
    John Smith versus James Dennie.
    A and B, joint owners of a chattel, sell it on a condition precedent and make a delivery subject to the condition ; which not being complied with, and the chattel being attached by a creditor of the vendee, A sells his part to B, who replevies the chattel. Held, in such action, that A was disinterested, and so a competent witness.
    A voluntary delivery of a chattel sold upon condition, without the delivery’s being sub conditione, exposes the property to attachment by the creditors of the vendee.
    Where a chattel was sold upon condition that the vendee should give an indorsed note, but was delivered without any express reference to the condition, and remained in possession of the vendee eight days, when it was attached by his creditors, the vendor having made no claim during that period either for the note or the chattel, and no reason was assigned for omitting such a claim, it was held, that there was a waiver of the condition, so far as to warrant the attachment, and that a verdict to the contrary was against the evidence.
    Replevin for ten boxes of sugar. The defendant, who was a deputy sheriff, pleaded that the sugar belonged to Fair-field and Holland, and that he attached it as their property. The plaintiff replied that the property was in himself; and issue was joined thereon. A trial was had before Parker C. J.
    On the first of February, 1827, preceding the attachment, the sugar belonged to the plaintiff and one Sears. The plaintiff claimed title to the whole by virtue of a sale made to him by Sears after it was attached, and he relied upon the testimony of Sears; who was objected to as being interested in the event of the suit, but he having stated that he had then no interest, having sold his half of the sugar to the plaintiff for one half of the supposed value, and that he was in no way accountable to the plaintiff if he failed to maintain his title, he was admitted.
    Sears testified, that on the first of February he sold the sugar to Fairfield on the express condition that he should give a promissory note for the price, with Holland as an indorser. The sugar was delivered to Fairfield by the clerk of the witness, in his absence from the store, and nothing was said at the time respecting the condition. The plaintiff was in New York at the time of the delivery, and no note was given. The witness stated that he did not know of the delivery until the next day. A bill of parcels, not receipted, was given to Fair-field when the sugar was taken away from the store. The witness testified that it had been usual for him, and he supposed it was for others, to deliver goods before the security was given. No 'demand of the note was made until after the attachment, which was eight days after the bargain and delivery. Afterwards the plaintiff applied to Fairfield to furnish the note, or to give up the sugar ; which he said he was unable to do, but would, if the creditors who had attached, would consent. The plaintiff also applied to Holland to indorse a note, which he declined. It was testified by Fairfield, that he and Holland were secret partners ; but Sears testified that this was not known to him when he made the sale ; that he asked Fairfield whether Holland was his partner, and was answered that he was not, but soon would be. They were in fact, however, secret partners at that time.
    
      March 26th,
    
    The principal question at the trial was, whether the sale by Sears to Fairfield was absolute or conditional; and there was contradictory evidence on this point, Fairfield, who was called by the defendant, having testified that the sale was absolute. The verdict established the fact that it was conditional, as testified by Sears. The defendant excepted to the verdict, on the ground, that admitting the sale to have been conditional, delivering the sugar without taking the note and suffering it to remain so long a time in the possession of Fairfield, and omitting to rescind the bargain by demanding the sugar, during that time and until after the attachment, made the property Fairfield’s, so as to be liable to attachment by his creditors. This was reserved as a question of law, the jury having determined that in point of fact there was no intention on the part of Sears to waive the condition. On this point the jury were instructed, that though nothing was said, at the time of the delivery, about the condition, yet if they believed it was not intended to waive it, they might consider it in force.
    The defendant objected too, that the action could not be maintained by the plaintiff alone, but that Sears ought to have been joined. He also moved for a new trial, because Sears was admitted as a witness.
    
