The plaintiffs bring this action of assumpsit against the defendants, lumber merchants residing at Quebec and there doing business under the firm name of D. & J. Maguire. Chase, Leavitt & Co. of Portland, are joined as trustees by reason of their having in their possession certain lumber shipped to them by the defendants.
The real contest is in reference to the title to the lumber in ¿lie possession of the trustees. The contention lies between the plaintiffs and the parties of whom the defendants purchased the Humber, who appear as claimants and assert that under’ the circumstances no title passed so as to prevent their claiming the lumber as their own.
These claimants at the time of the transactions out of which this suit arose were lumber merchants, residents of Canada, and carrying on business independent of each other at Louiseville on the St. Lawrence. The firm of D. & J. Maguire — the principal defendants — were also in the same business at Quebec. They had an agent, Arthur D. Bitchie, for the purchase of lumber in Canada, and Chase, Leavitt & Co. were there consignees of the lumber in Portland, who acted for said firm, received the lumber, entered it at the custom house, and gave a warehouse bond; subsequently an export bond was substituted, and the lumber shipped abroad as ordered by their consignors. Such was the general course of business.
*584At the time of the service of the writ in this case upon the trustees, the property in dispute, although in bond for storage, was constructively in their possession. While there could be no actual attachment of the property itself by a state officer undertaking to take the property out of the custom house, either by paying the duties or giving an export bond, (Harris v. Dennie, 3 Pet. 304; Conrad v. Pacific Ins. Co. 6 Pet. 262) and therefore could not be come at to be attached, there is no reason why it might not be subject to trustee process while thus in the constructive control and possession of the trustees. They could take it out of bond either by giving an export bond or by paying duties.
The lumber in question was purchased by the Maguires, through their agent about the first of November, 1886, at Louiseville, and was to be delivered at Douce t’s Landing, a place .about thirty miles from there down the St. Lawrence,— as terminus of the Grand Trunk Railway.
The contention on the part of the claimants is, that the terms of sale were cash less two and one-half per cent discount, or note on three months from date of shipment, and that the terms have never been complied! with ; in other words, that the sales were conditional, and the conditions never having been performed no title vested in the defendants.
The plaintiffs on the other hand controvert the position of the claimants, asserting that the sales were unconditional,— or if conditional, that there has been such a waiver of any conditions by the claimants as would render the title to the lumber complete in the defendants and therefore subject to this process.
These questions ordinarily are for the jury as questions of fact. But this case is before the court on report, and we must therefore determine them upon such evidence and by such means of judging as the parties have seen fit to. furnish us, applying the law to the facts as we find them.
There is no doubt that it is a well settled rule of law in this state that a sale and delivery of goods, on condition that the property is not to vest until the purchase money is paid or secured, does not pass the title to the vendee till performance of *585the condition and that in case the condition is not fulfilled, the vendor has a right to repossess himself of the goods, not only as against the vendee but also against his creditors, claiming to hold them under attachments. Everett v. Hall, 67 Maine, 498; Brown v. Haynes, 52 Maine, 580.
It is equally well settled that in the sale of personal property to be paid for by cash or by note on delivery, the payment of the money or the giving of the note is a condition precedent, and until that is done, or waived, the title does not pass from the vendor. Seed v. Lord, 66 Maine, 580; Stone v. Perry, 60 Maine, 50; Whitney v. Eaton, 15 Gray, 225.
If the delivery and payment were to be simultaneous, and the goods were delivered in the expectation that the price would be immediately paid, a refusal to make such payment would be such a failure on the part of the purchaser to perform his part of the contract as would entitle the seller to put an end to it and reclaim his goods. In such case the delivery may be regarded as conditional, and upon the purchaser’s refusal to pay, the seller may at once reclaim the goods. The sale is not consummated, and the title does not vest in the purchaser.
