By the terms of the written contract between the plaintiff and defendant, the latter had an election to return the oxen at the end of the year, and pay twelve dollars for their use, or to keep the oxen as his own property by paying the sum of ODe hundred and fifteen dollars. It is evident enough that the parties contemplated, really, a sale of the oxen by the plaintiff to the defendant, but took great pains to make sure the title to the oxen in the plaintiff, to keep him secure until he received his pay.

The fact that the risk of all accidents to, or the sickness or death of the oxen during the year, is thrown upon the defendant, proves this, and the fact that no provision is made in the contract that the plaintiff is to return the obligation of F. B., taken toward the oxen, or the money received upon it, in case the defendant returns the oxen, also tends in the same direction. It is probable that that portion of the contract, making it a lease of the oxen for a year at defendant’s election, was inserted more because they supposed it necessary to keep jip the plaintiff’s title than from any expectation that the defendant would in any event desire to return them. Near the end of the year the defendant informed the plaintiff that he should not return the oxen, and he continued to keep and use them after the year had expired, and till one of them died. This must be regarded as an election by *110the defendant to become the purchaser of the oxen, under that term of the contract. It would be altogether unreasonable to suppose that he thereby intended to wrongfully hold the oxen and refuse to pay the price. If the price was not paid the plaintiff might refuse to let him keep the oxen, but if he chose we think he might assent to his keeping them, and treat him as his debtor for the price, or so much as was unpaid, and maintain an action therefor.

It is not found in the case that the plaintiff assented to the defendant’s becoming the owner of the oxen, and the defendant says the plaintiff cannot maintain his action of general assumpsit as for a sale of the oxen, till such assent be shown ; that until then the oxen continued to be the property of the plaintiff; that if defendant failed to pay, or return the cattle, at the end of the year, the plaintiff’s remedy must be an action on the written contract, or trover for the oxen. But the fact of bringing the suit for the price is of itself an assent and election by the plaintiff to treat the defendant as his debtor, and an affirmance of the sale to the defendant. The fair meaning of the contract is, too, that if the oxen died in the defendant’s hands, so that he could not return them, he was to be liable for the price, as upon an absolute purchase. Upon the facts found by the county court, we think the judgment should have been for the plaintiff; and the judgment is therefore reversed, and judgment rendered for the plaintiff.