      Bassett, for the defendant,
    insisted, that although the sale was conditional, the delivery by the clerk, which was ratified by the acquiescence of Seal’s, was unconditional, so that the property was liable to be attached by the creditors of Fair-field ; 2 Kent’s Comm. 391; Carleton v. Sumner, 4 Pick. 516; — that the verdict, in finding that the condition had not been waived, was against the evidence ; — and that the instruction of the judge on this point was incorrect, inasmuch as suffering the sugar to remain so long in Fairfield’s possession without demanding the note was in law a waiver of the condition. Payne v. Shadbolt, 1 Campb. 427. Sears was not a competent witness, for he had a legal interest in the property, and the suit should have been brought by him and Smith jointly. They could not recover the sugar except by an action of replevin, so that m regard to a part, Smith was only the assignee of a chose in action, and consequently must sue in the name of the assignor. 3 Cbitty on Com. & Manuf. 561.
    
      June 21st
    
    
      Fletcher, for the plaintiff.
    The sale to Smith was not of s> right in action, but of a parcel of sugar. Our ground is, that the property did not pass to Fairfield, and Sears might as well sell his interest when the sugar was in the possession of Fair-field, as if it had been in his own hands.
    The question whether the verdict was against evidence is not open. There was sufficient evidence (some of which is not reported) to warrant the jury in finding that the condition was not intended to be waived. The instruction of the judge was right. In the cases generally the question has been, whether the delivery was intended to be absolute or conditional, and where it was not intended to be absolute, the property has been held not to have passed. Hussey v. Thornton, 4 Mass. R. 405; Marstonv. Baldwin, 17 Mass. R. 611; Barrett v. Pritchard, 2 Pick. 515; Carleton v. Sumner, 4 Pick. 516; Palmer v. Hand, 13 Johns. R. 434; Haggerty v. Palmer, 6 Johns. Ch. R. 437 ; Harris v. Smith, 3 Serg. & Rawle, 20; Chapman v. Lathrop, 6 Cowen, 110.
   Parker C. J.

delivered the opinion of the Court. It was left to the jury to say whether the sale of the sugar was conditional, and they have found that it was, upon a comparison of the testimony of Sears and Fairfield, between whose accounts of the transaction they had a right to choose on which to rely. We consider Sears to have purged himself of all interest, by his sale to Smith, which sale is undoubtedly valid if the property of the sugar was not then in Fairfield for the benefit of his creditors.

The point of the case is, whether at the time of the sale, Fairfield then being in possession without fraud, on a purchase previously made of Sears acting for himself and Smith, the property was not so far in him as to warrant the attachment by his creditors.

And this depends upon the question, whether the delivery after the sale was free from the condition on which the purchase was made. In the case of Hussey v. Thornton the delivery was conditional, as well as the sale, and so the property was held to continue in the vendor. That the condition of a sale may be waived, so that the property will vest in the vendee notwithstanding he has not performed the condition, seems to be well settled in that case of Hussey v. Thornton, and in a more recent case of Carleton v. Sumner, 4 Pick. 516; [2nd ed. 517, note 1;] and the doctrine thus settled here is adopted by chancellor Kent in his Commentaries, 2 vol. 391. [3d ed. 497.]

The principle is, that if the vendor who has sold upon condition, permits 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 ; and whether such is the state of things or not is matter for the jury to settle upon the facts proved. We do not think, after a conditional bar ■ gain has been made and a delivery immediately taken place upon the expectation that the contemplated security shall be produced, without an express declaration that the delivery is also conditional, that the sale ipso facto becomes absolute ; because there is an implied understanding that the vendee will act honestly, and he takes the goods subject to the contract, which is, that he shall furnish the security which was the condition of the sale, as soon as he shall have opportunity to procure it; and it would much embarrass sales at auction and other sales, to require that the vendor should in all cases insist upon the note or other security being produced before the goods shall be delivered. And in case no new credit is obtained by the vendee in virtue of his possession of the goods, no wrong is done by allowing the vendor to reclaim them.

