This action was tried before and resulted in a judgment dismissing the complaint on the opening of counsel with certain documentary evidence which was admitted in evidence. Upon an appeal to this court this judgment was reversed and a new trial ordered (103 App. Div. 574), upon the ground as it then appeared that there was an unconditional delivery of the property which vested the vendee with the legal title, the plaintiff as receiver of .the vendor could not maintain an action at law to recover possession of the property. Upon the new trial the plaintiff sought to prove that there was no unconditional delivery of the property, and that a bill of sale of the property to the defendant Everson-Hickok Company was delivered conditionally, which was excluded by the court, and the question presented upon this appeal is whether the exclusion of that testimony was error. There is no question but that the Columbia Publishing Company, of which the plaintiff is receiver, was the owner of the propérty. It made a contract to sell it to the defendant the Everson-Hickok Company, the consideration for such sale to be the stock of the defendant Everson-Hickok Company of the par value of $7,500. As a part of this agreement the Everson-Hickok Company agreed to increase its capital stock to $15,000, and thereupon to purchase the said printing plant, subject to an incumbrance of $1,600, at and for the sum of $7,50.0, payable by the issue of capital stock to the par. value of $7,500, and the contract contained the following provision: “ Eighth. It is mutually agreed that, upon the execution of this agreement, the various covenants shall be simultaneously performed and carried into effect, each being conditioned iipon the others.”
The property consisted of printing presses, type and other bulky machinery. The agreement for the sale was dated the 10th of May, 1900, and on the 23d of May, 1900, the Everson-Hickok Company indorsed upon this agreement a receipt, as follows: “ Received, Hew York, May 23rd, 1900. The within mentioned plant as per within agreement.”
The president of the Columbia Publishing Company was called as a witness, and testified that after the execution of the agreement he had a conversation with Mr. Everson, who was president of the Everson-Hickok Company ; that between the 10th of May, 1900, *739and the 22d day of May, 1900, the machinery referred to in this bill of sale was delivered over to the Everson-Hickolc Company. He was then asked whether any stock of the Everson-Hickolc Company had ever been delivered to the Columbia Publishing Company, or if any of the other conditions of the contract were carried out. This was objected to, the objection sustained and the defendant excepted. There was then produced an instrument under seal dated May 22, 1900, whereby the Columbia • Company granted and conveyed to the Everson-Hickolc Company the personal property in controversy, and the witness-was asked to state, the circumstances under which this bill of sale was executed at the time. That was objected to as immaterial and irrelevant. Then counsel stated to- the court: “ It is the contention of the plaintiff here that there was no consideration for it and that it was a nudum pactum, for the reason that the conditions under which it was delivered had not been carried out, and also I intend to show by this witness that there was an oral agreement at the time-it was delivered that it should not take effect until these conditions were complied with.” Upon that statement of the object of the question the court sustained the objection and the defendant excepted. The secretary of the Columbia Publishing Company was then called as a witness and stated that the receipt of this property was indorsed upon the bill of sale in his presence; and he was then asked, “And what conversation did you have with Mr. Everson at that time?” That was objected to as immaterial, irrelevant and incompetent, when counsel for the plaintiff stated'that he soiight to show the condition under which the contract was executed and the property delivered. The objection was sustained, and the defendant excepted. Various questions were then asked in relation to the conversations had between the parties executing the contract and bill of sale at the time they were executed, which were all excluded. The bill of sale was then introduced in evidence by the plaintiff, and it rested, and the defendant moved to dismiss the complaint, which motion was granted ; and the court then submitted to the jury the question as to the value of the property that had been replevined in the action. The jury fixed such value for which the defendant had judgment against the plaintiff.
Under the contract of sale it was the intention of the parties that
*740the property should be delivered; and that the stock which was the consideration of the sale and delivery of the property should be issued and delivered to the plaintiff simultaneously. The title, therefore, to the property would not vest in the vendee until the condition had been complied with, namely, the delivery of the stock „to the Columbia Publishing Company, unless that company should waive the condition. Undoubtedly an unconditional delivery of the property, without exacting the delivery of the consideration, would be a waiver of the condition; and the delivery of a bill of sale of the property after the vendee was in actual possession would waive the condition and would vest the title to the property in the vendee. If this bill of sale had not been under seal, there could be no question but that the plaintiff would be entitled to prove that it was delivered upon a condition which would not make the delivery absolute until the performance of the condition, the rule being that “ an instrument, not under seal, may be delivered upon conditions the observance of which, as between the parties, is essential to its validity; and the annexing of such conditions to the delivery is not an oral contradiction of the written obligation.” (Bookstaver v. Jayne, 60 N. Y. 146; Higgins v. Ridgway, 153 id. 130.) The effect of a conditional delivery of ah instrument under seal was presented to the Court of Appeals in the case of Blewiti v. Boorum (142 N. Y. 357). That action was for an accounting under an instrument under seal. The defendants admitted the execution of the contract, but alleged that it had been executed upon the parol condition that it was not to operate as a contract until the plaintiff acquired the interest of a third person, in the patent spoken of in the agreement, and that the plaintiff had never performed the condition. The evidence to prove this contention was admitted by the court, wlio found the facts in accordance with the defendants’ contention and gave judgment dismissing, the complaint. This was affirmed by the General Term and by the Court of Appeals. Judge Peokham in' delivering the opinion, after a discussion of the authorities, which had held that a deed or conveyance could not be delivered to the grantee in escrow because then a bare averment without any writing would make void every deed, states his conclusion as follows: “ As' a result of tlie examination of the English authorities I think it is clear that the presence of
*741a seal on a writing was not the reason for prohibiting parol evidence of a condition attached to a delivery to a party, but that where parol evidence was disallowed it was on the theory that otherwise it would be contradicting the writing. The rule was overthrown in England by the cases cited, which permit parol evidence that the delivery of a writing, although under seal, may be shown to have been under an agreement that it was not to operate as such until the happening of some future event.” The learned judge then considered Lovett v. Adams (3 Wend. 380) where it was said that “ if a bond be signed and put into the hands of the obligee or a third person on the condition that it shall become obligatory upon the performance of some act by the. obligee or any other person, the paper signed does not become the bond of the party signing the same until the condition precedent be performed. Until then there is no contract,” and the other cases in this State sustaining the same conclusion. • The distinction between cases relating to deeds conveying real estate and other kinds of written-instruments is then adverted to, and the conclusion was that the rule had been established in this State that as to all instruments, whether under seal or not, except instruments relating to land, a delivery of the instrument upon a condition that it is not to take effect until the happening of the condition can be proved by parol and there is no delivery until the happening of the condition. A bill of sale of personal property is not an instrument which requires a seal to make it valid, and the rule as to sealed instruments is not extended in any.event to those cases where the instrument is inlaw not in the nature of a specialty and where the presence of a seal is totally unnecessary to its validity. The plaintiff, therefore, had a right to prove by parol that there was no unconditional delivery either of the property itself or of the bill' of sale which vested the title in the company. The title did not pass under the contract for its sale until the consideration had been paid, unless this condition was waived by the vendor. An unconditional delivery would waive the condition, but the vendor had the right to show that a delivery of the property was not unconditional. A delivery of a bill of sale would waive the condition, but the plaintiff also had the right to show that the bill of sale was also delivered upon a condition by which it was not to become effective until the happening of the *742event upon which the delivery was conditioned. I think, therefore, that the court excluded competent evidence tending to show these facts and that error was, therefore, committed which requires us to reverse the judgment.
The judgment should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event, unless.defendant stipulates to reduce the judgment as stated in' opinion, in which' event judgment as so modified affirmed, without costs. Settle order on notice.