The opinion of the Court was drawn up by
Kent, J.The facts upon which the questions in this case arise, when carefully examined, are few and simple, although the report is somewhat voluminous.
The plaintiffs were the undisputed owners of six hundred Bara hides. They negotiated for a sale of them to Edward A. Frye, and, after various propositions and a long correspondence, they finally agreed to sell them to Frye at a certain price, and receive his notes on time, in payment. Erye assented to the purchase, having made the final proposition as to time of payments of the notes. The hides were at New Haven, where, after the agreement for sale and payment had been made, they were weighed off, and Erye took them into his possession and caused a part of them to be transported to his store in Boston, and left the remainder on a wharf in New Haven, he paying wharfage therefor.
On the day after the weighing, the plaintiff sent to Erye a bill of the hides, and a minute of the time, &c., of the notes to be given, and requesting him to send the notes at once. The notes were not sent, but, six days afterwards, Erye asks for a change of times of payments of the notes. The plaintiffs reply, that they will consult on the subject. The notes were never sent according to the original agreement, but about ten days after the weighing of the hides, on the 8th of October, a new agreement in writing was made, between the parties, by which, as is contended .by the plaintiffs, the original bargain was substantially rescinded, and the title, if *219it ever passed out of them, was reinvested in them. After the contract of the 8th of October, Frye, without the knowledge or assent of the plaintiffs, sent a part of the hides, (the 600 now in question) to the defendants to be tanned. The defendants advanced their notes to Frye, holding, and claiming to hold, the hides as security for such advances, according to an agreement between the parties. This action of trover is brought to recover from the defendants the value of the six hundred hides.
The first question is — was the property of the hides in the plaintiffs at the time of the alleged conversion? The defendants contend that, by the sale and delivery under the first agreement, and the facts connected therewith, the property passed absolutely to Frye, and that the title thus acquired has never been divested.
They say that the contract of the 8th of October was not a resale, or, if it was, that the title was not perfected under such agreement of resale, because there was no delivery, and no consideration. The plaintiffs contend that the delivery under the first contract was conditional and depended upon the payment of the price by the liotes. That on the failure to send the notes, the title, which would otherwise have been perfected, did not pass, and that the subsequent agreement takes effect as a new contract, or as an essential modification, if not entire rescission of the first agreement. It is undoubtedly true, that when the elements of a sale, price, time and terms of payment, and the manner and time of delivery are agreed upon, delivery will, in the absence of all other facts, pass the title. 13ut where there is an express or implied agreement, or understanding that the title is not to vest until payment or delivery of the notes agreed upon, a delivery will not pass the title until the condition is performed, and the vendor, in such a case, may reclaim the property, even from one who has purchased in good faith, and without notice from the vendee. Coggill v. H. & H. Haven Railroad Co., 3 Gray, 545.
It would seem that it is a question of fact for the jury, *220whether there was such expressed or implied agreement entering into and making part of the contract of sale.
But we do not think it necessary to discuss this point more fully, as there is another point made by the plaintiffs, which, if sustained, disposes of this part of the case. The plaintiffs. say, that, admitting that the title did pass to Frye by the weighing off and possession taken by him, yet, by the contract of the 8th of October, made before any right of a third party had intervened, the old contract was rescinded and a new one made, by which the title was revested in the plaintiffs, and Frye afterwards held the hides as their property, according to its terms.
On this point the Judge instructed the jury, that, if the title did pass to Frye by delivery under the first contract, the parties might, by mutual agreement, rescind the former contract, and make a new one different from the first, and, if they did so, that the legal effect of the new contract in writing was a rescission or modification of the original contract, and revested the title in the hides in the plaintiffs, as between the parties, no rights of a third party having intervened, without any farther or other delivery than arises from the fact that Frye, by the new contract, was* to hold and retain the hides for the plaintiffs, and a possession by Frye, as their agent, would be, legally, sufficient to revest the title in the plaintiffs as against subsequent purchasers and persons unlawfully intermeddling with their rights. Is this ruling erroneous ? There can be no doubt that the parties might rescind or annul the first agreement, or that Frye might resell or reconvey the hides to the plaintiffs if he had acquired a legal title thei*eto. The agreement to release Frye from his obligation, connected with the new agreement to tan, are a sufficient consideration.
