October 1, 1883.
— The opinion of the Court was delivered by
Green, J.:The learned Judge of the Court below charged the jury that the defendant, in order to make out title to the reaper in question, must prove an agreement between Bustler and himself to waive the giving of a note for the purchase money in accordance with the conditions of sale, and also a delivery of the reaper by Bustler to the defendant. He held that there must be both an agreement to waive, and, in addition, a delivery, to make title in the defendant. As we read the charge, it amounts to a direction that an actual or express agreement to waive must be proved in addition to, and in dependent of, a delivery. In this there was error. If the seller of the reaper chose to deliver it to the purchaser, or suffer the purchaser to take possession of it, voluntarily and without requiring a compliance with the conditions of sale, such delivery alone would certainly pass a good title to the reaper. It would necessarily constitute in itself a waiver of the conditions. In Bowan v. Burk, 1 Harr., 146, we held that, though the terms of a sale be cash, a subsequent delivery, without payment, passes the property to the vendee, not only as against all the rest of mankind, but against the vendor himself. In Welsh v. Bell, 8 Cas., on p. 17, Story, J., said: “It is a condition precedent of a sale for cash in order to pass the property to a vendee, that payment should be made; clearly so, unless there has been delivery. Until that is done, the sale is not consummated. The buyer cannot sue for the goods nor the seller for the price. Yet, even if the contract be for a cash sale, if the thing agreed to be sold be delivered without payment, the property passes to the vendee and is liable to levy and sale as his. The right of the vendor is converted into a mere chose in ac • tion.” There was evidence that Burt took possession of *243the reaper in the presence of Bustler and without any demand for a note being made. If this was believed by the jury, they might have found from it that there was a delivery without requiring a note to be given, and if that were so, the title would pass although there was no actual agreement to waive the giving of a note. Evidence was admitted of a previous conversation between Bustler and Burt, to the effect that Burt might purchase articles at the vendue and settle for the purchase money in the general account between the parties, which was to be adjusted after the sale. It is true this was denied by Bustler, but the defendant lost any possible advantage he might have derived from the testimony on this subject, if believed by the jury, by the positive direction that there must be an agreement in express terms waiving the giving of a note as a condition of the sale. The defendant did not testify to an agreement which in terms waived the giving of a note, but the arrangement to which he did testify was quite as inconsistent with the stipulations for giving a note as an express waiver would have been. Under the charge, however, the jury had no opportunity to consider the case in this aspect. The assignments of error are all sustained.
Judgment reversed and venire de novo awarded.