
    John W. Hawthorne vs. Thomas R. Bowman.
    1. Sale or Personalty. Condition precedent, where the parties to a contract for the sale of personal property, did not themselves consider the trade completed, it cannot he treated as complete by third persons. Thus, where in a contract for the sale of a steamboat, the terms of the sale having been agreed upon, it was stipulated between the parties that upon the production of a bill of sale by the vendor on a designated day, the cash payment was to be made, the notes executed and the trade closed, the title does not pass to the vendee so as to render the steamboat subject to his creditors until,these preliminaries are complied with.
    2. New Trial. Practice. Where it appeared that the jury returned into Court to seek an explanation of the testimony of a witness, who was thereupon interrogated by the Court in reference to matters about which he did not depose in his first examination, and no objection was made at the time, a new trial will not be granted.
    S. Same. Same. Parties are bound to give due attention to their cases in Court, and when they are reached under the rules of the Court, they must be present to try or continue as the Court may direct. So, a new trial will not be granted on the affidavit of a party that his leading counsel was absent, when the associate counsel was present, and no application was made at the timejnr a continuance on that ground.
    PROM SIIELBY.
    This action of replevin was brought by Bowman, against Hawthorne, in the Common Law Court of Memphis. The facts are sufficiently recited in the opinion of the Court. At the March Term, 1856, before Caruthers, J., there was verdict and judgment for the plaintiff. The defendant appealed in error.
    
