Ckounse, J.
This is a case of replevin tried in the District Court for Douglas County. The trial was had before the court without a jury; and judgment given for the plaintiffs there, Sutro & Newmark. These facts appear: On the 18th of February, 1870, Bemis & Abbott of Omaha, through a travelling agent of Sutro & Newmark doing business in New York, ordered from the latter a quantity of cigars at a price agreed upon, and for which they were to give their note payable in four months. Before the arrival of the cigars, and on the 14th of March, Bemis & Abbott filed with the register in bankruptcy their petition asking to be declared bankrupts ; and the 6th of April was the time fixed for the meeting of creditors and the election of an assignee. On or about the 21st of March, an expressman brought the cigars to the store lately occupied by Bemis & Abbott, which, together with the' goods of Bemis & Abbott, was in possession of Hoile, who was claiming to hold as United-States marshal under a warrant issued by the register. Bemis & Abbott never, gave, or offered to give, their note in payment for the cigars : they never received them personally, or ever assumed to exercise any control over-them. A short time after the arrival of the cigars, they were demanded of Hoile, who refused to give them up. Beyond that of naked possession, I believe it is not claimed' that Hoile [191]*191had any interest in the cigars in question; nor do I see how he could have. He was neither agent of Bemis & Abbott, nor assignee in charge of their assets. What authority there was for issuing the warrant by the register is not shown. But, with mere possession in himself, he could challenge the plaintiffs below to show a better title, and could fortify himself by establishing property in third persons. This he did by attempting to show that the cigars were among the assets of Bemis & Abbott. In other words, while having no individual right to the property himself, he sought to protect his possession, and defeat Sutro & Newmark from recovering the cigars they had lately owned in New York, by asserting property through those who had never paid nor offered to pay any thing, and who were able to pay nothing for them. The technical rule of law which can sustain a claim so opposed to equity and common justice should be made very clearly to apply. One of the express conditions upon which this sale was made was, that the vendees were to give their note payable in four months. Another condition, attaching as strongly as though expressed in the most explicit language, was, that the note should be that of Bemis & Abbott solvent, and not bankrupts; and, although we may naturally surmise that the failure of Bemis & Abbott was the immediate occasion or inducement for the proceedings of Sutro & Newmark to recover the cigars, their right to insist on the former condition is not to be prejudiced by such consideration. Two points are -thus presented, — one going to the right of property, and the other to the right of its possession, —both involving a consideration of the questions of delivery to the vendees. In the one case, with the right of property still vested in the vendors, possession may in certain events be recovered from the vendees; while, when the right of property has [192]*192passed to the vendees, its possession cannot be resumed when once complete in them. In whom was the right of property, then, when the demand was made of Hoile ?
No time appears to have been fixed for the giving of the note. This must be referred to the law, then, which says payment and delivery are concurrent acts. 2 Kent, 496. None was given, and none offered, when the goods came to Hoile’s hands. Counsel seek an apology for this in the testimony of Abbott, one of the vendees, who says he expected the note to be sent with the invoice of goods. He SAvears, however, that the giving the note was an- express agreement; and in this he concurs with the other witness : and, although he may have “ expected ” the note to be drawn and sent, that circumstance is too small and unsubstantial to weigh here. The signing and returning of the note is the important circumstance. That has never been done or proposed since the receipt of the goods. But, it is said, permitting the goods to come into the store without insisting on this condition was a waiver of it. I am not unmindful of the rule, that, when goods are sold on condition of being paid for on delivery in cash or commercial paper, an absolute and unconditional delivery of the goods by the vendor, without exacting at the time of delivery a performance of the condition, is a waiver of the condition of the' sale; and a complete title passes to the purchaser, if there be no fraudulent contrivance on the part of the latter to obtain possession. 