Thé written contract of October 8th is signed by Frye' alone, and in it he distinctly says, "the ownership of said hides to be vested in the said Hotdhkiss Bros. & Co. until said hides are tanned, at the cost and risk of said Frye.” This language not only recognizes the title but may fairly *221be said to convey it. The whole instrument shows that, under this new agreement, the parties intended that the former sale and delivery were to be annulled, and that, instead of an absolute sale, the plaintiffs were to resume their former ownership, if they had parted with it, and to retain the title until the hides were tanned and the notes were paid. It is insisted, however, that if the title actually passed under the first sale, that a resale can be effected only in the same manner as the original sale, and that, unless a delivery is proved, the title will not revest. This proposition, as a general rule, seems to be well established. But where, by the terms of the agreement, or by a fair implication therefrom, the article thus sold or resold is to remain in the possession of the vendor for a specific time or for a specific purpose-, as part of the consideration, and the sale is otherwise complete, the possession of the vendor will be considered the possession of the vendee, and the delivery will be complete and sufficient.
In the -case of Barrett v. Goddard, 3 Mason, 114, it appeared that certain bales of cotton were sold by marks and numbers, then lying in vendor’s warehouse, for which a note was given on six months, and it was agreed that they might remain rent free, at option of vendee, in vendor’s warehouse; and, although there was no separation or formal delivery in any manner, it was held that the delivery was complete as against a subsequently attaching creditor, whose title was by assignment. Judge Story says : — "The principle is sound, that a continuance of the possession of the vendor does not prevent the delivery being complete, if nothing further remains to be done on either side, and the possession is by mutual consent. There is nothing in reason or principle to make the present case different, simply because the bales of cotton remained in the plaintiff’s warehouse. It was part of the bargain that they should so remain, and a part of the consideration of the promise.” This case is cited and part of the above language quoted by C. J. Shepley, in Means v. Williamson, 37 Maine, 556.
*222The case of Gleason v. Drew, 9 Maine, 81, sustains the same view. That was a case of resale, and the point was urged that there was no delivery. The Court admit the general principle, that the same formalities were requisite in resale as in the original sale, but hold, that where, under the new agreement for a resale, one of the terms was that the vendor should retain the ju'operty as the vendee’s, with a right to repurchase, that the property would be reinvested in the original owner without any other delivery.
The case of Quincy v. Tilton, 5 Maine, cited by the defendants, only enunciates the general principle, as above stated. It does not touch the case where, by the terms of the agreement, the vendor was to retain possession as agent, bailee, or conditional purchaser of the vendee.
The same rule is found in the civil law. Pothior says— "By the feigned delivery which results from the clause authorizing the seller to retain the thing as a usufructuary, hirer, lessee, or from the mere clause of constitution, the buyer truly takes possession of the thing, and thereby truly acquires the property of it. By these clauses the seller takes possession of the thing in name of the buyer.” Pothier on Sale, (Cushing,) 203; Holley v. Higgeford, 8 Pick., 73.
We have seen the report and opinion in the case of Beecher v. Mayall, decided by the Supreme Court of Massachusetts, in 1860, and not yet published. It is very similar in its facts to the case before us. In that case certain steam boilers were sold by the plaintiff to a firm, who took possession; soon afterwards, at request of the firm, the first sale was cancelled by mutual consent, no part of the original purchase having been paid. It was then agreed, that the firm should repair the boilers for the plaintiff, for which work they were to be paid by certain other articles included in the original sale. The action was tort, to recover the value of the defendant, who claimed under the original sale and contended that the resale, if made, did not operate to revest the property in the plaintiff, there being no redelivery. The presiding Judge instructed the jury that, in case *223of a resale there must he a delivery, actual or constructive, but, that slight evidence of delivery would be sufficient, and that the jury might ptesume it from subsequent acts of control and possession on part of the plaintiff, if proved. The Court, upon exceptions, decided that this instruction was wrong; that if there was a sale and a resale, or surrender of all the rights under the fii’st sale, that any further evidence of delivery, to be shown by subsequent acts of the parties, was unnecessary; that if, upon the resale, it was stipulated that the vendors in the resale were to proceed to repair the articles, and were to have a possession for that purpose merely, their possession would be the possession of the plaintiff; that, although the Judge ruled that slight evidence of delivery would be sufficient, yet, as it assumed that something was necessary beyond the contract, to give up the sale and retransfer the property to the plaintiff and keep possession of the same to make repairs, in pursuance of the conditions of the resale, it was erroneous.
