The plaintiff commenced this action to recover the possession of a quantity of coal, and he claims to recover upon the ground that the sale to the defendant Linneman, was for cash, and that as he did not pay for the coal the title did not pass.
I will call attention to a few recognized principles of law, which must control the decision of this case.
When goods are sold on condition of being paid for on delivery in cash, an absolute and unconditional delivery of the goods by the vendor, without exacting at the time of delivery a performance of the condition, is a waiver of the condition, and a complete title passes to the purchaser, if there be no fraudulent contrivance on his part to obtain possession.
The vendor, to avoid a waiver of the condition of sale, must *Page 407 either refuse to deliver the goods without payment, or he must make the delivery at the time qualified and conditioned.
Whether the delivery be absolute or conditional must depend upon the intent of the parties at the time the goods are delivered, and this intent may be shown by the express declarations of the parties at the time of the delivery; or it may be inferred from the acts of the parties and the circumstances of the case. Where, however, the delivery is absolute, without any contemporaneous declaration qualifying it, the onus of the proof of the condition rests upon the vendor, and, if no such proof be offered, the delivery will be deemed absolute, and the title to the goods will pass to the purchaser. Every absolute delivery of goods, sold on condition of payment, is presumptive evidence of a waiver of the condition by the vendor, and of an intention on his part to rely wholly on the personal security of the purchaser for the payment of the price of the goods. (Smith v. Lynes, 1 Seld., 41; Furniss v.Hone, 8 Wend., 256.)
This coal was sold to one known to be a retail dealer in coal. There was an unqualified, absolute delivery of the coal to the purchaser. There can be no pretence that any express condition was attached to its delivery. Nothing whatever was said at the time of the delivery, qualifying it; and there are no circumstances surrounding the delivery, from which it can properly be inferred that it was conditional. The purchaser sold forty or fifty tons at the dock, from the barge, and immediately after delivery of the coal, commenced to retail it from his yard. Four or five days after the delivery, plaintiff's agent called upon the purchaser for pay and he said he could not pay for the coal; and the agent then asked him to pay twenty dollars on account of freight, and this he paid. The agent then went away without saying more, intending to call again at the end of another week; but in the course of three or four days, and before the end of the week, having casually heard that the purchaser had failed, he called upon him and demanded the coal, and soon after commenced this action. *Page 408
While, therefore, this was a sale for cash, there was an unconditional delivery of the coal, and the condition of payment was, within the principles of law above cited, waived. And this conclusion is reached upon the undisputed evidence, and hence we are not concluded by the finding of the learned judge at Special Term.
The judgment should be reversed and new trial granted; costs to abide event.
For affirmance, LOTT, Ch. C., LEONARD and HUNT, CC. For reversal, EARL and GRAY, CC.
Judgment affirmed, with costs.