Weeks v. Pike , 60 N.H. 447 ( 1881 )

A sale and delivery of chattels, on condition that the title to the property is not to pass from the vendor until the purchase-money is paid or secured, does not vest the title in the vendee; and the vendor, in case the condition is not fulfilled may repossess himself of his goods, or maintain trover for them against the vendee, his attaching creditors, or subsequent purchasers. Sargent v. Gile, 8 N.H. 325; Porter v. Pettengill, 12 N.H. 299; Kimball v. Jackman, 42 N.H. 242; McFarland v. Farmer, 42 N.H. 386; Fisk v. Ewen, 46 N.H. 173; Marston v. Baldwin, 17 Mass. 606; Barrett v. Pritchard, 2 Pick. 512; Whitwell v. Vincent, 4 Pick. 449; Zuchtmann v. Roberts,109 Mass. 53; Clark v. Wells, 45 Vt. 4. No title passed from the plaintiff by the sale and delivery to Foster, and, without satisfying the condition, Foster could give no title by a sale unless the plaintiff consented or waived the condition. Coggill v. Hartford New Haven Railroad, 3 Gray 545; Benner v. Puffer, 114 Mass. 378. The plaintiff never authorized Foster to sell the boards to the defendant, nor ever consented to the sale. Neither by words nor acts did he waive the performance of the condition, nor, by conduct or representations on which the defendant could rely, induce him to purchase the property. The plaintiff had no knowledge of the sale, and the case shows no want of diligence in ascertaining what had become of his property, and reclaiming it. Not consenting to the sale, nor waiving the condition of cash payment, nor failing in diligence to seek his own, the plaintiff is not estopped from reclaiming his property, or recovering the price of it of the defendant. Zuchtmann v. Roberts, supra,

Judgment on the report for the plaintiff.

CLARK, J., did not sit: the others concurred.