The plaintiffs, having 1056J bushels of corn on storage with the defendants, sold that quantity to Balch, and delivered to him an order upon the defendants therefor. Balch transferred his interest to Ware, Richardson & Company, by indorsing and delivering to them the order which he had received from the plaintiffs. Ware, Richardson & Company presented the order to the defendants; and the corn was transferred, on the books of the defendants, in accordance with the transfers shown by the order and its indorsement. The defendants thus becama bailees of the corn for Ware, Richardson & Company, and deliv. ered a part of it upon their order. These facts make a completed *489sale, perfected by delivery; and are a full discharge of the original contract of bailment. The title to the corn thenceforth was Vested in Ware, Richardson & Company.
The only ground on which this result is controverted is, that the sale was conditional. The plaintiff introduced evidence to show a usage of the grain trade in the city of Boston to the effect that “ a sale is considered a cash sale if no terms of payment are named; ” and the court so found the usage to be. That being the presumption of law in all contracts of sale, the evidence of usage to that effect was immaterial.
Upon such contracts the seller is not bound to deliver without payment of the price at the same time. But if he does make an unqualified delivery he waives his advantage, and the title passes, and his lien for the price is discharged.
What precisely would be the effect of a usage, in sales considered as cash sales, “ to allow the buyer time, not exceeding ten days, before calling on him for payment,” if it were proved as a well defined and distinct usage of trade, we need not consider in this case, because the effect of the proof, upon which that claim of usage rests, is modified by proof, also satisfactory to the presiding judge, if competent, “ that it is the custom in said trade for the buyer in such cases to sell the property at any time after the delivery of such order to him.” That such evidence is competent we have no doubt; not as establishing an independent usage affecting the operation of the contract, but as bearing upon the significance and effect of the alleged usage to deliver without immediate payment.
Upon the whole evidence we think it clear that no conditional delivery was established; and therefore that the title passed, and the plaintiff had no right of possession at the time this action was brought. There must be therefore
Judgment for the defendants.