1 The plaintiff’s agent went to the store of one Bartle & Susong to purchase a stock of goods belonging to the latter. The price was agreed upon, and Bartle & Susong executed and delivered a bill of sale of the goods to the plaintiff, and received $10 in part payment. After making this payment, the agent went out for the ostensible purpose of procuring the remainder of the price, leaving one Stivers in the store in some capacity to look after plaintiff’s interest. Just how much control Stivers exercised over the property, and whether there was a technical delivery of the goods, is a matter of some dispute. After the transaction, and before the plaintiff’s agent returned, Bartle & Susong, being *647indebted to defendant, gave to it an order on plaintiff for the unpaid balance of. the agreed price of the goods. On presenting this order, defendant was informed that plaintiff had been garnished at the suit of another creditor of Bartle & Susong,- and, returning to the latter, secured from them a chattel mortgage upon the stock, under which defendant caused the property to be seized, whereupon this action was instituted.
2 *6483*647I. Even though the alleged sale of the stock to plaintiff had not been followed by any change in the actual, manual possession, yet, the price having been definitely-agreed upon, a partial payment made and accepted, and a. bill of sale made and delivered, the sale being made in, bulk, leaving nothing to be done to designate or set apart. the subject of the transaction, it is, to say the least, more than probable that the title passed, and the. contract became enforceable against a subsequent-purchaser with notice, as defendant confessedly is. In Wade v. Moffett, 21 Ill. 110 (74 Am. Dec. 79), Breese, J.,„ says: “It is a general rule of the common law as to sales of chattels that, as between vendor and vendee, no actual' delivery, symbolical or otherwise, is necessary; the completion of the bargain being all that is requisite to pass the-title, though not the possession, until the price be paid or satisfactorily arranged. ” See, to the same effect. Welch v. Spies, 103 Iowa, 389; Bank v. Studemann, 74 Iowa, 104; Bank v. Reno, 73 Iowa, 146; Bertelson v. Bower, 81 Ind. 512; Willis v. Willis' Adm'r, 6 Dana, 48; Gardner v. Howland, 2 Pick. 599; Shumway v. Rutter, 8 Pick. 443 (19 Am. Dec. 340); Hooben v. Bidwell, 16 Ohio, 509 (47 Am. Dec. 386); Ricker v. Cross, 5 N. H. 571 (22 Am. Dec. 480); Lansing v. Turner, 2 Johns. 13; Briggs v. U. S., 143 U. S. 346 (12 Sup. Ct. Rep. 391, 36 L. Ed. 180); Rail v. Lumber Co., 47 Minn. 422 (50 N. W. Rep. 471); Wing v. Clark, 24 Me. 366; Hinde v. Whitehouse, 7 East, 558; 2 Kent, Commentaries, 492; 2 Blackstone, Commentaries, *648448. A delivery of a bill of sale has often been held to operate as a delivery of the property. Fletcher v. Nelson, 6 N. D. 94 (69 N. W. Rep. 58); Cook v. Van Horne, 76 Wis. 520 (44 N. W. Rep. 767); White v. McCracken, 60 Ark. 613 (31 S. W. Rep. 882); Briggs v. U. S., supra; Gibson v. Stevens, 8 How. 397 (12 L. Ed. 1123). And a transfer of title is not at all inconsistent with the fact that the seller retains the property under his control until the purchase price is paid. In such case he holds' the property as bailee of the purchaser, with a lien thereon for the unpaid purchase price. Welch v. Spies, supra; Arnold v. Delano, 4 Cush. 33 (50 Am. Dec. 754); Burke v. Dunn, 117 Mich. 430 (75 N. W. Rep. 931); Stafford v. McDonough, 120 Mass. 290; Crummey v. Randenbush, 55 Minn. 426 (56 N. W. Rep. 1113). It is unnecessary, perhaps, to pursue this line of investigation, in view of the fact that the trial court instructed the jury, in substance, that, in order to defeat the lien of defendant’s mortgage, they must find there was an actual delivery or change of the possession and control of the property at the time when the bill of sale and partial payment was made. By this instruction a greater burden was cast upon the plaintiff than would be indicated by the authorities above referred to. Of this, however, the defendant cannot complain, as the error, if any, tended to the prejudice of the other party alone. Rut even on .the theory adopted by the court (which seems to be substantially the theory contended for by defendant), the question whether the transactions between the plaintiff and Bartlé & Susong amounted to a delivery, and therefore a completed sale, was for the jury, under proper instructions of the court. 2 Mechem, Sales, section 967; Thompson Manufacturing Co. v. Smith, 67 N. H. 409 (29 Atl. Rep. 505); Merricks v. Davis, 65 Ill. 322; Tennant Shoe Co. v. Rudy, 53 Mo. App. 196; Sharpless v. Derr, 62 Mo. App. 359; White v. Pease, 15 Utah, 170 (49 Pac. Rep. 416). And if, as is urged, the question *649of delivery or the passing of title is to be determined by the intention of the parties, that intention is also a fact for the jury to find.’ 1 Mechem, Sales, sections 501, 502. In short, upon either theory of the case the controversy is essentially one of fact, and, the fact having been found by the jury, and there being evidence to support the finding, this court cannot assume to determine it otherwise.
4 5 *6506*649II. Defendant submitted five requests for instructions to the jury. Each of them is to the effect that, if the jury should find certain facts concerning; the - conduct of the plaintiff and Bartle & Susong in relation to the goods, then there was no change in the possession or ownership, and plaintiff was not entitled to recover. There was no error in refusing to give these instructions. The court might properly have said — and in its charge did say — that all these facts mentioned in defendant’s requests were proper to be considered in determining whether there had been an' actual delivery of the goods; but it was not within the province of the court to charge as a matter of law that any one or more of them would defeat the alleged sale to plaintiff. Some objection is also made by appellant to the instructions given by the court. This objection is based more particularly upon certain language employed in the charge to the effect that, while Bartle & Susong retained the keys and possession of the building in which the goods were situated, the jury might still find that there had been a delivery of the goods to the plaintiff. We see no reason to criticise this proposition. Plaintiff’s testimony tended to show the delivery of the bill of sale, the surrender of further control of the goods by Bartle & Susong, and the installation of plaintiff’s employes in charge of the property. As there was no attempt made to transfer the lease of the building, the retention of the keys by the vendors of the goods was entirely consistent with a delivery of the latter. Of the rulings of the court upon the admission of testimony we *650will only say we think the objections thereto are not well founded. Evidence of what was said and done by the parties, at the time the bill of sale was made, in reference to the possession and control of the property, was not obnoxious to the rule which forbids oral evidence to vary or contradict a written contract. The-defendant was not a party or privy to the bill of sale. Moreover, the conduct and statements of the parties in. reference to possession did not have any tendency to add to or take from the terms of the writing. The defendant company was accorded a fair hearing. It makes no claim that plaintiff’s purchase should be avoided for fraud. It-knew of the purchase, and sought to reap the benefit of it by taking an assignment or order from Bartle & Susong for the balance of the price, and, had it not found itself forestalled by a still more active creditor, it would, of course,, be satisfied to affirm the validity of the sale. A mortgage-taken under such circumstances carries with it none of the-favor which the law extends to purchasers without notice,, and the holder of such instrument cannot complain if the-sale which he thus seeks to undermine is found by the jury to be unassailable.
The judgment of the district court is aeeirmed.
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