
    CHARLES E. HILL and another v. JOHN D. McKENZIE and another.
    
      Conditional sale—delinery.
    
    Plaintiffs sold to Webb & Co., May 21st, 1867, a quantity of teas, for cash on delivery. The teas, when sent for on the twenty-fourth, were found to be in a condition requiring cooperage; and, the cartman refusing to receive them, it was arranged that he should take them to Webb & Co.’s store, and that the plaintiffs should send their cooper to do the necessary work. The bill was sent to Webb & Co. the same day, but they refused to pay it until the cooperage should be done. The next morning the cooper went to the store, but was not allowed to do the work at that time; on the same day, the plaintiffs, supposing the coopering to have been done, again sent the bill, and payment was again refused, for the same reason; about noon of that day, the defendants purchased the teas of Webb & Co., who had become insolvent. Held, that the sale was conditional; that a delivery upon such sale, vests no title in the purchaser until the cash be paid, unless the condition be waived; and that in this case there was no waiver, or intention to waive the condition of payment.
    This was an action of replevin, tried before Mr, Justice Van Brunt and a jury. The judge directed a verdict for the plaintiffs for the full amount claimed, and ordered 'the exceptions to be heard, in the first instance, at the General Term.
    
      Charles D. Adams, for the plaintiffs.
    
      Al/om C. Bradley, for the defendants.
   Opinion by Davis, P. J.

Daniels and Donohue, JJ., concurred.

Judgment ordered for the plaintiffs on the verdict.  