The goods in question were sold by the plaintiffs to the defendant for cash, tti be paid on delivery. Payment and delivery were'to have been simultaneous. No credit was given, and there is no evidence that the delivery to the defendant was intended to be absolute, or that the condition of payment was waived; and the mere handing over the goods under the expectation of immediate payment, did not constitute an absolute delivery. The defendant, after such delivery, held the goods in trust for the plaintiffs until payment was made or waived. (Haggerty v. Palmer, (6 John. Ch. R. 437;) 2 Kent's Com. Lect. 39; Whitwell v. Vincent, (4 Pick. 449;) Furniss v. Hone, (8 Wend. 247;) Russell v. Minor, (22 Wend. 659;) Acker v. Campbell, (23 Wend. 372.) The defendant having got the goods into his possession, refused to pay cash for them as he had agreed to do. The plaintiffs demanded them of him and he refused to deliver them up, upon which this action was brought. I think it is well sustained.
The questions arising on the trial respecting the admission *574and rejection of evidence were correctly determined by the court. The charge, so far as it lays down the principles of law applicable to such • a sale as that which was proved, was substantially correct.
In regard to the effect of obtaining the note in the manner mentioned, the charge was not strictly correct, but it embraced a subject not in the case. It was quite immaterial whether. the defendant was the owner of the "note, or was the agent of Young & Shultz in making an experiment to obtain payment for them. . The charge in that particular was entirely harmless, and forms no ground for a writ of error. (Hayden v. Palmer, 2 Hill, 205; The People v. Wiley, 3 id. 214.)
The request for further instructions to the jury was properly denied. The propositions submitted were either merely speculative or obviously incorrect.
Judgment affirmed.