
    Nathan Barrett Junior versus Gilman Pritchard.
    A delivered wool to B, taking this receipt, viz. “ Received &c. wool to manufacture into-cloth on the following conditions, viz., the wool is to be reckoned at 75 cents per pound, amounting &c., which amount I agree to pay in six months 5 the wool, before manufactured, after being manufactured, or in any stage of manufacturing, to be the property of said A, until the above amount is paid.” Held, that until such payment the property in the wool remained in A, as well’against B’s creditors, as against B himself.
    This was an action of trover for a quantity of wool. The trial was on the general issue.
    The wool was formerly the property of the plaintiff, and was delivered by him, at two different times, to Seth King, who carried on a manufactory of woollen cloths. The first parcel was delivered on the 9th of October, 1821, on the terms expressed in the following receipt, given by King to the plaintiff, viz. “ Received of Nathan Barrett junior 52 pounds of wool to manufacture into cloth on the following conditions, viz. the wool is to be reckoned at 75 cents per pound, amounting to 391 dollars, 12 cents, which amount I agree to pay in six months ; the wool, before manufactured, after being manufactured, or in any stage of manufacturing, to be the property of said Barrett, until the above amount is paid.” The other parcel was delivered on the 10th of June, 1822, on a similar agreement.
    It appeared that the wool received into the manufactory from different persons was usually kept separate, one parcel from another, during the process of manufacturing ; and that none of the parcels delivered by the plaintiff had been manufactured when it was taken by the defendant.
    On the 21st of June, 1822, King assigned and conveyed to the defendant and one Brown certain goods in the manufactory, to secure certain debts to the defendant and others, and about the same time the defendant took by attachment or otherwise certain other goods then in King’s house. The goods thus assigned and taken included the wool in question.
    The plaintiff, in order to show that King had not obtained a false credit with the defendant in consequence of this dealing with the plaintiff, produced evidence tending to prove that the transaction was known to the defendant, and that it was according to King’s usual course of business , but this point was not submitted to the jury.
    A verdict was taken for the plaintiff. If the Court should be of opinion that the property in the wool passed to King, or that the wool was liable to be attached and taken for his debts in June 1822, the verdict was to be set aside and a verdict was to be entered for the defendant.
    
      L. Shaw for the defendant.
    The agreement between the plaintiff and King was a contract of sale, and not of service. It contained all the ingredients of a sale. It stated a price for the wool, and none for the manufacturing of it, and an unconditional promise by King to pay the price, upon a credit of six months. By a contract of sale the property is vested in the vendee without a delivery. Com. Dig. Agreement, B, 3 ; Shep. Touch. 224 ; Lickbarrow v. Mason, 6 East, 26, note ; Haswell v. Hunt, cited by Butter J. in 5 T. R. 231. Here however there was an absolute unconditional delivery. Where no day is given for payment, the vendor has a lien, but where a credit is given he has no lien, and an unconditional delivery is evidence of a credit. 6 East, 27, note ; Sweet v. Pym, l East, 4 ; Hammonds v. Barclay, 2 East, 227 ; Brown on Sales, 8, 10, 11 ; Holroyd v. Gwynne, 2 Taunt. 176. One criterion of a sale is, the article’s b-;ing at the risk of the vendee. The Packet De Bilboa, 2 Rob. A dm. Rep. 135. There was no condition by which King was in any event to be released from paying for the wool, in case it had been destroyed by accident. Supposing the contract to be such, that if the wool were not paid for at the expiration of the six months Barrett might reinvest him self of the property, yet as to third persons it was inoperative. The case may be compared to a mortgage of goods, which is not valid against third persons, if the mortgager is allowed to retain the possession. Edwards v. Harben, 2 T. R. 587 ; Portland Bank v. Stubbs, 6 Mass. R. 422 ; Bryscn v. Wylie, 1 Bos. & Pul. 82, note ; 1 Bell’s Com. on Law of Scotland (4th ed.) 166, 185. There is, to be sure, a stipulation that the property should continue to be in the plaintiff, until the price should be paid, but parties cannot make an agreement which shall operate in contravention of the rules oi law. The stipulation was at most a condition having effect only between the parties themselves.
    
      Hoar and Keyes, for the plaintiff,
    contended that there was no sale of the wool to King, but only a contract for a sale, and that payment of the price wras a condition precedent to a change of the property. Shepley v. Davis, 5 Taunt. 617 ; Allen v. Smith, 10 Mass. R. 308 ; Ludlow v. Bowne, 1 Johns. R. 1 ; Delauney v. Barker, 2 Starkie’s R. 539 ; M‘Cartney v. M‘Credie, Brown on Sales, 42 ; Snee v. Prescot, 1 Atk. 245 ; Palmer v. Hand, 13 Johns. R. 434 ; and particularly Hussey v. Thornton, 4 Mass. R. 405, and Marston v. Baldwin, 17 Mass. R. 606. The only question is, whether the contract was fraudulent as against creditors. It is settled that a vendor’s retaining possession is not conclusive evidence of fraud, but that the vendee may prove a boná fide sale, and explain the particular purpose of leaving the vendor in possession ; and this principle is applicable in the present case. Brooks v. Powers, 15 Mass. R. 244 ; Leonard v. Baker, 1 Maule & Sel. 251.
    