2 Kent, 296; Chapman v. Lathrop, 6 Cow., 110 ; Smith v. Dennie, 6 Pick., 262 ; Smith v. Lynes, 1 Seld., 41; Lupin v. Marie, 6 Wend., 77. Whether the delivery is absolute or conditional must depend on the intent of the parties at the time the goods are delivered. Furniss v. Hone, 8 Wend., 256. It is usually signified by refusing to deliver the goods without an immediate compliance with the con[193]*193dition. Lupin v. Marie, supra. Yet, though important, it is not absolutely imperative that the vendor declares that he does not waive any condition of the sale at the time of delivery to the vendee. Smith v. Dennie, 6 Pick., 262 ; Smith v. Lynes, 1 Seld., 45. The situation of the parties, the nature of the transaction, the presumption in favor of honest dealing, and like considerations, may be entertained in determining whether any of the conditions of the sale have been waived. When the contracting parties are present, the vendor may cling to his goods till the payment is made. Here it was not practicable for the vendors to give open and positive expression to their determination to insist upon the giving of the note before allowing possession of the property to go to Hoile. They were warranted in presuming, on the honesty of Bemis & Abbott, that their note would be returned according to agreement. To presume otherwise would be to impute fraud to Bemis & Abbott: for where payment is expected simultaneously with delivery, and is omitted, evaded, or refused by the vendee on getting the goods under his control, such delivery is but conditional; and the non-payment would be an act of fraud, entering into the original agreement, which would render the whole contract void, and the seller would have a right instantly to reclaim the goods. 2 Kent, 497. There is nothing in the case to raise a suggestion that Sutro & Newmark ever designed to waive the giving of the note. In Smith v. Dennie, supra, goods were sold on the express condition that the vendee should give an indorsed note for the price. The clerk of the vendor delivered the goods to the vendee without any reference to the condition; and they remained with him eight days, during which time no demand was made for the note or goods. It was there held that there was a waiver of the condition.
[194]
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Ckounse, J.
This is a case of replevin tried in the District Court for Douglas County. The trial was had before the court without a jury; and judgment given for the plaintiffs there, Sutro & Newmark. These facts appear: On the 18th of February, 1870, Bemis & Abbott of Omaha, through a travelling agent of Sutro & Newmark doing business in New York, ordered from the latter a quantity of cigars at a price agreed upon, and for which they were to give their note payable in four months. Before the arrival of the cigars, and on the 14th of March, Bemis & Abbott filed with the register in bankruptcy their petition asking to be declared bankrupts ; and the 6th of April was the time fixed for the meeting of creditors and the election of an assignee. On or about the 21st of March, an expressman brought the cigars to the store lately occupied by Bemis & Abbott, which, together with the' goods of Bemis & Abbott, was in possession of Hoile, who was claiming to hold as United-States marshal under a warrant issued by the register. Bemis & Abbott never, gave, or offered to give, their note in payment for the cigars : they never received them personally, or ever assumed to exercise any control over-them. A short time after the arrival of the cigars, they were demanded of Hoile, who refused to give them up. Beyond that of naked possession, I believe it is not claimed' that Hoile [191]*191had any interest in the cigars in question; nor do I see how he could have. He was neither agent of Bemis & Abbott, nor assignee in charge of their assets. What authority there was for issuing the warrant by the register is not shown. But, with mere possession in himself, he could challenge the plaintiffs below to show a better title, and could fortify himself by establishing property in third persons. This he did by attempting to show that the cigars were among the assets of Bemis & Abbott. In other words, while having no individual right to the property himself, he sought to protect his possession, and defeat Sutro & Newmark from recovering the cigars they had lately owned in New York, by asserting property through those who had never paid nor offered to pay any thing, and who were able to pay nothing for them. The technical rule of law which can sustain a claim so opposed to equity and common justice should be made very clearly to apply. One of the express conditions upon which this sale was made was, that the vendees were to give their note payable in four months. Another condition, attaching as strongly as though expressed in the most explicit language, was, that the note should be that of Bemis & Abbott solvent, and not bankrupts; and, although we may naturally surmise that the failure of Bemis & Abbott was the immediate occasion or inducement for the proceedings of Sutro & Newmark to recover the cigars, their right to insist on the former condition is not to be prejudiced by such consideration. Two points are -thus presented, — one going to the right of property, and the other to the right of its possession, —both involving a consideration of the questions of delivery to the vendees. In the one case, with the right of property still vested in the vendors, possession may in certain events be recovered from the vendees; while, when the right of property has [192]*192passed to the vendees, its possession cannot be resumed when once complete in them. In whom was the right of property, then, when the demand was made of Hoile ?
