and it will be deemed waived by a voluntary and absolute delivery, without a concurrent demand of the security. But if the delivery in that case be accompanied with a declaration on the part of the seller, that he should not consider the goods as sold until the security be given, or if that be the implied understanding of the parties, the sale is conditional, and the property does not pass by the delivery, as between the original parties; though, as to subsequent bona fide purchasers or creditors of the vendee the conclusion might be different. Where there is a condition precedent attached to a contract of sale and delivery, the property does not vest in the vendee on delivery, until he performs the condition, or the seller waives it; and the right continues in the vendor, even against the creditors of the vendee. If the delivery of the goods precedes for a short time the delivery of the note to be given for the price, according to particular usage in that species. of dealing, and which usage is known to the buyer, the case falls within the same *principle and the delivery is understood to be conditional. The condition is not deemed to be waived, and the seller will have a right in equity to consider the goods as held in trust for him, until the vendee performs the condition, and gives the note with security; and his right to the goods will be good, as against the buyer and his volun

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a Payne v. Shadbolt, 1 Camp. Rep. 427. Carlton v. Sumner, 4 Pick Rep. 516. Smith v. Dennie, 6 Ibid. 262.

Hussey v. Thornton, 4 Mass. Rep. 405. Marston v. Baldwin, 17 Ibid. 606. Corlies v. Gardner, 2 Hall's N. Y. S. C. Rep. 345. Reeves v. Har. ris, 1 Bailey's S. C. Rep. 563. Lucy v. Bundy, 9 N. H. Rep. 298. Lafon v. De Armas, 12 Rob. Louisiana Rep. 598. In this last case after much learned discussion, it was held, that when the purchaser of a thing sold has acquired as against the seller a right to demand it, the sale is not complete as to third persons until the price be paid and possession delivered; and if neither of them be done, a sale in good faith to a third person followed by payment and delivery will be good. The remedy for the first purchaser, if any, is by an action ex empto for damages.

• Barrett v. Pritchard, 2 Pick. Rep. 512. Bishop v. Shillito, 2 Barnw. & Ald. 329. n. Strong v. Taylor, 2 Hill's Rep. 326.

tary assignee, though not as against a bona fide purchaser from the vendee.a It is the better and sounder doctrine, and one established by the later cases that a written agreement to deliver by a certain time goods sold, cannot be enlarged as to the time by a subsequent parol agreement, for that would contravene the statute of frauds by making the right of action or the agreement to rest partly in writing and partly by parol only.b

(4.) By the civil law, the right of property was not vested in the purchaser without delivery, nor even by

a

Haggerty v. Palmer, 6 Johns. Ch. Rep. 437; and see Lord Seaforth's case, 19 Ves. 235, in which the vendor's lien was carried at least equally far; and see, also, Whitwell v. Vincent, 4 Pick. Rep. 449; Corlies v. Gardner, 2 Hall's N. Y. Rep. 345, Russell v. Minor, 22 Wendell, 661, and D'Wolf v. Babbett, 4 Mason's Rep. 294, to the same point. In the case in Hall, six days intervened between the delivery of the goods and the call for the note, and in the last case it was held, that if on a sale, the delivery of goods be conditional, and the vendor assents to a qualified delivery, for the convenience of the vendee, and with the understanding that the property is not to pass absolutely, unless the terms of sale be complied with, the vendor, in that case, is not divested of his right to retake the goods. Copland v. Bosquet, 4 Wash. Cir. Rep. 588, S. P. But in Mills v. Hallock, 2 Edw. V. Ch. Rep. 652, the sale at auction was on approved notes and the goods were delivered, and 25 days thereafter the vendee failed and assigned his property. As there was no custom proved authorizing such a delay, the title was held to be completely vested before the assignment and passed with it. The rule in Canada is, that if goods be sold for cash, and not paid for, they may be followed and claimed in an action of revendication if brought within eight days, and if the goods have remained in the state in which they were delivered. Alwin v. M'Nally, Stuart's Lower Canada Rep. 541.

