Russell v. Minor. remainder was brought, and the parcel now deliverd could remain till then. The plaintiff's counsel insists, that this made a condition that the paper was to remain in the same situation until all was received. I think it meant, that the giving of the note according to the contract, could remain until the residue of the paper was delivered, and nothing New trial denied. more. The plaintiff sued out a writ of error, removing the record into this court, where the cause was argued by S. Sherwood, for the plaintiff in error. T. Sedgwick, jun. for the defendant in error. Points for the plaintiff in error : I. The paper in question, amounting to $1321.25, parcel of a lot of $2200, was sold and transferred by the Saugerties Paper Manufacturing Company to the plaintiff, and by his direction delivered at defendant's office, 25th September, by Beach, his agent, and where, by defendant's request, this parcel was permitted to "remain" until the whole was delivered. II. The delivery at the office was a conditional delivery, and did not amount to a sale, until the condition was complied with. Woodworth v. Kissam, 15 Johns. Rep. 186. Palmer v. Hand, 13 id. 734. Haggerty v. Palmer, 6 Johns. Ch. R. 437. Murray v. Burling, 10 Johns. R. 172. 15 id. 434. Allison v. Matthews, 3 id. 235. Burk v. Grimshaw, 1 Edward's Ch. 146. Keeler v. Fileld, 1 Paige, 312. Copland v. Bossent, 4 Wash. C. C. R. 588. De Wolf v. Babbel, 4 Mason, 289. 4 Mass. R. 406. Hussey v. Thornton, 4 Barn. & Cress. 946. III. It ought to have been submitted to the jury, whether the withholding of the paper in the manner proved, was not a fraudulent detention of the goods; and under the circumstances the nonsuit was erroneous. 15 Johns. R. 434. 3 id. 235. Harris v. Smith, 3 Serg. & Rawle, 20. Russell v. Minor. Points for the defendant in error: I. The defendant in error contracted in this case with the Saugerties Paper Manufacturing Company, Kearney, Hammeken and Beach. The paper in question was made and delivered under that contract, and the defendant was ignorant of any right which the plaintiff had, if any, until long after the delivery. The plaintiff, therefore, stands in the same situation with Kearney, Hammeken and Beach. II. The delivery of the paper in question was complete and unconditional upon defendant's promise to give his note at a future day. The property, therefore, passed, and replevin will not lie. Haswell v. Hunt, 5 T. R. 231. Lupin v. Marie, 6 Wendell, 80. Furness v. Hone, 8 id. 256. Barrett v. Pritchard, 2 Pick. 515. Carlton v. Sumner, 4 id. 516. Chapman v. Lathrop, 6 Cowen, 110. Shadbolt, 1 Campb. 427. 2 Kent's Comm. 497. on New Trials, p. 278, et seq. Hoyt v. Gilman. 8 Mass R. 336. Pratt v. Hull, 13 Johns. R. 334. Brook v. Wood, 13 Price, 667. Payne v. Graham III. The defendant was not bound by the contract to give his note until all the paper was delivered. IV. The plaintiff himself intended to complete the contract made by Kearney, Beach and Hammeken, and the paper was delivered with his consent. This suit is brought in his name to avoid subjecting himself to the set-off, which defendant would have a right to make, and which would be made, if a suit were brought in the name of Kearney, Beach and Hammeken, for goods sold and delivered or for work, labor and materials, Chapman v. Lathrop, 6 Cowen, 110. After advisement, the following opinions were delivered: By Senator EDWARDS. The principal question in this case appears to be, wether the plaintiff had such an interest in the property replevied as entitled him to maintain the action. To maintain this action it is not necessary that he should have the absolute interest in the property; a special interest which would entitle him to possession is suffi Russell v. Minor. cient. For the purposes of this action, therefore, it is immaterial whether the turning out of the property to the plaintiff amounted to a sale, or only gave him a qualified interest to secure him for the advances he had made. It appears that the plaintiff made advances which enabled the company to manufacture the paper in question, and that it was turned out to secure him for those advances. This gave him a qualified interest in the property to the amount he had advanced for the company; for this was previous to the delivery of any part of the paper to the defendant, and no interest whatever in the property could attach to the defendant before the delivery and the giving of the note specified in the agreement, unless the giving of the note was waived. As the plaintiff, therefore, had a qualified interest which was sufficient to enable him to maintain the action, did he by any act of his, divest himself of that interest, or was he divested of it by any act on the part of Beach, his agent? The delivery of the property by the order of the plaintiff, on the contract with the defendant, could not have that effect, for by the terms of that contract, the defendant was to give his note payable in six months; and had it been given, the note could have been transferred to the plaintiff before due, and no set-off could have been made against it, and thereby the interest the plaintiff had in the property would have been protected. The consent of the plaintiff, therefore, to