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*154By the Court,

Paine, J.

Without determining whether the defendant below was entitled to the first instruction asked in the exact form in which it is drawn, we think the judgment must be revérsed for the refusal of the court to give the second. The testimony showed that Firman made a contract with Billinghurst, as agent of Pitts, for the purchase of the threshing machine in question He was to pay the charges and $100 on the reception of the machine, and the balance of the purchase money in notes payable at future times. The machine was forwarded to a station on the La Crosse and Milwaukee railroad, marked with the initials of Firman, and to the care of Billinghurst. At about this time Firman went to Billinghurst to obtain a delivery of the machine, and Bil- - linghurst gave him the “ shipping bill” and told him that with that he could obtain it just, as well as though he, Bil-linghurst, went along. Firman went and got the machine on the 2d or 3d of September, kept it till the 16th of October, when he sold it to Owen, the appellant, from whom it was replevied in this suit, Billinghurst having made no demand of Firman for the $100 or the notes, until the 10th of October.

There is nothing in the bill of exceptions to show that any question was made as to Owen’s being a bona fide purchaser for a valuable consideration. But the instructions asked point entirely to the question, whether, as between the plaintiff below and Firman, the conditions of the sale had been waived, by the delivery testified to, so as to vest the title absolutely in Firman.

On this point the second instruction asked by the counsel for the defendant, was as follows: “ That the delivery of possession of a chattel contracted to be delivered on payment, without enforcing the condition, is presumptive evidence of a waiver of the condition, and can only be rebutted by the proof of an agreement that the title should remain in the vendor,”

*155We think the court erred in refusing this instruction. The case of Smith vs. Squires, 1 Selden, 41, and the cases there cited, fully establish the doctrine that on a conditional sale, a delivery of the property by the vendor, without insisting 'on a compliance with the condition, is a waiver of the condition, and vests the title absolutely in the vendee. Whether in any case there is such a delivery, is a question of fact for the jury, and in determining it, reference should be had to the nature of the condition, perhaps to the nature of the property delivered, the circumstances of the parties, and everything that could throw light on the question, whether the vendor intended to deliver, and at the same time did not intend to insist on a compliance with the conditions. If he does deliver without insisting on such compliance, that is prima facie proof of a waiver; and the vendor has then to rebut the presumption thus raised, by showing that the delivery as well as the sale, was conditional, that there was either an express or implied understanding that the title should not pass.

Of course we make no comment on the effect of the evidence offered in this case. But we think the refusal of the court to give this instruction, was equivalent to telling the jury that, although they should be fully satisfied from the evidence, that Billinghurst delivered the machine to Firman, without demanding any compliance with the conditions of sale; and, although there was no other evidence on the point, that still they would not be entitled to find the conditions waived, but must find that the title did not pass, and that the plaintiff could reclaim the property. This, we think, was erroneous, and the judgment must be reversed, and a venire de novo awarded.

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