Mr. Justice Sheldon
delivered the opinion of the Court:
It is assigned for error, that the verdict is unsupported by the evidence, and that the court erred in giving and refusing instructions.
It is claimed that the alleged sale of the cigars to Minzesheimer was invalid, as being fraudulent as against creditors.
We are entirely satisfied with the correctness of the finding of the jury in this respect. We do not see how they could, under the evidence, have found otherwise.
The sale is further claimed to be invalid, because there was no delivery of the cigars to Minzesheimer, and no change of possession.'
This is the chief point of controversy.
We think it may be inferred, from the evidence, that 39 Waller street was the place where the firm of J. W. Schloss & Co. manufactured its cigars; that everything there belonged to that firm, although the license was taken in the name of J. W. Schloss; and that there was nothing at Waller street but these cigars, more than half of which were boxed.
On January 4, 1873, Blumenthal, having previously sold the cigars to Minzesheimer and received the pay, took Minzesheimer to the factory, at 39 Waller street, showed him the cigars, saying: “Here are your cigars,” and handing to him several boxes of them. Blumenthal paid the employees at the factory. Schloss gave him an order for the revenue stamps, which was necessary because of the license being in the name of Schloss individually. Minzesheimer paid for and obtained the requisite stamps, and commenced the work of stamping the cigars. The foreman suggested that, as it would take some time to complete the stamping, he, with the boy there, would attend to it, and have them ready on Minzesheimer’s return in the afternoon. Minzesheimer gave the foreman a dollar to purchase some bay rum, with which to flavor the cigars.
During Minzesheimer’s absence, the cigars were attached. Both Schloss and Blumenthal had done all they could do to complete the delivery of the property to Minzesheimer. The evidence fails to show that, after the alleged delivery to Minzesheimer, they exercised any control over the cigars, or were in possession thereof. Minzesheimer had commenced to stamp the cigars, and left an agent to complete the same. He would seem to have been the ostensible, as well as real, person in possession.
True, the cigars had not been actually removed, but this could not have been done before stamping, without violating the Revenue Law. Everything had been done, so far as respected the rights of the parties, as between themselves and their power to do so, to vest the complete title in, and to perfect the delivery to, Minzesheimer. The stamping required before removal, concerned alone the United States government, and that Minzesheimer undertook to do.
We think, from such facts, it is not to be asserted that the jury were not warranted in finding that there was a delivery of the cigars to the vendee, and a change of possession.
The objection taken to the instructions given for the plaintiff is, that they assume that the question of delivery is solely a question of fact for the jury, whereas it is a mixed question of law and fact; and that where, as in this case, the facts show no immediate, continuous or exclusive change of possession, the court should have instructed the jury that the title had not passed as to creditors. But this is on what we regard as a mistaken assumption. We find that there was evidence tending to show a delivery and change of possession. In such case, it is for the jury to determine, from the evidence, whether they occurred or not.
It is objected that there was error in refusing these three instructions, asked by defendant:
“ 1. The jury are instructed that, under the Revenue laws of the United States, Blumenthal could not lawfully sell, nor could the plaintiff lawfully buy, the cigars in question, until they were properly boxed and stamped with the United States revenue stamps, as provided by law, and that any sale or attempt to sell the cigars until so boxed and stamped, rendered the cigars liable to forfeiture to the United States, and the parties liable to a fine of not less than $100 nor more than $1000, and to imprisonment not less than six months nor more than two years.
“ 2. If the jury find, from the evidence, that the alleged sale of the cigars by Blumenthal to plaintiff was made with a view to defraud or hinder the creditors of J. W. Schloss & Co., and that the plaintiff knew, or had reasonable cause to know, of such intention, then the plaintiff, as against such creditors, could acquire no title to the cigars, even had he obtained possession and control thereof, and the defendants were justified in taking the same under the proceedings in attachment.
“3. The fact that the cigars in question, at the time of the sheriff’s levy, were found at the factory of J. W. Sehloss, one of the defendants in the attachment, and under his control, affords a strong presumption against their ownership by plaintiff, which presumption must be overcome by satisfactory evidence that the title and possession had passed to plaintiff by a bona fide sale, before the levy of the attachment, in order to entitle plaintiff to a recovery in this action.”
The first instruction we regard as inapplicable here. It was drawn in view of the act of Congress of July 20, 1868, which provides for a forfeiture to the United States of all cigars which shall be sold or offered for sale, not properly, boxed and stamped, and imposes a penalty therefor. It was not .here contemplated that the cigars should be sold without being boxed and stamped, but it was a provision of the contract, that they should be stamped. It was the intent that they should be stamped before removal, and Minzesheimer was in the course of stamping them preparatory to their removal, when they were attached. Under such circumstances, we can not think that the relative rights of the parties are to be affected by this act of Congress, so as to invalidate, as between themselves, their contract of sale, because of a supposed violation of the act.
