On about March twentieth, 1891, one Coburn, then the proprietor of a hotel in Bangor, ordered of the plaintiffs *22two settees, the property replevied, the same to be manufactured by the plaintiffs. On the twenty-fifth of April following, the settees having been completed were delivered at the hotel occupied by Coburn. Between that time and the nineteenth of the following June the plaintiffs called upon Coburn at various times for the purpose of collecting the pay for these articles, and on the latter date, nothing having been paid up to that time, and Coburn being still unable to pay, one of the plaintiffs proposed that Coburn should sign the written instrument called by the witnesses a lease, but in fact a contract providing that Coburn should pay the plaintiff ten dollars per month for the use of the articles until the sum of fifty-one dollars was paid, when the sums so paid should be treated as purchase money and the property pass to Coburn. This instrument was never recorded.
In the month of September following, the defendant bought these settees, with other hotel furnishings, of Coburn without notice of any claim upon them of the plaintiffs. The plaintiffs brought this action of replevin to recover possession of these settees.
The presiding justice instructed the jury that the question was principally if not altogether of law, and at the close of the charge said, "If you believe the testimony, I do not see any other way but to give a verdict for the plaintiff's.” ‘ An examination of the evidence will show that this was in effect a direction to return a verdict for the plaintiffs.
At the time the goods were ordered, nothing was said about the time of payment and no agreement was made by the plaintiffs to give credit; under these circumstances the law presumes that the parties intended to make the payment of the price and the delivery of the possession concurrent conditions.! The plaintiff's would have had the right to retain possession until the purchaser had been ready to perform his part of the contract. Or, if the goods had been delivered with the expectation of immediate payment, ,and this had not been done, the plaintiffs had the right to retake possession of the goods.
But although a sale of this character is conditional and a ven*23dor has the right to retain possession or to retake possession under certain circumstances, the vendor may waive the conditions and these rights, in which case the sale becomes absolute and the title vests in the purchaser. Peabody v. McGuire, 79 Maine, 572.
The mere fact of delivery without a performance of the condition of payment is some evidence of a waiver of the condition. The rule that prevails in this State is thus stated in Peabody v. McGuire, supra: "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 waiver of the condition ; but whether so or not is a question of fact to be ascertained from the testimony.”
In this case there was a delivery of the goods " without a performance by the purchaser of the terms and conditions of sale, and, without anything being said about the condition,” this was some evidence of a waiver by the plaintiffs of their rights. It might be controlled or explained by other circumstances, but we think that it was a question for the jury and that it was error to direct, in effect, a verdict for the plaintiffs.
If the evidence was such that a verdict for the defendant would have been so clearly erroneous as to require it to be set aside, then the defendant could not complain of the instruction, but we do not think that such is the case. There are undoubtedly circumstances -which have some bearing in favor of the contention on each side. For instance, one of the plaintiffs, and the one who had most to do with the transaction, testified upon cross-examination that when the goods were delivered he considered Mr. Coburn good and "expected the cash in thirty days.” From this evidence, taken in connection with the unrestricted delivery, the jury would have been authoi’ized in finding a waiver. ■
*24If the property passed by delivery, then the unrecorded instrument executed upon June nineteenth, but bearing date of April twenty-fifth, was ineffectual to give the plaintiffs any claim upon these goods as against the defendant; upon the other hand if the title did not pass, the parties merely substituted one conditional contract for another, as they might with propriety have done. So the case depends entirely upon the question of fact as to whether or not the property passed at the time of delivery. This issue, we think, should have been submitted to the jury.
Exceptions sustained.