#### Daniel G. Bradley *et al.*plaintiffs and respondents, *vs.*Bethuel C. Wheeler *et al.*defendants and appellants.

1. In contracts for the sale of goods, which are capable of a partial physical performance, a delivery and acceptance of part renders the contract binding on both parties. Such a delivery and acceptance brings the case directly within one of the exceptions of the statute of frauds, in relation to such contracts, and it is not affected by such statutes,

2. Where property agreed to be sold is destroyed by fire, before the completion of a change of possession of the whole, the loss must fall upon the party who had the *title*to it, as owner, at the time of its destruction.

3. If nothing remains to be done, by the vendors, either to ascertain the identity of the property, its quantity or quality, or to put it in a condition to be delivered according to the terms of the sale, it is a complete sale, and both title and risk are transferred to the purchasers. A complete transfer of possession is not necessary. The title passes without it as well as-with it.

*4.*In an action for the price of a cargo of hay, on board a vessel, boughjb by the .defendants of the plaintiffs by weight, where the marks on .the bales were *19agreed to be taken as such weight, making a fixed deduction therefrom, and the buyers had indicated how and where it was to be delivered by the vessel in which it was, being placed along side of another vessel, where they promised to take care of it, and a person on their behalf had superintended the transferring of the cargo from one vessel to the other, which was partially completed but both vessels and cargo were destroyed by an accidental fire before its completion. *Held*that the defendants were liable for the price of the whole cargo, where the jury, upon conflicting evidence, found that according to the terms of the contract, nothing remained to be done by the plaintiffs to perform it except placing one vessel along side of the other; that the subject of sale was the entire cargo, and the weight, was to be determined by the marks on the bales ; and that there was no agreeement for any inspection of the hay.

5. *Held, also,*that this was a clear case of a completed sale, and the title to the property was in the defendants, at the time of its destruction. Barbour, J. dissented.

(Before Barbour, Moneel and Garvín, JJ.)

Heard January 11, 1866 ;

decided March 12, 1866.

This action was brought to recover the price of a quantity of hay sold by the plaintiffs to the defendants. The complaint alleged a sale and delivery of 1179 bales of good hay, and 30 bales of clover. The answer admitted the sale and delivery of 122 bales of hay, and 14 bales of clover, the price of which was admitted to be due to the plaintiffs. But denied every other allegation in the complaint.

The action was tried before Justice Garvin and a jury. It was proved on the part of the plain tiffs-that on the 8 th or 9th of December, 1863, a cargo of hay, belonging to the plaintiffs arrived in the city of New York, at pier 43, North river, on board of a barge, (Norfolk.) That one of the plaintiffs met one of the defendants upon the pier, and told him they had a cargo of hay, and the defendant asked what he would take for it. That the hay was open on the deck of the barge and no covering upon it. That the defendant, upon being asked by the plaintiff what he would give for it, said he would give $1.30 a hundred weight for all the good shipping hay, and $1, for all the clover hay. The defendants to take the marks on the bales as their weight less five pounds per bale. The offer was accepted by the plaintiffs. A witness for the plaintiffs testified that he asked one of the defendants *20where he would have the hay. and that pointing to a schooner near by, he said “ put your hay along side that schooner, and we will take care of it; ” or, “ I will take care of it; ” or, “ I will send a man around to take care of it.” That the barge was thereupon placed along side of that schooner. That a man (named Rixford) came there on behalf of the defendants and commenced to keep an account of the hay as it was taken from the barge by the men on board of it and put upon the schooner. That Rixford directed what bales should go on the schooner, and what should remain for a short time. It was further proved that while Rixford and the laborers were engaged in transferring the hay to the schooner, a fire broke out at a place about 200 feet to the northward of where the barge lay, which spread and burned up the schooner, barge and hay. At the time of such destruction by fire, 122 bales of hay and 14 bales of clover had been transferred from the barge to the schooner. Eo memorandum of the agreement for the sale was ever put in writing.

The defendants introduced much contradictory evidence as to the contract between the parties, and the manner of delivering the hay. The defendants themselves testified, substantially, that the *plaintiffs*were to deliver the hay on board the schooner. Some evidence was also admitted tending to show that the defendants intended that the hay should be inspected, but that was not found to have been a part of the bargain.