As regards the second refused instruction, without entering upon any discussion of its correctness, abstractly considered, we find it sufficient to say, that, in our opinion, the court was justified in its refusal to give it, on the ground, if no other, of the want of evidence upon which to base the instruction. From an examination of the testimony, we fail to discover enough of evidence that the sale was made with a view to hinder or defraud creditors, and still less that the purchaser knew of any such intention, to fairly raise a question in those respects, and make the instruction applicable to the facts.
It was enough to condemn the third refused instruction, that it assumed the fact that the cigars were found under the control of J. W. Schloss. That was a disputed fact, and the jury should have been left free to find upon it.
It is further urged, that the court erred in its modification of the following instruction, asked by the defendants:
“ 3.
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Mr. Justice Sheldon
delivered the opinion of the Court:
It is assigned for error, that the verdict is unsupported by the evidence, and that the court erred in giving and refusing instructions.
It is claimed that the alleged sale of the cigars to Minzesheimer was invalid, as being fraudulent as against creditors.
We are entirely satisfied with the correctness of the finding of the jury in this respect. We do not see how they could, under the evidence, have found otherwise.
The sale is further claimed to be invalid, because there was no delivery of the cigars to Minzesheimer, and no change of possession.'
This is the chief point of controversy.
We think it may be inferred, from the evidence, that 39 Waller street was the place where the firm of J. W. Schloss & Co. manufactured its cigars; that everything there belonged to that firm, although the license was taken in the name of J. W. Schloss; and that there was nothing at Waller street but these cigars, more than half of which were boxed.
On January 4, 1873, Blumenthal, having previously sold the cigars to Minzesheimer and received the pay, took Minzesheimer to the factory, at 39 Waller street, showed him the cigars, saying: “Here are your cigars,” and handing to him several boxes of them. Blumenthal paid the employees at the factory. Schloss gave him an order for the revenue stamps, which was necessary because of the license being in the name of Schloss individually. Minzesheimer paid for and obtained the requisite stamps, and commenced the work of stamping the cigars. The foreman suggested that, as it would take some time to complete the stamping, he, with the boy there, would attend to it, and have them ready on Minzesheimer’s return in the afternoon. Minzesheimer gave the foreman a dollar to purchase some bay rum, with which to flavor the cigars.
During Minzesheimer’s absence, the cigars were attached. Both Schloss and Blumenthal had done all they could do to complete the delivery of the property to Minzesheimer. The evidence fails to show that, after the alleged delivery to Minzesheimer, they exercised any control over the cigars, or were in possession thereof. Minzesheimer had commenced to stamp the cigars, and left an agent to complete the same. He would seem to have been the ostensible, as well as real, person in possession.
True, the cigars had not been actually removed, but this could not have been done before stamping, without violating the Revenue Law. Everything had been done, so far as respected the rights of the parties, as between themselves and their power to do so, to vest the complete title in, and to perfect the delivery to, Minzesheimer. The stamping required before removal, concerned alone the United States government, and that Minzesheimer undertook to do.
We think, from such facts, it is not to be asserted that the jury were not warranted in finding that there was a delivery of the cigars to the vendee, and a change of possession.
The objection taken to the instructions given for the plaintiff is, that they assume that the question of delivery is solely a question of fact for the jury, whereas it is a mixed question of law and fact; and that where, as in this case, the facts show no immediate, continuous or exclusive change of possession, the court should have instructed the jury that the title had not passed as to creditors. But this is on what we regard as a mistaken assumption. We find that there was evidence tending to show a delivery and change of possession. In such case, it is for the jury to determine, from the evidence, whether they occurred or not.
It is objected that there was error in refusing these three instructions, asked by defendant:
“ 1. The jury are instructed that, under the Revenue laws of the United States, Blumenthal could not lawfully sell, nor could the plaintiff lawfully buy, the cigars in question, until they were properly boxed and stamped with the United States revenue stamps, as provided by law, and that any sale or attempt to sell the cigars until so boxed and stamped, rendered the cigars liable to forfeiture to the United States, and the parties liable to a fine of not less than $100 nor more than $1000, and to imprisonment not less than six months nor more than two years.
“ 2. If the jury find, from the evidence, that the alleged sale of the cigars by Blumenthal to plaintiff was made with a view to defraud or hinder the creditors of J. W. Schloss & Co., and that the plaintiff knew, or had reasonable cause to know, of such intention, then the plaintiff, as against such creditors, could acquire no title to the cigars, even had he obtained possession and control thereof, and the defendants were justified in taking the same under the proceedings in attachment.
