Dudley v. Sawyer , 41 N.H. 326 ( 1860 )

Bowler, J.

By the terms of the contract between the plaintiff and the agent of Rufus Sawyer, the property in the meat of the cow in controversy did not pass to Rufus Sawyer by its delivery to his servants on the morning of the sixth of August, 1859, because it was an express provision of that contract that payment of the price should accompany the delivery; and no such payment was made, nor airy evidence of any waiver thereof offered. The general rule, in the sale of goods and chattels, where no express stipulation to that effect is made, is, that the price must be paid before the property will pass, although conditional delivery may occur. If delivery take place, where payment is expected or contracted for therewith, it is in law made upon the condition precedent, that the price shall be forthwith paid. If this condition be not performed, the delivery is inoperative to pass the title to the property. Ferguson v. Clifford, 37 N. H. 86, and authorities cited on page 103.

There being no evidence that the express condition of the contract involved in the present case was either performed or waived, the property in the meat remained in the plaintiff after it was conveyed to the shop of Rufus Sawyer, and while a portion of it was sold by the servants of the defendant from the shop and carts, and the remainder was appropriated by the defendant to his own use. The defendant had then manifestly, before the bringing of the plaintiff's action, converted the property of the plaintiff to his own use, and was liable in trover for the value thereof, without a previous demand. It was entirely immaterial that he had no knowledge of the circumstances in relation to the meat until after its proceeds had been intermingled with those of his own meat. His duty clearly was, upon learning the facts, either to restore to the plaintiff meat of the same quality and value, to the same amount, or to pay him the agreed price therefor. Robinson v. Holt, 39 N. H. 557.

In accordance with these views, there must be judgment on the verdict.

JExceptions overruled.