#### MANUEL R. OTERO, Administrator, v. THE UNITED STATES AND THE NAVAJO INDIANS.

[Indian Depredations, 1896.

Decided February 17, 1913.]

*On the Proofs.*

A herder in New Mexico receives a flock of sheep from the owner under contract to hold them on shares and pay the owner a percentage annually of the wool clipped. The owner reserves the right to terminate the agreement and retake the property at any time. No time is fixed for the return of the property. Such is the custom in New Mexico. The sheep are subsequently captured by the Indian defendants while in the possession of the herder; suit is brought by the owner. The question is whether title to the sheep at the time of capture was in the owner or the herder.

*217I. Contracts *in ‘partido*in New Mexico are where cattle or sheep are delivered to others under an agreement to share in the profits, the herder being under an obligation to return the same animals and the owner having the right to terminate the contract at any time. Such a contract is one of bailment, and the title to the property is not changed.

II. Where the only interest of the herder was an interest in the increase of the flock and in the wool clipped therefrom, the title to the flock remained in the owner, and he was the proper party to bring this action under the Indian Depredation Act.

*The Reporters’*statement of tbe case:

The following are the facts as found by the court:

I. At the time of the depredation hereinafter stated the claimant’s decedent was a citizen of the United States.

II. On or about August 7, 1870, in Valencia County, N. Mex., Indians belonging to the Navajo Tribe of Indians took and drove away property of the kind and character described in the petition which at the time and place of taking was reasonably worth the sum of $618.

Said property was taken, as aforesaid, without just cause or provocation on the part of the owner or the agent in charge and has never been returned or paid for.

III. At the time of said depredation the defendant Indians were in amity with the United States.

IV. At the time of the depredation set forth in finding ii the property — consisting of a flock of sheep — was taken from the possession of one Martin Vigil as the herder of Otero, and who as such herder had received the flock of sheep from Otero under contract to hold the sheep on shares and to pay Otero a percentage every summer or spring of the wool clipped yearly from the sheep, Otero reserving the right to terminate the agreement with the herder and retake the property from said herder’s possession at any time said owner saw fit so to do. In sharing profits growing out of the possession of cattle and goats contracts specified a time to run, but in the sheep business no time was specified for the return of such property, as a rule, in New Mexico. The owner of such property usually had the right to repossess *218himself of the actual possession as against the herder (and all other) at any time such owner saw fit.

*Messrs. Geo. A. and WilUam B. King*for the claimant.

*Mr. Assistant Attorney General William il. Lewis*for the defendants.

Ho wet, J.,

delivered the opinion of the court:

Plaintiff sues to recover of and from the defendants the value of certain property alleged to have been taken from the decedent in Valencia County, N. Mex. Indian depredation act, 26 Stats., 851.

The claim bears the earmarks of honesty. It was promptly presented to the Navajo Indian Agency after the depredation and by the agent presented to a council of the chiefs and headmen of the Navajo Nation. The proof amply sustains the taking of the property and the value as set forth in the findings. The report of the agent of the Navajo Indians was subsequently filed in the Indian Office at the seat of government.

The defense set up alleges “ the serious question in the case ” to be the ownership of the property at the time of the depredation. The contention is that the herder who had the sheep on shares from the deceased Otero was the owner of the property and not Otero, and in the absence of any evidence as to the time the contract was to run it must be assumed that the contract was to run indefinitely, subject alone to be terminated by the original owner upon reasonable notice to the herder. It is further argued that the fact that the contract was unlimited as to time would seem to indicate that the original owner did not contemplate receiving back the original sheep and was content to take his share in the increase and the wool each year.

The court has dealt, under the Indian depredation act, with a few cases coming from New Mexico under what are termed “ contracts *in 'partido*that is, where cattle or sheep are delivered to others with an agreement to share profits. In *Jaramillo*v. *United States et at.,*37 C. Cls. R., 150, we adverted to the general rule in the following language: The recognized distinction between bailment and sale is that *219when the identical article is to be returned in the same or in some altered form, the contract is one of bailment and the title to the property is not changed. On the other hand, when there is no obligation to return the specific article and the receiver is at liberty to return another thing of value he becomes a debtor to make the return and the title to the property is changed; the transaction is a sale. *Powder Co.*v. *Burkhardt,*97 U. S., 110; *Sturm*v. Booker, 150 *Ibid.,*312.

The court is of opinion that there is nothing in the findings which negatives the obligation on the part of the herder to return the sheep committed by Otero to him, and who, at the time of the taking, was in possession of the property. There is nothing to show that by the delivery of the flock to Yigil the latter acquired anything more than a qualified interest determinable at any time the owner saw fit to repossess himself of the identical property committed to the herder’s care and keeping. The only interest which the bailee contracted to obtain was an interest in the increase and in the wool clipped from time to time. Under these circumstances the title to the herd remained in the bailor. The stipulated terms of the agreement do not disclose enough to say that Otero intended to transfer his ownership or that title became vested in the herder.

Judgment will be entered for the plaintiff .in the sum of $515.