Trover for forty-five barrels of apples. This case is before the court upon motion and exceptions by the plaintiff, verdict being for defendant. The apples were raised by one Ingham, who, as the plaintiff contends, sold the same to Gordon & Henry, traders at Readfield, and that they sold the same to the jfiaintiff.
The defendants assert that Ingham sold and delivered the apples to them, and that they were bona-fide purchasers with no notice of any sale by Ingham to any other party, they paying in full for the apples.
The principal point involved at the trial was in relation to delivery.
Although the general rule is that, as between seller and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery, (when no question arises in relation to the statute of frauds) nevertheless the same rule does not operate against subsequent bona-fide purchasers, attaching creditors without notice, and others standing in like relation. To render a sale valid against these there must be delivery of the property sold. Ludwig v. Fuller, 17 Maine, 162; Vining v. Gilbreth, 39 Maine, 496; McKee v. Garcelon, 60 Maine, 165.
When, therefore, the same goods are sold to two different purchasers, by conveyances equally valid, it is well settled that he who first lawfully acquires the possession will hold them against the other. Lanfear v. Sumner, 17 Mass. 110; Jewett v. Lincoln, 14 Maine, 116; Brown v. Pierce, 97 Mass. 46, 48.
In this case the apples remained in the vendor’s possession until the defendants hauled them away.
The sale under which the plaintiff claims title was to Gordon & Henry while the apples were lying in a bin, unpacked. They never paid for the apples, and the only expense they had been to was the packing. The barrels belonged to Ingham. The court under proper instructions presented the contention of the parties *527to the jury. Defendants claimed that the first alleged sale was conditional, that the conditions never having been complied with, it became merely an executory contract, unfulfilled by the parties to it.
If it was a conditional sale, and anything further remained to be done by either party as a condition precedent to the passing of the title, then there was no completed sale.
All questions of fact in relation to the contract of sale by Ingham to Gordon & Henry, and of delivery, were left to the jury, and from an examination of the evidence we see no reason for disturbing the verdict.
Nor do we think the plaintiff’s exceptions can be sustained. There is nothing in that part of the judge’s charge which is excepted to which will warrant the court in saying there was error; and the same may be said in reference to the exceptions in relation to the requested instructions. The first request was misleading, and could hardly be said to be applicable to the facts in issue. The second request, while it may be unobjectionable in its application between vendor and vendee, is not to be applied when the rights of subsequent bona-fide purchasers are involved.
Motion and exceptions overruled.