latter was his debtor. His own explanation is that he delayed trusting to the promises of the defendant from time to time to pay the price of the carriages.

The title to a chattel passes as fully after a conditional delivery, where possession is allowed to be retained, in consideration of a new promise to pay, as where delivery is preceded by actual payment. The plaintiff was not tricked into delivering the carriages to the defendant, nor was his delay in asserting claim to the property in consequence of any fraud practiced. He reposed confidence in the promise of the defendant, and was disappointed. His disappointment does not restore to him the right of property with which he parted. The court below submitted it to the jury to determine whether plaintiff by his conduct had waived his right to retake the carriages. The jury found he had not, and gave the plaintiff a verdict for the property. On appeal to the superior court the judgment of the lower court was affirmed. The ground on which the affirmance rested is thus stated by the learned judge who delivered the opinion: "It cannot be said as matter of law that the plaintiff's conduct amounted to a waiver of his right. In view of the repeated promises of the defendant, the plaintiff might well have been misled and induced to postpone proceedings for the recovery of his property. His delay is evidence of a waiver, but it is not conclusive in view of the conduct of the defendant."

In this we cannot concur. The reasons for our dissent fully appear in what we have already said. Reliance upon a subsequent promise to pay, that leads the seller to refrain from asserting his right to retake the property, is in itself a waiver of the right, and makes absolute a delivery which in the first instance was conditional. The right of plaintiff to recover back his property after he had delivered it resulted from the buyer's failure to keep his first promise. His failure to keep subsequent promises to pay could neither prolong nor revive that right. What defendant did or did not do is a matter that has no place in the inquiry; what the plaintiff did or failed to do is the determining consideration. Fraud and artifice practiced by defendant may excuse delay in attempting a recovery of property after delivery, but not mistaken confidence reposed in defendant's promises. Judgment is reversed.**

24 A. sold coal to B. for cash, credit having been requested and refused. The coal was delivered, and was mixed by B. with other coal. Three days after delivery A. called for payment, but without success. Two or three days later payment was again demanded. B. said that he could not pay, and admitted that he had been forced to sell the coal. Held, the evidence supported a finding that the condition of cash payment had not been waived. Hammett v. Linneman, 48 N. Y. 399 (1872).

SOUTH SAN FRANCISCO PACKING & PROVISION CO. v. JACOBSEN et al.

(Supreme Court of California, 1920. 183 Cal. 131, 190 Pac. 628.) Action in interpleader against J. Jacobsen and another, D. A. Taylor and Arthur Rosecrans, individually and as copartners under the firm name and style of Taylor & Rosecrans, and the Western Meat Company. From a judgment for last-named defendant, Taylor and Rosecrans appeal. Reversed.

PER CURIAM.25 The following opinion was prepared by Mr. Justice KERRIGAN of the District Court of Appeal of the First Appellate District while acting as Justice pro tempore in this court in place of Mr. Justice MELVIN. It is adopted as the opinion of this court:

This is an appeal from a judgment in favor of the defendant Western Meat Company, and against the defendants Taylor & Rosecrans, in an action in interpleader. Briefly the facts of the case are these: Taylor & Rosecrans, at the time the transaction here involved took place, were copartners engaged in the live stock business in the state of Idaho, as also was the defendant Jacobsen, their respective places of business, however, not being in the same locality. Shortly before the 10th day of June, 1915, Jacobsen by telephone, purchased from Taylor & Rosecrans three carloads of hogs at an agreed price, the hogs to be delivered at a certain place in Idaho, where Jacobsen or his agent was to receive them and make payment therefor by check. Accordingly the hogs were delivered and a check for $3,490.98 was given in payment by Jacobsen's agent, the delivery of the check taking place at midnight on said June 10th. Before noon of the following day it was deposited for collection with the firm's bank at Burley, Idaho. It reached the bank in Idaho Falls on which it was drawn three days later, i. e., Monday, June 14th, when payment was refused for lack of funds. As is apparent, Saturday afternoon and Sunday falling within these three days, the actual business time comprehended within said period of three days was but a day and a half. There being no evidence in the record to the contrary, we will presume that the check was presented for payment in the ordinary course of business. On the 10th day of June, when the check was delivered, Jacobsen's bank balance was $1,733.37; on the next day, June 11th, Friday, said balance was increased to about $5,000; on Saturday, June 12th, it had been reduced to about $4,000, and on Monday, when the check was presented for payment, said balance was $1,341.57. Jacobsen had no arrangement with the bank for credit or overdraft.

