
    John Ingersoll vs. James B. Kendall, use of Marion Gilmore.
    A contract for sale and purchase, is an agreement for the conveyance of property from one to another, in consideration of a payment made or intended to he made; where such a contract for a specific commodity in esse, and susceptible of an immediate delivery is made, the property is immediately changed, though no delivery has taken place.
    It is not the delivery or tender of the property, nor payment or tender of payment of the purchase-money, which constitutes the sale; that is complete so soon as the parties have agreed on the terms; that is, so soon as the vendee says, “ I will give the price demanded,” and the vendor says, I will take it,” the rights of both parties are instantly-fixed.
    Where the purchaser of three jennets executed his note for the purchase-money, but left the animals in the possession of the vendor until after the dishonor of the note, the latter had the right to hold on to them until the payment of the note; nor was he bound to deliver or offer to deliver them to the vendee before he would enforce payment by suit of the note.
    The 17th sect. ch. 3, 29 Charles 2, which makes the delivery of personal property essential to complete the contract for its sale, has never been enacted in this state, and is therefore not in force here; the rule of the common law which completed the sale as soon as the terms were agreed on, without respect to the delivery, prevails here.
    In error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge. .
    James B. Kendall, for the use of Marion Gilmore, sued John Ingersoll upon his note, payable to Kendall, for $300. The evidence in the case is sufficiently set out in the opinion. The court below gave for plaintiff these instructions. 1. If the jury believe from the evidence that Kendall purchased for the defendant, and at his request, three jennets, and gave his note for the same, and that the defendant afterwards gave the note sued on to take up, or as a substitute for the note of Kendall; and if they believe that Kendall, at the request of defendant, left said jennets on the plantation of Gilmore, there to remain for him, defendant, to be put to the jack, and to be kept for him, defendant, on said farm, free of charge, and that said defendant was to send for them himself, and that it was no part of the contract that Gilmore should send them to defendant; then no other delivery was necessary to render defendant liable on said note, and the law is for plaintiff.
    2. That if the note sued on was given for three jennets, and if the jury believe it was not paid at maturity, then the defendant had no right to the possession of the jennets after that time, without first paying or tendering the price; and that unless they believe the defendant has since tendered the payment of the note, and demanded possession, the law is for the plaintiff, and they must so find. The defendant asked, and the court refused, these instructions,, viz.
    
      1st. If the jury believe from the testimony, that the note sued on was given by said defendant to Kendall for three jennets, designed to be sold by Kendall to Ingersoll, and that defendant never had, and has not now, said jennets, the law is for the defendant, and they will find accordingly.
    2d. If the jury believe from the testimony, that said jennets were on Gilmore’s place at the time of the sale, and have so continued, they have a right, in the absence of other proof, to infer that there has been no delivery.
    3d. That an authority to purchase jennets does not vest in the agent an authority to take possession of the same, and immediately return the possession to the vendor.
    4th. No subsequent acknowledgment or promise to pay the notes made by defendant, by letter or otherwise, without a new consideration, would alter or enlarge the liability of defendant upon the note.
    5th. If the jury believe from the testimony, that Ingersoll’s instructions to Kendall were to let the jennets remain on Gilmore’s plantation free of charge to him, and the said jennets did so remain without being removed therefrom, there is no delivery in law.
    The jury found for plaintiff; and his motion for a new trial being overruled, the defendant sued out this writ of error.
    
      N. G. and & E. Nye, for plaintiff in error.
    In a sale of personal property, a delivery is as essential as a deed in the conveyance of real, and a note given in either case in the absence of either, is without consideration, and void. In this case there was no binding contract; for there was, 1st. No agreement for delivery at a day certain.; 2d. All or part of the money was not paid in hand; 3d. No earnest money was given ; 4th. The articles sold did not pass into the possession of the vendee. Chitty on Contracts, 374; Carters. Tonis sant, 5 Barn. & Aid. 855; Tempest v. Fitzgerald, 3 lb. 680.
    
      R. S. Holt, for defendant in error.
    1. If there was no contract or stipulation as to the delivery of the jennets, the seller was in law bound only to deliver them at the place where they were at the time of sale. Story on Sales, $ 391. And he was only bound to deliver them there, on demand made by the purchaser. Ib. § 301, 388.
    2. No delivery was .necessary to vest the title to the jennets in the purchaser, or enable the vendor to recover the price. Story on Sales, § 300, 301.
    3. If the jennets remained in the possession of the seller until the expiration of the credit given, the seller was not, after that time, bound in law to deliver them to the purchaser, even if they had been demanded, until the payment of the price. Story on Sales, § 285.
    4. The jennets were in fact delivered to Kendall, the agent of the defendant, by whom the purchase was made. This is necessarily implied in the statement of Kendall, that he allowed them to remain in the possession of Gilmore, at -the request of Ingersoll and for his purpose. The letter of the defendant, also, assumes as a known fact, and consequently admits, that the jennets were in the possession and under the control of Kendall for him.
    5. If there was in fact no formal delivery of the jennets,, there being left by the purchaser on the premises of the seller, with him, for the purposes of the purchaser, amounted in law to a waiver on his part of his right to such formal delivery.
    6. The first instruction asked by defendant, ■was. correctly refused, for two reasons. 1st. It assumes that the jennets were bought by Kendall on his own account, and by him sold to Ingersoll, of which there is not the slightest proof; 2d. It assumes that on a sale of chattels on a credit, the seller must, even after the expiration of the credit, prove an actual delivery of the goods to the purchaser before he can recover the price.
    The other instructions asked for by defendant, all in like manner embody principles and propositions of law which foregoing authorities show most clearly are not sound; they were for this .reason properly refused.
   Mr. Justice Smith

