
    Neal, Morse & Co. v. Boggan.
    
      Detinue to Reclaim Goods Sold.
    
    1 Waiver of right to reclaim goods sold on agreement to pay part cash. Where goods are sold on an agreement to pay two-thirds cash, and three several shipments of the same are made on different dates, the seller having knowledge that the goods are purchased for sale in the regular course of business, and without demanding a return of the goods, the seller waits fifteen days after the last shipment and then agrees to accept the b'uyers notes for the price, he has waived his right to reclaim the goods.
    Appeal from Birmingham City Court.
    Tried before Hon. W. W. Wilkerson.
    Mount,toy & Tomlinson, for appellants,
    cited IBenj. Sales, 425; Shines v. Steiner, 76 Alá. 488; Harmon v. Goetter, 87 Ala. 325 ; Hirschon v. Caney, 98 Mass. 149; Stone v. Perry, 69 Me. 48 ; Seed v. Lord', 66 Me. 580; Hemmett v. Linneman, 49 N. Y., 399; Russell v. Minor, 22 Wendell, 659.
    Lea & Greene, contra.
    
    No brief on file.
   McCLELLAN, J.

— Where personalty is sold for cash on delivery, or to be partly paid in money on delivery, or to be paid for in whole or in part with promissory notes, and the like, on delivery, the payment stipulated for, is a condition precedent to the passing of title, into the buyer, and unless it is complied with the seller may reclaim the property. 1 Benj. on Sales (Bev. Ed.) §§ 335-350; Shines v. Steiner, 76 Ala. 458; Harmon v. Goetter, Weil & Co., 87 Ala. 325.

But even in such case if delivery is made to the purchaser without presently demanding the payment thereon required by the contract, the condition precedent is waived and the title, passes. — 1 Benj. on Sales, §§ 351-356; Blackshear v. Burke, 74 Ala. 239. Thus in Ludom v. Phillips, 1 Yeates, 527, the seller of a lot of sugar for cash on delivery left it in front of the buyer’s store m his absence. On the same day the buyer sold it, and, two hours later, failed. It was ruled in replevin by tbe seller against tbe sub-purchaser tbat tbe condition bad been waived and title had passed to tbe buyer. Tbe court said: “If one sells goods for cash, and tbe vendee takes them away without payment of the money, tbe vendor should immediately reclaim them by pursuing tbe party.” So in Bowen v. Burke, 13 Pa. 146, it is said: “By an unqualified delivery, notwithstanding a cash sale, tbe seller relinquishes tbe advantage of possession and trusts to bis action on tbe contract.” In Mackaness v. Long, 85 Pa. 158, it is said: “Although tbe terms of a sale be cash, subsequent delivery without payment passes tbe property to tbe vendee, not only as against tbe rest of mankind, but against tbe vendor himself. If tbe vendee takes tbe goods away without payment, tbe vendor should immediately reclaim them by pursuing tbe party and retaking them, and this may be done, when necessary, even by force.. Tbe right of reclamation, after delivery, exists only in cases of fraud or deceit in tbe purchase, or in procuring tbe possession.” And so on a sale of sugar to be paid for at delivery by note with certain endorsers, there was delivery without presently requiring tbe execution of tbe notes. Tbe sugar was attached at tbe suit of a creditor of tbe buyer, and replevied by tbe seller. Tbe jury found for plaintiff, but tbe court, assuming tbat tbe sale was conditional, set tbe verdict aside on tbe ground tbat tbe condition bad been waived, saying: “We are of opinion tbat tbe verdict is against tbe evidence, for there is nothing in tbe case from which an intention to bold on upon tbe condition, can be inferred; no declaration at tbe time, which, though not necessary, is important, and no call for security until it was forgotten or abandoned, and perhaps never would have been recurred to if the goods bad not been attached.” — Smith v. Demise, 6 Pick. 262. Following this case, it was declared in Smith v. Dynes, 5 N. Y. 41, that “where there is a condition precedent attached to a contract for sale and delivery, tbe title does not vest in tbe vendee on delivery until be performs tbe condition, or tbe seller waives it. An absolute and unconditional delivery is regarded as a waiver of tbe condition.” And to tbe same effect are tbe following cases, collated in Benjamin on Sales: Husted v. Ingraham, 75 N. Y. 251; Parker v. Baxter, 86 N. Y. 586; Worder v. Hoover, 51 Iowa, 491; Haskins v. Warren, 115 Mass. 514; Cole v. Berry, 42 N. J. L. 408; Freeman, v. Nichols, 130 Mass. 250; Thompson v. Wedge, 50 Wis. 642; and this doctrine has been announced for this court by Briekell, C. J. in tbe following language : “ • • • Tbe title vested in tbe purchaser, and from the moment of delivery of possession, the relation of buyer and seller was changed into that of debtor and creditor. This' is true, even where there is a sale of goods for cash; if the seller, without demanding the purchase-money, not being induced by the fraud of the buyer, delivers the goods to him unconditionally, the title vests in the buyer and he becomes the absolute owner.” — Blackshear v. Burke, 74 Ala. 239, 242.