Shortly after the purchase of the hogs by Jacobsen he disappeared. Commencing with June 14th many checks drawn by him were, when presented at the bank, dishonored. In the meantime Jacobsen had 25 Part of the opinion is omitted.

shipped the hogs to the plaintiff, which in turn disposed of them in San Francisco, and the fund involved in this litigation is part of the sum realized by the plaintiff from their sale. While there is some dispute on the subject, nevertheless it fairly appears from the record, not only that defendants Taylor & Rosecrans, upon learning of the dishonor of the check, demanded the fund from the plaintiff under a claim of ownership, but also that the respondent, Western Meat Company, a creditor of Jacobsen, at about the same time commenced an action against him and levied an attachment on this fund. The plaintiff being thus confronted with two conflicting claims, commenced this action in interpleader against the partnership, Jacobsen, and the Western Meat Company. Jacobsen defaulted, and judgment went for the Western Meat Company as against Taylor & Rosecrans, who have appealed.

The appellants contend that Jacobsen having obtained delivery of the hogs by means of a worthless check, was guilty of fraud, and that therefore the sale was void, both as to Jacobsen and his attaching creditor. It is true, as contended by the appellants, that the issuance by Jacobsen of this check, payment of which was refused for lack of funds, coupled with his unexplained disappearance, is some evidence of fraud. It appears, however, that after the issuance of the check, and before its presentation for payment three business days later, Jacobsen, on two of those days, had more than sufficient money on deposit to meet the check. This circumstance, with the presumption of innocence and fair dealing, furnish some foundation for the finding of the trial court against fraud, so that, in view of what may thus be regarded as a conflict of evidence, we are not at liberty to disturb this finding.

There are several technical points made by the appellants in support of their appeal; but, as we have concluded that the judgment must be reversed upon the main ground urged, it will be unnecessary to discuss these. We are thus brought to the consideration of the principal question involved, viz. whether or not title to the hogs passed at the time of the delivery by Jacobsen's agent of the check. We are of the opinion that this question must be answered in the negative, and, consequently, that the appellants are entitled to the fund as against Jacobsen's attaching creditor, the Western Meat Company. *

In effect, this sale was for cash as distinguished from a sale on credit, payment to be made, as is customary in similar commercial transactions, by check, and as it was not agreed that the check was to be received as absolute payment, and the delivery of the goods also was conditional, and the check, upon due presentation was dishonored, title to the hogs remained in the seller. In Johnson, etc., Co. v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615, it is held that a check given for the purchase price does not constitute payment until the money is actually received by the vendor, unless it is otherwise expressly agreed. In Nat. Bank v. Chicago, etc., Ry., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566, it is held that where.

goods are sold for cash on delivery, and payment is made by check, such check is, in fact, payment only when the cash is received on it, and that there is no presumption that a creditor takes a check in payment from the mere fact that he accepts it from his debtor. The presumption is just the contrary. Such payment is only conditional, or a means of obtaining the money. So, in Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527, it is held that payment by check is a mere mode of making a cash payment; that it is conditional only; and if the check, upon due presentation, is dishonored, the vendor may retake the goods from the purchaser.