No citation of authorities is necessary in support of the principle equally familiar and well founded that the vendor may waive the condition of the sale and by so doing pass the title, although the sale was originally a conditional one. He may waive the payment of the price, or agree to postpone it to a future day and proceed to complete the delivery. In that case it would be absolute, and the title would vest in the purchaser. A waiver is the voluntary relinquishment of some known right, benefit or advantage, and which, except for such waiver, the party otherwise would have enjoyed. And therefore in order for the title to vest in the purchaser when the sale has been conditional, it must in some way appear that the goods were put into his possession with the intention of vesting the title in him, or that there were such acts and conduct on the part of the seller, that such intention might be .legitimately inferred therefrom. Farlow v. Ellis, 15 Gray, 232; Paid v. Reed, 52 N. H. 138.
Even in the case of a conditional sale of goods for cash there *586are authorities which hold that a delivery apparently unrestricted is a waiver of the condition that payment is to be made before the title passes, although the seller has an undisclosed intent not to waive the condition. Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Haskins v. Warren, 115 Mass. 533; West v. Platt, 127 Mass. 373.
But the doctrine which has the support of our own court upon this question, and which seems to be the correct and rational one, is, that even in a conditional sale the mere fact of delivery, without a performance by the purchaser of the- terms and conditions of sale, and without anything being said about the condition, although it may afford presumptive evidence of an absolute delivery and of a waiver of the condition, yet it may be controlled and explained, and is not necessarily an absolute delivery or a waiver of the condition ; but whether so or not is a question of fact to be ascertained from the testimony. Seed v. Lord, 66 Maine, 580; Stone v. Perry, 60 Maine, 51; Farlow v. Ellis, 15 Gray, 229; Hammett v. Linneman, 48 N. Y. 399; Smith v. Lynes, 5 N. Y. 43. "This doubtless would be good evidence of its waiver.” Dresser M’f’g Co. v. Waterston, 3 Met. 18; Furniss v. Hone, 8 Wend. 247; Carleton v. Sumner, 4 Pick. 516; Smith v. Dennie, 6 Pick. 262.
Such waiver may be proved either directly, or inferentially from circumstances like any other fact. It may be proved "by express declaration ; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage ; or by a course of acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was his intention and purpose to waive.” Farlow v. Ellis, supra.
Let us apply these rules to the present case.
The evidence of these contracts of sale comes entire!}' from the purchasers’ agent, Ritchie. Neither claimant has testified. They were the parties with whom the contracts were made — the parties who afterwards delivered the lumber. We are therefore without the light which their testimony might possibly shed upon the facts in this case. Although, taking the testimony before us, we may be satisfied that the contracts were originally conditional, *587nevertheless the evidence satisfies us of the fact that the vendors by their acts and conduct in reference to the property have waived any such conditions as may have originally attached to their contracts. This they had a right to do, and the evidence submitted fully warrants such conclusion. Nor are there any circumstances disclosed by the evidence which would modify the presumption of waiver by the unqualified and unconditional delivery which was made. There had been dealings of large amounts and of a similar character between the parties during the previous season. No custom or usage is shown that would delay for any number of days a cash payment. The lumber was sold to be delivered at Doucet’s Landing. At the time of the delivery, which was some days after the trade was made, each claimant was present and knew that his lumber was being shipped out of the country on the cars for Portland, and made no objections of any kind. Neither claimant at the time and place of delivery mentioned any conditions, or asked for cash or note”, nor was anything said as to the length of time the lumber should remain at the place of delivery. The delivery in each case was made directly to the purchasers’ agent who made the contract of purchase. The purchasers not only at the time of making the contract but also at the time of delivery were doing a large business, and the evidence fails to show that they were known or even suspected to be in failing circumstances. Not more than three days were required from the time of the delivery for the certificate or bill of lading to be forwarded by the agent to the purchasers — the defendants — and the cash or notes to be returned. In this case the agent forwarded certificates of the amount of lumber of one of the claimants- on the seventeenth of November, and of the other on the twenty-fifth or twenty-sixth, of the same month. The failure of the defendants occured on the seventh of December, and on the tenth an assignment of their property was made to trustees under the laws of the Province of Quebec. Up to that time neither of these claimants had taken any steps or made any movement in reference to the pay for their lumber. Nearly a month had elapsed between the delivery and the first intimation that the title to the lumber had *588not vested in the defendants. Other purchases had been made by the defendants from one of these claimants about the fifth of December, or just prior to the failure, and consigned to the same parties,— the trustees in this suit. But that consignment was stopped in Montreal by the vendor.
