Wagner, Judge,
delivered the opinion of the court.
Plaintiff brought its action against the defendant for the conversion of two hundred barrels of flour. The defendant was the owner of a steam flouring mill in the city of St. Louis ; and in the latter part of September, 1867, he was at the Merchants’ Exchange, and entered into an agreement with Lamb & Quinlin, then merchants of that city, to sell them two hundred barrels of flour, of the brand “Eagle Steam,” at the price of thirteen dollars per barrel. The flour had to be made ready for delivery, and a day was fixed on which it was to bo delivered, which was a few days subsequent to the agreement of sale. On the first day of October the parties again met, when the defendant gave to Lamb & Quinlin, the purchasers, an order written on a card, which is in the words and figures following, viz : “Eagle Mills, deliver to Lamb & Quinlin 200 barrels Eagle Steam dour. St. Louis, October 1st, 1867. E. O. Stanard.”
Nothing was said, at the time the agreement was entered into or when the order was given, as to when payment should be made. There had been frequent previous dealings between the parties, and credit had been extended on purchases of flour for a few [82]*82days, but these credits were mere voluntary courtesies, and the dealings were considered as cash transactions. On the same day that the order was given, Lamb & Quinlin sold and transferred the order to the plaintiff, and received a hill of lading for the flour for transhipment to New York. Upon this plaintiff indorsed their draft for twenty-two hundred dollars, which, after being protested, it eventually had to pay.
On the evening of the day on which the order was given and transferred, plaintiff demanded the delivery of the flour, but defendant’s agent, in charge of his mill, and acting by his direction and commands, refused to deliver the same, on account of Lamb & Quinlin’s insolvency. On the facts, as substantially detailed above, the Circuit Court declared that the plaintiff was not entitled to recover. In consequence of 'this declaration the plaintiff took a non-suit, and, after an unavailing motion to have the same set aside, the cause is brought into this court by appeal.
A large mass of evidence was introduced to show a custom among the merchants that the effect of the order was to vest the title to the flour in the purchasers, and that from the time the card was handed over to them they became the absolute owners, and that the transferrence of the same to the plaintiff divested the defendant of all interest.
But this branch of the case was not made out; there was great diversity among the witnesses as to the force and meaning of the supposed custom, and, so far from tending to establish any open, uniform, and notorious rule, the most of the witnesses restricted themselves to declaring what their individual opinions were and the obligations they should have deemed resting upon them had they been placed in the defendant’s situation. This, of course, was all illegal, and should have been excluded.
A custom to he good must be general, uniform, certain, and notorious; and, to be binding on parties to a transaction, must he directly known to them, or so universal and general in its character that knowledge may well be presumed. Where a contract is made as to a matter about which there is a custom well established, such custom is to be understood as forming a part of the contract, and may always be referred to for the purpose [83]*83of showing .the intention of the parties in all those particulars which are not expressed in the contract. But evidence of custom. however, is never admissible to oppose or alter a general -principle or rule, so as to make the rights and liabilities of parties other than they are at law. What constituted a delivery of the flour was a question of law, and the rights and liabilities of the vendor or vendee must be ascertained and fixed by the same standard.
It is insisted that the seller, by making and delivering the order to Lamb & Quinlin, clothed them with a title and enabled them to get credit with the plaintiff, and that, therefore, he should be held estopped from setting up any adverse claim, or averring anything to plaintiff’s disadvantage. A conclusive answer to this is that the order was not a negotiable instrument, and the assignors were incapable of transferring to their assignee any greater or different right than they possessed.
The sale was for two hundred barrels of flour at the mills ; no particular flour was designated, nor does it appear that it was ever set apart or identified. Whether it was all on hand, or formed part of a larger lot, unseparated and undistinguished, is nowhere shown in the case. If anything remains to be done, as between the seller and buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. This is the universally recognized principle in the doctrine of sales. (2 Kent’s Com., 11th ed., 664 ; Hening v. Powell, 33 Mo. 468 ; Hanson v. Meyer, 6 East. 614; Simmons v. Swift, 5 Barn. & Cres. 857; McDonald v. Hewitt, 15 Johns. 349; Scudder v. Worster, 11 Cush. 573; Hutchinson v. Hunter, 7 Barr, 140 ; Field v. Moore, Hill & Den., sup., 48.) But separation is enough to pass the; property, though weighing, measuring, or counting may after-. ward be necessary to adjust and determine the final amount othe price. (Cunningham v. Ashbrook, 20 Mo. 533 ; Bass v. Walsh, 39 Mo. 192 ; Macomber v. Parker, 13 Pick. 183.)