No time appears to have been fixed for the giving of the note. This must be referred to the law, then, which says payment and delivery are concurrent acts. 2 Kent, 496. None was given, and none offered, when the goods came to Hoile’s hands. Counsel seek an apology for this in the testimony of Abbott, one of the vendees, who says he expected the note to be sent with the invoice of goods. He SAvears, however, that the giving the note was an- express agreement; and in this he concurs with the other witness : and, although he may have “ expected ” the note to be drawn and sent, that circumstance is too small and unsubstantial to weigh here. The signing and returning of the note is the important circumstance. That has never been done or proposed since the receipt of the goods. But, it is said, permitting the goods to come into the store without insisting on this condition was a waiver of it. I am not unmindful of the rule, that, when goods are sold on condition of being paid for on delivery in cash or commercial paper, an absolute and unconditional delivery of the goods by the vendor, without exacting at the time of delivery a performance of the condition, is a waiver of the condition of the' sale; and a complete title passes to the purchaser, if there be no fraudulent contrivance on the part of the latter to obtain possession. 2 Kent, 296; Chapman v. Lathrop, 6 Cow., 110 ; Smith v. Dennie, 6 Pick., 262 ; Smith v. Lynes, 1 Seld., 41; Lupin v. Marie, 6 Wend., 77. Whether the delivery is absolute or conditional must depend on the intent of the parties at the time the goods are delivered. Furniss v. Hone, 8 Wend., 256. It is usually signified by refusing to deliver the goods without an immediate compliance with the con[193]*193dition. Lupin v. Marie, supra. Yet, though important, it is not absolutely imperative that the vendor declares that he does not waive any condition of the sale at the time of delivery to the vendee. Smith v. Dennie, 6 Pick., 262 ; Smith v. Lynes, 1 Seld., 45. The situation of the parties, the nature of the transaction, the presumption in favor of honest dealing, and like considerations, may be entertained in determining whether any of the conditions of the sale have been waived. When the contracting parties are present, the vendor may cling to his goods till the payment is made. Here it was not practicable for the vendors to give open and positive expression to their determination to insist upon the giving of the note before allowing possession of the property to go to Hoile. They were warranted in presuming, on the honesty of Bemis & Abbott, that their note would be returned according to agreement. To presume otherwise would be to impute fraud to Bemis & Abbott: for where payment is expected simultaneously with delivery, and is omitted, evaded, or refused by the vendee on getting the goods under his control, such delivery is but conditional; and the non-payment would be an act of fraud, entering into the original agreement, which would render the whole contract void, and the seller would have a right instantly to reclaim the goods. 2 Kent, 497. There is nothing in the case to raise a suggestion that Sutro & Newmark ever designed to waive the giving of the note. In Smith v. Dennie, supra, goods were sold on the express condition that the vendee should give an indorsed note for the price. The clerk of the vendor delivered the goods to the vendee without any reference to the condition; and they remained with him eight days, during which time no demand was made for the note or goods. It was there held that there was a waiver of the condition.
[194]*194Chief Justice Parker, in giving the opinion of the Court, says, “ There is nothing in the case from which an intention to hold on, upon the condition, can be inferred; no declaration at the time, which, though not necessary, is important; and no call for security until it was forgotten or abandoned; and perhaps never would have been recurred to if the goods had not been attached.” In that case the parties were present at the time of delivery ; and though, in the language of the judge, “ not necessary,” yet it was “ important ” to insist upon the condition of sale. Here the parties were hundreds of miles apart, and the goods and note to be exchanged by public carriers and the post. There the property passed immediately into the hands of the vendee, who was allowed to retain it, till other parties, acting on the belief that it was his, proceeded to attach it. Thus the cigars never came into the hands, or under the personal control, of the vendees: the rights of no third parties had attached, nor was any one induced to act because of such possession, before the vendors sought to recover the property. A demand was made upon Hoile as promptly as could be expected under the circumstances, and should have been complied with. For these reasons, the judgment of the Court below is right.
