[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 401 The facts proven show that the coal was delivered to the defendant Linneman from the boat which brought it to the port of New York, and that he was allowed to cart it to his yard. Whether this was an absolute or conditional delivery depended on the intention of the parties. (Furniss v. Hone, 8 Wend., 256;Smith v. Lynes, 1 Selden, 43.)
It was a fact to be found, in this case, by the court, and it has been found adversely to the appellants. We cannot go behind the fact, as found by the judge, where there is evidence to support it. There was evidence bearing on this fact, given by both sides, and it is not our province to look into it to ascertain or give any judgment as to its preponderance. The evidence was conflicting upon all the facts found, and we cannot say that they are not well found.
It is not necessary that the vendor shall declare the condition in express terms at the time of the sale. It is sufficient if the intent of the parties can be inferred from their acts or the circumstances of the case.
On the facts, as found by Judge ALLEN, before whom the case was tried at the circuit, there is a clear case for the plaintiff.
The judge found that payment was a condition precedent to the vesting of the property in the purchaser; that the condition was never waived, and that the price was never paid. Also, that Broking was not a bona fide purchaser.
The counsel for the appellants insists that the judge has found against the presumption of a waiver of the condition, arising from an actual delivery of the coal without payment, without any evidence.
The case of Smith v. Lynes (1 Seld., 43) is decisive that delivery, without requiring payment at the time, is presumptive evidence that the condition had been waived. *Page 403
This presumption may be rebutted by the acts or declarations of the parties connected with the circumstances, showing an intention that the delivery should not be complete until the condition should be performed. Also, that the intention, where any doubt arises, is a question of fact.
The judge has found the fact, distinctly and positively, that the condition was never waived. If this fact, so found, is supported by any evidence, the plaintiff's case must be held to have been established.
Mr. Willis, a witness for the plaintiff, testified that the coal lay at the foot of Twenty-third street, East river, and was sold for cash. That Linneman wanted him to take a thirty-day note; the said Willis being the agent of the plaintiff for selling the coal, the proposition for this credit was declined.
The coal was delivered to Linneman on Monday, Tuesday or Wednesday, and Willis called for payment on Saturday, when he paid him a small balance of twenty dollars, which Willis had advanced to the captain of the boat for freight. The balance of the freight, nearly $200, was paid by Linneman to the captain. In two or three days, Willis called on Linneman again and asked for the money. Linneman said he could not pay it, he had had so much to pay. Willis then asked him, "did you sell out?" Linneman asked who told him, and upon the question being repeated, he said: "Yes, I was compelled to sell out." Willis then asked him what he did with Mr. Hammett's coal, and expressed the hope that he did not sell that? Linneman said he could not help it.
No claim was made by Linneman that the condition had been waived, but he excuses himself for having sold the coal without paying for it, upon the ground that he could not help it. It was an admission that the statement of Willis was correct, and that he had sold the coal when he ought not to. Willis further testified, on cross-examination, that he had sold Linneman, on previous occasions, on credit, but did *Page 404 not at this time for the reason that he had heard that Linneman was on the eve of failing.
Willis also testified to conversations with Linneman and Broking tending to prove that Linneman had sold the coal to Broking by a written bill of sale before the coal had been received at his yard.
This evidence was disputed by Linneman, but it appears to have been credited by the learned judge before whom the action was tried without a jury. It fully proves that no claim was made by Linneman that the condition of payment, in order to complete the sale of the coal, had ever been waived at the time when the demand was made by Mr. Willis.
When the sheriff seized the coal under the proceedings for claim and delivery in this action, Linneman said: "It looks much like a swindle, and I am ashamed of it." Then to prevent the coal from being taken, he told the officer that it was mixed with the other coal in the yard, "all through."
We must assume that the judge gave credence to this evidence. The conclusion from it was plain that Linneman had endeavored to convert the coal without performing the condition upon which it was sold, so that the seller would be unable to seize it upon that ground, and, hence, that there had been no waiver. It was not necessary to stand by the coal while being delivered to the defendant's carts, and demand payment for each load before it was carted away, under the penalty of waiving the condition upon which the title was to pass. It was sufficient that payment was the condition agreed on, and that a request, in the case of a bulky article like coal, was made for payment promptly within two or three days after it had been received. Had there been any intention to waive the condition, Linneman would have claimed it when he was so severely accused of misconduct and bad faith in disposing of the coal without making any payment for it. Instead of claiming that he was not to pay on delivery, he substantially admits that such were the terms of the sale, by declaring that the transaction "looked much like a swindle, and that he was ashamed of it." *Page 405
This testimony being credited by the court, we can be at no loss to perceive the basis of the fact found, "that the condition was never waived." It may be added that the judge might well have found that the vendee purchased the coal with the fraudulent intention of not paying for it; but he has seen fit to place his judgment upon the ground of a conditional sale, and to rebut the presumption of a waiver arising from the delivery of the coal, by a negative as to the waiver.
I think the court below might properly have found that the condition was never waived, on the evidence tending to prove that the coal was purchased with the fraudulent intention of not paying for it. A waiver of the condition could not be predicated on evidence of a fraudulent purchase, nor in a case where the vendee had sold the goods to prevent the vendor from effecting a recision of the sale to him, on the ground of a breach of the condition. Fraud vitiates every transaction, so far as the rights of the vendee are concerned.
It is unnecessary to refer to the evidence on the part of the defendants. The question of the weight or balance of evidence passed out of the case, when it left the court below. It is not the province of this court to balance conflicting evidence. It is sufficient that evidence is to be found in the case to sustain the facts as found by the court or referee, or to sustain the verdict where the trial has been had before a jury. Questions of law only are here considered as the general rule, and this is not a case within any exception to the rule.
The defendants also urge that they have not been credited for the freight paid by them, and that this is error.
No exception on that ground appears in the case.
The defendants also conceive that it makes a technical difference in their favor that the vendor of this coal knew that Linneman kept a retail coal yard, and assumes that it was delivered for the purpose of being retailed.
No such fact can be found in the case, unless it be gleaned from the details of the evidence. The attention of the judge who tried the action does not appear to have been called to this subject, nor to the question of freight. These points *Page 406 cannot be legitimately raised in the cause for the first time in this court.
It is said by the defendants that the amount of the recovery is excessive.
The defendant, Linneman, mixed the plaintiff's coal with his own before payment. How much remained on hand at the time of the commencement of the action cannot be ascertained, except proximately by an estimate. The court below had the facts under review and abated $300. We cannot explore the details of the evidence to ascertain the facts bearing on this subject. The defendants must accept the loss as the penalty for not preserving a distinction between the coal of the plaintiff and of Linneman.
It is also said that the form of the judgment as entered is erroneous. I think the form is incorrect, but the defendants can have that corrected on motion by the court below, if they feel aggrieved. It is an irregularity and not an error, to be corrected by an appeal. It does not appear that the court below have ever heard the suggestion of such a ground of complaint as the last.
The judgment should be affirmed, with costs.