delivery of part of the goods is not a discharge of a lien unless made under such circumstances as to show an intent to waive the lien. The implication is necessary that an intent to waive the lien if manifested will be effectual, without consideration.78 So it seems that an attornment to a subpurchaser even after he has bought the goods and paid the original buyer for them is a surrender of the lien.79 Yet in such a case also the seller is surrendering something for nothing. By his attornment he acquired no new right, retaining only his contractual claim against the original buyer for the price, and losing the hold upon the goods which he had prior to the attornment. The fact that a lien may be surrendered without consideration is not inconsistent with the revival of the lien, if the buyer subsequently becomes insolvent. Without question a sale on credit excludes a lien; yet if the seller is in possession when the buyer becomes insolvent or the period of credit expires, the lien will revive.80 So after a voluntary agreement to surrender a lien and hold as bailee for the buyer, his supervening insolvency will revive the lien.81 § 729. Waiver of vendor's lien on real estate. In England and some of the United States an unpaid vendor is allowed an equitable lien on real estate though he has parted with title and possession. This lien is held not to arise or to be waived if the buyer at the time of the bargain manifests an intent not to rely upon the security of the land. If subsequently, by taking security, or otherwise, a similar intent is manifested, it is held that the lien then also is destroyed. In most of the cases so holding the vendor at the time he manifested an intent to forego a lien received some payment, security, or promise, 78 So it is said in McElwee v. Metropolitan Lumber Co., 69 Fed. 302, 316, 37 U. S. App. 266, 16 C. C. A. 232, that if delivery of the part is "intended as a symbolical delivery of the whole, and as a waiver as to any right of retention as to remainder, the lien is lost." 79 Hurry v. Mangles, 1 Camp. 452; McElwee v. Metropolitan Lumber Co., 69 Fed. 302, 316, 37 U. S. App. 266, 16 C. C. A. 232. 80 McElwee v. Metropolitan Lumber Co., 69 Fed. 302, 37 U. S. App. 266, 16 C. C. A. 232, and cases cited. 81 Grice v. Richardson, 3 App. Cas. 319; Miles v. Gorton, 2 Cr. & M. 504; McElwee v. Metropolitan Lumber Co., 69 Fed. 302, 37 U. S. App. 266, 16 C. C. A. 232. which would serve as consideration, but at least in one case it has been held that a mere manifestation of intent by the vendor to give up a lien which he already had acquired, terminated the lien.82 § 730. Waiver of the condition of payment in a cash sale. Whether a sale is complete with a lien retained by the seller, or whether the property has not passed, and will not pass until the buyer pays the price, is a question that has some importance when merely the rights of the buyer and the seller are concerned; for if the property has passed, the risk has been transferred, the seller may sue for the price,83 and, on the other hand, the buyer may bring trover or replevin for the goods if the seller wrongfully refuses to carry out the bargain. The greatest importance of the question arises, however, when the rights of third persons are concerned. If the property does not pass till payment, a purchaser from the buyer gets no title. Even though the buyer has the goods in his possession and delivers them to the subpurchaser, this result is necessarily reached unless, as in England, a statute otherwise provides.84 If the condition protecting the seller has been surrendered by him,84 the buyer's title becomes absolute and may be transferred to a subpurchaser. The majority of the litigated cases * In Moshier v. Meek, 80 Ill. 79, 81, the court said: "Without passing upon or in anywise determining the effect of the declarations made by Daniel Meek in his lifetime, that he did not intend to collect the notes of William on his legal liability for their payment, they clearly and unmistakably manifest a determination not to rely upon or to enforce the lien. This is as manifest from these declarations, as if he had formally said, when the conveyance was made, that he waived the right to insist upon a vendor's lien, or had subsequently said the same thing." See also Dart on Vendors & Purchasers (7th ed.), p. 733. Warvelle on Vendor & Purchaser, §§ 698, 699. "Even thought the property has not passed, in some instances, the seller may sue for the price and is not limited to a recovery of the difference be tween the value of the goods and the agreed price. Infra, § 1365. 