Opinion by
Mb,. Justice Dean,
On February 20, 1897, Woolsey, this appellant, made an agreement in writing with Josephus Minor, as follows:
“ 1897-2-20, New Geneva,
“ Fayette Co., Pa.
“I, Jos. Minor of the first part agree to deliver at New Geneva, Pa.
“ One raft averaging 120 cu. ft. to stick if weather is reasonable.
“ One raft averaging 100 cu. ft. to stick and the tie poles for the first raft.
“ I, Orville Woolsey of the second part agree to pay him one hundred dollars now on first raft; balance of half the amount on April 1st, 1897; and note for balance, for ninety days.
“ Second raft: half down, and ninety day note; timber to be in against May 10th, 1897.
“Witness: Orville Woolsey.
“ Witness: Joe Minor.
“ Todd Drew.
“ Endorsed: First raft settled for 6420 cu. ft. at 10 cts. $642. Settled April 10, 97.”
It will be noticed, two rafts were contracted for to be delivered at Geneva. The second one mentioned was delivered and paid for; there is no dispute as to that one. The first one which was to average 120 cubic feet per stick is the one in dispute. The price per foot is not specified in the written agreement, but that it was ten cents per cubic foot is not disputed. One hundred dollars of the purchase money for this one, it will be noticed, was to be paid on signing the agreement; half the balance on April 1,1897, and note for remaining half at ninety days to be then given. The $100 was ¡laid on signing agreement, and afterwards an additional $50.00. About August 10, 1897, the raft was moored at Geneva by Minor, and Woolsey notified, who examined it, and finding fault with several of the sticks, Minor replaced them by others, and Woolsey announced him*529self satisfied; then, notified Minor to come to his house and they would make a settlement on the contract. They accordingly met at Woolsey’s house for that purpose. Woolsey claimed there was due him from Minor an old debt of $500, which should be credited on the purchase money. Minor denied the justice of this claim alleging he had paid it, and demanded the half cash and ninety days’ note as stipulated in the contract, which Woolsey refused, and they separated without a settlement. Woolsey, then, in the absence of Minor, took actual possession of the raft early on Sunday morning; Minor, by force retook and retained possession; then followed criminal prosecutions and an action for trespass. On October 1,1897, Minor sold and delivered the raft to Axton & Son, these appellees, who manufactured and sold the timber for their own account; Woolsey brought this suit in assumpsit against them for its value. At the trial in the court below, the learned judge being of opinion, there had been no delivery of the raft by Minor to Woolsey, instructed the jury to find for defendant, and we have this appeal by plaintiff. The error complained of is the refusal of the court to affirm plaintiff’s second point, thus :
“ The plaintiff asks the court to charge the jury that if Josephus Minor supplied the place of the small timber in the raft to which the plaintiff objected as too small under the contract, with larger lumber according to Josephus Minor’s testimony, and if after the said three sticks of lumber were supplied by the said Minor, nothing more remained to be done to the raft to fit it for delivery according to the contract, and if the said raft was so prepared by Minor at New Geneva according to the contract ; and if the plaintiff paid the said Minor $150 on the said raft, before the said raft was removed from New Geneva aforesaid ; then the title to the said raft was vested in the plaintiff before the said raft left New Geneva, and the verdict should be for the plaintiff for the value thereof. Answer: Refused.”
The conclusion of the learned counsel for appellant does not follow from the facts set out in the point. Woolsey, without Minor’s assent, could have no lawful possession of the raft until he complied with the terms of his agreement, which expressly stipulated for payment of half the balance in cash and a ninety days’ note for the remaining half. Admit that, on inspection, Woolsey objected to the quality of some of the sticks, *530and. Minor replaced them, then Woolsey signified his acceptance of the raft, that only proves that Minor had complied fully with his part of the contract, and the delivery of the raft would be complete on Woolsey performing his part, the payment of the cash and delivery of the note; but until this was done, or Minor waived performance; both title and possession remained in him. The payment, by a plain implication from the contract, was a condition precedent to actual delivery to Woolsey; not alleged payment by an old and disputed indebtedness, which formed no part of the contract, but actual payment by cash and note. If Woolsey intended by that means to collect the old indebtedness, he should not have expressly stipulated for another method of payment for the timber. We have no quarrel with the many authorities cited by the able counsel for appellant. They, undoubtedly, hold that a contract for the sale of a chattel may be fully executed while the actual possession remains in the vendor; but in all such cases the intention of the contracting parties, that a constructive delivery shall immediately take place, is either expressed or implied. The implica^ tion from this contract and the circumstances is directly the reverse. Even Woolsey’s interpretation, by his admitted conduct, was that he owed to Minor immediate settlement and payment of balance due, to complete the delivery. Bush v. Bender, 113 Pa. 94" court="Pa." date_filed="1886-05-17" href="https://app.midpage.ai/document/bush-v-bender-6238381?utm_source=webapp" opinion_id="6238381">113 Pa. 94, is very much like the case before us on its facts. Bender, a farmer, sold to Bush a lot of horses to be delivered at a tavern, there to be paid for in cash. Pie took them to the tavern, and Bush offered to pay with some old notes drawn by Bender years before and apparently still unpaid, instead of with cash. Bender refused to accept such payment, and when he attempted to retake possession of his horses, Bush refused to give them up; Bender replevied them, tins Court holding there was no delivery within the contemplation of the parties to the contract; that Bush was not entitled to possession until he paid the cash, and that his attempt to extort payment of an old debt by such methods was a fraud upon Bender. To the same effect are Lester v. McDowell, 18 Pa. 91" court="Pa." date_filed="1851-10-06" href="https://app.midpage.ai/document/lester-v-mcdowell-6229071?utm_source=webapp" opinion_id="6229071">18 Pa. 91, and McCullough v. McCullough, 14 Pa. 295" court="Pa." date_filed="1850-10-15" href="https://app.midpage.ai/document/mccullough-v-mccullough-6228723?utm_source=webapp" opinion_id="6228723">14 Pa. 295.
We are of opinion that the court below committed no error in holding there was no delivery of the raft to Woolsey under the contract. The assignments of error are overruled, and the judgment is affirmed.