
    Orville I. Woolsey, Appellant, v. Axton & Son.
    Sale— Contract—Delivery.
    
    Where one person agrees to sell and deliver to another a raft, and the vendee agrees to pay a certain amount at the time of the agreement, and, at a specified future date one half of the balance in cash, and the remainder by note, the vendee has no right to demand credit of an old debt in the settlement, and is not entitled to possession of the raft until he pays for it in the manner stipulated in the contract.
    M. agreed to deliver to W. at G. a raft of timber of a certain size, W. agreeing to pay $100 d'own, balance of half the amount at a certain time, and to then give a ninety-day note for the other half. The $100 was paid, and afterwards $50.00 more. The raft, price of which amounted to $640, viras afterwards moored at G., and, on objection of W. to certain of the limbers, they were replaced with others, whereupon he announced himself satisfied. Then they met for settlement, and W. claimed $500 to be due on another matter, and demanded it should be credited on the purchase money; but M. disputed the claim, refused to make such credit, and demanded cash and note as per contract, which was refused. W. then took possession, and M. retook and retained possession. Held, that there was no delivery, but that the title remained in M.
    Argued May 9, 1899.
    Appeal, No. 128, Jan. T., 1899, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1898, No. 54, on verdict for defendant.
    Before Sterrett, C. J., Green, McCollum:, Mitchell and Dean, JJ.
    Affirmed.
    Assumpsit to recover the purchase price of a raft. Before Mestrezat, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court charged in part as follows :
    [We are of opinion that, under the contract submitted here and under which the plaintiff, Woolsey, claims to recover and claims title to this raft, it was his duty to pay, or to secure the payment of, the balance of the purchase money according to the contract, before he could legally recover or compel Minor to deliver him the raft. It is not disputed, as we have already said, that he didn’t pay the balance of the one half on the first of April, 1897, of the purchase money due on this raft or give a note for the remainder for ninety days as required by this contract. It is our opinion that, not having done that, he is not in a position, and was not in a position, to require the delivery of that raft to him. As we understand the evidence—and it is not disputed—there was no delivery of this raft to Woolsey. It is claimed, however, on the part of Mr. Woolsey that under this agreement when these sticks of timber were taken by Minor to the Monongahela river and placed in the river and put together or rafted, as it is called here, that it immediately became the property of Woolsey and was a delivery under this contract. That is not our construction of this contract; on the contrary, we are of opinion that, in addition to placing the sticks of timber in the river and rafting them, putting them together, that there was yet to be a delivery by Minor to Woolsey. It is not denied that Minor placed his ropes upon this raft and moored it there at the mouth of Georges creek; and it is not denied, further, that Woolsey didn’t take possession of this raft until that Sunday when he did it in the absence of Minor and without his permission. That was not a delivery by Minor to Woolsey.] [3]
    The court refused plaintiff’s second point recited in the opinion of the Supreme Court [2], refused binding instructions for plaintiff [1] and gave binding instructions for the defendant. [4]
    Verdict and judgment for defendant.
    Plaintiff appealed.
    
      Errors assigned were (1-4) above instructions, quoting them.
    
      Edward Campbell, for appellant.
    The title to the raft was in the plaintiff: 1 Parsons on Contracts (7th ed.), p. 562; Dennis v. Alexander, 3 Pa. 50; Ropes v. Lane, 11 Allen, 591; Shaw v. Nudd, 8 Pick. 9; Higgins v. Chessman, 9 Pick. 7; Ballentine v. Robinson, 46 Pa. 177 ; Com. v. Fleming, 130 Pa. 138.
    
      George E. Sowell, for appellees.
    Where goods are manufactured under a contract, even though the title passes to the vendee upon completion, the lien of the vendor for the purchase money remains until he parts with the possession, or does some act inconsistent with the purpose to retain a lien: Nat. State Bank v. Korting Gas Eng. Co., 3 Pa. Dist. Rep. 604; Lester v. McDowell, 18 Pa. 91.
    
      We contend that Minor never by word or deed, showed an intent to part with possession of the raft until paid: Bush v. Bender, 113 Pa. 94; McCullough v. McCullough, 14 Pa. 295.
    July 19, 1899:
   Opinion by

Mb,. Justice Dean,

On February 20, 1897, Woolsey, this appellant, made an agreement in writing with Josephus Minor, as follows:

“ 1897-2-20, New Geneva,
“ Fayette Co., Pa.

“I, Jos. Minor of the first part agree to deliver at New Geneva, Pa.

“ One raft averaging 120 cu. ft. to stick if weather is reasonable.

“ One raft averaging 100 cu. ft. to stick and the tie poles for the first raft.

“ I, Orville Woolsey of the second part agree to pay him one hundred dollars now on first raft; balance of half the amount on April 1st, 1897; and note for balance, for ninety days.

“ Second raft: half down, and ninety day note; timber to be in against May 10th, 1897.

