In the case of Johnson v. Triggs, 4 G. Greene, 97, it was held that it is essential to the validity of a tender of money that he who makes it should have the money in court, and that the necessity for this rule is not obviated by the Code.
This construction of our statute in relation to tender has been recognized and followed by this court in the case of Freeman v. Fleming, 5 Iowa, 460, and in this case when formerly before this court. See 11 Iowa, 30. And whatever doubts we may now entertain.as to the correctness of this *116ruling, we do not now think it wise to overrule it, as it has been the settled rule'of practice of the state for ten years.
The tender in this case is claimed to have been made in the year 1858, and just before the commencement of this action. The cause was tried at the October term, 1861.
The bill of exception shows, “that the money was never in court until the day before the case was called for trial at this term.”
Upon the authority of the foregoing cases we think the court erred in refusing to give to the jury the following instructions:
“There has been no tender in this case, for the reason that the money claimed to have been tendered before commencing suit has not been in court since then, and was only brought into court about the time, this trial commenced.”
“ In order to keep a tender good, it must be immediately placed in court, and if the jury find that the amount now in court claimed as a tender was placed there since this session of court, and was never in court before, then there has not been such a tender as the law requires.”
There is,' however, another question presented in this case whicfy if held favorable to the position assumed by appellee, disposes of the ruling in reference to the tender, as an error without prejudice.
It appears that the parties agreed, in 1858, that the plaintiff should cut staves upon the defendant’s land for five dollars per thousand. The plaintiff put his employees to work, and they cut about 8,000 staves, when they were stopped by the defendant. The staves were left in the timber some time, when they were counted by two men sent there by both parties for that purpose. The plaintiff neglected to take the staves away after they were counted, or to pay for the timber out of which they were made. The defendant took the staves out of the woods, and hauled them some, distance to his house. . The plaintiff, after the staves *117were thus removed, tendered to defendant $40, and demanded the staves. ■ The defendant refused to give them up, claiming the sum of $25 as due him for his trouble in hauling them from the timber to his house. The plaintiff brought this action of replevin to recover the possession of the staves, and under the instructions of the court the verdict of the jury was for the plaintiff.
The court instructed the jury, at the request of the plaintiff, “ that if the defendant authorized plaintiff by himself or agent to make staves upon his land, the staves made by •plaintiff in pursuance of such authority were the property of plaintiff, and plaintiff was entitled to the possession of the same, provided he offered to pay therefor.” And refused to instruct the jury that the title to the staves thus cut and riven would not pass, until the staves were counted, and the price paid, and accepted by defendant. Other instructions were given and refused, but the foregoing present the main point in controversy.
Did the defendant, under his contract giving to the plaintiff the right to cut and rive the staves, at so much per thousand, part with his right to the possession of the material out of which the staves were manufactured ?
It is claimed by appellant that, from the contract and conduct of the parties, there was never anything done which the law recognizes as a delivery; that the defendant did not intend to part with his staves until he received the paythat where, on a sale of goods, no time is stipulated for the payment, the price is to be paid, on their- delivery to the purchaser.; that in such cases payment is concurrent with, and a part of, the delivery; and should the purchaser take the goods under such an agreement, and then refuse to pay for them, the delivery would be held void for fraud, and the vendor may retake the goods.
We will concede it to be the law that where nothing is said at the sale as to the time of delivery or time of pay*118ment, that tbe payment, or a tender of tbe price, is, in such cases, a condition precedent, implied in tbe contract of sale, and tbe buyer cannot take tbe goods, or sue for them, without payment. But it is equally as well settled that if goods are sold upon credit, and nothing is agreed on as to tbe time of tbe delivery of tbe goods, tbe vendee is immediately entitled to tbe possession, and tbe right of possession, and tbe right of property, at once vests in him.
It is conceded that tbe defendant gave to tbe plaintiff tbe right to cut tbe trees on bis land. There was a sale of tbe material out of which tbe staves were to be manufactured. This sale was made upon a credit; that is, tbe right to cut was given without tbe payment of money, until tbe staves were numbered, and a credit given at least until that time.
' It was not ,the staves that were sold, but tbe right to cut tbe timber to manufacture staves out of. If it bad been staves that were sold by tbe defendant, instead of trees, tbe rule of counsel as to tbe time of payment and delivery would properly apply, but by tbe sale of trees or tbe right to cut tbe staves from trees .standing, there was a delivery as far as there could be of this kind of property.
From tbe language of the agreement, a majority of this court bold that tbe title and right to tbe possession of tbe staves was in plaintiff, from tbe time they were manufactured. We, therefore, conclude.that tbe defendant bad no right to a lien upon tbe staves for tbe value of tbe timber sold. In fact, it does not appear that tbe defendant claimed to detain tbe staves, except for tbe value of tbe labor bestowed in their removal from tbe timber. He bad no right to detain them for this purpose. Having parted with tbe right of possession, bis only remedy was in damages for tbe contract price. With this view of tbe case, we think that no tender was necessary, and that tbe instruction of tbe court in reference to tbe tender, although erroneous, *119did not affect the plaintiff’s right of recovery, as he was entitled to the property without such tender.
Affirmed.