#### Palmer *against*Hand.

are^sow ,w°'°he vwy,fo/f,°ondt^e. feomideted,bethe topayforth?nit the vendor has a lien • for the price, and. may ='the^

if during and beroreTÍs pmsttrseSt “í a1'thindplTM we’ consider^ pot"teUttTththé tté6AnieV'of1tiS tie affected, and fie may recover tiieih from such subsequent purptasaiT. , >■-

THIS wás an action of trover, ;tried before Mr. Justice *Spencer>*at the *Albany*circuit, id *April,-IZIG.*

The plaintiff was the owner of a raft, consisting of plank, joist, and' boards, and whilst coming down the *North River,An*, • ' *a - ^ .*. . . *„*_ • the' autumn'ot the year *1815,*with the rait, one *Potter*carné upon . ■' : . ' . , - ’ , . ... fhe rait, ancr offered tq .buy it ; the price was agreed upori'; it stlsó’ agreed, that the plaintiff ■should: deliver it at-one of the docks *Albany,*and be at the expense of taking it out &e- water. *Potter*then applied to the'defendant, who-kept á lumber-yard, in *Albany,*to purchase-the lumber’which the plaintiff had agreed to sell him; bat *Potter*and the .defendant n.ot being able to settle,the bargain,it- was agreed that the de. fendant’should-take and .sell thp lumber. The plaintiff arrived with his raft, the next day, and brought it to the defendant’s „ . . , dock, and there inquired or one of the Witnesses in the cause. : • for *Potter,*and asked if *Potter*was nof tq have more hands to take out andj pile 'the lumber; and said that he had sold if to *Potter.-*Hé then left the raft, and went into the citypánd at 4 o’clock in the affefcrjoon, at which time alj, the raft was takeii out of the wafer, and nearly all piled, a few culling pieces ex-cepte,d, the plaintiff returned and fprbade any’more to be piled, saying that *Potter*had gone. off. The defendant, pn the same day, advanced to *Potter,*on account of the deposite- of lutírbér,' 10Q dollars ; and also gave him an order on *Wilder & Hustings for ISO*dollars, ip goods, which-were, in the evening of the same dayj delivered, to him. There was no fopmal delivery of the lumber-to *P'qiter,*who, it was: conceded,- was *a[*cheat, and had absconded. The plaintiff proved a demand-on‘the defendant to restore thp lumber, or pay for it, g-nd a refusal. The,' jury found a verdict for thé plaintiff, subject to. the opinion of j.he court,, on a case containing the above fact?-,:

*Van Vechten,*for. the plaintiff,

cited *Roberts on*Frauds, 165, 166, 167. 169. 1. *Mod.*137. 2 *Caines' Rep.*44. 2 *Johns. Rep.*17. *3 Johns. Rep.*399. 6 *Term. Rep.*54. 7 *Term. Rep.**43566. 440. 3 *Term. Rep.*469. 3 *Bos. & Pull.*232. 3 *East,*99. 2 *Term. Rep.*71. 3 *Caines' Rep.*185.

Henry, contra.

Platt, J.,

delivered the opinion of the court. This is an action of trover, for a quantity of plank and scantling. It appears that the plaintiff was owner of a raft of lumber, and while descending the river opposite to *Lansingburgh,*he contracted with one *Potter*for the sale of the lumber, to be delivered to *Potter,*by the plaintiff, on one of the docks, in *Albany,*at a price agreed on, to be paid on delivery. *Potter*then went to the defendant, who keeps a lumber yard and dock, at Albany, and agreed to deliver to him the lumber of that raft, to be sold by the defendant, on commission, for *Potter.*

Next morning, about sunrise, the plaintiff arrived with the raft, and fastened it to the defendant’s dock. The plaintiff then told the workmen employed there, that he had sold the lumber to *Potter.*One or two mem began immediately to pile the plank, &c. on the defendant’s clock, and the plaintiff£t asked if *Potter*was not to have more hands to take out and pile the lumber ?” The plaintiff then went into the city, and did not return again till 4 o’clock P. M., at which time the lumber was almost all piled on the defendant’s dock. The plaintiff then forbade the piling of any more, saying that *Potter*had absconded.

While (he men were piling up the lumber, about 10 or 11 o’clock A. M. of that day, the defendant advanced to *Potter*100 ddllars, and, also, gave an order for 150 dollars’ worth of goods, in favour of *Potter,*on account of the deposite of lumber. The plaintiff, afterwards, demanded the lumber, which the defendant refused to deliver.

There is no doubt that, upon a contract to sell goods, where no credit is stipulated for, the vendor has a *lien;*so that if the goods be actually delivered to the vendee, and, upon .demand then made, he refuses to pay, the property is not changed, and the vendor may lawfully take the goods as his own, because the delivery was *conditional.*

*As*between the *vendor*and *vendee,*in this case, I incline to the opinion that the property, in the lumber, was not so vested in the *vendee*as that the vendor, could not legally have resumed it *436when he came, in the afternoon, and forbade the pi'iin'g of anymore of it.

. The contract with *Potter*was' for the *whole raft,*to be delivered on the dock. The *vendor,*therefore, had no right to demand payment for any 'part until the whole was delivered; and it appears that he came to the place of delivery, at 4 o’clock in the afternoon 'of the day on which the raft arrived at the dock, whilst the lumber was still in the course of delivery, and signified his determination not to consider the sale *as'absolute.*He said, that Potter:bad absconded, and'ordered the men not to pile any more of the plank, &c. As between *Palmer*and *Potter*there was no such delay, or. acquiescence pn the part of the vendor, as would be evidence of a *credit given for the money.*If the vendor-was. there, and demanded payment, as soon as the'whole lumber was piled on the.dock, that was enough to preserve, his lien; and such, I think, is the fair construction of the evidence.

The plaintiff, -in this case, - seeks to enforce his *lien*against a person, who has *bona fide*received the property as a pledge for money and goods advanced to *Potter,*to nearly the -amount of its value.-' Those advances were made , by the defendant while the lumber was in a course of delivery on the dock, and before theplaintiff asserted his claim to it. . But there' is.no evidence thatthe plaintiff-had any. knowledge of the negotiations.between. Potter and the defendant, in regardJ&UheAumbér, until after the plaintiff had made his election to rescind, his contract with *Pot,*teg.. This is a contest, then, between two honest men, who.shall-be the dupe of rff-swindler. The strict rule of law must,..therefore, be applied; and the defendant cannot be. allowed to stand in a more'favqúrablé situation than *Potter*would have been in if he himself had withheld thé posséssion of the lumber,, without paying the price when demanded.

We are, therefore, of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.