The presiding justice charged the jury, (amongst other things) that if they found that the contract *“*was to pay so much for the hay, and the defendants were to take the whole barge load, and it was to be delivered along side of the schooner in the barge, and that a part of it was delivered and accepted by the defendants, that was the fulfillment of a valid contract, for a breach of which the plaintiffs would be entitled to recover. The rule is that where something is to - be done by the seller, to ascertain the identity, quantity or quality of the article sold, or to put it in the condition which the terms of. the contract require, the title does not pass. But ifj on the contrary, there is nothing to be done on the part of the sellers *21to. ascertain its identity, its quantity or its quality, or to put it in the condition the contract requires before delivering, the title does pass, and the plaintiff’s would be entitled to recover.” And the court left it to the jury to determine, upon the evidence, what the contract was; whether any thing remained to be done by the plaintiffs to ascertain the identity, quantity or quality of the hay, or to put it in the condition the contract required, before delivery ; and whether it was agreed that the delivery should be by merely placing the barge along side the schooner, or, whether the plaintiffs were to put it on board the schooner. It was also left to the jury to say whether Rixford was' there simply to arrange and keep an account of the hay, or whether it was part of the bargain that he should inspect the hay.

The defendants’ counsel requested the court to charge : *First,*that an action for goods sold and delivered could not be sustained, where there had not been an actual delivery. *Second,*that there was no delivery of the hay, except that which was placed upon the schooner. *Third,*that when goods are purchased for shipment, the place designated by the purchaser is the place of delivery, and no title passes until an actual delivery. And *fourth,*that the delivery of a portion of the property did not take the case out of the statute of frauds. The court refused so to charge, and the defendants excepted. No exception was taken to the charge actually given. The jury found for the plaintiffs $4380.76. A motion for a new trial was made upon the justice’s minutes and denied, and judgment entered upon the verdict.

The defendants appealed from the judgment and order denying a new trial.

*G. Dean,*for the appellants.

I. The judge erred in his instructions to the jury in regard to the statute of frauds. As there was no written contract and no payment at the time the contract was made, and no delivery at the time of making the contract, there can be no pretense that the title passed before the barge got to the place *22where the hay was to be delivered. (2 *N. Y. Stat. at Large,*140. 2 *R. S.*136.)

*(a.)*The rule is fully settled and invariablé, that where any thing remains to be done to ascertain quality, quantity or identity, the title does not pass. (19 *Barb.*416, 427. 2 *Kent’s Com.*495, 496. *Terry*v. *Wheeler,*25 *N. Y. Rep.*520.)

*(b.)*In this case no-quantity had been fixed, and an examination of marks was necessary, and a calculation to fix the quantity and the amount to be paid for the hay included in this contract.

(c.) The plaintiffs were bound to deliver' the hay on board the schooner designated by the defendants, and until such delivery no title- passed, provided a part delivery is not to be construed as passing the title tó the whole. •

(d.) The plaintiffs have admitted, by taking the barge around to the schooner designated, and by being engaged at the time, at their own expense,_ in delivering the hay from the barge on board the schooner, that they were bound by the contract to make such delivery at their own expense on board the schooner.

II. The judge erred in his> refusal to charge as requested. *Second, third, fourth, fifth, sixth, seventh, eighth*and *ninth*requests.

III. The verdict was clearly against evidence, and against the charge of the court. There was something to be done by the vendors. They were to produce the hay to Eixford—have the weight examined, the two kinds of hay separated, and the bales counted, the deduction made, and the hay placed at the expense of the vendors from the barge to the schooner.

*L. B. Woodruff,*for the respondents.

The exceptions taken at the trial were of two classes ; first, to the ruling of the court in rejecting evidence offered by the defense ; and, secondly, in refusing to instruct the jury in accordance with specific requests made by the defendant’s counsel.

I. The first exception in the case occurs at folio 74. The defendant there offered to show a custom in the port of Hew *23York that hay should be inspected before delivery. The evidence was properly rejected.

