This action is for the recovery of the price of two horses, which the plaintiff claims to have sold to the defendant, for an agreed gross sum, in 1882. The issue in the case was as to the fact of a sale having been made. It must be taken as an established fact, from the evidence, that, in the course of the negotiations relied upon as constituting a contract of sale, the condition was agreed upon that the defendant should have a certain period, which the plaintiff fixes at 10 days, for the trial of the horses, and that it should then return them if they were not satisfactory. . It also appears from the plaintiff’s testimony that in the course of about two months after this transaction, one of the horses having died, the other was returned to the plaintiff, was kept by him, and taken to Dakota, (from Minneapolis,) and after some months was sold as the property, as it would seem, of the plaintiff. The jury rendered a verdict for the recovery of the price of both horses.

The verdict cannot be sustained. There is nothing in the case indicating that the return of the one horse to the plaintiff is to be referred to any other agreement or transaction than that above stated, which allowed the defendant to return the horses within a specifie' time. The plaintiff showing, by his own testimony, that the hors *451was returned to him, and retained and treated as his own, and no new contract being disclosed, it must be considered that this was done under the condition of the contract in question, which provided that the property might be returned. Although the specified time within which the property might be returned may have elapsed, the plaintiff might, and, as must be assumed from the evidence, did, waive his rights in that particular. The plaintiff could not, under such a condition in the contract, receive back a part of the property, and afterwards recover the price of the whole.

Order reversed.