One Rand, by a bill of sale with an agreement included, January 20th, 1896, sold five cows to the plaintiff at Rand’s barn in Stetson, the bill of sale and agreement being as follows:—
“Stetson, Jan. 20th, 1896.
Sold and delivered to C. H. Goodwin. Five cows Standing in my New Barn in the North end of the Barn meaning No-3-5-6-7-8- Three Five Six Seven and Eight all grade Houlstein Color Four Black and white and one Black. I have received One Hundred and Twenty-five Dollars in full payment for the same and I agree to Keep Said Cows for what milk they give without further expense to G°°dwin until the twentieth day of March unless Goodwin disposes of them or takes them home before that time.
Wit. H. G. Goodwin.
A. S. Rand.”
The evidence of delivery came from the 'plaintiff himself and from his son who witnessed the bill of sale. The father testified, *31that the bill of sale was made at his own house and carried down to Rand’s house and signed there; that the signing was done on the next day or within a day or two after the bill was made out and on the day when he took a delivery of the stock; and that he paid Rand every dollar due as the consideration for the sale when the bill of sale was signed.
The son testified to what took place between the parties as follows: — “Q. You speak about delivery. I want to find out what they did about that. A. I went into the south part of the barn — into the north part of the barn on the south side of the road, and he pointed the cows out — Mr. Rand did, and he says, ‘ I deliver you this stock free from all incumbrance.’ ”
The cows had not been taken from the barn of Rand at his farm on the sixth day of February, 1.896, on which day they were seized upon an execution in favor of the defendant against Rand as Rand’s property, and at a later date were sold by the officer to the defendant who took them away. Thereupon the plaintiff replevied the cows from the defendant.
Two questions were submitted to the jury upon which special findings were returned. The jury found that the transaction of sale was not fraudulent as against the vendor’s creditors, and also that there was not a valid delivery. The general verdict was therefore necessarily for the defendant. It is contended by the plaintiff that, if the testimony on the subject of delivery was believed by the jury, and there is no sign in the case to the contrary, the two verdicts cannot logically stand together, and that the finding as to delivery was erroneous. The plaintiff further contends that the jury committed the mistake in consequence of a partially erroneous interpretation of the law of the case by the justice presiding. Whether that be so or not is the question presented.
It is not denied by the plaintiff that an actual, and not merely a constructive, delivery was necessary, but he contends that the delivery was actual, although perhaps not a strictly manual delivery.
*32The reason of the rule requiring delivery throws some light upon the question as to what may constitute a sufficient delivery. In the old case of Ludwig v. Fuller, 17 Maine, 162, Shepley, J., comments on the subject as follows: — “The reason why a sale, when the price is paid, is not good as respects other parties without a delivery is, that the law regards the purchaser as in fault, and as acting unfairly and fraudulently in allowing the seller, by retaining the possession, to hold out the apparent evidence of ownership, and thereby induce others to purchase or to credit him to their injury.” We apprehend that another reason for the rule may be that contracts of sale without delivery are more likely to be uncertain and indefinite as to the property really sold, and that a formal act of delivery would ensure a better identity of the articles intended to be covered by the sale. But the learned judge was speaking of the rule as it formerly stood by the old common law, and, while deprecating a change of the rule, remarks further upon it as follows: — “ It must be admitted that the strength of the reasoning upon which the rule rests, that there must be a delivery as respects other parties, has been greatly impaired in this and other states, where the common law has been so modified as to allow the purchaser to prove, that the sale was not fraudulent, where possession did not accompany and follow it. What will amount to proof of delivery, has been the subject of much discussion; and it is rendered more difficult, and would probably be found impracticable to state any general rule applicable to all cases, especially in those states, where the law has been so modified as not to require an actual and permanent change of possession; and where delivery is therefore rather nominal and symbolical than actual. But because the reasoning upon which the rule of law was established does not operate as formerly, and the rule itself is less convenient in practice, that does not authorize a court of law, contrary to a uniform course of decisions, to declare that the rule no longer exists. However one may regret, that a modification of one rule of law should be found to impair the reason upon which another rule was established, it may afford a lesson, that when one is dealing with the common law, stare decicis is judicial wisdom. *33And if experience has taught that this modification has been productive of litigation, and afforded greater facilities for the commission of frauds, it would lead to a like conclusion.”
So far as the likelihood of fraud existing in cases where the articles sold are not taken away by the purchaser, that objection does not lie here; nor could there be any uncertainty of the property intended to be sold, inasmuch as its description is in writing. And there was no after purchaser to be misled by the seller’s having an apparent ownership of the property although there was a creditor to attach it. There certainly was evidence enough to authorize a jury to find an actual delivery. The parties were present with the cows, the sale was expressly made in the presence of a witness, the price was paid, and the seller for a consideration became the bailee of the property for the purchaser. The possession of the cows was no longer in the seller as owner. His possession was thereafterwards the purchaser’s possession and not his own. We do not see how any more formal or particular act of delivery would have been of any consequence. It was a natural mode of consummating the bargain, and anything more demonstrative might well excite a suspicion that the sale was merely pretended and fictitious.
