Hill v. McKenzie

At the close of the evidence neither party asked to go to the jury on any question of fact; but the counsel for each side *124moved for a verdict in favor of his clients. There is, therefore, no question in the present condition of the case whether, upon the evidence, the jury might or might not have found facts leading to .a different verdict from that directed by the court. The verdict was directed for the plaintiffs and an exception duly taken to the direction; but that does not, under the circumstances, involve any question of the right of defendants to have gone to the jury upon the facts.

There ivas no conflict of evidence as to the character of the sale of the teas by plaintiffs to Webb & Co. It was very clearly a sale for cash on delivery. There was the plainest possible refusal to give credit for any length of time, aná the sale note on its face expressed the terms to be for cash. A delivery upon such a sale is conditional and vests no title until the cash be paid, unless the condition be waived by the vendor. The authorities on this subject are numerous and completely decisive. The sole question in this case, so far as this point is concerned, was whether there had been a waiver of the condition. The teas, when sent for by Webb & Co., were found to be in a condition requiring “ cooperage.” Their car-man refused to take them in that state; but it was arranged that he should take them to Webb & Co.’s store, where plaintiffs should put the packages in proper condition by sending their cooper to do the necessary work. The bill was sent for payment, but payment was. refused until the cooperage should be done. The cooper went to the store, but was not allowed to do the work at that time. The plaintiffs, supposing the cooperage to have been done, again sent their bill, and payment was again" refused for the same reason ; and while the teas remained under those circumstances at Webb & Co.’s store, and within less than two days after the teas were taken there under the arrangements as to cooperage, the plaintiffs purchased them of Webb & Co., who had become insolvent.

The court held there was no waiver of the condition and that the title of the teas remained in plaintiffs. In this view of the case the learned judge was clearly right. The evidence is of such a character that a jury would not have been justified in finding that there was any waiver or intention to waive the conditions of payment. On the contrary there was no complete delivery, because there was no acceptance. Webb & Co., on the presentation of the bill for the teas, twice refused payment because the cooperage had not been done, and although the cooperage had been delayed, it was by their *125fault, and it did not lie in their mouths to insist that such delay-waived any right of plaintiffs. Their act of selling the teas to defendants might have been treated by plantiffs, if they had chosen so to do, as a complete acceptance by Webb & Co., but their election to follow the teas into the hands of the vendees is a refusal to elect to treat the sale as a complete acceptance, and an assertion of their original right.

The motion for new trial must be denied and judgment ordered for plaintiff on the verdict.

Donohue and Daniels, JJ., concurred.

Judgment for plaintiff on the verdict.