By the Code of Louisiana, art. 3194, the vendor of a chattel not paid for has a preference for the price, over other creditors of the vendee, whether the sale was made on credit or withont, if the property remains in the possession of the purchaser, and the privilege exists, though the vendor has taken a note from the buyer. This privilege is extinguished by the destruction of the thing sold, but it is held that if the vendee sell the goods before he has paid for them, the money due by the second vendee, will represent the goods, and the first vendor's privilege will attach thereon. Martin, J., in Thayer v. Goodall, 4 Miller's Rep. 222.

b Goss v. Lord Nugent, 5 B. & Ald. 58. Stowell v. Robinson, 3 Bing. N. S. 928. Harvey v. Graham, 5 Ad. & E. 61.

Pothier endea

delivery, without payment of the price, unless the goods. were sold on a credit.a The risk of the goods was, nevertheless, thrown on the buyer before delivery, and as soon as the contract of sale was completed, even though the title was still in the vendor. Periculum reivendita, nondum traditæ, est emptoris.b vours to vindicate this principle of the civil law, in answer to the objections of Puffendorf, Barbeyrac and others, who insisted that the civil law in this respect was not founded on principles of natural justice. common law very reasonably fixes the

We think the risk where the

Inst. 2. 1. 41. Ibid. 3. 24. 3. Code, lib. 2. tit. 3. 1. 20. Dig. 18. 1. 19. Bynk. Quæst. Jur. Priv. lib. 3. ch. 15. Pothier, Traité du Contrat de Vente, n. 322. Id. Traité de la Propriété, part prem. c. 2. art. 233. 242. Domat, b. 4. tit. 5. sec. 2. art. 3. This is also the rule in the Scots law. Bell's Principles of the Laws of Scotland, 3d. edit. p. 28. Before delivery, the vendee has only the jus ad rem, and not the jus in re.

Inst. 3. 24. 3, but the seller was nevertheless bound to protect the property until the delivery. Ib. 3. 24. 3. and 8. Pothier, Traité du Contrat de Vente, part 2. ch. 1. sec. 1. art. 3.

• Heineccius, in his excellent treatise on the law of nature, says, that the risk of the thing purchased, after the bargain is completed, though without delivery, ought to fall on the buyer, in cases free from fault or delay on the part of the seller, quia emptor jure naturæ sine traditione, sit dominus. Jur. Nat. et Gentium, b. 1. ch. 13. sec. 353. The Code Napoleon, No. 1583, has dropped the rule of the civil, and followed that of the English common law; and it holds, that the property passes to the buyer as soon as the sale is perfected, without either delivery or payment. The Civil Code of Louisiana, art. 2431, follows the words of the Code Napoleon. In the case of Meade v. Smith, 16 Conn. R. 356-366, Mr Justice Storrs has given a succinct, correct and learned view of the common and civil law, on the subject of the delivery, or nondelivery of the article sold or the efficacy of the contract of sale.

The contract of sale. as regulated by the civil law, is examined and discussed at large, with sound judgment, and extensive and accurate learning, in the American Jurist, No. 26, for April, 1835. Pothier's claborate and excellent treatise on the contract of sale, (Traité du Contrat de Vente,) is founded on the civil law, as illustrated by the French civilians, and adopted and regulated by the French law. Touillier has also written largely on the law of contracts (Droit Civil, vol. vi. & vii.) as existing under the new civil code, and these two distinguished civilians are equally admirable for their logic and simplicity.

title resides; and when the bargain is made and rendered binding by giving earnest, or by part payment, or part delivery, or by a compliance with the requisitions of the statute of frauds, the property, and with it the risk, attach to the purchaser. But, though the

seller has parted with the title he may retain possession until payment; and he has even the equitable right of stoppage in transitu, in the case of the insolvency of the purchaser; and that right assumes that the vendor has divested himself of the legal title, and that the property has passed to the vendee, while the actual possession is in some third person in its transit to the vendee.