There is nothing in this record indicating that the original sellers intended to accept Jacobsen's check as absolute payment. True, they were to accept a check in payment for the hogs, but this is the usual method in cash transactions of any magnitude, and it is employed as a matter of convenience, and to obviate the necessity of handling and transporting large sums of money with its attendant risks. In the case of Comptoir D'Escompte de Paris v. Dresbach, 78 Cal. 15, 20 Pac. 28, it is said that the language of the manager of the plaintiff bank in stating that a check which was subsequently dishonored was accepted in payment of the debt sued upon should not be construed as signifying anything more than the provisional or conditional payment presumed by law, and is no evidence of absolute payment.

The title to the hogs, therefore, as between the parties to the sale, having remained in the original sellers, it follows, we have no doubt, that the fund in the hands of the plaintiff, the purchaser from Jacobsen, constituting part of the purchase price, belongs to the original sellers, Taylor & Rosecrans; and we also entertain no doubt that so far as the attaching creditor is concerned it has no better right to the fund than Jacobsen himself. Ward v. Waterman, 85 Cal. 491, 508, 24 Pac. 930..

It follows that the judgment should be reversed; and it is so ordered.26

ANGELLOTTI, C. J., and SHAW, Olney, Wilbur, Lennon, Sloane, and LAWLOR, JJ., concur.

26 See comment, 9 Cal. Law Rev. 78; 34 Harv. Law Rev. 749; 30 Yale Law J. 198.

A. sold two guns to B., a stranger. and B. gave his check for the price.

The guns were delivered immediately, B. had no money in the bank, and the check was dishonored. On the day of the purchase by B., he resold the guns to a bona fide purchaser for value. Held, that B.'s purchaser did not acquire the property in the guns, and A. might recover them. See Johnson v. Iankovetz, 57 Or. 28, 102 Pac. 799, 110 Pac. 398, 29 L. R. A. (N. S.) 709 (1910), and note, 9 Mich. Law Rev. 239.

SECTION 5.-CONTRACT TO SELL UNASCERTAINED GOODS OF A FUNGIBLE NATURE

WHITEHOUSE et al. v. FROST.

(Court of King's Bench, 1810. 12 East, 614.)

In trover to recover the value of some oil, the property of the bankrupt, which was tried at Lancaster, in March last, a verdict was found for the plaintiffs for £390, subject to the opinion of the court on the following case:

The plaintiffs are assignees of John Townsend, late a merchant at Liverpool; the two Frosts are merchants and partners in Liverpool; and the other defendants, Dutton & Bancroft, are also merchants and partners in the same town. On the 7th of February, 1809, Townsend purchased from the defendants, J. & L. Frost, ten tons of oil, at £39 per ton, amounting to £390, for which Townsend was to give. his acceptance payable four. months after date; and a bill of parcels. was rendered to Townsend by the Frosts, a copy of which is as follows:

"Liverpool, 7th February, 1809. Mr. John Townsend, Bought of J. & L. Frost,

Ten tons Greenland whale oil in Mr. Staniforth's cisterns, at your risk, at £39...

Cr.

1809. February 14. By acceptance..
"For J. & L. F., Wm. Pemberton."

£390

£390

The said ten tons of oil at the time of this purchase were part of forty tons of oil lying in one of the cisterns in the oil-house at Liverpool, the key of which cistern was in the custody of the other defendants, Dutton & Bancroft, who had before that time purchased from J. R. & J. Freme, of Liverpool, merchants, the said forty tons of oil in the same cistern; and upon such purchase received from the Fremes the key of the cistern. Afterwards Dutton & Brancroft sold ten of the forty tons they had so bought (being the ten tons in question) to the defendants, the Frosts, who sold the same in the manner before stated to Townsend. On the 7th of February, the day on which Townsend bought the ten tons of oil, he received from the defendants, Frosts, an order on Dutton & Bancroft, who held the key of such cistern, they having other interests therein as aforesaid, to deliver to him, Townsend, the said ten tons of oil; a copy of which is as follows:

"Messrs. Dutton & Bancroft, Please to deliver the bearer, Mr. John Townsend, ten tons Greenland whale oil, we purchased from you 8th November last." (Signed) "J. & L. Frost."