We are satisfied that the ruling of the Judge on this point was essentially correct, and that, after the contract of October 8th, the title of the hides was in the plaintiffs. That contract puts the title in the plaintiffs, and they agree to sell and convey the hides to defendants on the payment of the notes named at maturity. It is expressly provided that the ownership shall remain in plaintiffs, until the hides are tanned, and the leather is then to be taken and sold by the plaintiffs and the money applied to pay the notes.
This renders it unnecessary for us to consider the requests, objections and rulings which have reference to the question whether the first sale to Frye was perfected by the delivery. Assuming all that the defendants claim on this point, and rejecting the findings of the jury as immaterial, or even as incorrect, if there was a resale under which the title vested in plaintiffs, the first sale and the evidence admitted and rejected on that point, becomes immaterial. This applies to the evidence of a custom in New Haven to deliver goods before payment. This evidence only affected the question, *224whether the title passed to Frye under the first sale, and therefore, in the view we take, is immaterial. This was the view taken by the presiding Judge. The same remark will apply to the requests and the rulings on all points connected with the first sale and the effect of the delivery under it.
On a careful examination of the rulings on the question of conversion, we find no error prejudicial to the defendants. The jury were instructed, in substance, that the possession of Frye, under the written contract, was lawful for all purposes contemplated by the contract; but that, if he sent the hides to defendants, and, by agreement with 'them, they took them as pledge or security for advances made to Frye, by them, that such sending and receiving, and holding, was a conversion, both by Frye and defendants, and no demand was necessary. It is not necessary, as seems to be assumed in the requests, that there should be a fraudulent intent proved. A claim of right, honestly made, does not justify intermeddling unlawfully with another’s goods. A demand is necessary when there has been no actual assumption of ownership or right to control or dispose of the article unlawfully. Frye, when he undertook to dispose of the hides to obtain money or notes for his own use, was guilty of a wrongful conversion, and the defendants; when they took them for the purpose of securing such advances, were also guilty of a conversion, although acting in good faith and ignorantly. ■ If the bailee of property for a special purpose, sells or pledges it without right, the purchaser does not thereby acquire a lawful title or possession, and the owner may maintain trover against him without demand. Galvin v. Bacon, 11 Maine, 28; Parsons v. Webb, 8 Maine, 38; Stanley v. Gaylord, 1 Cush., 536.
It is insisted that if there was a conversion it was waived by certain transactions, previous to the institution of this suit. ° The Judge ruled that a tortious conversion might be waived or assented to, so as to prevent the maintenance of the action. It was left to the jury to determine the fact on all the evidence. He ruled, as matter of law, that the offer *225ór request in the paper produced, that the defendants should hold and tan the hides for the plaintiffs, would not of itsell purge or waive the tort, nor would any efforts on their part, to have the defendants acknowledge their right and title, and hold and tan the hides for them, unless the defendants assented to do so, and, if they did not so assent, the plaintiffs might withdraw their request, and it would not be a waiver of a prior conversion.
It would hardly be contended that a mere proposition, by the true owner to a wrongdoer, who had taken the property unlawfully, that he should acknowledge his right, and thereafter hold the property as his bailee, to do work thereon, would divest the owner of his right of action, if the proposition was not accepted or acted upon. If a man should find his horse in a livery stable, claimed by the keeper as his, and the owner should propose to the' stable man to acknowledge his title and right, and thereafter keep the horse at livery for him and at his expense, and the proposition should not be accepted, would any one contend that the owner was estopped from bringing an action of trover, on the ground of waiver of the prior conversion ?
The fact of waiver was submitted to the jury, and the ruling on this point was correct.
The evidence offered in reference to the Orford tannery was properly excluded as immaterial. The plaintiffs do not complain that the hides were not sent to the Orford tannery named in the contract, and this change of the place of tanning is not the conversion relied upon. If it had been, the facts offered in evidence might have been material. But the facts relied upon to show a conversion have no connection with the place, and would have the same effect if the contract had named the defendants’ tannery at Liberty as the place of tanning.
The fact that the hides could not be tanned at Orford, did not give, or tend to establish a right in Frye to dispose of the hides for his own purposes. It was not the place to *226which he sent them, but the purpose for which he sent them, that constitutes the wrongful conversion.
