This case turned upon the question whether title passed from the plaintiff to the purchaser by the sale and delivery. Apparently it was not expected to impeach the title of the defendant as a bona fide purchaser from Jenkins Brothers & Chip-man. It would not avail the plaintiff, therefore, to establish a right to rescind his contract of sale for any cause; or to revoke the delivery in order to restore himself to his lien by regaining possession. It was necessary to show that the sale and delivery were conditional, so that no title passed to Jenkins Brothers & Chipman; and consequently none could be conveyed by them to the defendant. Failing to establish the usage, upon which he relied for this purpose, the plaintiff contends that the sale and delivery were conditional because he so understood and intended them to be; and, in support of his testimony to that effect, relies upon evidence of such a practice and understanding prevailing to a considerable extent among dealers in the same trade with these several parties.
The several instructions prayed for, except the second, present this question in its different aspects. The fourth is as follows: “ In relation to the. question of a voluntary waiver of the condition of sale by a delivery of possession, the true inquiry is, What was the intent of the vendor ? Was it to make such waiver ? and not, What was the intent of the vendee, who has nothing to waive ? Unexplained, the mere act of delivery may be taken aa *453evidence of such waiver, but it is open to explanation by the vendor.”
The instructions to the jury were sufficiently favorable to the plaintiff, and adopted the positions contended for in his behalf, except in the matter of intent. Upon that point the argument of the plaintiff is that the waiver of a condition has in it no elements of contract, requiring for its efficacy the concurrence of two minds, and therefore the purpose of the party receiving the benefit of the waiver is unimportant. But a waiver is the result of a voluntary unequivocal act of delivery. To say that a party does not thereby intend a waiver, is to say that he does not intend the legal effect of his voluntary act.
Perhaps a better answer to the argument is that, as applied to a sale of personal property, its premises are unsound. “Delivery,” as applied to a change of possession in pursuance of a sale, ordinarily includes both the act of the vendor in transferring the property, and that of the vendee in receiving it. If unaccompanied by any word, or act, or circumstance to indicate that it is qualified or made subject to a condition, the vendee has a right to understand it to be absolute. To hold him accountable, as the custodian of property belonging to another, requires his assent to the obligation, either express or by implication. If there has been a completed delivery, the denial of a waiver involves necessarily the affirmative proposition that the other party to the delivery has accepted the possession subject to the condition. The reciprocal relations of the parties are the same as in all matters of contract.
It is true that it is entirely at the option of the vendor whether he will waive the condition or not. It requires his voluntary act. But when he voluntarily does the act, which, unexplained, constitutes a waiver, he not only may be presumed to intend it, but he changes the relations between himself and the purchaser in respect to the property and the contract of sale. If he would impose any condition upon the purchaser, affecting those new relations, or any obligation not implied from the transaction itself, he should manifest his purpose in some mode, so tint the other party may assent or dissent. The purchaser may be presumed *454to assent to a waiver; but he cannot be presumed, by accepting a delivery apparently unrestricted, to assent to a condition which lies in the undisclosed intent of the other party. Taft v. Dickinson, 6 Allen, 558.
The second instruction prayed for was properly refused. The importance of the evidence offered by the defendant was not to establish a different usage, but to show practices inconsistent with the alleged usage set up by the plaintiff.
The evidence offered to show that Jenkins Brothers & Chipman were deeply insolvent at the time of the purchase was irrelevant and immaterial to the question in controversy. As we understand the report, it was not offered to show that the purchase was fraudulent and voidable; but to repel any inference, from the fact of immediate resale, that Jenkins Brothers & Chipman understood the delivery to be absolute. It does not appear that the fact was allowed to be, or that it was, used for that purpose; nor that it became of any importance to the defence.
Judgment on the verdict.