Staats v. Hodges

By the Court,

The sale of the furniture by the plaintiff to Palmer was conditional and no title passed until the payment of the whole of the purchase money. The condition was express, and intended and relied on as the security for the supply of so large an amount of property on credit. This view of the contract, indeed, is not disputed. But it is supposed that the circumstances attending the assignment of the lease to Clinton, and participation of the plaintiff therein, operated as a virtual waiver of the consideration, so that the sale became absolute.

*213This, I apprehend, is a very forced conclusion. Clinton took the place of Palmer as trustee, and, among other things, agreed to see to the payment of the plaintiff as had been previously agreed by Palmer when the furniture was furnished, to all which it may be- said she assented. There is no change of the original contract of sale either express or implied ; nor any thing indicating such an intent by either of the parties concerned. She acquiesces in the assignment to Clinton, perhaps wishes it, as she may have regarded him as the more faithful agent in the application of the rents to the extinguisment of her claim, on condition that he shall see to the application. This is the good sense of the assignment, and I have no doubt all that was intended.

Judgment reversed, and venire de nova by recorder’s court •, costs to abide event.