1. The existence of a custom that hay should be inspected was wholly immaterial and irrelevant. The.terms of the contract were specific, definite and precise, and must operate according to their legal signification and effect, irrespective of any custom, or even in opposition thereto. The contract was not to deliver hay of a particular description and quality, nor was it in any sense an executory contract. The hay was “ in plain sight,” and *“*the whole cargo ” was taken “ at the weight marked on the bales, deducting five pounds for each bale.” “ He said he would give $1.30 for the good and shipping hay, and $1 for the black clover hay ; that he would take the whole cargo ; and I told him it was a bargain.” “ I asked him if he would not go round and see it, and he said no.”

2. The offer was not to show the existence of a custom which required any thing to be done *by the vendor*in ascertaining or determining the quality, quanity, or identity of the article sold. A customary inspection by *vendees,*before delivery, cannot be material. The rule of law, *caveat emptor,*requires inspection by the vendee, and custom cannot add to or vary that rule. His omission to inspect will not enable him to avoid or rescind his purchase in case of a patent defect.

3. The offer was unaccompanied by any proposal to show that the plaintiffs had notice or knowledge of the alleged custom.

II. The request for a peremptory instruction to the jury to *“*find a verdict for the amount that was put on board the sloop, as stated in the defendants’ answer, and that the plaintiffs could recover no more,” was properly denied.

1. The defendant’s answer contained no statement of any such amount, nor any reference thereto.

2. There was no evidence confining or tending to confine the . quantity of hay actually delivered on board the defendant’s schooner within the limits specified by the admission in the answer.

3. The only appropriate instruction, at this stage of the case, *24would have been that the plaintiffs were entitled to a verdict for the full amount of their claim. But the defendants had not rested their case, and no instruction' was in order.

III. The charge of the judge fairly submitted to the jury every question of fact in the case, and their verdict is conclusive. No appeal from the order denying the defendants’ motion for a new trial has been taken, and exceptions only can be reviewed on this appeal. The charge was in accordance with the law, and no exception was taken to any of its propositions. The principles governing the case were fully and correctly stated. The -several propositions involved in the defendants’ requests are either in conflict with these principles or inapplicable to the case, and each of them is untenable.

.1. The removal of the barge from its anchorage in the stream to a berth alongside the schooner, pursuant to the defendants’ request, placed the entire property at their disposal, and operated as an actual delivery of the entire cargo. • *(Stanton*v. *Small,*3 *Sandf.*230.)

2. The manual delivery of a portion of the cargo was tantamount to delivery of the whole. *(Blakey*v. *Dinsdale, Cowp.*661. *Slubey*v. *Heyward,*2 *H. Bl.*504. *Hammond*v. *Anderson,*4 *Bos. & Pul. 69.)*

*3.*Such delivery of part of the cargo (not subsequently to the contract, as suggested by defendants’ counsel, but immediately and as part of the transaction,) took the case out of the statute of frauds. *(Hinde*v. *Whitehouse,*7 *East,*558. *Sprague*v. *Blake,*20 *Wend.*61. *McKnight*v. *Dunlop,*1 *Seld.*537.) But part delivery, though it be subsequent to the making of the contract, has the same effect. *(Id.)*Indeed, by the statute itself the contract is valid and effectual wherever “the buyer shall accept and receive part of the goods.” (2 *R. S.*136.)

4. Save for its effect upon the validity of the contract with reference to the statute of frauds, the question of delivery is wholly immaterial. Title, not possession, determines the risk. “ *Perieulum rei venditce, nondum traditce, est emptoris.”*(2 *Kent’s Com.*498, *and cases cited.)*This doctrine has been so long settled as to have passed into the elementary maxims *25of the law. It is found in *Noy’s Maxims, page*88, in these terms : “If I sell my horse for money, I may keep him until I am paid ; but I cannot have an action of debt until he be delivered ; yet the *property*of the horse is *by the bargain*in the bargainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse, or may have an action of detinue.”