84 In England, by statute, the Factors' Act of 1889 enables a buyer in possession to give a good title to a purchaser from him. See Williston, Sales, § 319. In Starnes v. Roberts, 128 Ga. 718, 720, 58 S. E. 348, the court upheld the seller's right to regain the goods from the buyer, but said had the action been against a subpurchaser "a very different case would have been presented." But except where conditional sales are invalid at common law or for lack of record a cash sale must also be valid against third persons. 840 See supra, § 727. in regard to cash sales involve the question how far the delivery of the goods by the seller to the buyer or their continued possession by the buyer without objection on the part of the seller excuses the condition requiring payment of the price before title is transferred. There can be here no surrender of the seller's right without his assent. The mere acquisition of possession by the buyer, therefore, irrespective of the seller's assent, will have no such effect. Nor will temporary manual possession by the buyer, even with the seller's assent. As a shopkeeper may allow a prospective purchaser to take goods into his hands and examine them before payment, though he does not assent to the removal of them, it is evident that a delivery to the buyer may be itself conditional; that is, merely for a special temporary purpose, such as examination, testing, weighing, or the like. No assent in such a case to the transfer of the property by the seller can be found when the original bargain required payment of the price as a condition precedent to such transfer.85 The cases which present difficulty are where the seller has voluntarily parted with possession and for a purpose other than the temporary one of examination or the like. It is universally admitted in the decisions that delivery is at least evidence of assent to transfer title, but it is also generally said that it is only evidence and that the seller's intent to retain the benefit of his condition may be shown.86 85 In Whitney v. Eaton, 15 Gray, 225, goods were delivered to the buyer for the purpose of computing tare. In Osborn v. Gantz, 60 N. Y. 540, and Hart v. Boston & Maine R. R., 72 N. H. 410, 56 Atl. 920, to test the accuracy of weighing. In Silsby v. Boston & Albany R. R. Co., 176 Mass. 158, 57 N. E. 376, to verify the quality and count of the merchandise. In Wabash Elevator Co. v. First National Bank, 23 Ohio St. 311, delivery of warehouse receipts for grain was made in expectation of immediate payment, to which the seller was entitled by the bargain, but the buyer, having a claim on another account against the seller, retained the receipts and told the seller that he would credit him on account with the price. In Harris v. Smith, 3 S. & R. 20, delivery was secured by a trick. See also Susong v. McKenna, 126 Ga. 433, 55 S. E. 236; Evansville, etc., Ry. Co. v. Erwin, 84 Ind. 457; Ewing v. Musser, 42 Pa. Sup. 177. In all these cases it was held that title did not pass. See also Bainridge v. Caldwell, 4 Dana, 211. 86 See Guarantee Title &c. Co. v. First Nat. Bank, 185 Fed. 373, 107 C. C. A. 429; Cheatle v. MacVeagh, 83 Ill. App. 336; Gibson v. Chicago Packing Co., 108 Ill. App. 100; Dougherty v. Fowler, 44 Kans. 628, 25 Pac. 40, 10 L. R. A. 314; Seed v. Lord, 66 Me. 580; Peabody v. Maguire, 79 Me. 572, 12 Atl. 630; Merrill Furniture Co. v. Hill, 87 Me. 17, 32 Atl. 712; Scudder v. An analysis of the situation upon principle makes it evident that the real question is, Does the seller assent to give the buyer the incidents of ownership? Bradbury, 106 Mass. 422; Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Haskins v. Warren, 115 Mass. 514; Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, 46 N. W. 306; Carter, Rice & Co. v. Cream of Wheat Co., 73 Minn. 315, 76 N. W. 55; Johnson-Brinkman v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; Ferguson v. Clifford, 37 N. H. 86, 103; Leatherbury v. Connor, 54 N. J. L. 172, 23 Atl. 684, 33 Am. St. Rep. 672; Morris v. Rexford, 18 N. Y. 552; Hammett v. Linneman, 48 N. Y. 399; Adams v. Roscoe Lumber Co., 159 N. Y. 176, 53 N. E. 805; Hodgson . Barrett, 33 Ohio St. 63, 31 Am. Rep. 527; McIver v. Williamson-Halsell Frasier Co., 19 Okl. 454, 92 Pac. 170; Johnson v. Iankovetz, 57 Oreg. 24, 110 Pac. 398; Frech v. Lewis, 32 Pa. St. 279, 67 Atl. 45; Victor Safe Co. v. Texas Trust Co. (Tex.), 104 S. W. 1040; Paulson v. Lyon, 26 Utah, 438, 73 Pac. 510. In Merrill Furniture Co. v. Hill, 87 Me. 17, 32 Atl. 712, the seller brought replevin for two settees, manufactured for one Coburn, and delivered to him something more than a year before. The defendant had bought the settees from Coburn some months after they had been delivered to the latter. A witness for the plaintiff testified that the settees were made and delivered and "considered cash payment." A week or ten days afterward the bill was sent. About three weeks afterward the money