¶1The defendant contends that it is an infer • ence of law from the facts stated, that there was an uncondi. tional delivery of the property by the plaintiffs to Harlin on November 20. The plaintiffs were to make the articles and set them up in Harlin’s saloon for a certain sum in cash. They commenced setting them up on November‘17, and had not entirely finished oh November 20, when they requested payment of the whole balance, there having been small payments made. Harlin replied, that he did not have the money then, and requested a few days’ time. The plaintiffs did not remove the property; and it is contended that allowing it to remain, after demand for the price, was in law an unconditional delivery of it, and made it the absolute property of Harlin. So far from being conclusive, we think the evidence'of delivery was very slight. The fact that the articles were in Harlin’s salbon when finished was of slight consequence, because they were to be finished there, and were not to be delivered until finished. Some act showing a delivery by the plaintiffs and acceptance by Harlin, after they were finished and ready for delivery, was necessary to deprive the plaintiffs of their right of possession. Delivery was to be made upon payment, and might have been inferred if payment had been made' and accepted; but could not be presumed from *446the mere fact that the articles remained where and as they were when completed. The plaintiffs retained the right to take them away at any time.
¶2Besides, the articles were not completed then, and Harlin had a right to refuse to accept and pay for them on that day. That he gave.another reason for not making payment then is not conclusive in law that he did not exercise his right to refuse to accept them.
¶3The subsequent conduct of the parties shows that they understood that there was no change of possession on that day, for soon after Harlin accepted a lease of the property from the plaintiffs, and after that the plaintiffs finished the work upon it.
¶4Exceptions overruled.