#### THOMAS DEVANE vs OWEN FENNELL.

Where there is a contract for the sale of goods, although the goods may-have been put in possession of the vendee, yet if something still remains to be done by the vendor before the contract is completed, as to ascertain the price, quantity or individuality of the goods, the constructive possession apd the property still remain in the vendor.

This was an action of Trespass, tried at the Fall Term, 1841, of New Hanover ¡Superior Court of Law, before his Honor Judge Pearson, in which the plaintiff declared that the defendant had taken possession of and carried away a certain raft of *timber*belonging to *the*plaintiff. It was proven that the timber was sent by the plaintiff to the town of Wilmington for sale ; that the owners of the Clinton Steam Saw Mill had bargained for the raft of timber with the agent of the plaintiff, and had agreed to pay him four dollars per thousand feet; that at the time *the*bargain was made the timber was lying in the river, and was afterwards put in the timber pen, where all the timber belonging to the mill was kept, to be inspected ; but the next day, before it was inspected, the timber was taken away, in consequence of which the owners of the mill did not pay or offer to pay for it. The defendant contended that from this proof the plaintiff had parted with his title to the timber, and the possession was in the owners of the mill, and that consequently he could not recover. His Honor was of opinion that there were no such sale and delivery as passed the title out of the plaintiff, and so instructed the Jury. And evidence [having been given to prove the taking by the defendant, the Jury returned a verdict for the plaintiff. A rule for a new trial was discharged, and from the judgment rendered, in pursuance oí the verdict, the defendant appealed to the Supreme Court.

*¡Strange,*for the plaintiff,

contended that the delivery was *37not complete, as something further was to be done, and cited Chitty on Contracts 108. Long on Sales 160.

No counsel appeared for the defendant.

Daniel, J.

The owners of the Saw Mill agreed to give the plaintiff four dollars per thousand feet for his raft of timber, when inspected and measured. The timber was impounded, to secure it against the dangers of the river, and to have it ready for inspection and measurement. When it was placed in the pen, it was not intended to be an absolute delivery ; the constructive possession was still in the vendor; there remained something to be done by the vendor, to wit, to have it inspected and measured. It is a well settled rule of law that the vendee’s title to the property is not complete by force of a contract of sale, if any thing-remain to be done on the part of the seller to ascertain the price, quantity, or individuality of the goods before delivery : thus if a portion of a larger quantity be sold and cannot be ascertained without weighing or measuring, or other act separating and distinguishing it from the rest, the purchaser has no title, till his portion has been set apart. *Burk*v *Davies,*2 Maul. & S. 397. *Austin*v *Craner,*4 Taunton, 644. *White*v *Wilks,*5 Taunton, 176. *Simmons*v *Swift,*12 Eng. C. L. R. 388. Judge Kent says, it is a fundamental principle, pervading everywhere the doctrine of the sales of chattels, that if the goods be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller, until the specific property be separated and identified. 2 Kent’s Com-496.

We are of the opinion that the charge of the Judge below was correct, and that the judgment must be affirmed.

Per Cueiaw. Judgment affirmed.