“Witness: Orville Woolsey.

“ Witness: Joe Minor.

“ Todd Drew.

“ Endorsed: First raft settled for 6420 cu. ft. at 10 cts. $642. Settled April 10, 97.”

It will be noticed, two rafts were contracted for to be delivered at Geneva. The second one mentioned was delivered and paid for; there is no dispute as to that one. The first one which was to average 120 cubic feet per stick is the one in dispute. The price per foot is not specified in the written agreement, but that it was ten cents per cubic foot is not disputed. One hundred dollars of the purchase money for this one, it will be noticed, was to be paid on signing the agreement; half the balance on April 1,1897, and note for remaining half at ninety days to be then given. The $100 was ¡laid on signing agreement, and afterwards an additional $50.00. About August 10, 1897, the raft was moored at Geneva by Minor, and Woolsey notified, who examined it, and finding fault with several of the sticks, Minor replaced them by others, and Woolsey announced himself satisfied; then, notified Minor to come to his house and they would make a settlement on the contract. They accordingly met at Woolsey’s house for that purpose. Woolsey claimed there was due him from Minor an old debt of $500, which should be credited on the purchase money. Minor denied the justice of this claim alleging he had paid it, and demanded the half cash and ninety days’ note as stipulated in the contract, which Woolsey refused, and they separated without a settlement. Woolsey, then, in the absence of Minor, took actual possession of the raft early on Sunday morning; Minor, by force retook and retained possession; then followed criminal prosecutions and an action for trespass. On October 1,1897, Minor sold and delivered the raft to Axton & Son, these appellees, who manufactured and sold the timber for their own account; Woolsey brought this suit in assumpsit against them for its value. At the trial in the court below, the learned judge being of opinion, there had been no delivery of the raft by Minor to Woolsey, instructed the jury to find for defendant, and we have this appeal by plaintiff. The error complained of is the refusal of the court to affirm plaintiff’s second point, thus :

“ The plaintiff asks the court to charge the jury that if Josephus Minor supplied the place of the small timber in the raft to which the plaintiff objected as too small under the contract, with larger lumber according to Josephus Minor’s testimony, and if after the said three sticks of lumber were supplied by the said Minor, nothing more remained to be done to the raft to fit it for delivery according to the contract, and if the said raft was so prepared by Minor at New Geneva according to the contract ; and if the plaintiff paid the said Minor $150 on the said raft, before the said raft was removed from New Geneva aforesaid ; then the title to the said raft was vested in the plaintiff before the said raft left New Geneva, and the verdict should be for the plaintiff for the value thereof. Answer: Refused.”

The conclusion of the learned counsel for appellant does not follow from the facts set out in the point. Woolsey, without Minor’s assent, could have no lawful possession of the raft until he complied with the terms of his agreement, which expressly stipulated for payment of half the balance in cash and a ninety days’ note for the remaining half. Admit that, on inspection, Woolsey objected to the quality of some of the sticks, and. Minor replaced them, then Woolsey signified his acceptance of the raft, that only proves that Minor had complied fully with his part of the contract, and the delivery of the raft would be complete on Woolsey performing his part, the payment of the cash and delivery of the note; but until this was done, or Minor waived performance; both title and possession remained in him. The payment, by a plain implication from the contract, was a condition precedent to actual delivery to Woolsey; not alleged payment by an old and disputed indebtedness, which formed no part of the contract, but actual payment by cash and note. If Woolsey intended by that means to collect the old indebtedness, he should not have expressly stipulated for another method of payment for the timber. We have no quarrel with the many authorities cited by the able counsel for appellant. They, undoubtedly, hold that a contract for the sale of a chattel may be fully executed while the actual possession remains in the vendor; but in all such cases the intention of the contracting parties, that a constructive delivery shall immediately take place, is either expressed or implied. The implica^ tion from this contract and the circumstances is directly the reverse. Even Woolsey’s interpretation, by his admitted conduct, was that he owed to Minor immediate settlement and payment of balance due, to complete the delivery. Bush v. Bender, 113 Pa. 94, is very much like the case before us on its facts. Bender, a farmer, sold to Bush a lot of horses to be delivered at a tavern, there to be paid for in cash. Pie took them to the tavern, and Bush offered to pay with some old notes drawn by Bender years before and apparently still unpaid, instead of with cash. Bender refused to accept such payment, and when he attempted to retake possession of his horses, Bush refused to give them up; Bender replevied them, tins Court holding there was no delivery within the contemplation of the parties to the contract; that Bush was not entitled to possession until he paid the cash, and that his attempt to extort payment of an old debt by such methods was a fraud upon Bender. To the same effect are Lester v. McDowell, 18 Pa. 91, and McCullough v. McCullough, 14 Pa. 295.

We are of opinion that the court below committed no error in holding there was no delivery of the raft to Woolsey under the contract. The assignments of error are overruled, and the judgment is affirmed.  