#### Benjamin Corlies, Joseph W. Corlies and James Mabbit *versus*James Gardner and George Gardner.

The plaintiffs, (auctioneers,) sold to the defendants a quahtity of goods, by auction, to be paid for in an approved endorsed noto, at six months. The plaintiffs having delivered the goods, demanded the note, which being refused, they immediately commenced an action for goods sold and delivered. The defendants contended that the action should have been special, for the non-delivery of the notes, and that *indebitatus assumpsit*would not lie until the credit had expired.

Held that the sale and delivery of the goods were conditional, and that the plaintiffs upon the non-compliance with the conditions of sale, by the defendants, might reclaim their goods, or treat the sale as an absolute one, without credit, and bring their action for the price without delay.

Assumpsit for goods sold and delivered. The plaintiffs proved, at the trial, the sale and ^delivery of the goods to, the defendants, (amounting to $287.32) on the 23d of March, 1829. That the goods were sold by auction, and that the terms of sale were an approved endorsed note, at six months. On the 29th of March, the plaintiffs called upon the defendants for the note, which they refused to give, and on the day following, this action was commenced.

The plaintiffs also proved that when notes were not given according to the stipulated condition, the sale was deemed by them, a sale for cash.

Upon this state of facts, the defendants moved for a non-suit, upon the ground that the action for goods sold, had been prematurely brought. That the remedy of the plaintiffs, if they had a cause for action, was upon the special agreement; that the action should have been for the non-delivery of the note, and that they could not recover for goods sold, until the time of credit had expired.

The Chief Justice (before whom the cause was tried) denied the motion, and a verdict for $287 32 was returned in favor of the plaintiffs. The defendants having excepted to the opinion of *346the Chief Justice, now moved to set aside the non-suit, and for a new trial.

*Mr. Joseph Wallis*for the defendants contended.

I. That the action was prematurely brought for goods sold and delivered, as the credit for which they were sold had not expired.

II. That *the*contract being executory, the plaintiffs ought to have declared specially for the non-delivery of the note, as the agreement made, at the time of the sale of the goods, was open between the parties, and still in force.

III. That the plaintiffs were not bound to deliver the goods, until an approved note was given ; having delivered the goods, they agreed to the time of credit upon which they were sold ; consequently they had no cause of action until the expiration of the credit, except on the special agreement, for not delivering the note.

IV. The evidence of the plaintiff’s custom, in considering sales, for an approved note, when the note is not given, *as cash sales,*ought not to have been admitted, as it was not shown that such was the general custom among auctioneers or merchants ; neither was it proved, that the plaintiffs gave such notice to the buyers who attended their sales. [4 *East.*147. 4 *Bos. and Pul.*330. *Laws on Assump.*6. 18. *J. R.*451. 1 *Cowen’s R.*378. 9. 4. *Ib.*564.]

*Mr. B. Clarke, contra,*for the plaintiffs, contended.

I. That the action was properly brought for goods sold and delivered,—the same having been sold at auction, and the defendants having refused to avail themselves of the privilege of giving an approved endorsed note.

II. The defendants having, on demand, refused the note, they disaffirm any agreement which might be implied, from the terms of sale, and entitle the plaintiffs to declare generally.

*347III. Sales at auction, upon the terms upon which these goods were sold, are considered cash sales, in case the purchasers do not avail themselves of their privilege of giving approved endorsed notes.

Oakley, J.

It is no doubt the general rule, that when goods are sold upon a special agreement, which continues executory, no general *indebitatus assumpsit*will lie. In the present case, however, it is clear from the evidence, that the sale was, in truth, considered a cash sale, unless the buyer should give’ an endorsed note, at six months. The credit which he was to have, was on con dition that he gave the security, and the delivery of the goods was upon the same condition.

Under these circumstances, there can be no question, but that the plaintiffs had a right to reclaim the goods, if they remained in the hands of the defendants, upon their refusal to comply with the conditions of the sale; or to treat the sale as an absolute one, without credit, and to bring their action for the price.

In the cases cited by the defendant’s counsel, the sale and delivery of the goods were absolute, but to be paid for in a peculiar manner, at a subsequent period. In this case, the "sale and delivery were strictly conditional; If the defendants refused to perform the condition, and still kept the goods, they were bound to pay for them immediately.

*Motion to set aside the non-suit, and for a new trial denied.*

[B. Clarke, *Att’y for the plffs.*J. Wallis, *Att’y for the*deft.]