In March, 1886, the plaintiff, by its president, agreed to sell to one Guy Tremelling two printing presses, with the necessary shafting, together with a quantity of type and and other printers' supplies, for the sum of $1,100.95, payment to be made as follows: Five hundred dollars to be paid in cash, and a chattel mortgage, embracing all the property sold, to be given by Tremelling for the balance. The plaintiff at once commenced to put up the shafting, set the presses and deliver the type and other materials. When the work was about *Page 43 half done, the clerk of the plaintiff was sent to Tremelling to collect the cash agreed to be paid. Tremelling paid $250 and the plaintiff went on with the work of putting the presses in working order, transferring the type and other materials, in which work the plaintiff was engaged between fifteen and sixteen days. Immediately after the materials had been put in and work completed, the president of the plaintiff went to the office of Tremelling to receive the payment agreed upon, and learned that Tremelling had absconded. On the same day, or the day following, the defendant, as sheriff of the city and county of New York, under and by virtue of a warrant of attachment regularly issued against the property of Tremelling, levied upon the effects in question. The plaintiff thereupon commenced this action to recover possession of the property. At the close of the plaintiff's case the defendant moved the court to direct a verdict for the defendant. The plaintiff asked that the case be submitted to the jury. The court denied the plaintiff's request and directed a verdict for the defendant, the plaintiff duly excepting.
We think that the facts proven did not warrant the trial court in holding, as a matter of law, that the title to the property had passed from plaintiff to Tremelling, and, therefore, the disposition made of the case was error. It is too well settled to require the citation of authority, that where a sale of personal property is made upon condition that the stipulated price shall be paid upon delivery, title does not pass until payment made, unless the vendor waive the condition. Under such a contract, delivery and payment are simultaneous or concurrent acts by the seller and buyer; and although the articles may have been actually delivered into the possession of the vendee, the delivery is held to be conditional and not absolute, provided the vendor has not by subsequent acts waived the condition of payment. If, then, the agreement between the plaintiff and Tremelling had provided, in express terms, that payment be made on delivery (no proof having been offered tending to show a subsequent waiver of such condition), it would have been the duty of the court to hold, *Page 44 as a matter of law, that the title to the chattels still remained in the plaintiff.
The agreement, however, did not provide, in express terms, that payment should be made on delivery. Neither did it provide that payment and delivery should not be concurrent. The rule in such case is that the intent of the parties must control. If it can be inferred from the acts of the parties and the circumstances surrounding the transaction that it was the intent that delivery and payment should be concurrent acts, the title will be deemed to have remained in the vendor until the condition of payment is complied with. (Benj. on Sales [Am. ed.] § 330 and notes; Leven v. Smith, 1 Denio, 571; Hammet v. Linneman, 48 N.Y. 399;Smith v. Lynes, 5 id. 41; Parker v. Baxter, 86 id. 586;Russell v. Minor, 22 Wend. 659.)
The question of intent is one of fact, not of law. It is for the jury, not for the court to pass upon. (Hall v. Stevens, 40 Hun, 578; Hammet v. Linneman, 48 N.Y. 399.)
It appears that the defendant stipulated to pay for the materials sold, $500 in cash and give a chattel mortgage on all of the property for the balance; that while the materials were being delivered, the plaintiff demanded and received $250 on account of cash payment; that immediately after the plaintiff had performed his part of the contract, its president went to Tremelling's office to receive payment and found that he had absconded, and the next day the plaintiff's president asserted to the attaching creditor that he had not parted with the possession of the goods. These facts, together with all the circumstances surrounding the transaction under the authorities cited, should have been submitted to the jury, under proper instructions, to enable them to determine whether the title passed to Tremelling or remained in the plaintiff. It is suggested, in one of the opinions of the court below, that Tremelling had acquired an interest to the extent of $250 in the property, which was subject to sale under the attachment. We do not concur in that view. If it be determined that the title to the property remains in the plaintiff, the case falls *Page 45 within the established rule that where a vendor of chattels, when the period of performance arrives, is ready and offers to perform on his part, and the purchaser neglects and refuses to perform, for any reason, he cannot recover back the partial payments he has made. (Monroe v. Reynolds Upton, 47 Barb. 574;Humeston v. Cherry, 23 Hun, 141.)
The judgment of the General Term and of the Circuit should be reversed and a new trial ordered, costs to abide the event.
All concur.
Judgment reversed.