
    Smith v. B. Lynes and Thompson & Co. Read & Hoppock v. Gibbs and others.
    Where goods are sold, to be paid for on. delivery, either in cash or commercial paper, and the goods are delivered without exacting the money or the securities, such delivery is absolute, and a complete title vests in the buyer, unless the delivery was procured by fraud.
    If the seller intend to make the delivery conditional, he must do it in express terms. The act of delivering, without obtaining the stipulated payment or security, imports a waiver of the terms of the conditional sale.
    Though the sale be conditional, the delivery will be held absolute, where no condition is expressly attached to the latter.
    A custom or usage of trade, to the effect, that on a sale of goods for cash, they are delivered to the buyer without payment or demand of payment, and after a few days a bill of the goods is sent to the buyer, and the price demanded, and in the meantime the seller retains a lien on the goods for the price, and that such a delivery is conditional, is contrary to law, and invalid.
    (Before Oakley, Oil J., and Vanderfoel and Sandford, J. J.)
    Sept. 25 ;
    Oct. 6, 1849.
    These suits, involving substantially the same question, were argued together, on a case made in each respectively. The suit of Smith v. Lynes, was an action of replevin, to recover forty-five pieces of carpeting. Of these the sheriff, on the 15th of March, 1848, replevied fifteen pieces, twelve from the possession of Lynes, and three from the possession of Thompson & Co.
    At the trial before Sandfoed, J., December 19th, 1848, the following facts appeared in evidence on the part of the plaintiff. The plaintiff, Smith, was a carpet manufacturer at West Farms, Westchester Co., and the defendant, Lynes, a carpet merchant, in the city of New York. Thompson & Co. were merchants and manufacturers, having a store in New York.
    On the 3d of November, 1847, Smith and Lynes entered into a sealed agreement, by which Smith was to manufacture carpeting for Lynes to the first- day of June, 1848, at- prices stipulated. Lynes was “ to pay for such quantity or quantities of the said goods that might be delivered to him” by Smith, in notes of Lynes, “ payable six months after the delivery of the goods to the order of Thompson & Co., and by them indorsed,” or in their notes indorsed by Lynes. Smith was to take Lynes’ individual notes for goods to be delivered in January, to not more than $1000.
    Smith proceeded to manufacture and deliver carpeting under this agreement. The delivery in January, 1848, was beyond the $1000 last mentioned, previous to the sending of any of the carpeting in question. Sundry indorsed notes were also given under the agreement.
    The carpeting for which the suit was brought was delivered at the following dates:
    January 22, 1848 — 7 pieces, of which 4 were replevied. “ ’ 28, “ 8 “ “ 5 “ February 8, “ 9 “ “3 “ “ 14, “ 8 “ “ 2 “ 25, March U U 4 9 1 none a u
    
