Miller v. Jones

By the Court,

It is impossible to read the evidence in this case and not be satisfied that it was not the intention of the plaintiff to part with the possession of the cow until he was paid, in money, the *150price which the defendant agreed to pay for her. And it is equally certain that the defendant intended to get possession of her without paying the money, and thereafter kéep her, if he could. If it be the law that the plaintiff has lost title to the Cow, under these circumstances, and that the defendant has acquired it, it behooves every man to prevent, at all hazards, a purchaser from touching property sold or agreed to be sold, before the actual payment of the price. It cannot be possible that the law is so unjust as to deprive a vendor of his property, who permits the purchaser to take it into his possession before he pays the price.

When the purchaser is insolvent, and credit is not contemplated, it would be equivalent to a forcible taking of his property without consideration and against his will, to turn him over to an action for the price. No rule of law is better settled than that the vendor of a chattel has a lien on it for the price, when credit is not contemplated. This lien is lost when tie property is delivered to the purchaser with the intention of passing the title. (3 Parsons on Cont, 5th ed., 257.) Whether it is the intention to deliver without compliance with the condition precedent of payment of the price, is a question of fact for the jury. (Fleeman v. McKean, 25 Barb. 474.) The justice has found, on that question,- with the plaintiff, and the finding is fully supported by the evidence.

In Leven v. Smith, (1 Denio, 571,) the plaintiffs sold goods to. the defendants to be paid for in cash on delivery at the defendants’ store. The goods were boxed and taken to the store. The defendants offered to the plaintiffs’ agent a note made by the plaintiffs for part of the price, and the balance in money. The agent refused to receive the note and money, saying he would go and consult with the plaintiffs on the subject. He went and was instructed by them to go back and take the goods and bring them away. He was gone from the defendants’ store but a few minutes, when he returned and *151demanded the goods. The defendants refused to deliver them, and an action of replevin was brought. The cause was tried in the Kings Common Pleas, and there was a verdict for the plaintiffs. On error, the judgment was affirmed. Jewett, J., says: “Payment and delivery were to have been simultaneous. No credit was given, and there is no evidence that the delivery to the defendants was intended to be absolute, or that the condition for payment was waived. And the mere handing over the goods under the expectation of immediate payment did not constitute an absolute delivery. The defendants, after such delivery, held the goods in trust for the plaintiffs until payment was made or waived.”

No distinction can be drawn between that case and the one before us.

The advice, given by the attorney to the plaintiff was improperly received. But it was wholly unimportant, and could not have influenced the result.

The judgment must be reversed.

Foster, Morgan and Mullin, Justices.]