This case was decided in June 1860.
Hoar, J.It is true that where there is evidence in a case upon which it would be competent for a jury to find a verdict for a plaintiff, an instruction by the presiding judge to the jury at the trial, that they ought to return a verdict for the defendant, would be erroneous. The sufficiency and the preponderance of the evidence are matters wholly within the province of the jury, except upon a motion for a new trial after verdict.
But where the facts are undisputed, and the evidence, with all inferences which a jury can rightfully draw from it, does not, as a matter of law, have any tendency to establish a proposition which is essential to the maintenance of the plaintiffs’ case, it is the duty of the judge so to instruct the jury.
In this case, the defendants having received upon their wharf, and transported over their railroad, the plaintiffs’ coal, had a lien upon it for the wharfage and carriage. Their right to retain it for then lien was indisputable, unless they had lost the lien by parting with the possession of the coal. The plaintiffs, to maintain their action of replevin, must show that they were entitled to the possession. To establish this, it was incumbent upon them to prove a complete delivery of the coal, sufficient in law to terminate the carriers’ lien. This was the fact which the jury must find upon competent evidence, or their verdict must be for the defendants.
The jury were instructed at the trial that this fact was not proved; and the whole court are of that opinion.
The evidence submitted to the jury was the testimony of a single witness, with certain admissions of the parties.
There was no evidence that the plaintiffs had paid or tendered any part of the money due to the defendants, or were ready or offered to pay it before they replevied the coal; nor of any agreement to give credit for it; nor that enough of each cargo did not remain to be ample security for the freight due upon that particular parcel.
The plaintiffs, by the agreement of parties, were to perform the labor of unloading the coal from the cars; but this, being done upon the premises of the defendants, did not devest the possession. The jury had no evidence of any lease of the bins *148to the plaintiffs. There was nothing to show that the defendants might not have used the bins for any other coal, or required the plaintiffs to unload the coal at some other place, at their pleasure.
It was then material to consider what delivery of the coal would be effectual to determine the lien. By the contract, no credit for the freight being stipulated, the delivery of the coal by the defendants, and the payment of the freight Ly the plaintiffs, were acts to be done at the same time. A delivery may be complete for one purpose, and not for another. The cases cited by the plaintiffs’ counsel to show what constitutes a complete delivery, are all cases which decide either what delivery is sufficient to pass the property as between vendor and vendee, or what is sufficient to terminate the liability of a earner. A delivery may be complete, so far as either of those purposes is concerned, and yet be upon an implied condition as to payment; and upon failure to perform this condition, the right of possession of the party making the delivery will remain unimpaired. This is a familiar doctrine as between vendor and vendee. If a man purchases goods at a shop for cash, and they are handed to him, or put by the shopkeeper into his wagon, and he then refuses to pay for them, no doubt they may be taken back.
The same principle applies to the lien of a carrier. The right of the carrier to payment for the carriage first exists when he has performed the contract on his part; and his lien would not be lost, were the delivery even much more unequivocal than ■that on which the plaintiffs here rely. Suppose the railroad ■company should allow a customer, for whom they had brought a lot of flour, to unload it from the cars on to his wagon, and, as he started with the load, should demand the freight, could it be supposed that they would have no right to retake the flour, if he should refuse to pay ? But suppose, instead of one load, there should be a hundred barrels, and the first load should be allowed to go without payment, the rest being taken from the cars and put upon the platform in the freight house, the company knowing that enough was left to make them secure, and the demand *149should be made as the owner was about removing the last load, could this destroy the right to retain for their lien ? Where two acts are to be done simultaneously, under a contract, the obligation to do each is dependent upon the performance of the other, and each is done upon the implied condition that the other shall be done likewise. The plaintiffs, in the absence of express agreement or regulation, might say that they would not pay their money until they received their goods; and the defendants, that they would not deliver the goods until they had received their money. If the goods were, as in this case, not capable of instantaneous delivery, it would be impossible to perform the contract unless one or the other should begin. And we think the one who begins loses none of his rights by so doing, in the absence of evidence that- he has agreed to waive them.
As there was nothing in the case to show that enough of each cargo was not left to satisfy the lien for the freight of that cargo, and as the plaintiffs made no demand of any separate portion of the coal, and proved no readiness to pay any freight whatever, no question seems to arise as to the extent of the defendants’ lien. But we think it clear, for various reasons, that they had a lien on the whole, for the whole sum claimed. Although the different cargoes which were earned were perhaps at first so far distinct subjects of contract, that the defendants might have delivered and demanded the freight for one, before delivering another, and the plaintiffs might have demanded one, without waiting for the arrival of the whole, yet we think the mingling them together indiscriminately in the bins shows that the whole was regarded by the parties as a continuous carriage and delivery of an entire quantity. But if this were not so, and the defendants had a separate lien upon each cargo for its freight and wharfage, then, as the plaintiffs mingled the several parcels so that they could not be distinguished, they must be held to have extended the lien upon each to the whole quantity remaining. This principle is well settled in regard to two persons having the general ownership of two parcels of similar goods; and it seems equally applicable to a case where one of them has a special property.
*150According to the agreement at the trial, the case is to be sent to an assessor, with directions to assess as damages the whole sum due for freight and wharfage, with interest from the date of the writ, unless that agreement is now changed by the parties