
    John M. Marston versus Luke Baldwin.
    
      Replevin lies for goods unlawfully detained, although there may have been no tortious taking.
    The actual delivery of goods under a contract of sale, does not, of itself, trans fer the ownership in them: to perfect the title of the vendee, there must be a consummation of the contracts of sale.
    In case of a conditional sale of goods, where the condition is not performed by the vendee, the vendor may establish his property in the goods, without showing the contract rescinded, and without returning a partial payment made by the vendee.
    This was replevin for a quantity of rum and other goods of the value of 594 dollars. The defendant pleaded property in one Stephen Holt; and that he, as a deputy sheriff, attached the same on an original writ in favor of one Babcock against the said Holt. The plaintiff replied property in himself, upon which issue was joined.
    Trial of this issue was had before Putnam, J., at the last November term in this county ; when it was admitted that the property was in the plaintiff, unless he had transferred it absolutely to Holt 
      before the attachment. The merchandize had been delivered to him; but the plaintiff proved, to the satisfaction of the jury, that the property was not to vest in Holt, until he should pay 100 or 150 dollars, cash down, in part payment; and that the sale and delivery being conditional, and the condition not having been performed, the property remained in the plaintiff. Upon this ground they found their verdict for the plaintiff, and negatived the other ground, which the plaintiff attempted to maintain, viz., that the goods had been obtained by Holt from the plaintiff by fraud.
    It was proved, by a clerk of the plaintiff, that on the 22d of November, 1819, Holt applied for the goods; and a * memorandum was made in the waste-book before they [ * 607 ] were delivered, that he was to pay 150 dollars, cash down, and the residue in the spring. Holt desired that they might be sent to the wharf where his vessel lay, and a part of them were sent down in the afternoon of the 22d, and the rest in the morning of the 23d, having been previously marked S'. H. Holt called at the plaintiff’s store in the forenoon of the 23d to get a bill of the goods, and he then paid 75 dollars, partly in cash and partly in potatoes. The clerk gave a receipt for the same, and referred Holt to the plaintiff, to ascertain whether the whole amount of cash, stipulated to be paid, would be insisted on. The plaintiff soon came in, and, a few moments after, while he was conferring with Holt, notice was given that the goods had been attached. This interrupted the con versation. The plaintiff observing that he did not consider it as a sale, because the money had not been paid according to the agreement; Holt replied that he did not know that it was a sale. Another clerk made out a bill of parcels of the goods ; but instead of being delivered, it was attached to a writ of replevin. Holt said that the attachment by Babcock was good for nothing ; because he owed no one, and because he had sold the goods to one Small, the master of the vessel, on board which the goods were shipped ; Holt and Small both declaring the sale to have been bona fide. The plaintiff, induced thereto by this misrepresentation, twice sued Holt in assumpsit, and in one of his actions attached the goods after Babcock had attached them; and in the other he held Holt to bail; but the actions were not prosecuted. Small brought an action of trespass, which he discontinued in July, 1820.
    The plaintiff’s writ of replevin was purchased on the 23d of November, 1819, but not then served, on account of Small’s pretended claim. It was altered. to the 3d of February, 1820, and served on the 8th of that month.
    
      Babcock’s cause of action against Holt arose in November 1818. His attachment was made on the 23d of November, 1819. [ * 608 ] * The defendant would have contended at the trial, that replevin would not lie in the case, because there had been no tortious taking; but the judge treated this point as settled the other way.—He then insisted that there had been an absolute sale of the merchandise to Holt, nothing remaining to be done on the part of the plaintiff, to complete it; that if the sale was conditional, the plaintiff had waived the condition by delivering the goods; that he had waived it also by his delay in making his claim to disaffirm the contract by his writ of replevin ; and that he had also affirmed the contract by bringing his assumpsit for the price of the goods, notwithstanding he did not prosecute it. At any rate, he contended that it was not competent for the plaintiff to maintain replevin, before he had offered to pay the 75 dollars, received by him, either to Holt or to the defendant.
    Upon this point the jury were instructed, that if the property had not vested in Holt, it was not necessary for the plaintiff to tender to him or to the defendant the 75 dollars before the replevin ; that if it was the fault of Holt that the contract was not carried into effect, it was sufficient for the plaintiff to be ready to repay the money when he should be requested.
    The facts tending to prove the contract to have been either absolute or conditional, and, also, as to the alleged waiver of the condition, were argued by the parties, and submitted by the judge to the jury.—As to the sale, the jury were instructed that this was a contest between the plaintiff and a creditor of Holt, who had not been induced to credit him in consequence of his having the possession of the property now in question, his claim having originated long before ; that an innocent purchaser of the goods, who should have relied on Holt’s possession, might be in a better condition to maintain his action; that so far as this transaction related to the plaintiff and Babcock, if the sale was absolute, or if the plaintiff had waived the condition of the cash payment at the [ * 609 ] time, their verdict should be for * the defendant. But that if they believed, from the evidence, that it was agreed by the plaintiff and Holt that the property was not to vest until the payment of the 150 dollars, or such other sum as Holt was to pay in cash down, the property must be considered as remaining in the plaintiff.
    The jury having negatived the ground of fraud, the judge thought it unnecessary to state the evidence touching that question, or his instructions to the jury on the point. The defendant moved for a new trial, and the question was reserved for the whole Court.
    
