Tuck, J.,
delivered the opinion of this court:
We are of opinion that the court properly admitted the appellee to appear and assert title to the property in dispute. There had, it is true, been a sale of the flour, and the appellants had received the money from the sheriff, but the order of sale expressly provided that the sheriff should “hold the proceeds subject to the ultimate decision of this cause,” and when the court permitted the appellants to have the use of the money, on giving bond with sureties, it was not intended to change the nature of the fund, or to deprive a claimant, if he pro.ved successful in his suit, of the benefits secured to him by the Act of 1839, ch. 39. “The effect of the sale was to convert the goods into money, which remained in the hands of the sheriff, to await the determination of the attachment, subject to any claims that might have been asserted against the goods themselves ” O'Brien vs. Caldwell, Ante, 122. The bond was required for the indemnity of all concerned, and, indeed, an accommodation to the plaintiffs, who could not have obtained the use of the money without.it. And, although itmight furnish a cause of action against, the obligors, their liability depended on the termination of the suit adversely to the plaintiffs, and of necessity implied a controversy about the property in the present case. This doubtless was the understanding of the court and the parties, and they ought not to pervertjthe court’s indulgence into a means of protracting the litigation, if the case goes against them.
The objection that the appellee was prosecuting another suit for the same cause, cannot be sustained. The case of Trieber vs. Blocker, 10 Md. Rep., 14, though not decided on the same state of facts, must govern the present, the same principle being applicable to both.
“■The result, as to the rulings on the prayers and the instruction given, must depend on the ownership of the flour at the time the attachment was laid. And here we may remark [411]*411that the doctrine of stoppage in transitu is not involved; the prayers do not present the case in that aspect, nor have the counsel so treated it, for, on both sides, it appears to have been conceded that if the title passed to Howard the attachment would lie.
The llour was purchased by Richardson, on the 15th of January 1857, “to be delivered at the buyer’s option, at any time between the loth and 28th of February, payable on delivery, or if not demanded previous to the 20th of February, the seller may require payment on that day, or any day thereafter.” On that day Hinks’ bill for the flour was paid. On the same day Richardson drew the bill of exchange on Howard, for the purchase money of the flour, at one day after sight, and negotiated it at bank. The draft was accepted on the 21st, protested at Alexandria on the 25th, returned to the bank, and taken up by Richardson on the 27th. In the meantime — on the 23rd and 25th — all the flour had been marked with the initials of Howard and of the ship, as directed by Richardson, and delivered to the warehouse-man of the ship’s agents. It is admitted that the flour was purchased by the claimant on account of Howard, and the evidence shows that it was purchased to be shipped to Liverpool oil his account. It is not shown why the flour was sent to the ship before advice of the non-payment of the draft; an inference may be drawn from this fact that the claimant, after the acceptance, considered the purchase as dosed. As the case is presented by the record, it was a sale on credit, though indefinite as to time of payment because of the uncertainty when the draft would ho acccepted.
There is evidence in the cause warranting the conclusion, that Richardson bought the flour as Howard’s agent, but, as the counsel have considered the transaction as a purchase by Richardson of flour intended for Howard, and a sale of that flour by Richardson to Howard, and as the rulings below appear to have been based on that theory of the case, we shall view it in that aspect.
The first prayer asserts that the sale to Howard, marking the flour, and delivering it to the warehouse-man to be shipped, [412]*412the drawing of the draft, its negotiation for value, and acceptance by Howard, are sufficient in law to prevent the claimant’s recovery. The second prayer affirms that the sale and the draft, and its acceptance and negotiation, operated a transfer of the flour to Howard, and that the claimant cannot recover, although the draft, on being protested, was taken up by Richardson. And the third goes upon the ground that the facts stated as to the draft constituted a payment to Richardson by Howard for the flour, unless the claimant showed that it was not intended as payment. The propositions presented by the last two are substantially embraced by the first.
