The opinion of the court was delivered by
The second request of the plaintiff should have been complied with. If the contract was for the sale of the stone, and there was no agreement that time should be given the plaintiff, in which to make payment, it was a cash sale, and no title would vest in the plaintiff until she paid or tendered the money. The court told the jury that if the stone was delivered to the plaintiff, the title vested in her, and she became the owner. We think they should have been told that if they found it a cash sale, title would not vest until payment or tender of payment. We think the court would have been warranted in telling the jury that the sale was a cash one. The defendant claimed and testified that it was, and the plaintiff testified that at the time of the contract nothing was said as to the time of payment, and that she expected to pay cash on delivery. This was a virtual concession that it was a cash sale, and that question should not have been submitted. The fact that the defendant asked for alien upon the stone, we do not think has any tendency to show that the sale was not a cash one. The defendant, ascertaining that he was not likely to get his pay as he expected, endeavored to get a lien upon the stone. It has a tendency to show that he was unwilling to trust the plaintiff; unwilling to make a time sale upon her credit; he preferred the credit of the stone. We do not wish to be understood that the terms of a lien might not, under some circumstances, be evidence of what contract the parties entered into; but in this case the idea of a time payment is