
    Edwin W. Adams and J. Oswald Jimenis, Respondents, v. Roscoe Lumber Company, Appellant.
    
      Sales — condition precedent of the giving of a note—if it be not given the title does not pass—waiver of the condition.
    
    Where the vendor sells goods upon the condition that the vendee shall give his note for the purchase price, and the vendee fails to do so, the title to the goods does not pass to the vendee, nor can he transfer the goods to a third person and defeat the title of the vendor.
    Where the vendee has thus promised to give a note for the purchase price of the goods, the fact that the vendor was willing to wait a few days for the note' to be given, until the return of a particular person who had charge of the matter for the purchaser, is not a waiver of the condition, where it appeared that the vendor would not have waited at all if he had supposed that the vendee was disposed to withhold the note absolutely.
    Appeal by the defendant, the Roscoe, Lumber Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 21st day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Queens County Circuit.
    
      George W. Stephens, for the appellant.
    ■ Robert H. Wilson, for the respondents.,
   Willard Bartlett, J.:

The plaintiffs agreed to sell a lot of lumber to J ames Mackintosh and he agreed to pay therefor by giving thém his note at sixty days from the date of delivery. The lumber was delivered but the note was not given. The lumber was soon afterward transferred by Mr. Mackintosh to the Roscoe Lumber Company. The plaintiffs thereupon brought this replevin suit against, the . corporation, on the ground that inasmuch as the delivery to the original purchaser was conditional upon his giving the promised note, his failure to comply with that condition left the title to the lumber still in them.

The record leaves no doubt that the claim of the plaintiffs that the ■ delivery was conditional is correct. The letter which states the terms of the contract was put in evidence, and it was admitted upon the trial that the lumber in controversy was sold upon the conditians stated in that letter, and • that the plaintiffs were to receive a. notp for sixty days.'

Nothing was really litigated except the question whether the-plaintiffs had not waived the condition by failing to insist upon th'e immediate giving of the note.

About the time that the delivery of the lumber was completed the plaintiffs addressed a letter to Mr. Mackintosh, asking him to send them his note, in accordance with the terms of sale. Three or four days later their representative called at his place of business and asked for the note, but was told that he would. have to see Mr. Chapman about it. Mr. Chapman was connected with Mr. Mackintosh in business but was absent. The plaintiffs’ agent called again, about two days subsequently, and was told substantially the same thing. On a third visit, the next day, he learned that the business-had become that of the Roscoe Lumber Company, which declined to have anything .to do with the settlement of Mr. Mackintosh’s accounts.

The testimony upon which the defendant relies as conclusively establishing a waiver was given by the plaintiffs’ agent on cross-examination in reference to his second effort to get the note. That testimony was as follows: “ Q. You-didn’t demand the return of the lumber that day ? A. No, sir. Q. And you had no intention of demanding the return of the lumber if you didn’t get a note that day, did you ? A. I didn’t consider the situation in that aspect at all. Q. You were perfectly willing to wait then another day for the note, were you not ? A. Yes. Q. And you would have kept on waiting until it suited the, convenience of Mr. Mackintosh. to give you a note if it had not been for the fact that you found that the Roscoe Lumber Company had become the owner of the yard. Isn't that the fact? A. No, sir; I would not. Q. How long would you have waited ? A. Not over a few days more. - Q. But you were willing to wait a few days more ? A. Yes.”

Do these answers necessarily manifest an intention on the part of the witness acting for the plaintiffs to waive the condition in their behalf ? I thjnk not. The most that can fairly be said, it seems tome, is that they constitute evidence on the question of the alleged waiver, to be considered with, such other evidence as there is in the case bearing upon that subject. It might very well be that the witness was willing to wait a few days for the note, until the return of the particular person who had charge of the matter for the purchaser, wnile he would not have consented to wait at all if anything had occurred to suggest a disposition to withhold the note absolutely.

"When the proof was all in the question was what inference ought to be drawn from the facts so far as the alleged waiver was concerned. This question the trial judge was called upon to determine, as both parties, by requesting the direction of a verdict, had consented that it should be withdrawn from the jury. I think that the trial judge decided it correctly.

No harm could possibly have been done to the defendant by receiving in evidence its annual report.

The judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  