      Townsend, for the defendant.
    The sale to Holt was absolute. It was in no other sense conditional than all sales not on credit. The delivery of the goods was a waiver of the right to the cash payment . And if it was a condition, it was a condition subsequent; and this was waived by the delay in suing the replevin . If these goods had been lost after the delivery to Holt, there can be no question that the loss would have been his, Res perit domino.
    
    However this may have been, nothing could more effectually waivé all conditions, and affirm the sale, than the plaintiff’s demanding the price of the goods in his action of assumpsit 
      .
    
      Holt unquestionably had a lien on the goods to the amount of the 75 dollars, which he had paid; and the plaintiff could not dissolve that lien without repaying that sum .
    
      Orne, for the plaintiff. In the transfer of property there must concur a contract of sale, and the payment of the price. The mere change of possession does not change the property, unless the contract is consummated . In the case at bar, before the sale was completed, there was to have been a further payment by the defendant, and a bill of parcels on the part of the plaintiff. Property may vest, so as to charge the purchaser with the loss; and yet not take away the vendor’s lien .
    * A partial payment for goods does not take away the [ * 610 ] vendor’s right of stopping them in transitu 
      .
    
      
       3 Johns. 408, note a.—1 H. Black. 273.—1 Wheaton, 75.
    
    
      
       1 Campb. 427.—May’s Maxims, 105.—-Bull. M. P. 50.—4 Binney 405.—6 East. 617.—1 H. Black. 364.—1 Domat. 61.—2 H. Black. 316.—1 Yates, 529.—Í Mass Rep. 407.
    
    
      
       5 D. E. 402.
    
    
      
      
        Mass. Rep. 502.—15 Mass. Rep. 319.
    
    
      
       13 Mass. Rep. 87.—1 Salk. 113.—Hob. 41.—3 H. Black. 363. 6 East, 614.—2 Campb. 240.—2 H. Black. 316.—2 Maulé &■ Seim. 397.—5 Taunt. 617.—13 Johns. 434. —10 Mass. Rep. 31.
    
    
      
      ' (6) 8 Crunch, 253, 275.
    
    
      
       7 D. E. 440 —3 East. 93.
    
   Wilde, J.,

delivered the opinion of the Court.

One objection to the form of the action, made at the trial by the defendant’s counsel, has been very properly waived; for it has been repeatedly determined by this Court that replevin lies for goods unlawfully detained, although there may have been no tortious taking. Such is clearly the law of Massachusetts, whatever may be the law of England. By the terms of the writ the officer is commanded to replevy the goods and chattels claimed by the plaintiff, whether “ taken, detained or. attached, (as the case maybe).” This mandatory clause in the writ, the form of it being prescribed by statute, we consider as equivalent to an express provision authorizing the party whose goods have been taken, detained or attached, to maintain replevin .

As to the merits, the first question to be determined is, whether there was an absolute sale to Holt of the goods replevied, and whether it was valid and complete before the attachment made by the defendant.—The evidence relating to this point has been submitted to the consideration of the jury, who were satisfied that the sale was not absolute, but conditional; that the property was not to vest in Holt, by the agreement of the parties until he should pay 100 or 150 dollars; which was not done; and on that ground they found that the goods remained the property of the plaintiff, notwithstanding the intended sale. There is nothing in the evidence to raise a doubt of the correctness of this decision. The jury were not only authorized, but constrained, as it appears to me, to draw the conclusion they did on this point, in favor of the plaintiff.

