
    The Empire State Type Foundry Company, App’lt, v. Hugh J. Grant, Sheriff, etc., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 26, 1889.)
    
    1. Sales—When title does not pass until payment made.
    Where a sale of personal property is made upon condition that the stipulated price shall be paid upon delivery, title does not pass until payment made, unless the vendor waive the condition. Delivery and payment are simultaneous acts, and although the articles may have been actually delivered into the hands of the vendee, the delivery is held to he conditional and not absolute.
    :2. Same—When intent of parties governs.
    Where the agreement does not expressly provide that payment shall be made upon delivery, nor that payment and delivery shall not be concurrent, the rule is that the intent of the parties must control.
    3. Same—Question of intent one of fact.
    The question of intent is one of fact not of law. It is for the jury, not the court, to pass upon.
    4. Same—Vendor cannot recover back for partial payments made or
    FAILURE OF VENDEE TO PERFORM.
    Where a vendor of chattels, when the 'period of performance arrives is ready and offers to perform his part, and the purchaser neglects or refuses to perform for any reason, he cannot recover back the partial payments he has made.
    Appeal from a judgment of the general term of the •supreme court, first department, affirming a judgment dismissing the complaint.
    
      George W. Stevens, for app’lt; W. Bourke Cockran, for resp’t.
    
      
       Reversing 9 N. Y. State Rep., 141.
    
   Parker, J.

—In March, 1886, the plaintiff, by its president, agreed to sell to one Guy Tremelling two printing presses, with the necessary shafting, together with a quantity of type and other printers’ supplies, for the sum of $1,100.95, payment to be made as follows: $500 to be paid in cash, and a chattel mortgage, embracing all the property sold, to be given by Tremelling for the balance. The plaintiff at once commenced to put up the shafting, set the presses and deliver the type and other materials. When the work was about half done, the clerk of the plaintiff was •sent to Tremelling to collect the cash agreed to be paid. Tremelling paid $250, and the plaintiff went on with the •work of putting the presses in working, order, transferring the type and other materials, in which work the plaintiff was engaged between fifteen and sixteen days. Immediately after the materials had been put in and work completed, the president of the plaintiff went to the office of Tremelling to receive the payment agreed upon, and there ■learned that Tremelling had absconded. On the same day. or the day following, the defendant, as sheriff of the city and county of New York, under and by virtue of a warrant •of attachment, regularly issued against the property of Tremelling, levied upon the effects in question. The plaintiff thereupon commenced this action to recover possession of the property. At the close of the plaintiff’s case, the defendant moved the court to direct a verdict for the defendant. The plaintiff asked that the case be submitted to the jury. The court denied the plaintiff’s request, and ■directed a verdict for the defendant, the plaintiff duly ■excepting.

We think that the facts proven did not warrant the trial court in holding, as a matter of law, that the title to the-property had passed from plaintiff to Tremelling, and, therefore, the disposition made of the case was error. It is, too well settled to require the citation of authority, that, where a sale of personal property is made upon the condition that the stipulated price shall be paid upon delivery, title does not pass until payment made, unless the vendor* waive the condition.

Under such a contract, delivery and payment are simultaneous or concurrent acts by the seller and buyer, and although the articles may have been actually delivered into-the possession of the vendee, the delivery is held to be conditional and not absolute, provided the vendor has not, by subsequent act, waived the condition of payment. If then-the agreement between the plaintiff and Tremelling had provided in express terms that payment be made on delivery (no proof having been offered tending to show a. subsequent waiver of such condition) it would have been the duty of the court to hold as a matter of law that the title to the chattels still remained in the plaintiff.

The agreement, however, did not provide in express; terms that payment should be made on delivery. Neither did it provide that payment and delivery should not be-concurrent. The rule in such case is that the intent of the-parties must control. If it can be inferred from the acts of the parties and the circumstances surrounding the transaction that it was the intent that delivery and payment, should be concurrent acts, the title will be deemed to have-remained in the vendor until the condition of payment is-complied with. Benj. on Sales (Am. ed.), § 330, and notes; Leven v. Smith, 1 Denio, 571; Hammet v. Linneman, 48 N. Y., 399; Smith v. Lynes, 5 id., 41; Parker v. Baxter, 86 id., 586; Russell v. Minor, 22 Wend., 659.

The question of intent is one of fact, not of law. It is-for the jury, not the court, to pass upon. Hall v. Stevens, 40 Hun, 578; Hammet v. Linneman, 48 N. Y., 399.

It appears that the defendant stipulated to pay for thorn ateríais sold $500 in cash and give a chattel mortgage on-all of the property for the balance; that while the materials, were being delivered, the plaintiff demanded and received $250 on account of the cash payment; that immediately after the plaintiff had performed his part of the contract,, its president went to Tremelling’s office to receive payment,, and found that he had absconded, and' that the next day the plaintiff’s president asserted to the attaching creditor that he had not parted with the .possession of the goods.

These facts, together with all the circumstances surrounding the transaction, under the authorities cited, should have-been submitted to the jury, under proper instructions, to> enable them to determine whether the title passed to Tremelling or remained in the plaintiff. It is suggested, in. one of the opinions in the court below, that Tremelling had. acquired an interest to the extent of $250 in the property which was subject to sale under the attachment. We _ do-no t concur in that view. If it be determined that the title-to the property remains in the plaintiff, the case falls-within the established rule that where a vendor of chattels, when the period of performance arrives, is ready and offers-to perform on his part, and the purchaser reglects and refuses to perform, for any reason, he cannot recover back the partial payments he has made. Monroe v. Reynolds & Upton, 47 Barb., 574; Humeston v. Cherry, 23 Hun, 141.

The judgment of the general term the should be reversed and a new trial ordered, costs to abide-the event.  