With these facts before us, notwithstanding the law of the place of the contract introduced and forming a part of the report in this case, we are irresistibly drawn to the conclusion reached in the case of Smith v. Dennie, supra,_ — a case very frequently cited by the courts,— and the language of that .opinion, drawn by Chief Justice Parker, might be appropriately applied here. "We are apprehensive,” he says, "that to establish the right to reclaim under such circumstances, would widen the door for fraudulent contrivances, 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.”
The case last cited was 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 iii the 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 ; and it was held that there was a waiver of the condition, so far as to warrant the attachment, and a verdict having been rendered to the contrary ivas set aside as against evidence.
But it is contended on the part of the claimants that the law of the country where the coutract is made is the law of the contract-, no matter where performance is demanded. And the learned counsel upon this branch of the case strenuously invokes the attention of the court to Article 1998 of the Civil Code of Lower Canada, an abstract of which with certain decisions of the court, have been introduced and form a part of the report.
By virtue of that law it is claimed that the uupaid vendor of personal property has the right, upon the insolvency of the *589vendee, to rovendicate or reclaim it. We do not understand, however, that this right attaches, according to any foreign law proved in this case, if the sale is made upon credit. Nor is there anything by which we are to be governed showing that the vendor may not waive his rights, to which he might otherwise be entitled, even under a conditional sale. No law or statute to the eontraiy being proved, we must assume that his rights in this respect would be the same as those existing by virtue of the laws of the country where the remedy is sought. Carpenter v. Grand Trunk Railway Co. 72 Maine, 390; Lloyd v. Guibert, L. R. 1 Q. B. 129.
It is unnecessary, therefore, to protract the consideration of any foreign law or statute in reference to the rights of these parties.
But the further objection is urged by the counsel for the claimants and trustees that there was no valid attachment of the partnership property of the defendants in the hands and possession of the trustees.
The writ bears date on the seventeenth day of December, 1886. It was sued out against James Maguire alone as principal defendant, instead of being against each of the partners. The direction to the officer was to attach the goods and estate of James Maguire, of Quebec, in the Province of Quebec, surviving partner of the firm of D. & J. Maguire, and doing business under said name of D. & J. Maguire, etc., and while the writ was in that condition service was made upon the trustees. On the first day of the term of court to which the writ was returnable, leave was obtained to amend the same by adding the name of Charles Maguire, as a party defendant, thus making the defendants, James Maguire and Charles Maguire, copartners under the firm name of D. & J. Maguire.
The service upon the trustees of the writ as it was at first made in which James Maguire, but no partner of his was then a principal defendant, did not create a valid attachment of the partnership property. As soon however as the writ was amended by joining Charles Maguire as a defendant,— the trustees still continuing to hold the property, then, all the necessary parties *590being before the court, no rights of third parties having intervened,— the previous attachment became valid as to the property in the hands and possession of the trustees. Sullivan v. Langley, 128 Mass. 237.
The conclusion of the court therefore is, that the title to the thirteen ear loads of lumber for which the claimants contend, at the time this suit wras commenced, ivas not in the claimants, but that it had passed to and became vested in the principal defendants, and was subject to trustee process by the plaintiffs in this suit, as also the lumber of the other nine car loads, about which no contention is raised. As against the claimants the plaintiffs are entitled to costs from such time as they appeared as claimants of the property in dispute.
From the terms of the stipulation submitting this ease to the law court, it is provided that if the trustees are chargeable for any of the lumber mentioned in their disclosures, they are to be charged in accordance with the terms of a written agreement entered into between the parties, dated May 6, 1887. The agreement is not found in the report, nor is it before us. The amount, therefore, for which the trustees are to be chargeable must be determined by the court below. They are entitled to their disbursements and services as a lien upon the property in their possession, and which has been put in bond in the custom house by them. They should be entitled to retain the sum of two hundred and forty-six dollars and ninety-five cents,— the amount advanced by one of the claimants, and which they are to repay to him,— it being advanced towards the expenses upon the lumber in dispute, and which the trustees agreed should be refunded.
Judgment accordingly.
Peters, C. J., Walton, Virgin, Libbey and Haskell, JJ., concurred.