Martin v. Wirts

McAllister, J. Upon a hearing of this case at a former term, we decided to affirm the judgment below. A petition for a rehearing was thereupon presented which required a reconsideration of the case, with the view of testing the correctness of that decision. The rehearing was granted, and now, upon a third examination of the evidence in the record, and consideration of its effect, it is the conclusion of a majority of the court that the judgment below ought to be reversed, and the case sent back for a new trial, for reasons which we will state as briefly as possible. There being a plea of property in defendant, also in a stranger, the onus now rests upon plaintiffs of proving, by a preponderance of testimony, their property in the goods replevied, and their right to the possession thereof, at the time of bringing the suit. It appeared upon the trial, by undisputed evidence, that the plaintiff had made a sale and delivery of the goods in question to one Henry M. Lincoln, from whom the defendant derived title by a voluntary assignment, for the benefit of Lin-coin’s creditors. If the property in the goods passed out of the plaintiffs and became vested in Lincoln, by the sale and delivery of the goods to him by the plaintiffs, then such property became vested in defendant under Lincoln’s assignment of all his property to defendant. How, to overcome such prima facie case against the plaintiffs, it was incumbent on them to show, by a preponderance of evidence, either that Lincoln induced them to make such sale and delivery to him by means of false and fraudulen t representations, or that he purehasjjlüfcthem, with a preconceived design at the time of purchase, of not paying for them; or that the sale was upon the condition of the goods being paid for on delivery, and that such condition had not been performed by the buyer or waived by the sellers. There was, however, no evidence tending to support the theory of fraud on the part of Lincoln, in either of the respects above suggested. Upon the theory of the sale being upon the condition that the purchase price should be paid on delivery, there is simply the evidence of one of the plaintiffs, and not contradicted by Lincoln, that it was understood between the parties, at the time of the bargain, that it was to be a cash transaction. But there is no evidence tending to show that the plaintiffs, at any of the times when delivering the goods to Lincoln, exacted of him performance of the condition of payment, or attached any other condition to the delivery; or that either of the parties made any declaration or suggestion in regard to any such condition. Under this state of the evidence, and the plaintiffs being subject to the onus probandi, we must hold that the delivery was absolute and unconditional; and that by such absolute and unconditional delivery the plaintiffs must be presumed to have waived the condition by which they would have retained the property in their goods until payment of the price, and to have elected to trust to the personal responsibility of the buyer. The cases involving these questions are numerous, but we shall refer to but two, they containing the proper results of the others. In Sweet v. Lynes, 1 Selden, 41, the general doctrine deduced from the other eases there cited is stated thus; Where goods are sold on condition of being paid for on delivery, in cash or commercial paper, or on condition of the seller receiving on delivery security for payment, an absolute and unconditional delivery of the goods by the vendor, without exacting, at the time of delivery, a performance of the condition, or attaching any other condition to the delivery, is a waiver of the condition of the sale, and a complete title passes to the purchaser, if there is no fraudulent contrivance on the part of the latter to obtain possession. 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. An absolute and unconditional delivery is regarded as a waiver of the condition. By an absolute delivery, without exacting the performance of the condition, the vendor is presumed to have abandoned the security he had provided for the payment of the purchase money, and to have elected to trust to the personal security of the vendee. Whether the delivery is absolute or conditional, must depend upon the intent of the parties at the time the goods are delivered, which is a question of fact for the jury. In Osborne v. Gantz, 60 N. Y. 540, the rules are stated thus: “An absolute delivery of property to the vendee without a demand of the purchase-money is presumptive evidence of the waiver of the condition of present payment, and of a lien upon the property, and of a willingness to give credit to the personal responsibility of the buyer. The presumption may be rebutted by the acts and declarations of the parties, or by the circumstances of the case. An express declaration of an iiitention to insist upon the performance of the condition, and a lien upon the goods, is not necessary. The intent may be inferred from the acts of the parties and circumstances of the case, and it is a question of fact for the jury.” While recognizing the above views of the law as correct, still it is the opinion of a majority of the court that the case is wanting in the requisite facts and circumstances to rebut the presumption of a waiver of the condition in question, arising from the absolute and unconditional delivery by the plaintiffs of the goods. The fact that the plaintiffs sent their bill for the goods to Lincoln’s place of business for payment, on the day next following that on which the delivery was completed, and then again three days after such delivery, and the fact that some six days after the delivery one of plaintiffs met Lincoln in the street and there asked him for the amount of the bill, and the fact that the latter then and there promised immediate payment, are the only facts relied upon to rebut the presumption of a waiver of the condition. Those facts, it seems to us, whether taken singly or collectively, are entirely consistent with such waiver by, and an election on the part of the sellers to trust to the buyer’s personal responsibility. If consistent with the intention to waive such condition and tinsfc to the buyer’s personal responsibility, how can such facts have a tendency to rebut the presumption of such waiver and election arising from the absolute and unconditional delivery of the goods to the buyer? It would be just as much a cash transaction, only the seller trusted to the buyer’s personal responsibility, instead of retaining a hold upon the property. It does not seem to us that the case was tried upon the theory that the presumption of waiver might be so overcome. If it had been shown that the bill presented contained a statement of the condition, or that Mr. Wirts affirmed it at the conversation he had with Lincoln on the street, and Lincoln had then expressly or impliedly admitted it, then there would have been some evidence, as in the case of Draper v. Jones, 11 Barbour, 263. But there was nothing of the kind. We think the verdict was unsupported by the evidence, and for that reason must reverse the judgment. Beversed and remanded.