
    Benjamin Leedom and Joseph Leedom against Jonas Phillips.
    On a contract of sale of goods, the property is immediately divested out of the vendor unless it be otherwise agreed; and even then the vendor may by his conduct renounce the benefit of the conditions stipulated.
    Replevin for 7 boxes of Havana sugar of the value of 114I. 16s. rod. Plea, property in the defendant.
    It appeared in evidence, that the plaintiffs contracted with one Samuel Edwards to sell and deliver to him these sugars, on the 4th August 1794. The porter was directed by the plaintiffs, to place the boxes on the pavement before Edwards’s store, and to give them notice, when he was about to remove the last parcel. This was done accordingly, and the articles were carried from the plaintiff’s store, on the morning of the next day, about nine o’clock, and one of the plaintiffs went with the last load and bill to receive the money, Edwards was not at home, and the party returned to his house, leaving the boxes before the store door. About 3 o’clock in the afternoon of the same day, the sugars were sold by Edwards to the defendant, and removed to his store. Within two hours afterwards, Edwards failed. On the morning of the same day, Edwards was observed in tears, conversing with the defendant, near Callowhill market. The plaintiffs on the 30th September following, gave a letter of licence to Edwards with his other creditors, and Edwards in the month of April in the succeeding year, in conversation, did not deny that he was to pay for the sugar on its delivery.
    The defendant shewed a bill of parcels for the sugar from the plaintiffs to Edwards dated the 4th August, which he insisted on having received from the latter when he made the purchase, and two receipts of the plaintiffs to Edwards, the one for 5,000 dollars in his notes dated 12th March 1794, and the other for 2,000 dollars in his notes likewise, dated the succeeding day.
    The waste-book and ledger of the plaintiffs were submitted to the inspection of the jury, but erasures had been made in both, altering the charges from the 4th to the 5th August. It also appeared thereby, that merchandizes to a considerable amount were charged against Edwards on the 14th and 30th days of July preceding, and no entries of cash paid thereon.
    * Messrs. Ingersoll and Wells for the plaintiffs
    con- [-*590 tended, that it appeared from the circumstances of the *- case, that the contract for sale of the goods was for ready money to be paid by Edwards, and that the depositing them on his pavement was no complete delivery. The bargain was conditional, and depended on the receipt of the cash — so was the delivery. The plaintiffs have done nothing in renunciation of their right of immediate payment. Where goods are sold for ready money, the property is not altered unless the money be paid. 2 Pow. on Contracts, 63. 3 Salk. 61, 62. Bull. 50, (4to edit.) Gilb. Law Evid. 206, 207. Every species of delivery of goods will not alter the property. Cowp. 61, 62.
    A merchant consigns goods from abroad to one, who becomes insolvent. Consignor may stop the goods at any time after their arrival in port, before they get into the hands of the consignee. Ambl. 399.
    They also insisted, that there was reasonable ground to presume a collusion between the defendant and Edwards to defraud plaintiffs of their sugars. Fraud is a concealment of any thing material, which concerns the other party in interest. 2 Atky. 561. It will vitiate every contract; as in the instance of one buying goods with an intent to defraud an execution. 1 Burr. 474. A fraudulent bill of sale of goods by a bankrupt to a creditor in order to keep up his sinking credit, to prefer one and .to cheat others, is void. 4 Burr. 2477.
    Messrs. Moses, Levy and J. B. M’Kean for the defendant
    urged, that here was a complete delivery of the goods with the assent of the vendee, which changed the property. It does not appear that the contract was for ready money. It is obvious from the books produced, that the usual course of the plaintiff’s dealings with Edwards was not for cash, and here the plaintiffs have delivered him a bill of parcels on the sale of the sugar. All the cases shew, that a delivery of the goods divests the property.
    Eraud is not to be presumed; and the slight ground to suspect one in this instance, is, that the defendant conversed with Edwards in the public street, on the morning of his failure, and Edwards appeared in distress.
   The court in their charge to the jury said, that two facts presented themselves to their consideration, ist, Whether the goods were sold for cash to be paid on the delivery; and if so, 3d, whether the plaintiffs by their conduct, had waved the condition of the immediate receipt of the money.

On the first point, the jury were in possession of all the *5291 facts> * the bih °f parcels, and the books of the plain- -* tiffs, and could form their judgment on the whole collective evidence.

The second point occurs, supposing the agreement to have been for ready money. It appears that the boxes were placed before Edwards’s door, and continued there six hours before they were removed. If the delivery on the pavement was intended as merely conditional, and to depend on an actual payment of the money, the porter should have been informed of it, and he or some one else should have retained the custody of the sugar, that Edwards might thereby be informed of the only terms on which he could receive the possession. This would have qualified and restrained the legal operation of the delivery, and no inconvenience could arise to a fair purchaser who had paid his money for property in the visible possession of Edwards. A delivery may be made in a.very slight manner, as where one buys goods in a room, the receipt of the key is sufficient.. The change of property depends on the assent of the owner, and the right of the vendor is divested immediately after the contract of sale is made in favour of the vendee, unless it be otherwise agreed. 3 Pow. Contr. 63. When the parties specially agree, it is obvious that the vendor may, by his contract, renounce the benefit of the conditions stipulated, and trust to the good faith of the vendee for a future performance on his part. If one sells goods for cash, and the vendee takes them away without payment of the money, the vendor should immediately reclaim them by pursuing the party, and he may justify the retaking of them by force.

If the minds of the jury are satisfied that there was collusion between the defendant and Edwards, it will vary the case, since fraud will vitiate every contract. But there must be more than suspicion to warrant such an inference. If the sale of the sugar to the defendant was bona fide, it ought to prevail. The plaintiffs should suffer by their' own remissness, and not an innocent purchaser.

Verdict for the defendant.

Cited and approved in 13 Pa., 149, where it was decided that though the terms of a sale be cash, a subsequent delivery, without payment, passes the property to the vendee, not only as against all the rest of mankind, but against the vendor himself.

Cited in 85 Pa., 163 ; 5 W. N. C., 376, in support of the proposition that if on a sale for cash, the vendee takes the goods away without payment of the money, the vendor should immediately reclaim them by pursuing the party and retaking them, and this may be done when necessary, even by force.  