1 Daly 23 | New York Court of Common Pleas | 1860
By the Court.
The defendant informed the plaintiffs that he would send back the amount of their hill by return of post, or the Express Company might collect it, at their option. The plaintiffs sent the box containing the cards to the Express Company, with directions to collect the bill on delivery. It is to he implied from such a direction that no credit had been given, and that the goods were to be paid for on delivery. The direction was understood by the Express Company as an instruction to them not to deliver the goods unless the bill was paid. The agent of the Express Company, who received the box and gave a receipt for it, testified that when they receive goods in that way, they do not deliver them unless the bill is paid. The receipt was for a box and a bill, and had written upon it, in the handwriting of the witness, the initials C. O. D., the meaning of which, he testified, was, “ collect on delivery.”
When goods .are sent in this way, to be paid for in cash,"payment and delivery are simultaneous acts, and though the properiy be delivered, no title passes, unless it is apparent from the circumstances under which the delivery was made, that
This rule, the soundness of which has been questioned per Story, J. in Connyer v. Ennis, 2 Mason, 236, is now settled to be the law in this State, (Russell v. Minor, 22 Wend. 659 ; Lupin v. Marie, 6 id. 77 ; Chapman v. Lathrop, 6 Cow. 115,; Keeler v. Field, 1 Paige, 312 ; Haggerty v. Palmer, 6 John. C. R. 437; Palmer v. Hand, 13 Johns. R. 434) and it is decisive upon the question arising in this case.
There is nothing to show that the plaintiffs intended to waive payment as a condition precedent to the transfer of the title in the goods to the defendant, but on the contrary, the circumstances of the case, I think, repel such a presumption. The defendant left it at their option whether he should send back the amount of their bill by return of post, or whether it should be collected by the Express Company. They chose the latter, and directed the Express Company to collect it upon delivery. This was certainly not indicating any intention to trust to the ability and readiness of the defendant—but if any tiling is inferrable from it, it is the contrary. The Express Company understood it as a direction to them not to deliver unless the cash was paid; and had the goods reached Mew Orleans, they would have kept them as the property of the plaintiffs. The Express Company would-have had no authority to deliver the goods relying upon the ability'of the defendant, and waiving payment—or, if they had delivered the box to him, to enable him to examine the contents, to see if his order had been properly executed, they, or certainly the plaintiffs, could have reclaimed it, if the defendant had failed to pay the bill when it was demanded. In Goodall v. Skilton, (2 H. Bl. 316), the plaintiff agreed to sell a quantity of wool to the defendant. Earnest was paid, rendering the contract valid under the statute of frauds. The wool was packed in the defendant’s sacks anil left upon the plaintiff’s premises, the defendant agreeing to send his wagon for it in a few days. The defendant did not take the wool, and the plaintiff brought an
1 ■idgineni reversed. '
ihiTOx, J. concurred.
ik-.ADT, J. concurred.