“3. The fact that the cigars in question, at the time of the sheriff’s levy, were found at the factory of J. W. Sehloss, one of the defendants in the attachment, and under his control, affords a strong presumption against their ownership by plaintiff, which presumption must be overcome by satisfactory evidence that the title and possession had passed to plaintiff by a bona fide sale, before the levy of the attachment, in order to entitle plaintiff to a recovery in this action.”
The first instruction we regard as inapplicable here. It was drawn in view of the act of Congress of July 20, 1868, which provides for a forfeiture to the United States of all cigars which shall be sold or offered for sale, not properly, boxed and stamped, and imposes a penalty therefor. It was not .here contemplated that the cigars should be sold without being boxed and stamped, but it was a provision of the contract, that they should be stamped. It was the intent that they should be stamped before removal, and Minzesheimer was in the course of stamping them preparatory to their removal, when they were attached. Under such circumstances, we can not think that the relative rights of the parties are to be affected by this act of Congress, so as to invalidate, as between themselves, their contract of sale, because of a supposed violation of the act.
As regards the second refused instruction, without entering upon any discussion of its correctness, abstractly considered, we find it sufficient to say, that, in our opinion, the court was justified in its refusal to give it, on the ground, if no other, of the want of evidence upon which to base the instruction. From an examination of the testimony, we fail to discover enough of evidence that the sale was made with a view to hinder or defraud creditors, and still less that the purchaser knew of any such intention, to fairly raise a question in those respects, and make the instruction applicable to the facts.
It was enough to condemn the third refused instruction, that it assumed the fact that the cigars were found under the control of J. W. Schloss. That was a disputed fact, and the jury should have been left free to find upon it.
It is further urged, that the court erred in its modification of the following instruction, asked by the defendants:
“ 3. It is a well settled rule of law, that, in sales of personal property, when anything remains to be done to complete the contract, such as ascertaining quantity or delivering possession, the title does not pass until these things are done, and if the jury are satisfied, from the evidence, that the cigars in question were in such condition, at the time of their alleged purchase by plaintiff, that something material to the contract, such as counting, boxing, stamping, or delivery of possession, remained undone, then, as against creditors, the title could not pass to plaintiff, and defendants are entitled to a verdict.”
The words appearing in italics, viz: “counting, boxing, stamping, or,” were stricken out by the court, and the instruction then given.
Counting was not necessary. Minzesheimer had purchased all the cigars at the factory. The amount paid, $428, was based upon the number, 10,700. There was no counting to be done, no separation from stock on hand. The boxing and stamping were not with a view to the interest of either of the parties under the contract of sale. They concerned the interest, solely, of the United States government. The stamps had already been purchased by Minzesheimer, to be affixed, and the requirement, of government virtually answered.
The authorities as to when title to personal property passes on sale, where something remains to be done to the property, are not entirely harmonious. There are numerous most respectable authorities which hold that a contract for the sale of specific goods, or of goods identified, where something remains to be done to the property, will pass the title to the property before the act be done, if such appears, by the contract, to have been the intention of the parties.
In consonance with this class of authorities, this court held, in Graff v. Fitch, 58 Ill. 374, and in Shelton v. Franklin, 68 Ill. 333, that the title to personal property would pass by a contract of sale, where such was the intention of the parties, although measuring or weighing was to be had at a subsequent time, in order to ascertain the amount to be paid.
The cigars here had been paid for; everything had been done which it was possible, under the circumstances, to do, to change the possession and make the title complete in the vendee, and there can be no doubt, from the evidence, that the parties intended an absolute transfer, and to make the sale complete and absolute, although the stamping of a portion of the cigars remained to be afterward done for government pur-' poses only.
In view of the facts, we perceive no error in the modification of the instruction.
The point is made that Minzesheimer is, by his own conduct, estopped from a recovery. The conduct claimed as having such effect is, that Minzesheimer, on his return to the factory, made no assertion of his title or ownership of the property, and did not even speak to the sheriff, whereas he should have made assertion of his title, and warned the sheriff of the consequences of taking his property.
But when Minzesheimer returned to the factory, he found the sheriff had already attached the cigars. He did not, by any conduct, induce the sheriff to make the attachment, nor did he quietly stand by and acquiesce in the making of the levy. It had been made before, in his absence. The cigars were attached on Saturday, the 4th. On Monday, the 6th, Minzesheimer tried to find the sheriff, and failed in finding him every day for about a week, when he saw him and demanded the cigars. He also, at the same timej demanded them of Strauss & Sawyer. We do not perceive that he assisted to deceive any one, or that he influenced any one, by his acts, tó believe any other person owned the property except himself. We see no foundation for the claim of any estoppel.
The judgment will be affirmed.
Judgment affirmed.