had not come in and a boy was sent over once or twice to collect the bill. A month after the delivery the witness saw the buyer who said he could not pay the bill that day and to come in again in about a week. The witness replied, "all right," and went in about a week but could not get pay then. The witness then said he thought the best way was to give a lease and the buyer to pay $10 down and $10 every month thereafter; to which Coburn assented, and $20 was paid on account during the next few months. Subsequently the defendant purchased the settees. The court in banc held that if the property passed by delivery, the unrecorded conditional sale substituted for the original bargain was ineffectual to give the plaintiffs a claim against the defendant; but that if the property did not pass originally the parties merely substituted one conditional contract for another, as they might with propriety have done. The court, therefore, sustained the exceptions and directed that the case should be submitted to the jury. It seems perfectly clear, however, that the property had passed to the defendant. The sale was made on credit at the outset, and further credit allowed. From the moment of delivery the buyer used the settees as his own, and was permitted to do so. This permission was inconsistent with a conditional delivery. It was not inconsistent with a conditional sale, but such a bargain should never be implied. Moreover, if such was the nature of the transaction, the lack of record made it invalid against the defendant. Similarly in Brownville Slate Co. v. Hill, 175 Mass. 532, 56 N. E. 706, the question was held properly left to the jury whether delivery of goods was conditional, and whether the condition had been waived, and the title passed to the buyer; though if the goods had been used immediately upon their delivery it would not have been inconsistent with any condition imposed by the seller. The seller, though originally demanding an order on the defendant before he would deliver, § 731. Giving the buyer a right to use the goods as his own, indicates transfer of title. In order to answer the question whether the seller assents to transfer the title, the original bargain and what is subsequently done must both be considered. If the original bargain was for a cash sale, as distinguished from what is ordinarily called a conditional sale, that must mean that the buyer was to have neither the title nor the use and enjoyment of the goods until the price was paid. If the buyer was to have the use and enjoyment of the property, though not the title, before payment of the price, the transaction is a conditional sale, not a cash sale. Accordingly, if after bargaining for a cash sale the seller subsequently, voluntarily, delivers to the buyer the goods with the intent that the buyer may immediately use them as his own, and without insisting upon contemporaneous payment, this action is absolutely inconsistent with the original bargain. Such a delivery is not only evidence of a surrender of the condition of cash payment, it should be conclusive evidence. Even though the case warrants the conclusion that the buyer and seller agreed or understood that the seller should not part with his title until the price was paid, it is still true that the delivery and permission to the buyer to use the goods as his own are inconsistent with the theory of a cash sale. Instead, a conditional sale has been substituted and the transaction should be dealt with according to the rules governing conditional sales.87 The importance of the point is chiefly due to seems subsequently to have been satisfied with a promise to give the order in the immediate future. In Hammett v. Linneman, 48 N. Y. 399, the plaintiff sold coal to the defendant, and allowed the defendant to take the coal from the boat to his yard and mix it with other coal; but the court found that the sale was for cash, and the seller demanded payment in a short time, and the court, therefore, held, Earle, J., dissenting, that the evidence supported a verdict for the plaintiff. In Adams v. Roscoe Lumber Co., 159 N. Y. 176, 53 N. E. 805, lumber was delivered under a contract to one Mack intosh, who agreed to buy the lumber and pay for it by note at sixty days. The lumber was delivered, and as soon as delivered the bill was sent with a written statement that the terms of payment was a note payable in sixty days, together with a letter requesting that the note be sent in accordance with these terms, but the note was never delivered and the plaintiff's agent, on calling for it, failed to get it. It was held that a verdict for the plaintiff based on the theory that title had never passed should be sustained. 87 This passage is quoted and the argument admitted to be logical; but |