¶1— The sole cause of demurrer assigned is, that the complaint is in form an action on the case, and the facts averred show that the form of action should be assumpsit.
¶2Where there is a sale of goods, to be paid for by cash on delivery, payment and delivery are concurrent acts. In such ease, payment is a condition precedent to passing title to the vendee. If delivery is made without demanding payment, or under circumstances showing no expectation of immediate payment, the condition is waived, and the title passes; but, if the goods are put into the possession of the buyer, on the understanding or agreement that he will pay for them immediately, and he fails or refuses to do so, the seller may recover the goods. — 1 Ben. on Sales, §§ 335, 356.
¶3The averments of the complaint show, that by the contract of sale, the cotton was to be paid for on delivery. Storing it in the warehouse, and taking the receipt in the name of the defendants, were done on the understanding and expectation, that on the return of the receipt, by which the value of the cotton could be ascertained, the price would be then paid. The defendants refused to pay for the cotton, and converted it to their own use. The sale was executory and conditional, and, by the refusal of the defendants to pay, was never consummated. On the facts set forth in the complaint, which the demurrer admits so far as well pleaded, the plaintiff had the right to reclaim the cotton. The plaintiff, having elected to reclaim the cotton, can not maintain assumpsit for the price agreed to be paid.
¶4The demurrer was improperly sustained. The sufficiency of the complaint is not raised by the record, and is not considered.
¶5Reversed and remanded.