The -whole case shows that there was nothing said between the parties as to payment; and where no time is stipulated for payment it is understood to be a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse [84]*84to deliver without payment; and if the payment be not immediately made, the contract becomes void. (Outwater v. Dodge, 7 Cow. 85; Woods v. McGee, 7 Ohio, 128; Levan v. Smith, 1 Den. 571; Comyn’s Dig., tit. Agreement (B 3) ; Palmer v. Head, 13 Johns. 434; Harris v. Smith, 8 Serg. & R. 20; Bainbridge v. Caldwell, 4 Dana, 213 ; Ferguson v. Clifford, 37 N. H. 86 ; Morris v. Rexford, 18 N. Y. 552 ; 2 Kent’s Com. 665.)
Had the title passed and the flour been constructively delivered, possession could not have been coerced till payment was made. The vendor had not surrendered possession, and while he retained the same his lien existed ; and although there may be a delivery which will pass the title, it will not necessarily destroy the lien. (Sto. on Sales, § 290 ; Arnold v. Delano, 4 Cush. 38 ; Sigerson v. Kahmann, 39 Mo. 206.)
Unless credit is expressly given, which is a waiver of any right to demand immediate payment, the lien will continue to exist. So, also, if the buyer be insolvent when he demands delivery, the seller may refuse to deliver even when credit has been given. (Reader v. Knatchball, 5 T. R. 218, n.) It has been held, further,' that where payment for the goods sold is to be made upon delivery, in the notes of a third party, who becomes insolvent between the time of the contract and the period fixed for delivery, the seller is not bound to deliver upon a tender of such notes, though they be not entirely worthless. (Roget y. Merritt, 2 Caines, 117; Benedict v. Field, 16 N. Y. 595.
In Gill v. Pavenstedt, 7 Am. L. Reg., N. S., 672, A. purchased goods warehoused in a bonded warehouse from the importer B., in whose name they were entered. The goods were bought on credit at a specified price, and the duties were to be paid by A. as a part of the price.
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Wagner, Judge,
delivered the opinion of the court.
Plaintiff brought its action against the defendant for the conversion of two hundred barrels of flour. The defendant was the owner of a steam flouring mill in the city of St. Louis ; and in the latter part of September, 1867, he was at the Merchants’ Exchange, and entered into an agreement with Lamb & Quinlin, then merchants of that city, to sell them two hundred barrels of flour, of the brand “Eagle Steam,” at the price of thirteen dollars per barrel. The flour had to be made ready for delivery, and a day was fixed on which it was to bo delivered, which was a few days subsequent to the agreement of sale. On the first day of October the parties again met, when the defendant gave to Lamb & Quinlin, the purchasers, an order written on a card, which is in the words and figures following, viz : “Eagle Mills, deliver to Lamb & Quinlin 200 barrels Eagle Steam dour. St. Louis, October 1st, 1867. E. O. Stanard.”
Nothing was said, at the time the agreement was entered into or when the order was given, as to when payment should be made. There had been frequent previous dealings between the parties, and credit had been extended on purchases of flour for a few [82]*82days, but these credits were mere voluntary courtesies, and the dealings were considered as cash transactions. On the same day that the order was given, Lamb & Quinlin sold and transferred the order to the plaintiff, and received a hill of lading for the flour for transhipment to New York. Upon this plaintiff indorsed their draft for twenty-two hundred dollars, which, after being protested, it eventually had to pay.
On the evening of the day on which the order was given and transferred, plaintiff demanded the delivery of the flour, but defendant’s agent, in charge of his mill, and acting by his direction and commands, refused to deliver the same, on account of Lamb & Quinlin’s insolvency. On the facts, as substantially detailed above, the Circuit Court declared that the plaintiff was not entitled to recover. In consequence of 'this declaration the plaintiff took a non-suit, and, after an unavailing motion to have the same set aside, the cause is brought into this court by appeal.
A large mass of evidence was introduced to show a custom among the merchants that the effect of the order was to vest the title to the flour in the purchasers, and that from the time the card was handed over to them they became the absolute owners, and that the transferrence of the same to the plaintiff divested the defendant of all interest.
But this branch of the case was not made out; there was great diversity among the witnesses as to the force and meaning of the supposed custom, and, so far from tending to establish any open, uniform, and notorious rule, the most of the witnesses restricted themselves to declaring what their individual opinions were and the obligations they should have deemed resting upon them had they been placed in the defendant’s situation. This, of course, was all illegal, and should have been excluded.
A custom to he good must be general, uniform, certain, and notorious; and, to be binding on parties to a transaction, must he directly known to them, or so universal and general in its character that knowledge may well be presumed. Where a contract is made as to a matter about which there is a custom well established, such custom is to be understood as forming a part of the contract, and may always be referred to for the purpose [83]*83of showing .the intention of the parties in all those particulars which are not expressed in the contract. But evidence of custom. however, is never admissible to oppose or alter a general -principle or rule, so as to make the rights and liabilities of parties other than they are at law. What constituted a delivery of the flour was a question of law, and the rights and liabilities of the vendor or vendee must be ascertained and fixed by the same standard.