    The last notes given by Lynes were given February 8th, 1848. When the nine pieces were delivered on the 7th of March, Lynes gave a receipt for them, on the back of which he wrote in pencil, these words : “ Messrs. Thompson & Co. are up at Thompson-ville, but expect to be down on Wednesday or Thursday, and I will have them ready. B. L.” Lynes testified, that hy this he meant to say to Smith lie would have the notes ready for him.
    When the suit was commenced, no payment had been made for the carpeting in question. Before commencing it, Smith went to Lynes’ store, and demanded the goods or the indorsed notes; and he also demanded of Thompson & Co. the carpeting in their possession. They claimed the same by a sale from Lynes.
    On the plaintiffs resting, the defendants moved for a nonsuit, on the ground that the delivery of the goods by the plaintiff to Lynes was absolute, and vested the title thereto in him. The court granted the motion, and the plaintiffs’ counsel excepted.
    The second suit, Head c& Hoppock v. C. V. S. and G. W. Gibbs, and M. G. Leonard, was an action of replevin for twenty hogsheads of molasses, sold by the plaintiffs to defendants, Gibbs, and replevied in consequence of non-payment by them of the price. The cause was tried before Oakley, Ch. J., on the 22d December, 1848. The writ was issued on the 21st February, 1848, and the molasses replevied by the sheriff on the same day, from the possession of the defendant, Leonard, to whom, as alms-house commissioner, the defendants Gibbs had previously sold and delivered the same at the Alms-ITouse, Blackwell’s Island.
    John Quackenboss, a witness for the plaintiff,
    testified that he is their clerk. That he was not present at the sale of the molasses, but he understood that it was sold to the Messrs. Gibbs. They took the molasses from the wharf. He does not know any thing about the delivery, except that an order came from the Messrs. Gibbs, in writing, for the molasses. He does not know whether any one went to the wharf to deliver it. Witness called with the bill for payment on the Messrs. Gibbs a few days— five or six days afterwards ; saw one of the firm. He did not pay ; be said he thought the molasses was bought on time.
    Cross-Examined. — He said Messrs. Gibbs sent an order for the molasses the same or the next day, and after the sale it was delivered on that order.
    Ellis F. Ayees, for the plaintiffs,
    testified that he was present at a conversation at the office of the Messrs. Gibbs, between George W. Gibbs and Mr. Ely Hoppock respecting the molasses. Hoppock asked pay for the molasses. Mr. Gibbs said his brother was in Boston, and they would pay when lie returned. Hoppock seemed displeased. After this conversation, Gibbs told witness that the molasses was bought for cash, and that three or three and a half per cent, was allowed for cash. Witness was present at a second conversation at the office of Gibbs. The first conversation took place a day or two after the failure of the Messrs. Gibbs. The second was between Mr. Hoppock and Mr. C. Y. S. Gibbs. Hoppock asked for an order for the money on the alms-house commissioner, to whom Gibbs had sold the molasses. Gibbs refused to give an order, but said he would collect the money and pay the plaintiff. It was then well known that the Messrs. Gibbs had failed. After the first conversation, G. W. Gibbs came to witness’s office, and said the molasses had been bought for cash, three or three and a half discount off; the sale was on the 2d or 3d day of February last. There was six or eight days between the time of the first and second conversation. Witness had a conversation with one of the Messrs. Gibbs to-day. He said the suit was not carried on at their instigation, but at that of their assignees. Witness had no recollection of hearing any one say that the molasses was to he paid for on the 10th of February. The Gibbs’s both admitted that it was bought for cash less three and a half per cent. The demand of the goods from Mr. Leonard, the alms-house commissioner, before the replevin, was admitted, and that Mr. Leonard had not then paid for the molasses to the Messrs. Gibbs.
    The plaintiffs here rested, and the counsel of the defendants Gibbs moved for a nonsuit.
    The plaintiff then offered to prove, that by the custom and usage of merchants in Xew York, the delivery of merchandise upon cash sales in Xew York, was conditional that the money was paid, and that the vendor held a lien upon the goods after such delivery for the price.
    The court decided that there could be no such custom as that contended for, as it would conflict with established principles of law, and the plaintiff excepted.
    
      The plaintiffs claimed the right to go to the jury upon the question, whether the delivery of the goods was not conditional, and whether the taking of the molasses upon a cash punchase, and not paying for it, was not, under the circumstances in this case, a fraud upon the plaintiffs.
    The court decided that there was not sufficient evidence of a conditional delivery to go to the jury, and no evidence whatever of fraud, on the part of the defendants, and directed a nonsuit to he entered. The plaintiffs’ counsel excepted.
    
      C. IF. Sandford, for the plaintiffs
    in both suits, relied upon Haggerty v. Palmer, 6 J. C. R. 437; Russell v. Minor, 22 Wend. 659 ; Palmer v. Hand, 13 John. 435 ; Lord SeafortPs Case, 19 Ves. 235 ; 2 Kent’s Comm. 497; Keeler v. Field, 1 Paige 315 ; Acker v. Campbell, 23 Wend. 372 ; Allen v. Orary, 10 Ibid. 349 ; Barrett v. Warren, 3 Hill, 348.
    
      B. W. Bonney, for the defendant,
    Lynes, referred to Chap-mam v. Lathrop, 6 Cowen 110; Lupin v. Mame, 6 Wend. 247.; Furniss v. Hone, 8 Ibid. 147, 266; The People v. lLayes, 14 Ibid. 546 ; Hussey v. Thornton, 4 Mass. 405 ; Ccmiton v. Sumner, 4 Pick. 516 ; Smith v. Peming, 6 Ibid. 262.
    
      W. S. Sears, for the defendants,
    Thompson & Co., cited Andrew v. Dieterich, 14 Wend. 34; also 6 Ibid. 77, and 8 Ibid. 247.
    
      W. Stoughton, for the defendants,
    Gibbs and others, in addition to the cases cited by Mr. Bonney, relied on Cross v. Peters, 1 Greenl. 376 ; Conyers v. Ennis, 2 Mason, 236; Rowley v. Bigelow, 12 Pick. 307; Hone v. Mutual Safety Insurance Company, 1 Sand. S. C. R. 137; 1 East 375 ; 1 Bing. R. 310* 16 East 130 ; 8 Ad. and Ell. 758, 770 ; Chitty on Cont. 844; 2 Kent’s Comm. 391.
   By the Court.