      Shaw, in reply, referred to Bell’s remarks (1 Com. on Law of Scotland, 172) on M‘Cartney v. M‘Credie, and observed that in that case either the value of the cattle, which were the subject of the contract, was to be paid by one party, or a sum for their pasturage by the other, but here nothing was said of paying King for manufacturing the wool. In Hussey v. Thornton and Marston v. Baldwin the delivery was hot in pursuance of the agreement. Here it was. It has been said that the plaintiff offered evidence to show that no false credit was given as it regards the defendant. But the rule is, that a false credit generally shall not be given, not that a particular creditor shall not be deceived. If the defendant knew of the agreement with King, he knew it was a contract whici by the policy of the law could not be sustained against credi ors of King.
   Wilde J.

delivered the opinion of the Court. This case depends on a single point. The question is, whether the sa’e under which the defendant claims was absolute or conditional. And we are clearly of opinion that it was conditional; and as the condition has never been performed, the property never passed from the plaintiff.

In the construction of contracts the intention of the contracting parties is principally to be regarded, and such an interpretation of the contract is to be given, as will best car ry this intention into effect, provided it is not inconsisten with the rules of law. Now it is impossible to raise a doubt as to the intention of the parties in this case, for it is expressly stipulated, that “ the wool, before manufactured, after being manufactured, or in any stage of manufacturing, shall be the property of the plaintiff, until the price be paid.” It is difficult to imagine any good reason why this agreement should not bind the parties, and those who claim under them. The defendant’s counsel contended that we are bound by some inflexible technicality of the law of sales, according to which the property in the goods was transferred to King, under whom the defendant claims, although the parties did not intend it; the rule being, that when the bargain is struck the property of the goods passes to the vendee; and that although the vendor may have a lien on the goods until the price be paid, yet that this lien can only be supported on the basis of possession, and that a delivery of the goods must necessarily operate as a relinquishment of the lien. These principles no doubt are correct, but they apply only to absolute sales.

The case from Taunton, Holroyd v. Gwynne, was a case of a conditional sale ; but the condition was void, as against the policy of the statute of 21 Jac. 1, c. 18, § 11. It would not have changed the decision in that case if there had been no sale ; for by that statute, if the true owner of goods and chattels suffers another to exercise such a control and management over them, as to give him the appearance of being the real owner, and he becomes a bankrupt, the goods and chattels shall be treated as his property, and shall be assigned by the commissioners for the benefit of his creditors. The case of Horn v. Baker, 9 East, 215, also turned on the same point, and nothing in either of these cases has any bearing on the present question. There is no pretence for saying, that the condition in this case was fraudulent against creditors. Certainly no fraud was intended. No concealment nor deception was practised. The creditors of King had no reason to believe him the owner of the wool, unless they were in formed of the sale ; for the possession of it for the purpose of manufacturing it was no evidence of property. If they were informed of the sale they must be presumed to know also the terms of it, and the condition upon which alone it was to take effect. The condition then was a valid part of the contract, and it was clearly a condition precedent. When such a condition is attached to a contract of sale, the property will not vest in the vendee until he performs the condition. The cases of Hussey v. Thornton, 4 Mass. R. 405, Marston v. Baldwin, 17 Mass. R. 606, and Barrow v. Coles, 3 Campb. 92, fully maintain this position; and there is no case to the contrary. There is an old case cited by Long, in his treatise on the Law of Sales (p. 109), in which the same doctrine is laid down. It was in that case held, that where H agreed with A, that A should take the sheep of H and depasture them for a certain time, and that if at the end of the time he should pay H so much for the sheep, he should have them, the agreement did not amount to a sale ; and that a sale of the sheep by H to another person, before the day agreed on, was good. Such an agreement was considered as a contract to sell, rather than a contract of sale.

Upon the whole, it seems very clear that the plaintiff has never been divested of his property, and that he is entitled to judgment.

Judgment according to the verdict. 
      
       See Parks v. Hall, ante, 206 ; Young v. Austin, 6 Pick. 280
     
      
       See Whitwel v. Vincent, 4 Pick. 449 ; Ward v. Shaw, 7 Wendell, 404 Bishop v. Shillito, 2 Barn. & Ald. 329, in note; 2 Kent’s Comm. (2d ed ) 497
     