This action was brought to recover the price of the lumber in question, as for lumber sold and delivered. It is resisted principally on the ground that the contract is within the statute, (2 R. S. 136, § 3,) by which it is enacted, “ Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, shall be void unless, 1. A note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby: or 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action: or 3. Unless the buyer shall, at the time, pay some part of the purchase money.”
There was no money paid, or note or memorandum in writing of the contract made. The plaintiff insists that the purchaser accepted and received the lumber; while on the other side it is contended that the sale was upon condition that the vendor should produce to House the inspector’s bill of the lumber, and before the contract could be deemed to be consummated by delivery and acceptance, the bill must be produced. It is a principle well established that in contracts for the sale of personal property, when no time is agreed on for payment of the price, the delivery and payment are to be simultaneous acts; but if the vendor does deliver freely and absolutely and without any fraud on the part of the vendee, the condition of payment simultaneous with the delivery is waived, confidence is reposed, credit is given and the property passes. (Chapman and another v. Lathrop, 6 Cowen, 110; Conyer v. Ennis, 2 Mason, 236 ; Ward v. Shaw, 7 Wend. 404.)
Two things are essential to the transfer of the title to personal property upon a cash sale, payment by the vendee and an actual or constructive delivery by the vendor. The first may be waived by the vendor, and an absolute delivery is such waiver; but a delivery subject to the condition of payment is not. On the question of delivery, it is a principle which is to be found in all the cases, that where in an agreement for sale of personal property, something remains to be done as between vendor and vendee, for the purpose of ascertaining either quantity, value *52or quality, such as measuring, weighing or counting out of a common parcel, there is no delivery. (Downer v. Thompson, 2 Hill, 137; Rapelye and others v. Mackie and others, 6 Cowen, 250; Ward v. Shaw, 7 Wend. 404; Andrews v. Dieterich, 14 id. 31; Hanson v. Meyer, 6 East, 614; Outwater v. Dodge & Green, 7 Cowen, 85.)
Was there an absolute delivery of the lumber in this case, or such evidence of delivery as was proper to be submitted to the jury, from which they would be justified to find that there was such delivery ? The delivery to satisfy the statute may be either actual or constructive, and may be inferred from circumstances. (Chaplin v. Rogers, 1 East, 192.) Delivery in a sale may be either real, by putting the thing sold into the possession or under the power of the purchaser, or it may be symbolical, where the thing does not admit of actual delivery; and such delivery is sufficient and equivalent in its legal effects to actual delivery. It must be such as the nature of the case admits. It has been held that the consent of the parties on the spot is sufficient possession of a column of granite, which by its weight and magnitude was not susceptible of any other delivery, and the possession was taken by the eyes and the declared intention. So where the vendor takes the vendee within sight of ponderous articles, such as logs lying within a boom, and shows them to him, it was held to amount to a delivery, though the vendee suffered them to lie within the boom, as was usual with such property, until he had occasion to use them. (2 Kent's Comm. 500, 501, 4th ed.; Jewett v. Warren, 12 Mass. Rep. 300.)
I cannot doubt but that when the defendant had made his offer for the lot of lumbei’j and the plaintiff had agreed to accept it, and declared the lumber to be his, the contract of sale was complete, by which the lumber was transferred to the defendant upon condition that he then paid the price or procured a credit or further time in which to pay. Did he do either ? He did not pay, but he proposed to Houston to make payment through his agent House, when he, Houston, should get and present to House the bill of inspection made by and in me hands of the inspector—to which, from the circumstances, it *53might well be inferred that Houston assented; if he did, the sale was complete. The lumber, from what took place, might be deemed to have been delivered and accepted, and payment, simultaneous with delivery, waived, and credit given for payment. The presenting to House by Houston of the bill, was to precede the payment for, but not the delivery of the lumber; and until that was done, Houston was not entitled to payment. Nothing further was to be done by the parties in reference to the property sold: it was an entire lot distinct from all others, not to be measured or counted or moved. The aggregate of the price was to be computed from a bill of the measurement already made. Vendor and vendee parted, not to meet again. The whole question turned upon matters of fact for the jury to find from the evidence. Was it such as should satisfy a jury of the fact of an absolute delivery to and acceptance by the defendant of the lumber? I cannot see any error in submitting the question to the jury. Clearly the court was right in refusing to charge as a matter of law that the right of property did not pass, or that the delivery of the inspector’s bill was, by the terms of the contract, a precedent condition to vesting of "the property in Shindler.
The judgment must be affirmed.