyer, of course. It would not be questioned. If sold ata profit, what would be Abbott’s interest in the money ? One-half the profits. It must be, then, that one-half the profits represents Abbott’s interest in the cattle after the drafts therefor were paid.

Confusion arises in this case by a play upon the word “ commission.” Abbott says he was to pay Greenameyer a commission equal to one-half the profits. That was upon his agreement to “send the money as fast as he would sell the cattle.” But, according to Abbott’s statement, there was a departure from this, and he drew for the cattle before sale, and received the pay from Greenameyer with knowledge that the cattle were unsold. With the delivery of the cattle, and a request for and receipt of payment to the extent of a purchase price, the law would operate to transfer the title or interest represented by such payment. It is, in effect, a sale of that interest. We think, under the conceded facts of the case, that Greenameyer, after the payment of the draft, was the owner of the cattle, subject, however, to the right of Abbott to have them sold, and the profits divided.

It remains to be determined if Abbott’s interest would prevent Greenameyer from pledging them as security to the bank for the money to make the payments on the drafts. It is tó be kept in mind that the gist of this proceeding is the right to the possession of the cattle. In that respect, what would have been Abbott’s right as against Greenameyer? Certainly not a right to possession. Conceding that he might claim a lien to the extent of securing his share of the profits, and that in a proper proceeding he might enforce it, he could not claim the right of possession ; for he is not the owner, as we have held, and, looking to his answer, he claims the possession only as the “ absolute and unqualified owner.” ■ It is, then, a case in which the cattle are *650delivered to Greenameyer, and the draft of the defendant for the payment is, at the request of Greenameyer, paid by plaintiff, and security taken upon the property thus paid for. The money thus paid has gone to the use of both Abbott and Greenameyer ; and, the title and possession being in Greenameyer, he might legally pledge it for the purchase money.

We do not determine whether or not Abbott, under the facts, has any claim on the cattle or against the plaintiff for his interest, as the question is not before us. What we hold is, that, under the statements of defendant and uncontradicted facts, the plaintiff is entitled to the possession of the cattle as against defendant. Defendant has taken a judgment against the plaintiff for ten thousand, five hundred dollars, being the full value of the cattle. To that, he is clearly not entitled.

The third instruction, asked by plaintiff, and refused, is in substantial accord with our view as expressed ; and, had it been given, the result must have been a verdict and judgment for plaintiff. This view seems to be so decisive of the case that a consideration of other questions seems unnecessary. The judgment of the district court is Reversed.