
    * Batchelder Hussey & Al. versus Thomas G. Thornton & Al.
    If A contracta to sell certain goods to B on a credit, with condition that B shall furnish a surety for the price, and delivers the goods without such surety furnished, but declaring that he should not consider them as sold until the security should be given, the property remains in A notwithstanding the delivery.
    
      Replevin for seventy-seven boxes of candles, which the defendants, as officers, had attached as the property of Todd and Worthley, at the suit of certain of their creditors.-
    Upon trial at the last October term in this county, before Thatcher, J., it was agreed that the demands of the said attaching creditors were just, and existed before the making the after-mentioned contract between the plaintiffs and the said Todd and Worthley. It appeared in evidence that, in the month of February, 1807, the plaintiffs, then being the undisputed owners of the said candles, agreed to sell them to Todd and Worthley on credit, at a price fixed on by them; but, doubting their responsibility, said they would not deliver them the candles without having an endorser or security. A short time after this conversation or contract, Captain Howard, master of the said Todd and Worthley’s vessel, then lying in Portland, on board of which the said candles were intended to be laden, called at the plaintiff’s store in said Portland, and inquired if said Todd and Worthley had any candles there designed to be put on board said vessel; and being answered in the affirmative, and told that they were ready whenever he wanted them, said he should send for them immediately. He accordingly sent a dray-man, to whom the plaintiffs delivered the candles, and who carried them to the wharf by the side of said vessel. The plaintiffs said nothing to Hoioard, when he was at the store, nor to the drayman when he took the candles, respecting any condition attached to the contract.
    After the candles had been carried to the wharf, and a part of them received on board the vessel, jV. Winslow, one of the plaintiffs, came upon the wharf, and informed Captain Howard that he should not let the candles be put on board the vessel, unless he had an endorser or security. Upon the captain’s answering that he had no concern in that particular, but presumed that an endorser would be furnished, Winsloiv said that he would deliver the candles, but that he should consider them as the property of himself and his * partner, until they should have security. He [ * 406 ] then left the wharf, and the candles were afterwards laden on board the vessel. About four days after this transaction, they were attached by the defendants, as the property of Todd and Worthley. There was no evidence that the defendants knew any of the preceding circumstances relative to the contract for and delivery of the candles. There was some evidence, tending to show a confession of the plaintiffs that they had obtained security for the candles previously to their delivery.
    Upon this evidence, the judge directed the jury that, if they believed the plaintiffs to have obtained security before the delivery of the candles, the verdict ought to be for the defendants; but if they did not find that fact, then the plaintiffs were entitled to a verdict in their favor.
    A verdict being accordingly found for the plaintiffs, the counsel for the defendants filed exceptions to the said direction of the judge, and moved for a new trial on the ground of those exceptions; which motion came on now to be argued.
    Mellen, in support of the motion,
    contended that the case showed a complete contract between the parties, and an absolute and unconditional delivery in pursuance of that contract; and he insisted that it was too late for the vendors to rescind the contract, or to impose conditions, after the delivery without condition to the authorized agent of the vendees. The question, in this case, is between two sets of creditors of Todd and Worihley, — which of them shall suffer. They ought to suffer who committed the first fault. Now, the plaintiffs put them in possession of these goods, and permitted them to hold them four days, without any interruption or question as to their property in them. Creditors, seeing this, had a fair ground to presume they belonged absolutely to those who thus quietly held the possession of them. 
    
    
      E. Whitman, for the plaintiffs,
    contended that the facts, taken all together, did not amount to a waiver of the original condition attached to the contract of sale. It does not appear that the plain tiffs for one moment intended to part with the goods, without further security than the mere promise of the vendees. [ * 407 ] And when they were finally delivered to Howard, * one of the plaintiffs immediately followed them, and openly declared that they must still be considered as the property of the plaintiffs, until the stipulated security should be given.
    
      
      
        Inglis vs. Usherwood, 1 East’s Rep. 515.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

The question to be decided in this case is, in whom the property of the boxes of candles was, at the time the writ of replevin was executed. The case shows that they were once the undisputed property of the plaintiffs; and, unless they have divested themselves of the title to them, they must recover in this action. They at first refused to sell them to Todd and Worthley, without some further security than their single assumpsit. They had probably forgotten, at the moment of actual delivery, the condition for which they had stipulated; and a question arises, on the facts in the case, whether this was an absolute delivery, not revocable, or, if revocable, yet not revoked. We think they were bound to recollect the condition they had themselves made, and not to have delivered the candles until it had been complied with.

But we do not decide the cause on that point. Howard, being the agent of the vendees, had authority to receive the goods, and to consent to any conditions attached to the delivery of them. He received them on board his vessel, under the declaration of one of the vendors, that they should not consider them as sold until they should receive further security. His so receiving them was an assent to that declaration, and his principals were bound by it. The property then continued in the vendors. Had the demands of these creditors originated while the goods were in the possession of Todd and Worthley, so that it might be fairly presumed that a false credit was given them, or had Todd and Worthley sold them boná fide, and for a valuable consideration, our opinion would have been otherwise. But, upon the facts in the case, there must be

Judgment according to the verdict, 
      
      
         [Carleton & Al. vs. Sumner, 4 Pick. 516. — Smith vs. Dennie, 6 Pick, 262. — Whuwell vs. Vincent, 4 Pick. 449. — Ed.]
     