Wells v. Merle & Heaney Manufacturing Co.

Wp. Justice Waterman delivered the opinion oe the Court. Where personal property, other than commercial paper, is by contract sold for cash, to be paid for on delivery, the delivery and payment are to be concurrent acts, and therefore, if the goods are put into possession of the buyer, in expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as conditional, and may at once reclaim the goods. Canadian Bank v. McCrea, 106 Ill. 281; Ames v. Moir, 130 Ill. 58591; Russell v. Minor, 22 Wend. 659; Morris v. Rexford, 18 N. Y. 552; Fletcher v. Cole, 23 Vt. 114. In the present case it is insisted that there was a waiver of contemporaneous payment. Whether there was such waiver is a question of fact. As to what will be treated as a waiver, see Martin v. Wirtz, 11 Ill. App. 567; Peabody v. Maguire, 79 Maine, 572; Seed v. Lord, 66 Maine, 580; Stone v. Perry, 60 Maine, 50; Whitney v. Eaton, 15 Gray, 225. This question the jury determined against appellant. There was no unrestricted delivery of the goods. Appellee had contracted to make, place and set up, in appellant’s store, certain fixtures. In the nature of things, appellee could not do this without, from time to time, as the work required, leaving the property in the custody of appellee and fastening it in place, as was necessary. So soon as the work was complete, appellee demanded payment. He was not before entitled to be paid, and when so entitled, he insisted upon his right; payment not being made, he immediately demanded a return of the goods; this being refused, he, without delay, sued out a writ of replevin. Appellant claims to have sold to his brother the goods obtained from appellee, pending their delivery; that is, that a sale was made, in part, of property contracted for and yet to arrive; and in this suit appellant insists that the goods belong to his brother; yet appellant, having, as he claims, thus sold the goods June 17th, July 7, 1893, wrote to appellee the following letter: “ Chicago, July 7, 1893. Merle & Heaney Mfg. Co., City. Gentlemen : I am surprised, on my return to the city, to find that you have failed to furnish and put in position a considerable portion of the fixtures purchased from you. I demand that you at once proceed to finish these fixtures according to contract, and place them in position, and I shall hold you responsible for any damages that may result from your delay in putting these fixtures in shape. I have been greatly delayed and incommoded since the first of May by your failure to keep the terms of xmur contract. Bespectfully yours, B. A. Wells.” According to the unmistakable terms of the contract, appellant had only, at the most, a conditional title to these goods at the time he claims to have sold them. The goods were not shown to have been attached to the building, other than is customary in the case of removable trade fixtures. All of the articles are such as are easily movable, and while sustained in place by nails and screws, are such as it is customary and easy, without affecting the realty, for tenants to put in and remove; they do not appear to have been affixed in such a way as to make them a part of the realty. The contract was for the manufacture and sale of chattels, which never became else. The judgment of the Circuit Court is affirmed.