. The defendants introduced in evidence a petition of the plaintiffs to the Judge of the Court of Insolvency, in Suffolk county, Massachusetts, wherein they set forth that they hold the notes named in the contract of October 8th, that they are owners, of the hides in question, in process of tanning, which they hold as security for the payment of said notes, under the agreement of October 8th, a copy of which is annexed, and pray leave from the Judge to sell the hides and to apply the proceeds towards payment of the notes, and 'to be admitted as creditors of Erye for the balance. They also introduce the order of Court, which, without any other adjudication, gives leave to sell as prayed for. The assignee assents to a sale, on condition that the petitioners shall not become purchasers at a less sum than twelve hundred dollars; also, the certificate of sale at auction, to the plaintiffs, for thirteen hundred dollars.
On these papers, the defendants requested the Court to instruct the jury, that the plaintiffs were estopped from setting up any other claim inconsistent with that set forth in the petition, and from claiming to be general owners. This was the only request for instructions on this point.. The Judge declined so to instruct, and did instruct that these proceedings were not a bar to this action.
The first fact to be noticed is, that all these proceedings in the Court of Insolvency were subsequent to the alleged conversion and to the date of the writ in this case. The claim is, that the recital or assertion in this subsequent petition, that the hides were held by the plaintiffs as owners and as security for the notes, operates as an estoppel, and defeats the title and right to further maintain an action for a prior conversion. If the defendants claimed any right or title under, or by virtue of the sale, made in pursuance of the license of the Judge, it might well be contended that the plaintiffs should not be allowed to question the title they acquired by virtue of a sale which they had asked for and caused to be *227made. But no such, claim is made. In fact, the plaintiffs themselves became the purchasers at that sale, thus adding to their former title whatever rights could accrue to them from such sale.
It is true, that a distinct judgment of á Court 'which has jurisdiction to determine absolutely the question of title, directly upon the point of title in the thing, will usually be conclusive upon the parties in the proceeding, and, in many cases, upon all the world. The decrees of forfeiture, and other decrees in rem in admiralty, may thus operate when the question of title is distinctly passed upon as a finality.
In this case, we have no evidence in the report, touching the nature and extent of the powers of the Massachusetts Court of Insolvency, or of the statute under which it existed. But, assuming that it had power to do and order what was done and ordered in this case, we fail to perceive in the record any adjudication or decree touching the title, or any thing beyond a license to sell. It may be likened to a license granted by a Court of Probate to an administrator, to sell real estate, upon his petition setting forth the title in the deceased. A sale by virtue of such license would not convey any title against a third party, who was the real owner of the land. The license to sell neither creates nor defeats a title. The Court simply authorizes a sale, makes no adjudication as to title, leaving the right of all, not connected with the estate, untouched. Nor would a recital in such petition, or in a suit at law, that the deceased held certain lands in mortgage, or as security, estop the administrator, or the heirs, from setting up a claim in fee to such lands, upon proof establishing the title against a party not connected with the proceedings. If we look at the recitals in the petition, wo find nothing there inconsistent with a title in the plaintiffs. It distinctly alleges that the plaintiffs " are the owners” of the hides. The other parts of the petition may, perhaps, be said to represent this ownership as being that of mortgagees. But such a title might be good to sustain this action against the defendants, who do not set up *228any claim under the right to redeem, or, if they did, might find that right of no avail against the mortgagees. There are no grounds to sustain the requested instruction, that these proceedings estop the plaintiffs from establishing, by proof, a legal title against these defendants, who are strangers to the proceedings in the Insolvency-Court.
The receipt of a part of the first note and the acceptance of the note sent by Erye, and the agreement to aid him in meeting the other notes, was not a waiver of the terms of the contract such as to invalidate the title to the hides. If the first note had been fully paid or relinquished, the title would still be in the plaintiffs, so long as any one of the notes remained unpaid. A question of waiver was one of fact.
We have examined the . several questions in the depositions which were objected to, and we do not discover any error in the rulings of the Judge in admitting or excluding them. It is unnecessary to specify the several objections.
The case, as presented, did not require any other rulings on the point of a lien for work, than those given. If the defendants had not been guilty of a wrongful conversion before and independent of any demand, according to the rule given by the Judge, then the action could not be maintained. If they had been thus guilty, then clearly they could not legally set up a lien for labor performed on the articles converted.
If the acts of the defendants were not a conversion, the defence was sufficient without a lien. If they were a conversion, no lien could exist.
It is unnecessary to consider the question whether, in any event, under all the contracts, a lien could'be set up by the defendants against the plaintiffs.
Exceptions overruled. — Judgment on the verdict.
Tenney, C. J., Rice, Appleton, Cutting and May, JJ., concurred.