Considering, then, the fact well established that the contract of saie was conditional, the next question is, whether the plaintiff has waived the condition. The defendant’s counsel contend that he nos • first, by the delivery of the goods, and, secondly, [ * 611 ] by other proceedings, since *the delivery, affirming the sale. These, however, were matters for the jury, and they have decided them in favor of the plaintiff. So that the only question is, whether their verdict is supported by competent evidence.

As to the delivery of the goods, it has been argued that payment after the delivery would not be a good performance of the condition by which it was stipulated, that part of the price of the goods should be paid down, that is, at the time of the delivery; and, therefore, that the delivery of the goods by the plaintiff, without insisting upon payment according to the contract, was necessarily a waiver of the condition. This inference would be just and conclusive in favor of the defendant, if the delivery had been absolute and unconditional ; but the jury have found that there was a condition attached to the delivery, as well as to the contract; and that it was agreed by the parties that the property was not to vest in Holt, not withstanding the delivery of the goods at the wharf, until the payment of that part of the price agreed to be paid down. That such was the case, appears by the express declaration of the plaintiff, that there was no sale, to which Holt assented ; and by other conversation between the contracting parties at the time Holt paid the 75 dollars.

Such being the agreement at the time of the delivery of the goods, and before any bill of parcels had been made out, the property was not changed by the delivery. This point was decided in the case of Hussey & Al. vs. Thornton & Al. 4 Mass. Rep. 405. The actual delivery of goods does not of itself transfer an actual ownership in them; to perfect the title of the vendee, there must be a consummation of the contract of sale. Mason vs. Lickbarrow, 1 H. Black. 362. 4 B. & P. 257. Thus far, then, the verdict seems to be warranted by unquestionable evidence.

The remaining question is more difficult. The delay of the plaintiff in reclaiming the goods as his property, and his several suits against Holt for the price, were strong evidence of a waiver; and if the jury, upon this evidence, * had re- [*612] turned their verdict for the defendant, we should not have felt ourselves authorized to disturb it. But these facts are no* conclusive, but are open to an explanation. The Court of King’ Bench held, in the case of Smith & Al. vs. Field, 5 D. & E. 403, that the plaintiffs could not recover in trover for goods sold, after they had instituted a proceeding in the sheriff’s court, by attachment for the price; although the plaintiffs derived no benefit therefrom ; the proceedings on the attachment having been stayed by injunction from the Court of Chancery. And Lord Kenyon said, such an act “ was incapable of being explained away.” I admit that it was so in that case ; for the question was, whether the contract of sale had been rescinded. The plaintiffs had no title on any other ground. The vendee was desirous of rescinding the contract, but the vendors would not consent. On the contrary, they affirmed the contract, after the bankrupt’s situation had been explained to them, and considered the goods as his property. Their acts, whatever might have been their motives or mistakes, showed conclusively that the contract had not been rescinded.

The present case is different; for this is a conditional contract, and the condition not having been performed on the part of Holt, the plaintiff is not bound to show that the contract has been rescinded.—What, then, are the facts, from which the counsel for the defendant infers, that the plaintiff intended to waive his legal rights ?—The writ of replevin was sued out on the 23d of November, the day after the sale: but it was not served until the 8th of February following. In the mean time the plaintiff brought assumpsit for the price of the goods, and attached them as Holt’s property; and he afterwards instituted a new suit for the same cause of action, in which Holt was held to bail. The inference from these facts would unquestionably be, that the plaintiff had waived the condition, and affirmed the sale, were it not repelled, in some measure, by other evidence. [ * 613 ] * The reason for not prosecuting the writ of replevin, as urged at the trial, was that there had been a transfer of the goods from Holt to Small, which the plaintiff was informed was boná fide, although it turned out to be fictitious. The same reason was also given for the several suits for the price of the goods. This explanation was deemed satisfactory by the jury; and we cannot say, that their determination on this point was inconsistent with the evidence.

As to the repayment of the 75 dollars, it was not necessary; as this case does not depend upon the rescinding of the contract.

For these reasons, the motion for a new trial must be overruled, and judgment must be entered according to the verdict. 
      
       [Nothing can be inferred from the form of the writ, which does not, in the clause referred to, differ essentially from the English writ.—See Meany vs. Head, 1 Mason, 319, and the notes to Baker vs. Fales, 16 Mass. 147.—Badger vs. Phinney, 15 Mass. 359.—Ilsley & Al. vs. Stubbs, 5 Mass. 280. But the law has been altered.—Be vised Statutes, chap. 113, sec. 27 — Ed.]
     