Stone v. Perry

Appleton, C. J.

The plaintiffs, merchants in Boston, through the intervention of a broker, on.July 5,1871, sold to A. Butler & Co., one hundred barrels of flour, which they shipped on Friday, *50 the 7th July. The sale was for cash. The bill of goods, which was forwarded on 8th July, had on the margin the words, ‘ terms cash.’ On Monday, one of the plaintiffs went to Portland, and, finding the firm of Butler & Co. had failed, and that the flour had been attached, commenced an action of replevin.

The sale to Butler & Co. was conditional. The condition has not been complied with. The attaching creditor can only acquire the right of his debtor. As between vendor and vendee, the vendor is to be deemed the owner. In Deshon v. Bigelow, 8 Gray, 159 , the sale was for cash, and being conditional, it was held that the title did not pass to the vendee until payment, although the goods sold were delivered to the vendee. So when goods are sold on time, and delivered' to the vendee, it being part of the contract that they are to be paid for by the negotiable note of the vendee, such payment is a condition precedent to the sale, and the title to the goods will not vest without such payment or a waiver of it. Whitney v. Eaton, 15 Gray, 225 ; Farlow v. Ellis, 15 Gray, 229 ; in Hirschorn v. Canney, 98 Mass. 149 , a merchant in New York sold goods to a merchant in Boston, on condition that he should send his notes in payment therefor, and shipped the goods to Boston, mailing a bill of lading to the vendee, and requesting him to send his notes in payment, which was never done. It was held, that no title passed to the conditional vendee. ‘ The sale to the defendants,’ observes Gray, J., in Adams v. O'Connor, 100 Mass. 515 , ‘ having been found by the jury to have been for cash, was a conditional sale, and vested no title in the purchasers, until the terms of sale had been complied with.’

If goods are sold' conditionally, and delivery made according to the custom of the trade, before the conditions are complied with,, in expectation of compliance, the delivery is also conditional, and no tide vests in the purchaser until performance of the condition; and if he steadily refuse compliance, the seller may recover the goods by action of replevin. Bauendahl v. Horr, 7 Blatchf. 548 .

The contract was made in Massachusetts, and the law of that place must govern. By that law, the sale being upon the condition *51 of payment in cash upon delivery, no payment being made, the title of the vendor remains as between him and his vendee, or as between him and the attaching' creditors of the vendee, in the former. The plaintiffs never parted with their title in Massachusetts, and their vendee has not acquired any.

There has been no waiver, nor is there any proof tending to show a waiver on the part of the plaintiffs, of any of their legal rights. On the contrary, they have been vigilant in their enforcement. The fact that the goods were actually forwarded to the purchaser before a compliance with the terms of sale is not necessarily a waiver of the conditions of sale. Farlow v. Ellis . Whether a delivery under an agreement for the sale of chattels is absolute or conditional, depends upon the intent of the parties; to establish that the delivery was conditional, it is not necessary that the vendor should declare the conditions in express terms, at the time of delivery. It is sufficient, if the intent of the parties can be inferred from their acts or the circumstances of the case. Hammett v. Linneman, 48 N. Y. 399 .

The defendant having wrongfully interfered with the property of the plaintiffs, is liable in tort for such interference without de mand.

Judgment for plaintiffs, and one cent damage.

Kent, Walton, Dickerson, and Daneorth, JJ., concurred.