It is insisted that the seller, by making and delivering the order to Lamb & Quinlin, clothed them with a title and enabled them to get credit with the plaintiff, and that, therefore, he should be held estopped from setting up any adverse claim, or averring anything to plaintiff’s disadvantage. A conclusive answer to this is that the order was not a negotiable instrument, and the assignors were incapable of transferring to their assignee any greater or different right than they possessed.
The sale was for two hundred barrels of flour at the mills ; no particular flour was designated, nor does it appear that it was ever set apart or identified. Whether it was all on hand, or formed part of a larger lot, unseparated and undistinguished, is nowhere shown in the case. If anything remains to be done, as between the seller and buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. This is the universally recognized principle in the doctrine of sales. (2 Kent’s Com., 11th ed., 664 ; Hening v. Powell, 33 Mo. 468 ; Hanson v. Meyer, 6 East. 614; Simmons v. Swift, 5 Barn. & Cres. 857; McDonald v. Hewitt, 15 Johns. 349; Scudder v. Worster, 11 Cush. 573; Hutchinson v. Hunter, 7 Barr, 140 ; Field v. Moore, Hill & Den., sup., 48.) But separation is enough to pass the; property, though weighing, measuring, or counting may after-. ward be necessary to adjust and determine the final amount othe price. (Cunningham v. Ashbrook, 20 Mo. 533 ; Bass v. Walsh, 39 Mo. 192 ; Macomber v. Parker, 13 Pick. 183.)
The -whole case shows that there was nothing said between the parties as to payment; and where no time is stipulated for payment it is understood to be a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse [84]*84to deliver without payment; and if the payment be not immediately made, the contract becomes void. (Outwater v. Dodge, 7 Cow. 85; Woods v. McGee, 7 Ohio, 128; Levan v. Smith, 1 Den. 571; Comyn’s Dig., tit. Agreement (B 3) ; Palmer v. Head, 13 Johns. 434; Harris v. Smith, 8 Serg. & R. 20; Bainbridge v. Caldwell, 4 Dana, 213 ; Ferguson v. Clifford, 37 N. H. 86 ; Morris v. Rexford, 18 N. Y. 552 ; 2 Kent’s Com. 665.)
Had the title passed and the flour been constructively delivered, possession could not have been coerced till payment was made. The vendor had not surrendered possession, and while he retained the same his lien existed ; and although there may be a delivery which will pass the title, it will not necessarily destroy the lien. (Sto. on Sales, § 290 ; Arnold v. Delano, 4 Cush. 38 ; Sigerson v. Kahmann, 39 Mo. 206.)
Unless credit is expressly given, which is a waiver of any right to demand immediate payment, the lien will continue to exist. So, also, if the buyer be insolvent when he demands delivery, the seller may refuse to deliver even when credit has been given. (Reader v. Knatchball, 5 T. R. 218, n.) It has been held, further,' that where payment for the goods sold is to be made upon delivery, in the notes of a third party, who becomes insolvent between the time of the contract and the period fixed for delivery, the seller is not bound to deliver upon a tender of such notes, though they be not entirely worthless. (Roget y. Merritt, 2 Caines, 117; Benedict v. Field, 16 N. Y. 595.
In Gill v. Pavenstedt, 7 Am. L. Reg., N. S., 672, A. purchased goods warehoused in a bonded warehouse from the importer B., in whose name they were entered. The goods were bought on credit at a specified price, and the duties were to be paid by A. as a part of the price. He had withdrawn, by permission of B. , parcels of the goods at different times, paying the duties on such parcels. Before the credit expired, B. gave to A. an order on the bonded warehouse man to transfer the residue of the goods to A.’s name, which was accordingly done. As between the parties and the government, the goods still remained in B.’s name. They could only be withdrawn under the regulations of the treasury department, by a “ withdrawal entry,” signed by B. or by [85]*85some ono authorized by him in writing. While the goods were .in this condition, the purchaser, A., became insolvent. He demanded that B. should sign the necessary withdrawal entry, which the latter refused to do, except upon full payment of the price. And it was held that an act remained to be done, as between buyer and seller, of such a nature that there was no delivery, either actual or constructive, and that B. had a right of detention of the goods for the unpaid purchase money.
It is clear upon principle, reason, and authority, that the seller in the present case could not be compelled to part with his property till payment was made or tendered. But it is objected that the court erred in withdrawing the case from the jury. In doubtful cases the question of delivery and acceptance is for the jury, under proper instructions of the court. But where the facts are clear and. undisputed, what will amount to delivery and acceptance, or waiver or destruction of lien, must be determined by the Court. Here there is no confest about the facts; they are few, plain, and simple, and I am unable to perceive that the court committed any error.
Judgment affirmed.
Judge Bliss concurs; Judge Currier not sitting.