have the property delivered on the contract under such circumstances, is no evidence of intention on his part to abandon his interest or claim in it. For as he had ordered it delivered on a contract already made, one of the terms of which was to give the note, he had no reason to expect that the property would be delivered and the right of property changed, unless the terms of the contract were complied with by the giving of the note stipulated. Could Beach as his agent divest him of the interest he held in the property and transfer it to the defendant without his consent? In my judgment he could not. As agent, Beach had no such authority. He was a special agent, and Russell v. Minor. all the authority he had was to deliver the paper on the contract already made, and take the note payable in six months; and for no other purpose was he entrusted with the paper. If the note was not given according to the contract, he was not even authorized to deliver the paper, and any such delivery, or any new agreement he might make without authority, could not affect the rights of the plaintiff; being a special agent for a particular purpose, he could not proceed beyond the scope of his authority, so as to affect the rights of his principal. If property is entrusted to a carrier, and he turns it out in payment of his own debts, the owner's rights are not thereby affected. But if it could be inferred, from the nature of the transaction, that Beach had a general authority as to the delivery of the property in question, did he exercise that authority so as to change the rights of the parties? Did he do any act which could legally divest the plaintiff of his interest in the property? When on the delivery of property sold, an act is to be done by the purchaser, and the seller delivers the property without requiring it to be done, the delivery is a waiver, and the property is transferred to the purchaser, although he has not complied with the terms of the contract; Lupin v. Marie, 6 Wendell, 77; Haswell v. Hunt, 5 T. R. 231; Chapman v. Lathrop, 6 Cowen, 110; 2 Kent's Com. 496; but where something is to be done by the purchaser simultaneously with the delivery, which has not been waived by delivering the property without requiring it to be done, the delivery is conditional and does not become complete so as to change the right of property until the condition is complied with, although the vendee get the possession of the goods; for possession in such case is obtained under an expectation on the part of the vendor that the terms of the contract will be complied with, and the vendor does not thereby part with his lien upon the property. 2 Kent's Comm. 497. Palmer v. Hand, 13 Johns. R. 435. Haggerty v. Palmer, 6 Johns. Ch. R. 437. Hussey v. Thornton, 4 Mass. R. 405. Keeler v. Field, 1 Paige, 315. Copeland v. Bosquet, Wash. C. C. R. 588. When the delivery of property is a waiver of the condition, it must be so Russell v. Minor. intended by the parties in interest or their authorized agents at the time of delivery. De Wolf v. Babbet, 4 Mason, 295. 3 Serge. & Rawle, 24. Keeler v. Keeler v. Field, 1 Paige, 312. In the case under review, the agreement the company made with the defendant was to furnish him with two thousand and forty-five dollars worth of paper of a particular description, at specified prices, for which he was to give his note at six months. The condition, therefore, on which the paper was to be delivered, was the giving of the note at six months; was this condition waived by the delivery? If it was, then the delivery became absolute and changed the rights of the parties, and the plaintiff cannot sustain his action. On the 25th of September a lot or parcel of the paper was deliverd on the contract, and a note demanded for the amount; the defendant answered, "he would give his note for the whole when the remainder was brought, and the parcel now delivered could remain until then." He did not therefore object to the giving of his note when the whole was delivered; but on the contrary, assented to it, thereby recognizing the contract even down to this late period. Neither party, therefore, had reason to suppose from what then took place, that the right of having the note for the whole amount, when the whole of the paper should be delivered, was waived. The defendant was under no obligation to give his note for the parcel delivered, nor had Beach or the plaintiff a right to exact it until they had complied with the terms of the contract on their part by delivering the whole quantity. The agreement did not require him to give his notes for the separate parcels delivered, but he was to give his note at six months for the two thousand and forty-five dollars worth of paper. The delivery of the whole quantity, therefore, formed a condition precedent on the part of the vendor; and although Beach left the first parcel without receiving the note, he waived nothing, for he had not then put himself in a condition to demand the note he was to receive by the terms of the contract. See Champlin v. Rowley, 18 Wendell, 187, and the note appended to that case. It is questionable whether property which consists in heavy and cumbersome articles, which from their nature VOL. XXII. 84 |