If they are" sold by the vendee, he having the possession delivered to him by the vendor, the purchaser not knowing of the condition, the case would be different, as the vendor would be considered as having delivered them for the very purpose of enabling the vendee to use them in trade and merchandise, trusting to the performance of the condition by the vendee. But there seems to be no good reason why an antecedent creditor, watching the transactions of his debtor, should have a right to seize upon goods which came into his possession, when he has not paid for them, or given that security without the promise of which he could not have obtained the goods. Such creditor has not trusted on the faith of the goods, and is therefore not prejudiced by being restrained from attaching them.

It was therefore for the jury to decide this case, and upon the question put to them by the Court, viz. whether there was an intention on the part of Sears, the vendor, to deliver absolutely, and so to waive the condition on which the sale was made. We understand the case of Carleton v. Sumner was so put to the jury in effect; for if there was a right by the contract to insist upon the promised security before the goods were delivered, this right could not be lost but by an intentional waiver ; so that the question now is, whether the verdict is against the evidence on that point. Here the condition of security by an indorsed note must be considered to have been absolute and explicit. The goods are delivered by the clerk without any thing being said about the security, a bill of parcels is given, but without any receipt, no note is taken, and no money paid. The vendor certainly had a right the day after to insist upon his indorsed note or to rescind the bargain and reclaim the goods. If so, why not two days or three, and if so, the time which elapses is a mere fact, from which the jury may infer the intention. Circumstances of business and engagement may account for the delay, and if they do, the right to security or to reclaim the goods, unless sold as before men tioned, is not impaired. And perhaps the law would be the same, if the sale had been for cash, and not on credit, for even in such case the mere delivery with an expectation of receiving the price in a short time, does not divest the property of the vendor, 2 Kent’s Com. 391. [3d ed. 497, 498.]

But in the case before us, eight days passed between the de livery of the goods, and any call for the indorsed note, nor was any initiation made of the security to be given, when the goods were delivered by the clerk ; who does not appear to have been informed by the vendor of the terms of the sale. The latter, however, must be presumed to have known the next day that they had been delivered, and yet he did not send for the note, or give any manner of notice that it was required, until the attachment took place eight days after the sale. We are apprehensive, that to establish the right to reclaim under such circumstances, would widen the door for fraudulent con trivances, and that afterthoughts respecting conditions will spring up to intercept attaching creditors, when the sale was really unconditional, or at least when the vendor has thought his condition of so little importance as to be willing to abandon it and trust to the credit of the purchaser.

We are of opinion that the verdict is against the evidence, for there was nothing in the case from which an intention to hold on upon the condition can be inferred ; — no declaration at the time, which though not necessary is important, and no call for security until it was forgotten or abandoned, and perhaps never would have been recurred to if the goods had not been attached.

The case is like that of Hussey v. Thornton, before cited, in which it ivas determined that a voluntary delivery of goods sold upon condition, without the delivery being sub conditions, exposes the property to attachment by the creditors of the . vendee. And it was upon the same principle that the case of Carleton v. Sumner, also before cited, was decided. We think for the foregoing reasons a new trial must he granted. 
      
       See 3 Kent’s Comm. (3d ed.) 497, 498.
     
      
       See Corlies v. Gardner, 2 Hall’s (N. Y.) R. 345; Reeves v. Harris, 1 Bailey, 563; Ayer v. Bartlett, ante, 79, note 2; Whitwell v. Vincent, 4 Pick, (2nd ed.) 452, note 1; Riddle v. Varnum, 20 Pick. 260; Lupin v. Marie, 6 Wendell, 77.
     
      
       See Lupin v. Marie, 6 Wendell, 77; Furniss v. Hone, 8 Wendell, 247; Corlies v. Gardner. 2 Hall’s (N. Y.) R. 347; De Wolf v. Balbett, 4 Mason 294; Copland v. Bosquet, 4 Wash. C. C. R. 588; 2 Kent’s Comm. (3d ed. 497, 498.
     
      
       See Andrews v. Hunneman, ante, 130, note 1.
     