Many cases have been decided in reference to the sale and delivery of chattels. The principles governing such questions appear to be well settled, but much difficulty is often presented when judicial tribunals come to apply them, arising from the great variety of mercantile transactions. Some of the cases are difficult to be reconciled, if not altogether inconsistent, with others, and in most it. may be said that the courts have endeavored to ascertain the intent of the parties, and applied that test as a controlling principle, in defining their rights and obligations, inattention to which has, not unfrequently, caused great injustice. Regard must be had to all.the facts bearing upon the particular question, and, especially, to the character of the transaction in which the parties may have been engaged, to ascertain whether the delivery was such as the nature of the case admitted. 2 Kent, 500. The flour was not to be sent to Howard, or actually delivered to him; its proper destination was the ship Annapolis, by which it was to have been carried abroad, and for which purpose it had been purchased, and, when marked and delivered to the proper agent of the ship, it was in a custody consistent with the execution of that purpose; it was as complete a delivery as the subject matter, under the circumstances, reasonably allowed. That delivery to the master or agent of a vessel, where the goods are designed for shipment, is equivalent to to delivery to the vendee, see 2 Kent, 499, et seq., and Story on Sales, sec. 306. Where the goods are ponderous, actual [413]*413delivery is not required; a constructive delivery may be implied .from various acts, among which are, designating them for the use of the purchaser by marking, or removing them for the purpose of being delivered. Clary vs. Frayer, 8 G. & J., 398. 4 Gill, 270. 6 Md. Rep., 10. 1 Camp., 233. Story on Sales, sec. 311. 2 Kent, 500, 503. It is reasonable to suppose, from the nature of (he transaction, that the flour was so delivered in pursuance of such understanding between the parties to the sale. It is not pretended that Richardson designed to ship the flour as his own; why, then, did he send it, to the ship, except for the purpose of shipment on Howard’s account,, in accordance with his object in authorizing the purchase? By the terms of the purchase from Hinks, lie had until the 28th of February to remove the flour. This was after the due-day of the draft, and afforded abundant time to have made the delivery after having received notice of its payment, if payment was a condition precedent to the transfer of the title to Howard.
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Tuck, J.,
delivered the opinion of this court:
We are of opinion that the court properly admitted the appellee to appear and assert title to the property in dispute. There had, it is true, been a sale of the flour, and the appellants had received the money from the sheriff, but the order of sale expressly provided that the sheriff should “hold the proceeds subject to the ultimate decision of this cause,” and when the court permitted the appellants to have the use of the money, on giving bond with sureties, it was not intended to change the nature of the fund, or to deprive a claimant, if he pro.ved successful in his suit, of the benefits secured to him by the Act of 1839, ch. 39. “The effect of the sale was to convert the goods into money, which remained in the hands of the sheriff, to await the determination of the attachment, subject to any claims that might have been asserted against the goods themselves ” O'Brien vs. Caldwell, Ante, 122. The bond was required for the indemnity of all concerned, and, indeed, an accommodation to the plaintiffs, who could not have obtained the use of the money without.it. And, although itmight furnish a cause of action against, the obligors, their liability depended on the termination of the suit adversely to the plaintiffs, and of necessity implied a controversy about the property in the present case. This doubtless was the understanding of the court and the parties, and they ought not to pervertjthe court’s indulgence into a means of protracting the litigation, if the case goes against them.
The objection that the appellee was prosecuting another suit for the same cause, cannot be sustained. The case of Trieber vs. Blocker, 10 Md. Rep., 14, though not decided on the same state of facts, must govern the present, the same principle being applicable to both.
“■The result, as to the rulings on the prayers and the instruction given, must depend on the ownership of the flour at the time the attachment was laid. And here we may remark [411]*411that the doctrine of stoppage in transitu is not involved; the prayers do not present the case in that aspect, nor have the counsel so treated it, for, on both sides, it appears to have been conceded that if the title passed to Howard the attachment would lie.
