Draper & Devlin v. Jones

By the Court, Edwards, J. The memorandum of the contract of sale which was signed by the broker, as the agent of the parties, contains a provision that the notes to be given, shall be made satisfactory to the sellers. We think that the obvious construction of this contract, is, that the delivering of the merchandise and the giving of the notes were to be simultaneous acts, and each was to be the condition of the other. But this contract differs from ordinary contracts, where the sale is for cash or notes, for a further act was necessary on the part of the vendors before the vendees would have it in their power to fulfill the contract — the notes to be given were to be satisfactory to the vendors. This provision rendered the sale clearly and unequivocally conditional. The question then arises, [269] whether there was an absolute delivery of the property to the vendee, without insisting upon the condition precedent; or, in other words, whether there was a waiver of the condition. It appears from the contract which was entered into between the parties, that the property in question, which consisted of twenty barrels of currants, was to arrive from Zante, and was to be delivered in about a month after the contract was made. It also appears by the testimony of one of the clerks of the plaintiffs, that he delivered the currants at the time agreed upon, to the cartman of the vendees, pursuant to orders which he had received from his employers ; and he further states that he was not aware of the terms of the sale. If the transaction had stopped here, it might be inferred that there was an absolute delivery, and a waiver of the condition of the contract. But another clerk of the plaintiffs testifies that shortly after the delivery, he called on the vendees with the bill of parcels, and that such bill contained the words, “ at four months, for satisfactory security.” He further states, that in his conversation with the vendees at the time when the bill was rendered, they asked what kind of notes would be satisfactory, and that he replied, “just what the bill calls for.” It would seem, then, that the vendors had not intended to make an absolute and unconditional delivery of the property, and that the vendees did not suppose that they had done so. The witness further testifies that he again called upon the vendees, and that they then said, that they had not fixed upon the paper that they would give; but they proposed the note of a person with whom they had a running account, for the vendors’ consideration, and they said that they would inquire about him. The witness further says, that before he had time to call again the vendees had stopped payment, and no note was ever given. It seems to me, that the fair inference from this testimony, is, not only that the sale of the property was conditional, but that, although the condition was not insisted upon at the time of the delivery, it was insisted upon immediately afterwards, when the bill was rendered, and that the vendees fully recognized and acknowledged the condition as still subsisting, and binding upon them. [270] [New-York General Term, June 14, 1851. Edwards, Edmonds and Mitchell, Justices,] We are aware that the tendency of opinion at present, is, to regard a delivery as absolute when no condition is insisted upon, and admitted at the time of delivery, although such may not have been the intention of. the vendor. But if there is a clear admission afterwards that the delivery was conditional, we think that both commercial policy, and the common principles of justice, require that' the condition should be upheld. It will be remembered, that in this case the vendees throughout acknowledged the condition, and that they submitted the name of a person whose note they proposed to give in performance of the condition; and that while they were in negotiation, a judgment creditor came in and caused the property to be taken under an execution in his favor. In the case of Whitwell v. Vincent, (4 Pick. 449,) the court say, that a delivery is conditional, if enough appear to show that such,was the understanding of the parties. In the case of Keeler v. Field, (1 Paige, 812,) where there was a condition similar in many respects to the one in this case, it was held that the title of the vendor was not divested by the receipt of the goods by the vendee — it being apparent that such was not the intention of the parties. (See also, Leven v. Smith, 1 Denio, 571.) In the case before us, it will be observed, that the parties claiming that there was an absolute and unconditional delivery, are not the vendees; and it does not appear that the vendees ever set up any claim inconsistent with a conditional delivery. We think that there was evidence enough to go to the jury, upon the question, whether the sale and delivery of the property in question, was conditional ; and that the judge before whom the cause was tried, erred, in ordering a nonsuit. The judgment of the court below must be reversed, and a venire de novo awarded.