There is no ambiguity in the written agreement between plaintiff and the firm of TI. B. Nease, Son & Co., dated February 25, 1891, for the sale and purchase of the lumber in controversy. Under such agreement the firm was entitled to receive $10,000 worth of the lumber on giving their notes for the contract price of the whole of the lumber purchased, payable in ninety days from the date of the contract, and' was entitled to ship the remainder of the lumber by paying therefor in cash at the time the same *392should be shipped; the ajnount so paid to be indorsed on such notes. When the defendant, the sheriff, levied the attachment of the Keystone Lumber Company upon the lumber, the purchaser had given plaintiff its notes for the estimated quantity of lumber at the contract price, had shipped $16,000 worth of it, and had paid $12,000 in cash on account thereof; hence the stipulated credit given the purchaser by the agreement lacked $6,000 of being exhausted, and by the terms of the agreement the firm was, or but for its insolvency would have been, entitled to ship $6,000 worth more of the lumber without making any further cash payment therefor.
For the purposes of this case we s.hall assume that the title to the lumber passed to the purchaser, under the agreement, when it executed to the plaintiff its notes for the estimated contract price thereof, and that when the attachment was levied the purchasing firm would, but for its insolvency, have had the absolute right to ship $6,000 worth of the lumber. Of course, the purchaser had the right, in any event, to ship all of the lumber on paying the unpaid contract price therefor.
But, after such agreement was entered into and $16,000 worth of the lumber had been shipped by the firm under it, the firm became insolvent. It failed in business, its notes given for the price of the lumber went to protest, and nothing has since been paid on .them. Although, generally, the purchaser of goods on credit is entitled to the immediate possession of them, that right is defeated if he becomes insolvent before he obtains actual possession; and in such case the vendor may retain the goods and enforce his lien thereon for the unpaid purchase money. If, however, the purchaser obtains the actual possession of the goods, the lien is gone, notwithstanding his insolvency. It is claimed for defendant that when he levied the attachment the debtor firm was in the actual possession of the lumber. *393By directing a verdict for plaintiff the circuit court necessarily held that the undisputed evidence proved that the plaintiff was then in the actual possession of the lumber. The controlling question is, Was such ruling correct? The proof is that the firm of H. B. Nease, Son & Co. never exercised any control over the mass of the lumber. The same remained on Sutherland’s dock, under an agreement between the latter and plaintiff, to which the purchasing firm never became a party, and in which they never acquired any interest. The lumber which was shipped was delivered to the purchaser for shipment by plaintiff’s agent, after being inspected and measured by the person agreed upon for that purpose by plaintiff and the purchaser. Such agent was constantly in charge of the lumber on the dock, and no one else interfered with it, or attempted to do so, until the sheriff seized it under the attachment. Before such seizure, and after the purchaser became insolvent, such agent, acting under the special direction of plaintiff, refused to deliver to the purchaser any more lumber t,o be shipped, and sent a vessel away empty which the purchaser had sent to Ashland for a cargo of the lumber. Such agent was also present, in charge of the lumber, when the sheriff levied the attachment upon it, and objected to the proceeding. In all this the purchaser acquiesced without objection, and, after the attachment was levied, joined in a rescission of the agreement of February 25, 1891, for the sale and purchase of the lumber. The above facts are proved by the undisputed testimony, and we think they show conclusively that the plaintiff retained the actual possession of the lumber, and hence was in a position to assert and enforce a lien thereon for the unpaid purchase money, not only against the purchaser, but against the attaching creditor and the sheriff, who represents such creditor.
Authorities to sustain the legal propositions herein stated are very numerous and uniform. A full and satisfactory *394statement and discussion of those propositions may be found in Benj. Sales (Bennett’s Am. ed. 1888), bk. 5, pt. 1, ch. 2, §§ 768-774. Arnold v. Delano, 4 Cush. 33, the opinion in which was written by Chief Justice Shaw, is a very instructive case on the same subject. We conclude that the court properly directed a verdict for the plaintiff.
By the Court.— The judgment of the circuit court is affirmed.