4 X. Y. Firemen Ins. Co. v. De Wolf, 2 Cow. 56. So where the vendor proposed to the vendee to take back a part of the goods sold, and to give his note on time for the same, and the vendee accepted the proposition as to returning such goods, but referred the vendor to his partner to make arrangements as to the note on time, and shortly after sent the goods to a third party, to the care of the vendor, it was held that the title did not repass until the vendor had arranged for giving his note on time. Stiles v. Howland, 82 X. Y. 309 (1865). The plaintiffs sold to the defendants goods to be paid for by cash or "approved banker's bills." The defendants paid for them by an "approved banker's bill," which-was dishonored on presentment for acceptance. They were not parties to the bill and received no notice of dishonor. The court held that the plaintiffs could not maintain an action against the defendants for the price of the goods. Smith v. Mercer, Law R. 3 Exch. 51 (1867).
5 2 Kent, Comm. lect. 39. p. 496; Haswell v. Hunt, cited by Buller, J., in 5 T. R. 231; Harris v. Smith, 3 Serg. & Rawle, 20; Chapman v. Lathrop, 6 Cow. 110. The buyer of machinery, who held it on condition that it should remain the property of the seller till the price was paid, sold it to a third person, and afterwards tendered the price to Ins seller, who had never demanded payment. Upon the tender, although it was refused, the title passed to the third person. Day v. Bassett, 102 Mass. 445 (1869).
§ 1025. Delivery may, however, be not only absolute, but conditional; and, in the latter case, the property will vest in the buyer, only upon his performance of the condition.3 If the condition be precedent, as if the seller agree to deliver the goods upon his receiving a certain security, no property passes to the purchaser until payment be made, or the security be given.1 So, also, if the condition be subsequent, as if the seller part with the goods upon the agreement, express or implied, that the purchaser shall furnish him a certain security in a few days, and with the understanding that such sale is conditional, the title, as between the parties themselves, will remain unchanged, until the security is given.2 And a sale of goods upon condition that until payment of the price they shall remain the property of the vendor, and shall not be sold by the purchaser without his consent, passes no title until the condition is performed, although the purchaser is a dealer in such goods, and has no use for them except for sale.1 But, as to subsequent bond fide purchasers, or creditors of the vendee, without notice, the case may, it has been thought, be different.2 The better opinion, however, is that a sale and delivery of goods upon condition that the title shall not pass until payment of the price give the vendee no title which he can convey to a purchaser in good faith and for a valuable consideration.3 If goods are sold on condition that the title shall not pass until they are paid for, and there are mutual accounts between the vendor and vendee, and upon a settlement a sum of money is paid by the vendor to the vendee, the balance being supposed to be in favor of the vendee, and it is afterwards ascertained that this was a mistake, the title to the goods has passed to the vendee, and the vendor cannot replevy them.4 Where a mare, being with foal, is sold on condition that she is to "remain the property of the vendor till paid for," the vendor continues to own the colt subsequently foaled, until performance of the condition.5 So, also, if the goods be delivered before the price is paid, in compliance with a usage of trade known to the buyer, the delivery is conditional, and the vendee holds the goods in trust for the vendor, until the condition is performed,6 against all persons, except a bond fide purchaser, without notice.7 Indeed, in all cases where credit is not given, or where the delivery is not intended by the parties to be absolute, a mere parting with the goods will not, of itself, constitute an absolute delivery;1
1 When, upon the conditional sale of a chattel, it is agreed that the vendee is to have possession, and to pay the price within a fixed time, if after the purchase-money has become due and remains unpaid, the vendee is still permitted to retain possession, and the vendor receives part payment, this is an assent by the latter to delay, and a waiver of any forfeiture, and a recognition of the right of the vendee to acquire title by payment of the residue of the purchase-money, which right would continue until a request by the vendor for such payment, and a refusal of the vendee; and a tender, under such circumstances, of the amount due, discharges all lien or claim of title to the property by the vendor. Hutchings v. Munger, 41 N. Y. 155 (1869).
2 Noble v. Adams, 7 Taunt. 59.
3 A sale of lumber on condition that the vendor may repurchase it at the same price on or before a certain day, is not a mortgage, and passes the property as between vendor and vendee without delivery; and possession of part, if the lumber sold was not part of a larger lot, taken by the purchaser, though opposed by the vendor, before notice of proceedings in insolvency by the vendor, will complete the vendee's title to all the lumber sold, as against the assignee in insolvency of the vendor. Lee v. Kilburn, 3 Gray, 594 (1854). A sale of personal property on condition that the vendee may return the articles in a specified time, becomes absolute, if the vendee so misuses the property during that time as materially to impair its value; and the vendor may recover the price in general assumpsit for goods sold. Ray v. Thompson, 12 Cush. 281 (1853). A broker sold indigo at a certain sum per pound, payable in the negotiable note of the purchaser, but his memorandum of sale contained no mention of the note; nor did the entries of the transaction in the books of either party. The vendor never sent any bill of sale to the purchaser, nor demanded a note from him, and the purchaser never tendered any note to the vendor. It was held that the vendor was not concluded by the entry in the broker's books, but might prove by any competent evidence, oral or in writing, that payment by note was part of the contract; that the sale was conditional, and that the vendor had not waived the performance of the condition. Whitney v. Eaton, 15 Gray, 225 (1860).