delivered the opinion of the court.

This was a suit brought in the circuit court of Yazoo, to recover the money due on a promissory note made by the plaintiff in error. The consideration of the note was three jenne'ts, which had been purchased in the state of Maryland, by Kendall, the nominal plaintiff below, as the agent, and by the express request of Ingersoll. Ingersoll pleaded the general issue, and a special plea, setting up an entire failure of consideration. The trial below resulted in a verdict and judgment against him. The evidence adduced on the trial appears in the bill of exceptions taken to the refusal of the court to grant a new trial.

The evidence was sufficient to sustain the verdict, and unless the court erred in giving or refusing the instructions requested by the parties, it must stand.

A contract for sale and purchase is an agreement for the conveyance of property to another, in consideration of a payment actually paid or intended to be given. When such contract is made for a specific commodity in use, and susceptible of an immediate delivery, the property is changed immediately on making the bargain. 15 Peters, 315; 2 Johns. 14; Shep. Touch. 224; 2 Com. Cont. 230.

It is not the delivery or the tender of the property, nor the payment, or the tender of payment, of the purchase-money, which constitutes the sale. The sale is complete so soon as the parties have agreed on the terms. That is, so soon as the vendee says, “I will give the price demanded,” and the vendor says, 111 will take it,” the rights of both parties are instantly fixed. Potter v. Coward, Meigs, Rep. 26.

The evidence was to the effect, that Kendall as the agent, and by the request of Ingersoll, purchased the jennets, for the price of which the note was given, of Gilmore in the state of Maryland; that they were running at large in his pasture; that no actual possession was taken of them, and that they were left in the possession and under the charge of Gilmore, by the direction and at the request of Ingersoll. That when the purchase was made, Kendall gave his own note for the purchase-money, which was afterwards substituted by the note of Ingersoll, on which this suit was brought. The jennets remained in the charge of Gilmore, and Ingersoll by letter acknowledged his liability to pay the note, and expressed a wish that Gilmore would make sale of them, and relieve him by that means from liability on the note.

By an application of the principles above stated to these facts, it is undeniable that the property in the jennets vested in Ingersoll. Hence the substituted note was based on a valuable consideration, and therefore obligatory on him. The first instruction, given at the instance of the plaintiff, lays down the law applicable to the facts of the case, in accordance with these views.

The second charge given for plaintiff was correct. The vendor’s lien which was suspended during the credit, was revived upon the maturity of the note and its nonpayment. The jennets remained in the possession of Gilmore, after the dishonor of the note. Ingersoll had no right to require possession unless payment, or an offer to pay were made, and the right of the holder of the note to sue was not dependent on a delivery or an offer to deliver. Story on Sales, § 285; Com. Con. 224. •

We will next examine the instructions requested by the defendant.

The first was, that if the jury believed from the evidence that the note sued on was given by defendant to Kendall, for three jennets designed to be sold by Kendall to Ingersoll, and that defendant never had, and has not now, possession of the same, they should find for the defendant.

The first part of the charge was irrelevant. There was no proof that the jennets were sold by Kendall to defendant. The evidence was clear and distinct that the purchase was made by the defendant through the agency of Kendall. The authorities above cited show that the remainder of the charge was erroneous. Hence the refusal of the court to give this instruction was not erroneous.

The second charge was properly refused. A delivery was unnecessary to vest the property in the vendee. Story on Sales, 300, 301; Meigs, Rep. 26. An admission of the fact which the instruction states the jury had a right to infer, could not affect the right of the plaintiff to recover. The instruction was in reference to an immaterial fact.

The third and fourth instructions were irrelevant and immaterial, and therefore correctly refused.

The fifth and last instruction is based on the assumption, that a delivery is necessary to vest the purchaser of a chattel with the right of property therein. We have above seen that the title to a commodity passes to the vendee, so soon as the terms of the purchase and sale have been agreed on by the vendor and vendee. Hence that a delivery is not essential to complete the contract for the sale of goods and chattels. This'was the rule at common law. A different principle was established by the 17th sec. chap. 3, of the statute 29 Charles II; but the provisions of that section of the English statute of frauds was never adopted by the state of Mississippi. Hence the common law rule is in force here. The court did not err in refusing this instruction.

Let the judgment be affirmed.  