We think the jury may have been led by the tenor of some portions of the charge of the judge to believe that all these acts were not of themselves sufficient to constitute a legal deLivery. The illustrations which were given of a watch sold and delivered by going out of the seller’s into the purchaser’s pocket, and of the delivery of a horse made effectual by the buyer’s act of taking the horse and leading him away, would tend to incline the jury to suppose that the purchaser in this case should have taken the cows away in order to constitute an actual delivery. The learned judge emphasized to the jury that, in order to constitute sale and delivery, there must be a “relinquishment of the ownership and possession of the property by the vendor, and an assumption of these by the vendee.” It was further said that the vendee must have the entire control of the property. But it was not explained to the jury that there might be a relinquishment by the vendor *34and an assumption by the vendee of the , ownership, control and possession of the property without any removal of the property away, and that the purchaser could have the legal control and possession of the property while in the seller’s hands as his agent or bailee, if there be no fraudulent purpose meditated by the parties. Although the doctrine found in the charge, as an abstract proposition, was technically correct, still it was an imperfect and rather inadequate presentation of the rules respecting delivery as applicable to the facts of the case before us; especially when we take in view the position taken in behalf of the plaintiff at the trial. The instructions were absolutely sound as applicable to a case of sale where no explanation is. given or attempted to be given for the possession remaining in the seller’s hands, indicating an apparent ownership in him. But the bill of sale and the agreement incorporated therein give sufficient explanation of that fact if the transaction was not fraudulent. Numerous authorities maintain the doctrine that when such a transaction is not fraudulent slight acts are sufficient to prove delivery.
In Stinson v. Clark, 6 Allen, 340, it is said by Metcalf, J., “ that when a contract of sale is bona fide, and payment is made, in full or in part, of the price, slight acts are sufficient to show a delivery that will avail the buyer against the claims of third persons;” and certain pertinent cases are cited in the opinion of the court. The acts in that case showing delivery were not more significant than were the acts here. The statement in that case was that a blacksmith sold to a purchaser sixty horse-shoes for forty dollars, and holding up one of the shoes said: — “Take them; there are the shoes; I deliver them to you.” The shoes by agreement were allowed to remain in the shop for some time, and were attached afterwards while remaining there by a creditor of the seller. It was held that the delivery was sufficient as against the creditor.
The doctrine of the case just cited is maintained in many cases, a few of which only need be examined in corroboration of our view of the pending question. In Calkins v. Lockwood, 17 Conn. 154, the parties to a sale of iron met at the place where the iron *35was, and agreed upon the price and the mode of payment, and thereupon the seller said to the buyer: — “I deliver you the iron at that price.” The iron remaining a while unmoved a creditor of the seller attached it, but the court held the delivery to be sufficient. In Cutter v. Copeland, 18 Maine, 127, the court, upon facts not unlike the present, announced the statement that there was no legal objection in a mortgagee’s making the mortgagor his agent to hold possession of the goods mortgaged, the court in effect remarking that in such case the apparent possession of the one would be the real possession of the other. And this principle was adopted in the subsequent case of Hotchkiss v. Hunt, 49 Maine, 218, where the question was exhaustively examined, and the following rule as to delivery enunciated: “ When, by the term of an agreement of sale, the article sold is to remain in the possession of the vendor, for a specific time, or for a specific purpose, as a 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 sufficient to pass the title even as against subsequent purchasers.” That case was approvingly cited by the Massachusetts court in Thorndike v. Bath, 114 Mass. 116, the court quoting from the opinion in that case and relying on that and quite a number of other pointed and relevant decisions in support of the rule thus enunciated. In the case last cited it was held that evidence, that a person seeing an unfinished piano in the maker’s shop, offered to purchase it of him if he would finish it, that the offer was then and there accepted, that a bill of sale was then and there made and that the price was paid at a subsequent day, the piano being left to be finished, will authorize a jury in finding a delivery of the piano sufficient to pass the title as against a subsequent purchaser. The case of Barrett v. Goddard, 3 Mason, 107, is apropos. In that case goods lying in a warehouse were sold by marks and numbers, and paid for, it being a part of the bargain that the goods should remain at the option and for the benefit of the buyer at the seller’s warehouse, rent free, for the time being; and it was held by Judge Story that on these facts the delivery was sufficient as against subsequent *36purchasers. To the same effect in Beecher v. Mayall, 16 Gray, 376, where steam boilers were purchased and left in the seller’s possession for the accommodation of the purchaser. And many other significant cases might be added. But we deem these cited to be sufficient.
Exceptions sustained.