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Russell v. Minor. must necessarily be delivered at different times, on a contract for which when the whole delivery is complete, the purchaser is to give his note or pay the money, or do some other act, to fulfil the contract on his part, the right of property in the separate parcels thus delivered becomes changed, so as to enable the purchaser to exercise acts of ownership over it even when nothing is said about it at the time of delivery. I am inclined to the opinion it does not, and that the vendee, while the property is in a state of being thus delivered, is a trustee of each separate parcel, the vendor still retaining his lien and ownership over it. But this is not a case of that description; on the defendant's note being called for, on a delivery of a part of the paper, he declined compliance on the ground that he would give it for the whole, when the remainder was delivered; thereby virtually denying his liability to give his note for a part of the amount he was by the contract to receive ; and he adds that the parcel delivered could remain until then. How remain ? Why clearly, as it then was, in a state of being delivered, waiting the remainder which was to make up the whole quantity which was to entitle the company to the note according to the terms of the contract. It appears to me, we cannot infer from any thing that transpired at the time the first parcel was delivered, that Beach intended to waive any of the terms of the contract, even had he the power of doing so; for he at this time exacted more than he was authorized by its terms to demand. When the remainder was delivered and the right to demand the note according to the terms of the contract accrued, it was demanded, and had that demand been acceded to and the note given accordingly, the right of the property would have been changed; but it was declined. Nothing, therefore, took place on the part of the defendant which could change the right of property, as the only thing that could have effected that object was withheld by the defendant, although demanded. No interest or right of property, therefore, ever did vest in him.

The receipt given could not change the nature of the transaction. It was at best a mere memorandum to show

Russell v. Minor. the amount of paper received from the company—but could not have been designed or intended by the parties to change the terms of the contract; nor could it have that effect. Beach being a special agent for a particular purpose, had not the authority to change the contract without the consent of the plaintiff. The property being turned out to the plaintiff, put on board, and ordered to be delivered on the contract then already made, was virtually in the possession of the plaintiff, and that possession and interest was not legally changed, as the note which alone was to effect that object was never given by the defendant, but declined, although demanded according to the terms of the contract. Being of the opinion, therefore, that the plaintiff had a right to sustain his action, I am for reversing the judgment of the supreme court.

By Senator WAGER. The paper in question in this suit was turned out to the plaintiff in payment of advances made by him to the manufacturers. The transaction was valid as between the parties to it, and passed the title of the property to the plaintiff, who as regards the Saugerties Company, had a right to maintain an action against any one who should interfere with it. It having been delivered to the defendant under a contract made with that company, with. out disclosing the ownership, does not take away the plaintiff's right to maintain his action for its recovery, unless the fact of concealing its ownership from the defendant has led him to put himself in a situation in relation to the company by which he has sustained injury, and which he would otherwise have avoided.

It is true, he pretended that he had purchased notes or bills against the company with which he intended to pay for the paper on its delivery, instead of performing the contract made with them, by giving his note at six months. But there is no evidence in this case, that he owned such notes or bills; there is nothing except his own declaration to that effect. Nor is it clear that had he then owned the notes or bills of the company, that he would have had the right to urge the possession of them as a justification of his conduct in

Russell v. Minor. refusing to perform the contract. The company had a right to insist upon a performance of the contract, as a condition to the complete and absolute delivery of the paper; and had he thus performed by giving his note at six months, that note might have been transferred before maturity to a bona fide purchaser so as to defeat any set-off of the bills or notes of the company in the hands of the defendant. I am therefore of opinion that he could not, even as against the Sax gerties company, have legally set up this defence to an action ; and if he could not have defended as against them, it is clear that he cannot do so as to the plaintiff, in whom the title of the property had vested some days prior to its delivery, by a valid sale made by the company.

Then for the purpose of deciding this cause, we may regard this action as having been instituted in the names of the persons constituting the Saugerties company, though I think the right of the plaintiff, under the circumstances, somewhat stronger than theirs. If they could have sustained an action, there can be no doubt that the judgment below should be reversed.

