Plaintiff began this ■ suit before a justice of the peace. The action is in replevin for the recovery of two hundred loads of ice stored in an ice house of the defendant in the town of Elsberry and for $50 damages. The cause was- appealed to the circuit court, where on trial de novo after the plaintiff had introduced all of his evidence the court at the instance of defendant gave an instruction that plaintiff was not entitled to recover. After the giving of this instruction defendant introduced evidence of the value of the ice taken and retained by plaintiff under the writ and recovered of plaintiff by way of damages $284, from which judgment plaintiff duly appealed.

Plaintiff’s evidence and that of his witnesses tended to prove the following facts: The defendant owned an ice house in the town of Elsberry, in which he had stored about two *573hundred loads of ice, insufficiently secured by proper covering to prevent waste; that he made a proposition to sell it to the plaintiff; that plaintiff and defendant went to the ice house and looked at the ice; that after some discussion they agreed on terms of sale, which were that plaintiff should pay defendant $200 cash the afternoon of the same day or the morning of the following day for the ice and the rent of the ice house during the season and until the plaintiff should deliver the ice to his customeres in the course of the trade. They 'agreed that an additional covering of sawdust should be placed over the ice, each party to pay one-half of the expenses thereof, the dust to be left in the ice house after the ice was taken out for the future use of defendant; that plaintiff in the afternoon of the same day delivered by his teamster a load of sawdust at the ice house, which was unloaded at a point pointed out by the defendant and convenient for placing in the ice house; the defendant stated on the sameday to two or three persons that hehad sold his ice to the plaintiff. On the morning of the day after the trade was agreed on the plaintiff went to> the ice house with two checks on local banks aggregating $200 and made payable to the defendant; he found defendant at the ice house and found the door of the ice house locked. He offered the checks to defendant and demanded possession of the ice house; defendant refused to receive the checks or to put plaintiff in possession of the ice house, stating to plaintiff that $200 was not enough for his ice and he had concluded not to trade. The contention of appellant is that there is some evidence of delivery of possession of the ice to him, and that the cause should have been submitted to the jury. No written memorandum of the sale was signed; no earnest money was paid; the price was over $30, and unless there was a delivery of the possession, no matter how definite and certain was the agreement of sale, the sale was viodable at the election of either party according to the terms of section 5187 of the statute *574of frauds (R. S. 1889). Tbe evidence of plaintiff is that defendant refused to extend any credit on the sale; that the sale was a cash transaction and that defendant refused to give him credit for a third of the agreed purchase price for even a few days, but demanded and said he must have the cash down for the ice. -Thetre was no form'al or symbolical delivery, and the conditions of the trade were such that it is quite clear that payment was a prerequisite to delivery and that defendant at no state of the negotiations contemplated a delivery until the purchase price should be paid. The plaintiff’s own testimony leaves no doubt in the mind that there was in fact no delivery and no intention on the part of defendant to deliver, or part with his property until the purchase price was paid. State v. Durant, 69 Mo. App. 390. It was therefore the duty of the court to take the case from the jury. State v. Durant, supra. No other question is presented by the record or briefs for our consideration and we affirm the judgment.