1 Barrett v. Pritchard, 2 Pick. 512; Bishop v. Shillito, 2 B. & Ald. 329, n.; Hill v. Freeman, 3 Cush. 257; Hotchkiss v. Hunt, 49 Me. 213 (1860). See Smith c. Mercer, Law R. 3 Exch. 51 (1867). Where it is part of a contract for the sale of goods that they are to be paid for in the negotiable note of the purchaser, such payment is a condition precedent to the sale, and the title to the goods will not vest in the purchaser by a delivery to him of the goods, without such payment, or waiver of the condition by the vendor. Whitney v. Eaton, 15 Gray, 225 (1860). If goods are sold on condition and delivered without compliance therewith, the property does not necessarily pass to the purchaser; and the presumption that such a delivery is absolute, and evidence of a waiver of the condition, maybe controlled; and it is for the jury to determine whether the delivery was subject to the condition or not. And the admission of evidence of a custom in conditional sales to deliver the property without first exacting the condition, as matter of indulgence in the business community, is no ground of exception. Farlow v. Ellis, 15 Gray, 229 (1860).
2 See Smith v. Lynes, 1 Seld. 41; Parris v. Roberts, 12 Ire. 268; Bu-son v. Dougherty, 11 Humph. 50; Davis v. Bradley, 24 Vt. 55; Root 0. Lord, 23 Vt. 568; Porter v. Pettengill, 12 N. H. 299. A sale of real and personal estate for an entire sum, for part of which the purchaser gives his notes and an agreement indorsed upon the written contract of sale that the sale of some of the personalty should be so far conditional that if the purchaser neglected for three months to pay any of the notes after they became due, the sale should be void, is a sale upon a condition subsequent, and after three months' default of payment of any of the notes, the seller may repossess himself of the personal property embraced in the indorsed agreement, and recover the whole amount of the purchase-money from the purchaser. Knox v. Perkins, 15 Gray, 529 (1860).
1 Sargent v. Metcalf, 5 Gray, 306 (1855); Blanchard v. Child, 7 Gray, 155 (1856); Burbank v. Crooker, Id. 158.
2 Hussey v. Thornton, 4 Mass. 405; Marston v. Baldwin, 17 lb. 606; Corlies v. Gardner, 2 Hall, 345; Reeves v. Harris, 1 Bailey, 563; 2 Kent, Comm. lect. 39, p. 497.
3 Deshon v. Bigelow, 8 Gray, 159 (1857); Hotchkiss v. Hunt, 49 Me. 213 (1860); Hart v. Carpenter, 24 Conn. 427; Coggill v. Hartford & New Haven Railroad Co., 3 Gray, 545 (1855); Gilbert v. Thompson, 3 Gray, 550, note (1856); Heath v. Randall, 4 Cush. 195 (1849); Angier v. Taunton Paper Manuf. Co., 1 Gray, 621 (1851); Ullman v. Barnard, 7 Gray, 554 (1856); Ballard v. Burgett, 40 N. Y. 314 (1869), distinguishing Wait v. Green, 36 N. Y. 556.
4 Hodgkins v. Dennett, 55 Me. 559 (1867).
5 Allen v. Delano, 55 Me. 113 (1867).
6 Haggerty v. Palmer, 6 Johns. Ch. 437; Ex parte Lord Seaforth, 19 Ves. 235; D'Wolf p. Babbett, 4 Mason, 289, 294.
7 Haggerty v. Palmer, 6 Johns. Ch. 437; Ex parte Lord Seaforth, 19 Ves. 235; 2 Kent, Comm. lect. 49, p. 497; Whitwell v. Vincent, 4 Pick. 449; Hill v. Freeman, 3 Cush. 257; D'Wolf v. Babbett, 4 Mason, 294.
§ 1026. A delivery may also be either actual or constructive. An actual delivery is a manual and immediate delivery of goods, which are in the possession of the seller. An actual delivery involves a consideration of the person to whom the goods are to be delivered, and the place in which they are to be delivered. First, as to the person. Delivery to the servant or agent of the buyer,2 or to a third person, as a warehouseman, at the request of the buyer, is a good delivery to the buyer himself.3 It must, however, clearly appear, not only that the bargain is completed, but that the third person is not acting merely as a depositary for the benefit of both parties to the contract. Thus, where an instrument bipartite, purporting to be an assignment of all the plaintiff's right in certain goods and debts to the defendant, was signed by the plaintiff and defendant, and by mutual consent was left in the hands of a third person (it not distinctly appearing for what purpose), there being no giving up of notes or adjustment of accounts, and the next day the depositary was forbidden by the plaintiff to surrender the instrument, it was held that the facts did not show a delivery.4 But if goods be delivered to a common carrier, either by land or by sea, it is a good delivery, so as to vest the property in the purchaser, to whom they are sent, and is subject only to the seller's right of stoppage in transitu, which will be hereafter considered. The carrier is, in fact, considered as the agent of the buyer, and not of the seller.1 In such a case, the buyer only can sustain an action against the carrier for loss or damage of the goods in the course of the conveyance, unless the seller specially agree with the carrier to pay the freight of the goods; in which case he also may have an action for non-delivery.2 But so far as title is concerned, it matters not by which party freight is paid. If, by a special agreement, the seller take upon himself the risk of carriage, he will of course be responsible therefor.3 So, if goods be sent for sale to the consignee, subject to his approval, the property remains at the risk of the consignor during their carriage to the consignee; and he must sue the carrier, if they be lost on the way.4
1 D'Wolf v. Babbett, 4 Mason, 289, 294; Reed v. Upton, 10 Pick. 522, and cases previously cited; Law Mag. vol. iv. p. 3G3, article Mercantile Law; White v. Wilks, 5 Taunt. 176; Simmons v. Swift, 5 B. & C. 857.
2 If property is sold and a constructive delivery thereof made to a common agent of two purchasers, without any separation of their respective portions, another purchaser of the same property from the original owner cannot avail himself of such want of separation and division of their portions between themselves, to defeat their titles. Ropes v. Lane, 9 Allen, 502 (1865).