This case differs in several respects from that of Phelps v. Willard, 16 Pick. 29, relied upon by the defendant. In that case there was no payment of the purchase money, and, by the terms of the contract, no part of it was to be paid until the machine should be set up at the works of the purchaser, and made to operate to his satisfaction. The purchaser was not to add to the machine any materials or labor of his own, before it was thus completed; and if not completed so as to work to the satisfaction of the purchaser, the seller or manufacturer was to take it away again. The court held th§t, although the machine was upon the premises of the purchaser and attached to his mill, the legal title and right of possession did not pass until the terms of the contract had been fulfilled, or the purchaser had accepted the machine so as to become liable for the price.
In the present case, there was, in fact, and by the terms of the contract, payment for the property as the work progressed, reserving a margin of twenty per cent, until the engine should be “ started in a satisfactory manner.” The contract provided that the engine should be delivered, at a certain date, on the wharf at Somerset; and thereupon the purchasers were to transport it to their works, prepare a foundation for it, and add to it materials and work of their own ; the sellers being obligated to furnish towards the work necessary to be done in setting up and starting the engine “ only the skilled labor required.” It is manifest from the whole tenor and terms of the contract that the delivery provided for, at the wharf in Somerset, was intended to be a delivery which should transfer to the purchasers the possession of the engine, and that it did vest in them the legal right of possession and property. They might perhaps have rescinded the contract and restored the title, upon a subsequent breach of the contract by the other party, or a failure to complete and start the engine in a satisfactory manner. But they might also elect to retain the possession and title, relying upon *65their contract, and the margin of twenty per cent, of the price in their hands, for their indemnity. At the time of the attachment, the plaintiffs were in possession of the engine, including the cylinder and bed piece, with a right of possession and property which was valid and sufficient against the Hope Iron Works and their creditors. The ruling of the court below was correct, and the Exceptions must be overruled.