      J. B. Thornton, for the plaintiff in error:
    For the appellant, the defendant below, ’I insist that this was a complete sale, and- divested Bowman of the title to the boat, and that he therefore cannot recover. — Potter vs. Coward, Meigs’ R., 22-26; Shaddon vs. Knott, 2 Swan, 358; Broyles vs. Loiurey, 2 Sneed’s Rep., 22.
    The witness proves that the levying of the execution induced the contracting parties to break off the contract by mutual consent. 'After the levy they could not dissolve the contract because the rights of third parties had intervened. — Story on Sales, § 419.
    But it is argued on the other side, that the sale was not complete, because a bill of sale was to be executed. I insist that this was no part of the contract, any more than the giving or not giving a receipt for the goods, by the carrier, in the case of Boyd vs. Mosely, in 2 Swan, 661, effected the question of delivery. It was upon this point, coupled with the misdirection of the Court in another, that the jury were led off.
    Under the charge of the Court, the jury eould not find for the defendant unless they believed the evidence established two points: First, that the title to the boat was in Mason, or Keesacker & Mason; and, second, tiiat the execution against Mason had been levied on the boat. This charge was erroneous. His Honor seemed to think that the question to be determined was, not whether the title was in the plaintiff, but whether it was so vested in Mason as to render it .a subject of levy to an execution against him. Now, if the title was not in the plaintiff he could not recover, no matter who else was invested with it. The jury might have well supposed they had no evidence of such a title in Mason, for the defence was not at all shaped to that point. Again: When the jury returned from their retirement, and asked to re-examine the witness, after one question asked by a juror, the Court concluded the examination, and went into a fresh examination. The witness was not asked what he had deposed, but was questioned anew as to the terms of the trade; but that was not all: The Court asked the witness if he understood the execution of the bill of sale for the boat, to be a part of the contract of sale? Now, that question was improper, and the answer of the witness was incompetent evidence, because it was evidently nothing but an expression of opinion by the witness as to what was necessary to pass a legal title to the boat. But the defendant could not object to it because it was the Court who conducted the examination. On the motion for a new trial, affidavits were filed, going to show that the defendant was surprised in the trial. Along with Massey’s affidavit, are the bill of sale from Bowman to Keesacker & Mason, and the enrolment of the boat; the former purporting to be in consummation of a contract entered into between the parties at St. Louis, on the 18th of February. But on the back of the enrolment we find an endorsement which shows that the notes for the purchase money bear date the 1th of February, which is the date of the sale at Memphis, which the plaintiff contends was never consummated. Again: Keesacker, the witness, says, that after the negotiation was broken off at Memphis, the boat was taken to St. Louis, and he followed on to that city, and bought the boat; yet the bill of sale shows that the boat was at Memphis when the bill was drawn. The inference is obvious that the contract was consummated in Memphis, and that all that was done to avoid it was a bungling pretence to defraud the defendant of the benefit of' his levy. This evidence, and much else of a similar tendency, were not submitted to the jury for reasons stated in the affidavits.
    The question of granting a new trial on the ground presented in these affidavits, addresses itself to the discretion of the Court. What is meant by the discretion of the Court? Is it an arbitrary discretion beyond the supervision of this Court, or is it a sound discretion, to be exercised ex debito justicia ? I say, the latter. The cases in which this Court has refused such application, are those where the party or the counsel managing the trial could have continued it, but did not. But here the real party was not present, and the counsel conducting the trial was precluded from offering an affidavit under the inflexible rules of the Court — one of which is, that the necessary absence of one of a legal firm who is in charge of a case, others of the firm being in attendance, will not be heard as a ground of continuance; another is, that the absence of subpoenaed witnesses will not be heard, unless upon the affidavit of the counsel' present, of the materiality of the derelict witness. This, the counsel in this case could not do, because he was wholly ignorant of the merits of the case, and of the knowledge of the absent witnesses. The cases of 
      Potter vs. Coward, above cited from Meigs’ Rep., 22, presents a very similar question on this point, and is relied on as favoring the application.
    ■Further, as to a new trial: Here is no evidence to sustain the verdict, and there is no contrariety of evidence on the issue in the case. — Nailing, Ex’r, vs. Nailing, 2 Sneed, 631. The only witness examined is introduced by the plaintiff, and the verdict and judgment are for the plaintiff. It is then like a special verdict. The Court must apply the law to the facts found, which are in this case, the statements of the witness. The whole effect of the verdict is to establish the truth of the witness’ statements.
    W. T. Brown -and W- 'Coleman, for the defendant in -error :
    1. When the right to receive payment before delivery, is waived by the seller, and immediate possession given to the purchaser, and yet, by express agreement, the .title is to remain in -the seller until the payment of the price upon a fixed day, such payment •is strictly a condition precedent, and until performance, the right of property is not vested in the purchaser. — 1 Parsons on Cont., 449..
    2. If the seller part with goods upon condition that the purchaser shall furnish him with certain securities, or if goods sold for cash are delivered before the price is paid, the delivery is conditional — and until the condition is performed the vendee holds the goods in trust for the vendee, against all persons except a bona fide purchaser without notice. — Story on Sales, p. 253; 2 Hall’s N. Y. R., 345 ; 16 Pick., 32; 7 Wend., 404; 8 N. Hamp., 325.
    3. And generally, whenever in a contract of sale, it is stated that some precise fact is to be done by either party, this may amount to a condition, though not so expressed. — 1 Parsons on Cont., 449; 12 New Hamp. R., 299; Meigs’ R., 281; 8 Vent., 151; 2 Pick. R., 512; 12 Iredl. Law R., 268; 11 Humph. R., 50; 32 Maine R., 164; 2 Sneed R., 22.
    4. It is always a question of fact for a jury, whether a sale has been completed or not. — 1 Parsons on Cont., 441 ; 13 John’s R., 294.
   Caeuthers, J.,

delivered the opinion of the Court.

The question in this case, is, whether the contract for the sale of the steamboat, “ St. Francis,” by the defendant in error to Keesacker & Mason, was so complete as to pass the title. The plaintiff in error is a constable, who levied an execution in favor of Kay, upon said boat, and is sued in this action of replevin for the boat. The case turns upon the legal effect of what transpired between the contracting parties in relation to the trade. Keesacker entered into the negotiation for the purchase of the boat with R. B. Hawley, who was the agent of Bowman, the owner. They had agreed upon the terms of the purchase, which were, that they were to pay two thousand dollars in cash, and the balance in six and twelve months, for which their notes were to be executed, and a bill of sale made for the boat by the next Monday 'or Tuesday. The parties met again at the time appointed, and the bill of sale did not suit the purchasers and they refused to receive it, when the parties again separated with the understanding that another bill of sale, more correct, was to be prepared. Although there was no express stipulation to that effect, yet it seems to have been the understanding of both parties, that the one was to make an acceptable bill of sale before the other was bound to pay the money and execute the notes.