But viewing the sale as for credit simply, and the case one where the right of stoppage in transitu is sought to be exercised by the vendors, — and this was the theory upon which the discussion mostly proceeded in this Court,— I am far from the opinion that they should not recover on this ground. In view of the conclusion I have expressed upon the other branch of the case, I deem it unnecessary to discuss this at any length; much less to examine the numerous cases cited, and attempt to reconcile them or apply them to this. [195]*195The cases are so numerous, and so various in their facts, that it is not surprising that some apparent or real confusion should exist among them. It will be found simpler to keep in view the rule, and the reason of it, than to wander off into the field of cases.
Strong, J., in Harris v. Pratt (17 N. Y., 263), says, “ The right of stoppage in transitu on a sale of goods on credit arises when the vendee becomes insolvent after the sale, and before the goods have been actually delivered to him, or to his agent for him, having some authority in respect to the goods unconnected with their transit, as to keep or dispose of them. The basis of this right is, that the insolvency of the vendee was not contemplated by the vendor in the sale; and that it is plainly just that he should, on account of that unforeseen event, endangering the loss of the price to • be paid, be permitted to reclaim the goods, and keep them as security for payment at any time before a delivery terminating their transit. The right is limited to that period, and ends with such a delivery. It is a right, which, from its equitable nature, is regarded with favor; and the rules relating to it are applied with great liberality to the vendor, in furtherance of justice.” Transit, as here used, and as is understood by its use in the books, is not confined in its meaning to the passage of the goods through the country, as from New York to Omaha, but includes their situations in every stage, from the time of passing out of the control and possession of the vendor into that of the vendee. The accident of place is not a material circumstance ; but the immediate relation of the parties to the goods is rather to be considered. Had Bemis & Abbott intercepted the goods at Chicago instead of Omaha, the right of stoppage in transitu would have ended there. 2 Kent, 547. So, if, before the goods had reached Omaha, Bemis & Abbott had removed [196]*196to Cheyenne, the right of stoppage would not have terminated with Omaha, even though the goods had been received and forwarded at Omaha by some person acting under the direction of Bemis & Abbott. Harris v. Pratt, 17 N. Y., 249. So, while in the same warehouse, the delivery of the vendor’s key to the vendee, paying the vendor rent for the goods left there, lodging with the warehouseman the order of the vendor, marking the goods by the vendee, are all circumstances to show that it is not the particular place, but that it is the possession or control given or taken by the parties, which determines the point where the transit may be considered complete. Again: suppose Bemis & Abbott to have been removed to some other part of the town when the goods arrived: can it be contended that the mistake of some1 ignorant expressman in leaving them at their old store, but which was then in possession of a stranger to both parties, is a delivery to Bemis & Abbott ? If I am right in these several propositions, it is but one step to the case before us. Here the goods never reached the vendees; in fact, they never knew of their arrival even, from what I can gather from the record. No one acting for them ever received them. But Hoile, who seems to have intruded upon the premises to the exclusion’ of Bemis & Abbott and all others, uses them as a trap or net to catch all that comes that way. Had he been out of there, Bemis & Abbott would not have received the goods, in all probability; and Sutro & Newmark might have repossessed themselves of them before their right to do so was gone; Hoile being in no sense the agent of Bemis & Abbott, and the cigars never having been actually delivered to the vendees, or to their agent for them, having some authority in respect to them unconnected with their transit, or to keep or dispose of them.” This case falls within the rule I have [197]*197cited, permitting tbe vendors to resume possession of tbe goods.
Tbe judgment of tbe Court below should be affirmed.
Judgment affirmed.