The contract was for the delivery of a certain quantity of paper, for which the defendapt was to give his note at six months. No time is specified in the contract when the note was to be given. The giving of the notes, and the delivery of the paper, are consequently simultaneons acts. The giving of the note on the delivery, was therefore a condition of the sale; and the delivery of the paper was conditional, not absolute, unless there was a waiver of the note at the time of the delivery, by giving up the possession and control of the property and omitting to require the note. In Chapman v. Lathrop, 6 Cowen, 110, it was decided “ that where goods are sold to be paid for in cash, no time being agreed on for payment, both the delivery and payment are simultaneous acts, and the vendor may refuse to deliver without actual payment, the latter being a condition of the sale.” There the goods were delivered without exacting payment at the time. The next day the vendee's clerk called to pay for them, and offered a note endorsed by the vendors and properly protested, and proposed to pay the balance in cash. Russell v. Minor. The vendors refused to receive the note; and about a fortnight after, demanded the property of the vendee. The court held, that the property having been delivered to the purchaser without any fraudulent contrivance on his part to obtain possession, the vendor, under the circumstances, had waived the condition and the property passed to the vendee. It however decides the point, that the delivery and payment are simultaneous acts, and that payment unless waived is a condition to the passing of the title. Vide also Haggerty v. Palmer, 6 Johns. Ch. R. 437; Palmer v. Hann, 13 Johns. R. 434 ; Keeler v. Field, 1 Paige, 312.

In Haggerty v. Palmer, goods were sold at auction to be paid for in approved endorsed notes at four and six months ; and it was shown to be the usage in the city of New-York, where the goods were sold to deliver them to the buyer when called for, and for the vendors afterwards to send for the notes. The vendee, after he had received the goods, before he was called on for the notes according to the terms of the sale, stopped payment and assigned the goods to pay favored creditors. Held, “that the delivery of the goods was conditional, and the vendee a trustce for them until the notes were delivered.” In Keeler v. Field, where a merchant contracted for goods, the price to be secured by his notes endorsed by B. & C., and where the goods in the mean time were forwarded to his residence, it was held “that the property was not changed until the delivery of the notes.” In Palmer v. Iland, it was decided “that where goods are sold to be paid for on delivery, if on the delivery being completed, the vendee refuses to pay for them, the vendor has a lien for the price, and may resume the possession of the goods.” It was contended on the argument, that the doctrine of the above cases, and especially that of Haggerty v. Palmer was overruled by this court, inthe case of Furniss v. Ilone, 8 Wendell, 247. On an examination of that case it will be found, that the decision turned upon the ground that the defendant in his answer denied the terms upon which the goods were alleged in the bill to have been delivered, and averred that the goods were bought under a special agreement which did not require Russell v. Minor. them to be paid for on delivery. The case being heard upon bill and answer without proofs, the answer was held conclusive. The case of Lupin v. Marie, 6 Wendell, 77, decided in this court, though not directly in point, supports the doctrine that where notes are to be given on the sale of goods, if the giving of them be not waived by the vendor, the title to the goods does not vest in the vendee. The extent of the doctrine as contained in the cases of Palmer v. Hand and Haggerty v. Palmer, was somewhat doubted by Mr. Justice Cowen, in a note made by him as reporter to the case of Chapman v. Lathrop, 6 Cowen, 115; and his doubts were principally based upon the case of Conyers v. Ennis, decided by Story, J. in 2 Mason, 236. In that case Judge Story doubts whether the vendor has at any time the right to stop or reclaim his property except when it is strictly in transit; and he comments with some considerable severity upon the remarks made by Lord Hardwicke, in Snell v. Prescott, 1 Atk. 245, in which his lordship says, " though goods are even delivered to the principal, I could never see any substantial reason why the original proprietor, who never received a farthing, should be obliged to quit all claim to them and come in as a creditor only, for a shilling perhaps in the pound, unless the law goes upon the general credit the bankrupt has gained by having them in his custody.” It may be that the doctrine to the extent laid down in the cases referred to in the note above alluded to, would be dangerous, but it has never been overruled by this court; and as it would in most cases promote the ends of justice, I cannot but yield it my assent. If it may be considered as modified at all by decisions in other cases, it has been modified only to this extent: that the property shall be considered as passing, whenever, from the circumstances proved, the party might be considered as trusting to the ability and readiness of the vendee to perform the agreement on his part, and had therefore waived his right to insist upon strict payment or performance on the part of the vendee, as a condition 10 passing the title.

I think the court below mistaken in supposing the first parcel of paper to be delivered absolutely to the defendant,

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