(5.) Delivery of goods to a servant or agent of the purchaser, or to a carrier or master of a vessel, when they are to be sent by a carrier, or by water, is equivalent to delivery to the purchaser; and the property, with the correspondent risk, immediately vests in the purchaser, subject to the vendor's right of stoppage in transitu. A delivery by the consignor of goods, on board of a ship chartered by the consignee, is a delivery to the consignee; and the rule is the same, if they were put on board a general ship for the consignee. The effect of a consignment of goods by a bill of lading, is to vest the property in the consignee. A delivery to any general carrier, where there are no specific directions out of the ordinary usage, is a constructive delivery to the vendee; and the rule is the same whether the goods be sent from one inland place to another, or be

Leeds v Wright, 3 Bos. & Pull. 320. Dixon v. Baldwin, 5 East's Rep. 175.

Evans v. Martell, 1 Lord Raym. 271. Dutton v. Solomonson, 3 Bos. & Pull. 582. Dawes v. Peck, 8 Term Rep. 330. Ludlows v. Bowne & Eddy, 1 Johns. Rep. 15. Summerill v. Elder, 1 Binney's Rep. 106. Griffith v. Ingledew, 6 Serg. & Rawle, 429. King v. Meredith, 2 Campb. Rep. 639. Copeland v. Lewis, 2 Starkie's N. P. Rep. 33.

• Inglis v. Usherwood, 1 East's Rep. 515. Fowler v. M'Taggart, 7 Term Rep. 442. Bothlingk v. Inglis, 3 East's Rep. 395.

a Coxe v. Harden, 4 East's Rep. 211. Brown v. Hodgson, 2 Campb. Rep. 36. Groning v. Mendham, 5 Maule & Selw. 189.

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yond sea. But if there be no particular mode of carriage specified and no particular course of dealing between the parties, the property and the risk remain with the vendor while in the hands of the common carrier.a *The delivery to the agent must be so perfect as to create a responsibility on the part of the agent to the buyer; and if the goods be forwarded by water, the vendor ought to cause them to be insured, if such has been the usage; and he ought, in all cases to inform the buyer, with due diligence, of the consignment and delivery.d Until the party, receiving a consignment or remittance made on account of the consignor, has done some act recognizing the appropriation of it to a particular-specified purpose, and the party claiming under the appropriation has signified his acceptance of it, so as to create a privity, the property and its proceeds remain at the risk and on the account of the remitter or owner.e

(6.) Symbolical delivery will, in many cases, be sufficient and equivalent, in its legal effects, to actual delivery. The delivery of the key of the warehouse in which goods sold are deposited, or transferring them on the ware-houseman or wharfinger's book to the name of the buyer, is a delivery sufficient to transfer the property.f So, the delivery of the receipt of the storekeeper for the goods, being the documentary evidence of the title, has been

Coates v. Chaplin, 2 Gale & Davison, 552.

b Buckman v. Levi, 3 Campb. Rep. 414. If the vendor take upon himself actually to deliver the goods to the vendee, he stands to the risk; but if the vendee orders a particular mode of conveyance, the vendor is excused. Lord Mansfield in Vale v. Bayle, Cowp. Rep. 294. Goodwyn v. Douglas, 1 Cheeve's Law & Eq. S. C. Rep. 174.

• Cothay v. Tute, 3 lbid. 129.

& Bell on the Contract of Sale, Edin. 1844, p. 89.

• Tiernan v. Jackson, 5 Peters' U. S. Rep. 580. Williams v. Everett, 14 East, 582. Grant v. Austin, 3 Price R. 58. S. P.

? Lord Hardwicke, 1 Atk. Rep. 171. Lord Kenyon, 7 Term Rep. 71. 1 East's Rep. 194. Harman v. Anderson, 2 Campb. Rep. 243. Pothier, Traité du Droit de Propriété, No. 199. Dig. 41. 1 9. 6.