And generally, wherever in a contract of sale it * is stated that some precise fact is to be done by either party, this may amount to a condition, though not so expressed. As where, in a contract for sale of goods, the words are "to be delivered on or before" a certain day, this is a condition precedent, and if they are not delivered on or before that day, (p) the purchaser is not bound to take the goods. So if the goods are to be delivered " on request," the buyer must allege and prove a request, this being a condition precedent to his acquiring a complete right (q) But if the seller has incapacitated himself from delivering by reselling, or otherwise, no request is necessary. (r)

If goods are sold and delivered conditionally, the vendor retains his right to them as against the vendee, but, [it has been held,] not against a bond fide purchaser from the vendee. (rr) 1 In Massachuonly, in case the buyer fails to pay the price, but reserves a right of disposing of the goods, so long at least as the buyer continues in default. Ogg v. Shuter, 1 C.. P. D. 47. That a hill of lading deliverable to the seller's order is nearly conclusive of an intention to reserve the jus disponendi to prevent the title passing to the buyer, see Shepherd v. Harrison, L. R. 5 H. L. 116. A seller may even reserve this right when the goods are placed on the buyer's own ship free of freight on that account. Schots-mans v. Lancashire, etc. R. Co. 2 Ch. App. 3.'i2. Where a bill of exchange for the price is sent to a buyer for acceptance with the bill of lading, to retain the latter he must accept the former, and on refusing acceptance can acquire neither bill of lading nor the goods. Chicago Marine Bank v. Wright, 48 N. Y. 1; Chicago Bank v. Bay-lev, 115 Mass. 228, 230; Alderman v. Eastern R. Co. 115 Mass. 233; Cobb v. Ill.

(p) Startup v. McDonald, 2 Man. & G. 395. And the delivery must have been made at a reasonable time on that day, or the vendee is not bound. Id.

(q) Bach v. Owen, 5 T. R. 409, as explained in Radford v. Smith, 3 M. & W. 258, where Lord Abinger said: "In Bach v. Owen, the plaintiff was not entitled to the horse until he offered his own and demanded the other. Where by the express terms of the contract a request must precede delivery, or where that is to be implied from the nature of the contract, a request must be alleged and proved, but not otherwise."

(r) Ranay v. Alexander, Yelv. 76 n. (Metcalf's ed.); Amory v. Brodrick, 5 B. & Ald. 712; Newcomb v. Brackett, 16 Mass. 161; Webster v. Coffin, 14 Mass. 196. See also ante, note (v), p. *532.

(rr) Wait v. Green, 36 N. Y. 556; Murch v. Wright, 46 Ill. 487.

Cent. R. Co. 88 Ill. 394. A bill of lading to shipper's order, or "to or order." indorsed to or making goods deliverable to a consignee by name as security for antecedent advances, vests in him a property, absolute or special, at the time of their delivery on board. Bailey v. Hudson R. Co. 49 N. Y. 70: Straus v. Wepsel, 30 Ohio St. 211. And in the case of animals the increase belongs to the vendor until the performance of the condition. Clark v. Hayward, 51 Vt. 14. Where a sale is made under an agreement to give a mortgage for the purchase-money, the title does not pass until the mortgage is given. Thorpe v. Fowler, 57 Ia. 541; Bauendahl v. Horr, 7 Blatchf. 548; Benner v. Puffer, 114 Mass. 376; Ridgeway v. Kennedy, 52 Mo, 24; Drury p. Hervey, 126 Mass. 519; Hegler v. Eddy, 53 Cal. 597; Carroll v. Wiggins,

30 Ark. 402; Brown v. Fitch, 43 Conn. 512; Jowers v. Blandy, 58 Ga. 379; Domestic, etc. Co. v. Arthurhultz, 63 Ind. 322; Moseley v. Shattuck, 43 Ia. 540; Boon v. Moss, 70 N. Y. 465; Sanders v. Keber, 28 Ohio St. 630; Holt v. Holt, 58 N. H. 276; Pruman v. Hardin, 5 Sawyer, 115; Re Binford, 3 Hughes, 295; Rogers, etc Works v. Lewis, 4 Dillon, 158; Fosdick v. Car Co. 99 V. 8. 256; Preston v. Whitney, 23 Mich. 260; Fifield v. Elmer, 25 Mich. 48; Everett v. Hall, 67 Me. 497; Wood, etc. R, Co. v. Brooke, 2 Sawyer, 576; Duncan v. Stone, 45 Vt. 118; Sage v. Slentz. 23 Ohio St. 1;

Shaffer v. Sawyer, 123 Mass. 294; Cole v. Berry, 13 Vroom, 308. -K.

1 The more general doctrine is that the vendor may maintain his right to the setts [and many other States, however, the vendor may assent his title even against such a purchaser.] There is another class of sales on condition, often called "contracts of sale or return." In these the property in the goods passes to the purchaser, subject to an option in him to return them within a fixed time; or a reasonable time; and if he fails to exercise this option by so returning them, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered. (s) l

(s) Moss v. Sweet, 16 Q. B. 493 (overruling Iley v. Frankenstein, 8 Scott, N.

R. 839, and Lyons v. Barnes, 2 Stark. 39); Beverly v. Lincoln Gas Light and Coke property or its value even against an innocent purchaser. Harkness v. Russell, 118 U. S. 663; Holman v. Lock, 51 Ala. 287; Dudley v. Abner, 52 Ala. 572; Fairbanks v. Eureka Co. 67 Ala. 109; Simpson v. Shackelford, 49 Ark. 63; Goodwin v. May, 23 Ga. 205; Sims v. James, 62 Ga. 260; Thomas v. Winters, 12 Ind. 322; Winchester, etc. Co. v. Carman, 109 Ind. 31, 34; Baker v. Hall, 15 Ia. 277; Warner v. Johnson, 65 Ia. 126; Hall v. Diaper, 20 Kan. 137; Brown v. Haynes, 52 Me. 578; Armour v. Pecker, 123 Mass. 143, 145; Chase v. Pike, 125 Mass. 117; Salomon v. Hathaway, 126 Mass. 482; Kendrick v. Beard, 81 Mich. 182; Dewes Brewery Co. v. Merritt, 82 Mich. 198; Ketchum v. Brennan, 53 Miss. 597; Ridgeway v. Kennedy, 52 Mo. 24; Kingsland-Ferguson Mfg. Co. v. Culp, 85 Mo. 548; Heinbockle v. Zugbaum, 5 Mont. 344; Aultman v. Mallory, 5 Neb. 178; McCormick v. Stevenson, 13 Neb. 70; Weeks v. Pike, 60 N. H. 447; Marvin Safe Co. v. Norton, 48 N. J. L. 410; Redewill v. Gillen, 4 N. Mex. 78; Boon v. Moss, 70 N. Y. 465; (but see Comer v. Cunningham, 77 N. Y. 391; Parker v. Baxter, 86 N. Y. 587); Clayton v. Hester, 80 N. C. 275; Vasser v. Buxton, 86 N. C. 335; Sanders v. Keber, 28 Ohio St. 630; Call v. Seymour, 40 Ohio St. 670; Case Mfg. Co. v. Garven, 45 Ohio St. 289; Singer Co. v. Graham, 8 Oreg. 17; Goodell v. Fair-brother, 12 R. I. 233; Reeves v. Harris, 1 Bailey, 563; (see also Herring v. Cannon, 21 S. C. 212); Harding v. Metz, 1 Tenn. Ch. 610; Sinker v. Comparet, 62 Tex. 470; Child v. Allen, 33 Vt. 476; Walker v. Hyman, 1 Ont. Ap. 345.