This is an action to foreclose a real estate mortgage .given to secure negotiable promissory notes in payment of a Hart-Parr engine and some plows. The plaintiff claims to be an innocent purchaser and indorsee. The answer denies that the plaintiff paid any *529"consideration for the notes in question, and also alleges a lack or failure of consideration in that the machine was never 'put in good working order, and that as the delivery and acceptance were conditioned upon this being done, and the machine had never been delivered or accepted, no obligation was incurred by the defendant.
We are satisfied from a perusal of the evidence that the plaintiff was not a purchaser for value. He was a bookkeeper, working for a small •salary, and for the person who allegedly sold him the notes. He absolutely refused to testify where he obtained the money with which to pay for the same, and our perusal of the evidence leads us to the conclusion that he would be unable to do so.
Even, however, if the plaintiff Simpson did not prove the payment of the $1,000 for the notes in question, he is still the holder and possessor of the same, and as such is entitled to bring this action. This being the case, we must face the defense of lack or failure of consideration.
We are of the opinion that this defense is abundantly proved. We are, indeed, of the opinion that the evidence sustains the finding of the trial court that there was no legal delivery, since the machine was agreed to be placed in running order as a condition precedent to that delivery, and that was not done.
We realize that a bill of sale was given and that as a rule the giving of a bill of sale passes title.
We believe the law, however, also to be that “if, under a contract for the sale of specific goods, the seller is bound to do something to the goods for the purpose of putting them in a deliverable state, that is, into a condition in which the buyer is bound to accept them unless a different intention appears, the property does not pass until such thing is done, and that this is the law even where a bill of sale is given.” See 35 Cyc. 282; Magee v. Billingsley, 3 Ala. 679; Benjamin, Sales, 3; Darden v. Lovelace, 52 Ala. 289; Parsons, Contr. 441; Story, Sales, § 296; Chitty, Contr. 10th Am. ed. 396, 397; Addison, Contr. 2d Am. ed. 225 — 228; McClung v. Kelley, 21 Iowa, 511; Hamilton v. Gordon, 22 Or. 560, 30 Pac. 495; Welter v. Hill, 65 Minn. 274, 68 N. W. 26; Elgee Cotton Cases (United States v. Woodruff) 22 Wall. 180, 22 L. ed. 863; 24 Am. & Eng. Enc. Law, 2d ed. 1049; Kitson Mach. Co. v. Holden, 74 Vt. 104, 52 Atl. 272; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 305, 55 L.R.A. 301, 92 Am. St. Rep. 452, 87 N. W. 268. In *530such a case the bill of sale is prima facie, but uot conclusive, evidence of tbe passing of title.
In the case at bar tbe bill of sale provided tbat tbe engine would be put in running order. Tbis, we believe, was a condition precedent which was not performed.
Tbe judgment of tbe District Court is affirmed.