The jury have found that the sale by the plaintiff to Tinkham, Adams & Co. was on a condition that the property in the cigars should not pass to them till payment therefor should be made in cash; that the delivery was upon the same condition; and that this condition was not waived by the plaintiff, nor performed by the purchasers. Hence, by settled rules of law, (which have been so recently discussed and applied that it is unnecessary to do more than to refer to three or four decisions,) neither an attaching creditor of the purchasers, nor their vendee, though buying of them in good faith, can hold the property against the plaintiff. Hill v. Freeman, 3 Cush. 257. Coggill v. Hartford & New Haven Railroad, 3 Gray, 547. Sargent v. Metcalf, 5 Gray, 306. Burbank v. Crooker, 7 Gray, 158.
The condition, on which the plaintiff’s sale was made, being proved to the satisfaction of the jury, the question whether the defendants bought the cigars of Tinkham, Adams & Co. in good faith, or cooperated with them in a fraud on the plaintiff, became immaterial. Good faith would not have saved them, if they had exercised it; for their vendors, having no title to the property, could convey none. The defendants would have been in the same legal condition as are bona fide purchasers of stolen goods. We therefore need not inquire whether the evidence, as to fraud, which was objected to, was rightly admitted. If that evidence had been such as might affect the jurors’ minds on the other question, viz. whether the sale by the plaintiff was or was not conditional, we should have deemed it our duty to decide on its admissibility. But we cannot see that it could, in any way, affect that question. Exceptions overruled.