Sandford, J.

We have frequently decided the principal question involved in these eases, and have supposed the law applicable to it, was perfectly established in this state. The plaintiff’s counsel relied upon the case of Russell v. Minor, (22 Wend. 656.) as deciding a different rule from that enforced at the trial, and we have examined the subject anew, with the view of putting it at rest, so far as this court is concerned.

The question arises upon the delivery of goods, which have been sold conditionally, as for cash or for indorsed notes. The fact that the sale was conditional, is not at all conclusive; for, however numerous the conditions of the sale, if the vendor deliver the goods absolutely to the purchaser, the title vests'in the latter. On a full consideration of the matter, we are satisfied that the well-settled rule of law is this :• — Where goods are sold, to be paid for on delivery, either in cash or commercial paper, and the goods are delivered without exacting the money or the securities, such delivery is absolute, and a complete title vests in the purchaser, unless the delivery was procured by fraud.

A mere expectation that the buyer will comply with the terms of the sale, does not qualify the delivery or affect its character. Such expectation exists in every sale, conditional or otherwise. If the seller intend to make the delivery conditional, he must do it in express terms. The very act of delivering the goods without at the same time obtaining the stipulated payment or security, imports a waiver of the terms of the sale. The seller cannot, when doing that act, rely upon his mental reservation that he still looks for a performance of the condition, and does not intend to pass the title of the goods.

There is no hardship in this principle of law. If the seller is unwilling to trust to the personal responsibility of the buyer for the performance of the terms of the sale, it is only necessary for him either to refuse to deliver without a simultaneous performance, or to attach the express condition to the delivery. In the latter event he will be safe, except against bond fide purchasers without notice. A contrary rule would lead to great confusion, as is the tendency of every deviation from the general principle that the possession of personal property is evidence of title.

In Chapman v. Lathrop (6 Cowen 110,) the supreme court held the title to have passed by the delivery, on a sale made for cash; the goods having been removed by the buyer to Ms own store without payment, and without any express condition or reservation, although payment was demanded on the following day.

In Lupin v. Marie, (6 Wend. 77,) which was in the court for the correction of errors, the goods were sold on the 24th of August, to be paid for in notes of the buyer, and were delivered the next, day without the notes being exacted or given. The buyer failed on the fourth of September, and on the fifth the seller demanded the goods, claiming that the deli very had been conditional, and the title had not passed. On the ninth of September, the seller assigned the goods, with his other property, for the benefit of his creditors. The court decided that the delivery without requiring the notes, or annexing any condition, was a waiver of the condition on which the sale was made; the buyer became the absolute owner of the goods, and the title passed to his voluntary assignee.

In Furniss v Hone, (8 Wend. 247,) in the same court, where on a sale of goods at auction, the sellers failed to prove that the delivery was on the condition claimed by them, it was decided that the same was absolute, and the title vested in the buyer. Mr. Justice Kelson, and Senator W. II. Maynard, in their opinions, affirmed the general doctrine which we have laid down.

In the case of The People v. Haynes, in the same court, (14 Wend. 546,) the chancellor said, that where goods are sold upon the understanding that they are to be paid for on delivery, if they are delivered without insisting upon payment at the time of the delivery, the title passes absolutely to the purchaser, unless there is a special agreement, or a usage of trade, by which it is made conditional. Senator Tracy, in the same case, said if goods sold for securities, were actually delivered to the purchaser, without any arrangement as to the security for the payment, the vendor’s lien upon them was gone ; and to constitute a conditional delivery, it was necessary the condition should be express. The case before the court was not one of a conditional sale; but the positions laid down by the members of the court were pertinent to the conclusion adopted, which was unanimous.

Chancellor Kent folly concurs in this doctrine as to the effect of delivery. It is trae he makes an exception upon usage in particular cases, and speaks of the seller’s exacting or expecting payment as qualifying a delivery; but it is evident from the illustrations which follow, that the learned commentator had in view an expectation, expressed at the time, and attached to the set of delivery. Indeed, no other could have been supposed; for an expectation locked up in the seller’s own bosom could have no possible influence upon his act in delivering, even with the buyer’s title or right thereby acquired. (2 Kent’s Comm. 498.)

The plaintiffs referred to Haggerty v. Palmer, 6 John. Ch. R. 437, and Keeler v. Field, 1 Paige, 312. In the former the delivery was held to be conditional, upon the force of a usage admitted to exist, known to the buyer and to his assignee, and the force of it not called in question. In Keeler v. Field there was an express condition annexed to the shipment and delivery of the goods.

