delivered the opinion of the Court.
The defendant agreed to purchase the vessel in question for a stipulated sum, to be paid in six and twelve months. He was to receive her on the day of the date of the contract; and it was in evidence that she did on that day go into his possession. A sale and delivery appears to have been contemplated by the parties, the defendant agreeing to furnish at a future day satisfactory security, in which case he was to receive from the plaintiffs the formal evidence of title. The defendant thereafter-wards made use of the vessel at his pleasure and treated her as his property, until she was lost while in his employment. He did not furnish the security required ; but retaining the vessel, he might be considered as justly indebted to the plaintiffs in the amount of the purchase money. The formal and legal title was to remain in them, until they were furnished with other security. This was expressly agreed. It was then substantially a purchase by the defendant, the plaintiffs holding the legal title by way of mortgage, or until otherwise paid or satisfied. The agreement itself, together with the conduct of the parties, may well justify that construction. The oath taken by one of the plaintiffs at the Custom-house, in June, 1821, and the new enrolment there received, is in perfect accordance with this view of the case. If the plaintiffs had then accepted possession of the vessel, the contract of sale would have been rescinded or vacated ; but the defendant continued in possession as before, *256and the vessel remained subject to his control and management. What was transacted at the Custom-house, was not regarded by either party as interfering with the right of the defendant to treat the vessel as his own.
But whether we consider the defendant as the purchaser or not, the plaintiffs have a right to recover under the contract. The defendant agreed within sixty days to furnish the security, or surrender the vessel. He did neither. The new papers taken a year afterwards, the possession remaining with the defendant, did not amount to a surrender of the vessel. If the defendant is to be treated as a purchaser from the day of the contract, the plaintiffs are entitled to the price stipulated; if not, .the failure on his part to surrender the vessel as agreed, would entitle them to the same measure of damages, as that price was the fair value, at which she was by mutual consent estimated.
Judgment on the verdict.