The llour was purchased by Richardson, on the 15th of January 1857, “to be delivered at the buyer’s option, at any time between the loth and 28th of February, payable on delivery, or if not demanded previous to the 20th of February, the seller may require payment on that day, or any day thereafter.” On that day Hinks’ bill for the flour was paid. On the same day Richardson drew the bill of exchange on Howard, for the purchase money of the flour, at one day after sight, and negotiated it at bank. The draft was accepted on the 21st, protested at Alexandria on the 25th, returned to the bank, and taken up by Richardson on the 27th. In the meantime — on the 23rd and 25th — all the flour had been marked with the initials of Howard and of the ship, as directed by Richardson, and delivered to the warehouse-man of the ship’s agents. It is admitted that the flour was purchased by the claimant on account of Howard, and the evidence shows that it was purchased to be shipped to Liverpool oil his account. It is not shown why the flour was sent to the ship before advice of the non-payment of the draft; an inference may be drawn from this fact that the claimant, after the acceptance, considered the purchase as dosed. As the case is presented by the record, it was a sale on credit, though indefinite as to time of payment because of the uncertainty when the draft would ho acccepted.
There is evidence in the cause warranting the conclusion, that Richardson bought the flour as Howard’s agent, but, as the counsel have considered the transaction as a purchase by Richardson of flour intended for Howard, and a sale of that flour by Richardson to Howard, and as the rulings below appear to have been based on that theory of the case, we shall view it in that aspect.
The first prayer asserts that the sale to Howard, marking the flour, and delivering it to the warehouse-man to be shipped, [412]*412the drawing of the draft, its negotiation for value, and acceptance by Howard, are sufficient in law to prevent the claimant’s recovery. The second prayer affirms that the sale and the draft, and its acceptance and negotiation, operated a transfer of the flour to Howard, and that the claimant cannot recover, although the draft, on being protested, was taken up by Richardson. And the third goes upon the ground that the facts stated as to the draft constituted a payment to Richardson by Howard for the flour, unless the claimant showed that it was not intended as payment. The propositions presented by the last two are substantially embraced by the first.
Many cases have been decided in reference to the sale and delivery of chattels. The principles governing such questions appear to be well settled, but much difficulty is often presented when judicial tribunals come to apply them, arising from the great variety of mercantile transactions. Some of the cases are difficult to be reconciled, if not altogether inconsistent, with others, and in most it. may be said that the courts have endeavored to ascertain the intent of the parties, and applied that test as a controlling principle, in defining their rights and obligations, inattention to which has, not unfrequently, caused great injustice. Regard must be had to all.the facts bearing upon the particular question, and, especially, to the character of the transaction in which the parties may have been engaged, to ascertain whether the delivery was such as the nature of the case admitted. 2 Kent, 500. The flour was not to be sent to Howard, or actually delivered to him; its proper destination was the ship Annapolis, by which it was to have been carried abroad, and for which purpose it had been purchased, and, when marked and delivered to the proper agent of the ship, it was in a custody consistent with the execution of that purpose; it was as complete a delivery as the subject matter, under the circumstances, reasonably allowed. That delivery to the master or agent of a vessel, where the goods are designed for shipment, is equivalent to to delivery to the vendee, see 2 Kent, 499, et seq., and Story on Sales, sec. 306. Where the goods are ponderous, actual [413]*413delivery is not required; a constructive delivery may be implied .from various acts, among which are, designating them for the use of the purchaser by marking, or removing them for the purpose of being delivered. Clary vs. Frayer, 8 G. & J., 398. 4 Gill, 270. 6 Md. Rep., 10. 1 Camp., 233. Story on Sales, sec. 311. 2 Kent, 500, 503. It is reasonable to suppose, from the nature of (he transaction, that the flour was so delivered in pursuance of such understanding between the parties to the sale. It is not pretended that Richardson designed to ship the flour as his own; why, then, did he send it, to the ship, except for the purpose of shipment on Howard’s account,, in accordance with his object in authorizing the purchase? By the terms of the purchase from Hinks, lie had until the 28th of February to remove the flour. This was after the due-day of the draft, and afforded abundant time to have made the delivery after having received notice of its payment, if payment was a condition precedent to the transfer of the title to Howard.
Reliance was placed, in argument, on the circumstance, that Richardson had taken the receipts from the warehouseman in his own name, as showing an intention not to part with control over the flour. We do not think that this fact is sufficient to warrant the presumption suggested, for the purpose of overcoming the legal effect of his other acts in the business. The evidence does not show that the bill of lading would necessarily have been made out in his name, and if this had been done, an assignment to Howard would have made the shipment conform to the original object of the purchase, as fully as if the receipts and bill of lading had been taken in his name. It was a proper precaution on the part of Richardson to identify this flour as that shipped by him on Howard’s account, in the event of any question being raised as to the fact of delivery.