The case of Russell v. Minor, 22 Wend. 659, was this :— Minor had contracted for a quantity of paper, for which he was to give his note. A part of the paper was brought to him, and he was asked for Ids note for the price of that portion. He declined giving it until the residue was delivered, when he would give his note for the whole; but he said the parcel brought could remain until then. When the residue was offered he would not give his note, and replevin was brought for the parcel first delivered. The supreme court nonsuited the plaintiff', and the court of errors reversed the judgment, by a divided court, and against the opinion of the chancellor and Senators Maynard and Verplanck. The majority of the court held that the partial delivery was conditional, because of Minor’s express promise at the time to give a note when the residue was delivered. This, it will be observed, was an express condition proposed by the buyer in answer to the seller’s demand of a note as a term of the delivery. It, therefore, does not conflict with the position that there must be an express condition annexed to, or qualifying the act of delivery, to prevent it from vesting the title. Another good reason existed in that case for holding the delivery to have been conditional, in the fact that it was not a full performance of the seller’s contract, (which was to make a single delivery of the entire quantity at once,) and it was received and accepted conditionally by the buyer. He simply suffered the paper to be left, and to remain until the residue was brought, and the contract thereby performed. Of course, lie could not afterwards claim that the delivery which he received conditionally, was an absolute and unqualified delivery on the part of the seller.

The supreme judicial court of Massachusetts has settled the law in accordance with the view of it which we have uniformly entertained. In Carlton v. Sumner, (4 Pick. 516,) goods were sold, for which the buyer’s acceptances were to be given. They were, by his order, put on board a vessel, without the acceptances being given, and the same day were attached upon a debt owing by the purchaser. It was held that the vendor could not retain the goods.

In Smith v. Dennis, (6 Pick. 262), a quantity of sugar was sold, on the express condition that an indorsed note should be given for the price. The sugar was delivered to the buyer by the seller’s clerk, without anything being said as to the condition ; but the seller knew of it the following day. The note was not given, and eight days afterwards the goods were attached as the property of the buyer. It was decided that the delivery was absolute. The court said, “ The principle is, that if the vendor who has sold upon condition, permit the vendee to take the goods without exacting of him a compliance with the terms of the sale, he shall be presumed to have abandoned the security he intended, and to trust to the personal security of the vendee.”

In the first case before us, it is contended that there was sufficient evidence in the pencil memorandum made by Lynes, on the receipt dated March 7th, relative to not sending the notes, to bo submitted to the jury, as proof that the notes were demanded when that delivery was made. In our opinion it was quite unimportant whether such a demand was proved or not; if made, it was not complied with, and the goods were left with ] .ynes, without any reservation or condition. If it be said Smith was not present to assert the condition, we answer, first, he should have sent the goods with proper instructions ; and second, he should have repudiated the delivery, immediately on the return of his agent. Rut there was a difficulty in the way of any inference which would qualify the delivery of March 7th, in the fact that there were similar deliveries of goods on the 22d and 28th of January, and the 8th and 14th of February, for which no notes were given, and which, with that of March 7th, form the subject of the suit. The pencil note was as applicable to each and all of those, as to the last parcel sent; and in any way of applying it, could not sustain the presumption that a condition was attached to either of the deliveries. Considering the manner in which the goods had been sent to Lynes from time to time, the fact that almost eight weeks had elapsed between the delivery of a part of those claimed and the demand made for the notes or a return of the goods, and the entire absence of proof that any condition or qualification was attached to either of the parcels delivered, the case was altogether too bald to go to the jury, and the plaintiff was properly non-suited.

The second suit at bar, (Read & Hoppock's,) is in its facts precisely like that of Chapman v. Lathrop, before cited. The sale was for cash, the goods were delivered on the buyer’s order without any condition imposed, and the price was demanded five or six days afterwards. The plaintiffs further offered to prove, that by the custom and usage of merchants in this city, the seller retained a lien for the price of goods sold for cash and deli vered as these were, and that the delivery was conditional by such usage.

This the judge rejected, because the custom alleged was contrary to law : and in this he was undoubtedly right. (Hone v. Mutual Safety Ins. Co., 1 Sand. 137.)

The plaintiffs also claimed the right to present the case to the jury on the ground of fraud ; but there was not a particle of evidence from which fraud could be inferred.

The nonsuits were right in both suits, and the motion in each for a new trial must be denied.  