Keesacker was the contracting party, but Mason had agreed to be his partner in the purchase. When the terms were agreed upon, but before they were executed, as above stated, Keesacker had, by permission, of Hawley, gone upon the boat for the . purpose of expediting the preparation for the first trip to be made with her. Before the bill of sale was delivered, or the cash paid, the levy of the execution in favor of Kay vs. Mason, was made by the plaintiff in error. This broke off the trade, and both parties declined to go on with it.

This statement of facts shows, that the case must turn upon the validity of the sale, or rather, whether the contract was. so completed as to vest the title to the boat unconditionally in Keesacker & Mason, so as io be liable to the creditors of the latter?

What is necessary to make a sale complete, is a question of law, but whether the necessary facts exist or not, is for the jury to determine. If the parties did not themselves understand the trade to be completed, but that some other material thing was to be done before the rights of either could be changed, it could not be so treated by others. It is very clear in this case that the purchasers did not intend finally to close the contract until the bill of sale was correctly made cut and delivered. This seems to have been regarded on both sides as 'a condition precedent to the obligation to pay the money, or rather, it was made an essential matter in the contract, without which it was not to bind the purchasers to take or to pay. The effect of this fact does not depend upon whether a bill of sale was necessary to pass title to the property. The parties would have a right to make it a condition whether it was essential in law or not. Parties have a right to make their own terms in dealing about their property.

But it would not by any means follow, that because the parties had become bound and liable to each other as upon a contract of sale, that creditors of the vendees could seize the property and appropriate it to their debts in defiance of the contracting parties. If a seller part with goods, and by agreement is to retain the title until the price is paid, they cannot be taken by creditors of the vendee, nor can they be so taken against his right if he part with the ‘goods upon the condition that certain securities are to be furnished, or money paid before the right is passed to the vendees. In the casp before us, it cannot be understood from the facts proved, that either party considered the trade as consummated so as to change the right of property, and put it beyond the control of the parties until the bill of sale had been made, the money paid, and the notes executed. These were things to be done before either party regarded the sale as' complete, or the title to the property changed. These questions were left to the jury upon a proper charge, and they have found correctly upon the proof-

2. After the jury had retired with the case, they returned into Court upon some misunderstanding as to-the testimony of a witness, and in the examination of the witness before the jury, the Court interrogated him as to points not embraced in his previous examination.To this there was no objection at the time, and it cannot now be made the ground of error.

3. After the verdict, application was made for a new trial upon sundry affidavits, showing, that Kay, the-judgment creditor of Mason, had employed Mr. Massey, of the firm of Thornton & Massey, to attend to the case, and had put him in possession of the facts of the case, and looked alone to him to manage the defence; that he was necessarily absent at the time the case came on for trial, and that Col. Thornton, without any knowledge of the case or the party, was bound to manage the defence; and that although he, Kay, was in the city and had witnesses under subpasna, yet, not knowing when the case came up for trial, he was-not present,, and his witnesses did not appear. The grounds laid are entirely insufficient to authorize a new trial. Parties are bound to give due attention to their cases, and when they are reached under the rules of the Court, they must be there and try or continue as the Court may order. There was no application to continue on account of the absence of Mr. Massey, or for the non-attendance of witnesses; and if such application had been made we are not prepared to say that the ground would have been sufficient, as one member of the firm was present. This would depend 'apon the discretion of tbe Court in view of the rules of practice. We do not see in this case, however, that the merits of the ease could have been changed 'by any thing that is stated in the .affidavits.

There is no error in the record., -and the judgment mil be affirmed.  