By the contract of sale in this case, the title passed to the purchaser, subject, however, to the vendor’s right of possession until payment. (2 Kent Com., 492; Higgins v. Murray, 11 S. C. N. Y. [4 Hun], 565, Olyphant v. Baker, 5 Den., 379 Hayden v. Demets, 53 N. Y., 431, Terry v. Wheeler, 25 N. Y., 520, at 525; Burrows v. Whitaker, 15 S. C. N. Y. [8 Hun], 260.)
The decisions of Conway v. Bush (4 Barb., 564); Fleeman v. McKean (25 id., 474); Smith v. Lynes (5 N. Y., 41) will be found to decide the right of the vendor to possession, as against the vendee, until payment; not the question of title, in case of loss.
Suppose, as suggested in the case of Terry v. Wheeler, the property had been such as might have increased — a flock of sheep — and an increase had taken place, whose would have been the increase ? The owners of the flock, of course. And who would have been the owners ? The purchasers.
The judgment should be affirmed, with costs.
Boardman, J.:I think this case was properly decided by the referee. The evidence authorized him to find that the property was delivered at the depot at the risk of the defendants, and to be paid for before being taken away. The contract was therefore fully performed by the plaintiff, and he was entitled to sue for and recover his pay. The defendants could not have resisted such claim. They were bound to pay, and the retention of the possession of the station agent for plaintiff, and *544by his direction, until the price was paid, was in accordance with the contract. It was the possession, and not the title, which remained in plaintiff. Such possession was a security for the price. What more could the plaintiff have done in performance of his contract ? What additional tender could he have made of the hops ? In what respect was the plaintiff in fault, or for what failure on Ms part should he be denied the pay for his hops ? The contract was valid and binding upon the defendants. Why may they refuse to pay in accordance with the terms of their contract, after the plaintiff has fully performed ?
I concur with brother Learned in affirming the judgment, with costs.