At the trial, it appeared that the plaintiffs agreed to sell and Wallace agreed to buy the flour in controversy for seven dollars a barrel, nothing being said as to the time of payment. Under this agreement of sale, the plaintiffs gave te *427Wallace an order upon the defendant, who had possession of the flour as warehouseman, to deliver it to him, which order the defendant accepted and thereupon transferred the flour upon his books to the account of Wallace. This order thus acted upon constituted a delivery to Wallace. Upon these facts, which were undisputed, and which constituted all the evidence of the express contract between the parties, the presiding judge rightly instructed the jury, that “ if this was all, if nothing more entered into the contract between the parties, the property in the flour passed to Wallace, and he had the right to transfer it.”
Where nothing is said, in a contract of sale of goods, as to the time of payment, the ordinary presumption is, that the sale is for cash, and the seller is not obliged to deliver the goods unless the price is concurrently paid. But if he voluntarily delivers the goods, this is presumptively a waiver of the condition which attaches to a cash sale, and the title passes to the purchaser unless it is shown that the delivery was upon a condition which has not been complied with. Farlow v. Ellis, 15 Gray, 229. Whitney v. Eaton, Ib. 225. The instructions at the trial were in accordance with these principles.
To meet this aspect of their case, the plaintiffs undertook to prove that “ by the usage of the flour trade, if nothing is said about time of payment, when a contract of sale is made, the sale is considered to be made for cash, but the goods are delivered without exacting payment, and ten days are allowed the purchaser to examine the goods, the seller having the right to demand payment any time within the ten days.” The judge instructed the jury: “ The plaintiffs contend that there is a usage of trade, that, when flour is sold and delivered, and nothing is said between the parties upon the question of payment, it is understood that the sale is for cash, and that the property does not pass until payment. It is incumbent upon the plaintiffs to establish this usage. If they have done so, then no property passed by the sale, it being agreed that payment has not been made; and the plaintiffs are entitled, to recover.” We think that the plaintiffs have no reason to complain of this instruction. To be uf any avail to the plaintiffs in this case, the usage offered must *428go so far as to show that the delivery was upon the condition that the property should not pass until payment. Otherwise the rule above stated would apply, and the delivery would be a waiver of the only condition which necessarily attaches to a cash sale, namely, that the price should be paid upon delivery. The further instruction that, to constitute a usage of trade so as to have that usage affect the contract, the practice must be universal, was in conformity with the decisions, and was correct.
After the charge, the plaintiffs presented several prayers for instructions, which remain to be considered.
The first two were as follows : “1. A sale for cash is a conditional sale, and if the cash is not paid in a reasonable time after the sale, the purchaser takes no title thereby to the goods sold. 2. What is a reasonable time, within which the cash must be paid to satisfy the condition, is a question of usage in trade.” The judge refused these prayers; and, upon the subjects embraced in them, ruled “ that a cash sale might or might not be a conditional sale; that it was not necessarily in law either a conditional or an unconditional sale ; and that it was for the jury to determine upon the evidence whether the sale was conditional or not.” These rulings, applied to the facts of this case, in which the salé was accompanied by a delivery, were correct and apt. Their purpose and effect was, to keep the minds of the jury to the precise issue of fact to which their attention had been clearly and pointedly called by the charge, and on which the rights of the parties turned.
The court also rightly refused the third prayer. The delivery of the flour to Wallace, if there was no condition annexed to it by agreement or by the usage of trade, passed the title to him; and a secret intent or understanding of the plaintiffs, that the title should not pass, would not affect his rights. Taft v. Dickinson, 6 Allen, 553.
In their fourth prayer, the plaintiffs requested the court to rule that “ if the jury find that at the time of the sale the plaintiffs understood they were selling for cash, and find that Wallace understood he was buying upon credit, then the minds of the parties never met, and there was no valid contract, and no sale, and the *429verdict must be for the plaintiffs.” This instruction was properly refused. The rule that, where the minds of the parties to a contract of sale do not meet, as to the subject matter or some of the essential terms of the contract, there is no sale, does not apply. There is no pretence, in this case, that there was any misunderstanding as to the subject matter of the sale, or any of the terms of the express contract. The only misunderstanding, if any, was as to the legal effect of these terms. The plaintiffs claim that by usage, upon such a contract, the property does not pass to the buyer. The effect of the usage, if proved, would be to establish a rule of law which governs the rights of the parties, whether it was known to them or not. The fact, that the parties entertained different views as to such usage, would not enable either to defeat the contract into which they had entered. As stated by the learned judge in his rulings in this case, the difference of the parties was as to the effect of the transaction, and not as to the terms of the contract. In this view, the ruling, that if there was not a meeting of the minds, as to the terms of the contract, the plaintiffs could not recover, if they had delivered to Wallace the usual indicia of title to the goods, and Warren & Company were lend fide purchasers, was immaterial, and need not be considered.
The only remaining question is, as to the admissibility of the evidence of the transfer of the flour to Warren & Company by Wallace. The answer denies the title of the plaintiffs, and sets up title in Warren & Company. They were the real defendants, and it was competent for them to show tne relation in which they stood to the suit and the property. Exceptions overruled.