As between vendor and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery; but as against subsequent purchasers, attaching creditors, mortgagees and others in like relation, to render a sale valid, there must be a delivery of the property, either actual or constructive.
In this case there is no pretense of constructive delivery, and while it is plain that there was a sale of the piano from the storage company to Mrs. Potter, and that the same was paid for by her, it is very doubtful whether the evidence introduced proves an actual delivery of the piano to her. The burden of proving such actual delivery rested upon the plaintiff, and it was his duty to produce to the jury, evidence to establish such fact of delivery. The proof is that the piano was put upon a dray and the drayman was ordered to deliver it at the house of Mrs. Potter. When goods are delivered by a vendor to a carrier specially designated by the purchaser, the carrier is regarded as the agent of the purchaser, and the delivery is a good delivery to the purchaser. Bradford v. Mareby, 12 Ala. 520; Cross v. O’Donnell, 44 N. T. 661.
And in cases where the purchases are made between parties who are distant from each other, and nothing is said as to the way they are to be sent, a delivery by the vendor to a common carrier, in the usual and common course of business, transfers the property to the vendee. McGuder v. Gage, 33 Md. 344; Benj. on Sales, Sec. 181; Comstock v. Affcolter, 50 Mo. 411.
But even if we assume that the drayman to whom the piano was given, in this case, was a common drayman, who held himself out to carry goods from one place in the city to another for hire, yet we think a delivery to him can not be regarded, in law, as a delivery to the purchaser. Such a carrier may, as to goods which he undertakes to carry for hire, assume the duties and obligations of a common carrier, but it is extremely doubtful whether such draymen or truckmen who carry goods from one part of a city to another, are to be regarded as common carriers within the full legal meaning of the term. Bund v. Dale, 8 Carr. & Payne, 207; Moses v. Boston & Marine R. R. Co., 24 N. H. 71.
It is not shown, however, in this case, that the drayman who was directed to deliver the piano, and who was in charge of the dray on which it was placed, was a common or public drayman; and in view of the fact that it is a very general-practice in this city for business houses to deliver at the homes of their customers bulky articles purchased, the inference is strong that the drayman who was directed to deliver the article in this case, was the servant of the Chicago Piano Storage Company, and driving a dray owned by them, and used in their business. If so, delivery to him was not delivery to or for the purchaser, and unless from other facts in this case the jury could find the delivery at the house, no delivery was proved. We do not say that, from all the evidence, the jury could not possibly infer delivery, but the grounds for such inference were at least slight, and under such conditions accuracy in instructions was essential to guide the jury, and wé are of the opinion that the court committed an error in the second instruction set out in the above statement of facts.
Where, as in this case, there is a contest as to whether certain acts have been done essential to pass the title of property, ownership is a question of law to be determined by the finding of certain facts. The court left it to the jury to find from the evidence whether Mrs. Potter was the owner of the property in question. This was leaving to the jury a question of law. As against the storage company and all persons not standing in the relation of subsequent purchasers, she was the owner; but as against defendant, whether she was the owner in law depended upon the point of delivery. In Ennis v. Lamb, 10 Brad well, 454, the court below left it to the jury to find, from the evidence, whether a party became the lawful, bona fide owner of a certain house in question, and this court held that a question of law was thus submitted to the jury, and reversed the case.
Where the conclusion is one of law from facts to be found, the jury are to find the facts and the court to state the conclusion or the law, and to submit mixed questions of law and fact to the jury is error. White v. Murtland, 71 Ill. 250; Harding, Ex., v. Worthman, 84 Ill. 446.
There is in the second instruction no reference to the first, in which reference as to delivery is made, and no instruction was given in the case, which told the jury what would amount to a delivery which would make Mrs. Potter the owner as against a subsequent mortgagee or pledgee of the piano. The second instruction was an instruction disposing of the entire case, and not controlled or modified by connection with or reference to any other.
For the error pointed out the judgment will be reversed and the case remanded.
Reversed and remanded.