Bauendahl v. Horr

SHIPMAN, District Judge. On the facts found by the court, this was a conditional sale. One of the terms of the contract was an express condition that payment was to be made by the defendant’s draft on G. P. & B. W. Pay, with the latter’s acceptance thereof. Upon this condition the goods were delivered, in accordance with a custom of the trade. This condition was never complied with by the defendant, but compliance therewith was steadily refused. Nor was there any waiver of the condition by the plaintiffs. It is true that they offered, in their letter of the 27th of August 1868 to accept the note in settlement, if the defendant would hold himself responsible for its payment, by an acknowledgment to that effect by return mail. The defendant never accepted this proposed modification of the contract. This left the original terms of sale in full force. Their never having been complied with by the defendant, no title to the wool ever passed to him, and the plaintiffs had the right to reclaim it. It would seem, from the authorities, that they would have had this right as against attaching creditors and bona fide purchasers, provided there had been no laches on the part of the plaintiffs. But, as between the parties, there can be no doubt, I think, that the right of reclamation existed. Hill v. Freeman, 3 Cush. 257; Tyler v. Freeman, Id. 261; Coggill v. Hartford & N. H. R. Co., 3 Gray, 545. It was claimed, on the argument, that the plaintiffs should have returned the note to the defendant, and that this was necessary before their right of reclamation could accrue. If there had been a mere fraudulent contract, by which the title had vested in the defendant, making it incumbent on the plaintiffs to return the consideration, in order to rescind the contract and revest the title in them, this claim of the defendant might be material. But here the sale was not absolute, with a taint of fraud in the contract. It was conditional, and the delivery under it was conditional. No title ever vested in the defendant, for the condition was never performed. No act of the plaintiffs was necessary to revest in them the 'title with which they had never parted. The plaintiffs never accepted this note in payment. They, indeed, offered to accept it, but only on a condition with which the defendant refused to comply. The title and right of possession of this wool remained, therefore, in the plaintiffs, and judgment must be rendered for them.