In the absence of testimony, qualifying or explaining these acts of Richardson, we must conclude that he considered Howard entitled to the flour on his acceptance of the draft, and that he designed the delivery to the warehouse-man as a completion of the' contract, by which the property was transferred to the purchaser, and the title of the vendor divested.
[414]*414We are also of opinion that the title passed to Howard upon his acceptance of the draft, independent of (he delivery. A note or acceptance given at t.he time of purchase does not destroy the vendor’s right of action on the original agreement for the sale of goods, but it is a payment sub modo, (6 H. Sp J, 166;) it suspends the right to sue for the price until the expiration of the credit, and operates to pass title to the vendee, subject, of course, to the vendor’s lien, if he has not parted with possession, or to his right of stoppage, if the goods are in transitu. The interests of trade and the variety and extent of circulation of property which it has introduced, require that it should be so, for most commercial transactions are based on negotiable securities, and where the terms of the contract aie complied with, possession may be demanded by the vendee, because right of possession accompanies the title, (8 6r. Sp J., 398,) though this rule of law may be dispensed with by agreement, according to the maxim, “Modus et conventio vincunt legem.” 2 Md. Rep., 73. Broom’s Maxims, ch. 7, p. 303. Walker vs. Birch, 6 Term Rep., 258.
In the case of Dixon vs. Yates, 5 Barn. & Adolp., 313, (27 Eng. C. L. Rep., 86,) where the vendee gave his acceptances for the price of the article, but there was no actual delivery, it was held, that, while the bills were running, the vendee had the power to take it into his possession, and to dispose of and sell it, but not having exercised that power by any suffieient means, the property revested in the seller upon the bills being afterwards dishonored, and, accordingly, his lien for the 'purchase money was recognized. The difficulty in the case was, whether there had been such a delivery to the purchaser as defeated the seller’s lien, but Lord Denman, and the ■other judges, treated the bills of exchange as a payment sufficient to vest the title in the vendee. It does not follow, however, that such a payment will merge the cause of action on the original contract between the parties, if the note or bill is not paid. See Smith’s Merc. Law, 624, 661, (Ed. 1858;) Smith’s Law of Cont., 330; Story on Cont., secs. 484, 500; Chittyon Bills, (8th Ed.,) 80, 84; 10 Barbour, 573; Chitty on Cont., 353; Hewison vs. Guthrie, 29 Eng. [415]*415C. L. Rep., 477; Bunney vs. Poyntz, 4 Barn. & Adolph., 568, (24 Eng. C. L. Rep., 118.)
(Decided July 13th, 1860.)
The question of tillo is not affected by the subsequent failure of Howard to pay the draft. If one sells to another, who becomes insolvent before payment, the property in the goods passes to the vendee, though the vendor may have a remedy for the price by lien or stoppage in transitu, according' to the situs of the property at the time of failure to pay, Chitty on Contracts, 335. Tn this case, Howard became-bound for the flour on the 21st of February; that liability was to the hank, or to whoever might have become the holder of the draft,. Is it just that, being so liable, by reason of Richardson’s act in negotiating the draft, the latter should be considered as owner, and the flour liable to seizure for his debts, while Howard might have the money to pay? If this were an attachment, at suit of Richardson’s creditors, claiming the property as his, we do not suppose any authority could be produced to the effect, that under the circumstances disclosed by the record, the title remained in the vendor, and had not passed to the vendee, and we are not aware of any principle of law to warrant such an unreasonable conclusion. There was error also in the instruction which the court gave. By the first clause the jury was required to find, as essential to the plaintiffs’ recovery, a sale, delivery and payment by the bill of exchange, whereas, if there was a sale and delivery, or a sale and payment, the title passed; and by the second clause, the jury was authorized to find for the defendant on certain fads, as to some of which the record furnishes no evidence. Without adverting to other objections urged in argument, the judgment must be reversed on all the rulings of the court below.
Judgment reversed and procedendo ordered.