The evidence upon which the judge of the City Court tried this case brings it, in our opinion, clearly within this doctrine of waiver. There was a sale of a number of pieces of cloth at so much per yard for each piece. The terms of sale were two-thirds cash on delivery with a deduction of 7 per cent, off face of bill as to that part of the price, balance at 30 days with 6 per cent, off, or 60 days with 5 per cent, off, or four months net. We will concede for the argument that this was a sale for cash in part on delivery though the discount stipulated for gives plausibility to the idea that the buyer had the opinion either to pay on delivery and thereby get the benefit of the discount or to pay the whole face of the bill at four months. A part of the goods was shipped from Boston to the buyer at Birmingham, Ala., Sept. 4th, another part Sept. 18th, and the remainder October 5th, 1888; and the several consignments, we assume were received respectively soon after these dates. Each lot was accompanied by a bill showing the amount due therefor and stating the terms of sale as above. This was the only demand for payment made at the time of delivery, or indeed at all. Nothing was ever said about the-title not passing or the goods not being used until the cash payment was made. The sellers were informed that the goods were wanted by the buyers to constitute the stock in trade of a merchant tailoring business which they were about to establish. They must have known that the goods were put into this business as soon as the shipments were severally received. And on October 10th they were expressly informed that the business had been opened previously to that time, the buyers on that date writing them: “Since we opened we have been doing a splendid business, and prospects are very good for a continuance of it.” In this letter they asked for more time to pay the cash instalment and offered to give solvent acceptance to secure payment. The sellers waited fifteen days, during all which time the business was going on and the goods sold by them were being sold, as they had good reason to believe, before replying to this letter, and then wrote that they would accept the paper proposed by the buyer in payment, and upon its delivery to them would receipt the bill for the goods. It does not appear whether the bills of lading were taken in the names of sellers or buyers ; but in view of the fact that the goods were delivered by the carrier to the buyers before any payment was made, the inference is a fair one that the bills were taken either in their names as consignee, or unconditionally endorsed to them. There can, in our opinion, be no room for serious doubt on these facts that the actual delivery to the buyers was unconditional as to each consignment, for it is clear, we think, that the cash payment stipulated for, was due on each lot as received (this case being wholly unlike that relied on by appellants — Russell v. Minor, 22 Wend. 259, where a delivery of a portion of the property sold was made to the purchaser under an agreement that the whole quantity should be paid for on the delivery of the residue) and the failure of the sellers, with their knowledge that the goods were to be at once put in trade, to then insist upon payment or, payment not being presently made, to reclaim the goods, was waiver of their right to ever do so. But even if this be not true as to the consignments severally, they were similarly remiss after the final consignment and this too with actual information that the goods were being sold by their vendee. Wliat their purposes in the premises were it is not material to inquire further than they were declared at the time or may be inferred from' what they did. ‘ It is not the secret purpose,” said Colt, J. in Wigyon v. Bowley, 130 Mass. 252, “but the intention disclosed by the vendor’s acts and declaration at the time, which governs.” After knowledge of the disposition being-made of the goods by the buyers, and after being assured that the cash payment could not and would not be made, it would seem in all reason that if they had any intention to reclaim the property for condition broken — if they had not consciously waived the right to do so — they would then have taken steps to that end. But instead of this, they waited fifteen days without doing or saying anything, and then wrote accepting the buyer’s offer to secure the purchase-money by paper endorsed by certain named persons. From all this there can be no other conclusion than that reached by the city judge, that the seller’s original right of reclamation for non-payment on delivery was effectually waived. The judgment is affirmed.

Affirmed.  