“ And *if the horse die in my stable between the bargain and delivery,*I may have an action of debt for. my money, *because by the bargain the property was in the buyer.”*

5. The question of title has been distinctly and conclusively passed upon by the jury, under the true test submitted to them by the court. “ The only question here is, who had the title to the property at the time it was burned up—not who had possession, but who had title.” And “ the rule is that where something is to be done by the seller to ascertain the identity, quantity and quality of the article sold, or to put it in the condition which the terms of the contract require, the title does not pass. But ifj on the contrary, there is nothing to be done on the part of the sellers to ascertain it, identify its quantity or quality, or to put it in the condition the contract requires before delivery, the title does pass.” This is the true rule, and the defendants’ requests are in conflict with it. *(Terry*v. *Wheeler,*25 *N. Y. Rep.*520, *and cases cited.)*

6. As regards the sixth request submitted by the defendants’ counsel, it may well be insisted, as above, that the proposition is untenable *in the terms used,*because, under the rule just stated, it was immaterial whether the *defendants,*by the contract, were to inspect the hay before delivery.” But this request was renewed, under a somewhat different form, and the court charged substantially as was requested.

7. Upon the instruction of the court, with regard to the reservation of a right to sell the clover at retail, the jury found that *there ivas no such reservation,*and the refusal to charge in the terms of the seventh request is therefore immaterial. The judge charged that “ the title to the good shipping hay would pass independent of the clover,” which is correct. The *26defendants’ proposition is erroneous. The title to the whole would pass, subject to the exercise of the reserved right, which would operate as a defeasance *pro tanto.*It was at best a mere privilege or option, not exercised. In any event, the terms of the request were untenable, and the jury have found in effect that such reservation was not in the contract of sale.

■Moneli, J.

'It is conceded that the contract was a sale and purchase of *all*the hay and clover on board of the barge, and that a portion of it was put on board the schooner, which, it is claimed by the defendants, was the place designated by them for the delivery, and was there *accepted*by the defendants.

In contracts for the sale of goods, which are divisible and capable of a separate physical performance, the clear weight of authority is, that a delivery and acceptance of part, renders the contract valid. *(Seymour*v. *Davis, 2 Sandf. S. C.*239. *Deming*v. *Kemp,*4 *id.*147. *McKnight*v. *Dunlop, 5 N. 7. Rep.*537. *Catlin*v. *Tobias,*26 *id.*217.) Such, indeed, is the exception, by the express terms of the statute. (2 *R. S.*136, § 3, *sub.*2.) The delivery and acceptance of a part of the hay brought the case directly within the exception, and the contract was not, therefore, affected by the statute of frauds.

Upon which of these parties the loss of the property destroyed by fire should fall, depends upon who had the *title*to it at the time of its destruction. If nothing remained to be done by the sellers, either to- ascertain the identity of the property, or its quantity, or quality, or to put it in a condition for sale, then it, was a complete sale, and the title and risk then resided in the purchasers. A delivery was not essential; and the title passed as well without as with the possession, or the right to the possession. *(Olyphant*v. *Baker,*5 *Denio,*379*Crofoot*v. *Bennett, 2 Comst.*258. *Joyce*v. *Adams,*8 *N. 7. Rep.*291. *Wooster*v. *Sherwood,*25 *id.*278. *Terry*v. *Wheeler, Id.*520.)

So far as there were any disputed questions of fact necessary" to be determined in order to ascertain whether the sale was completed, such questions were submitted to the jury, under the instruction to find for the plaintiffs, if they believed the *27sale was completed, and the jury have found in favor of the plaintiffs on all such questions. Thus they have found that by the terms of the contract, nothing remained to be done by the plaintiffs, except to put the barge alongside the schooner, which was done. They found the goods were sufficiently identified, and that the. defendants were to accept the weight marked on the bales, less five pounds each. And they have also found,'that it was no part of the contract that the hay was to be inspected, And the jury thus found, upon conflicting evidence.

This, then, was a clear case of a completed sale, and the title to the property was in the defendants at the time of its destruction. In *Olyphant*v. *Baker, (sup.)*the contract was for the sale of a quantity of barley, at a certain price per bushel, and it was to be weighed or *taken at the iveight stated on the plaintiff’s hooks,*and it was held that the quantity being thus ascertained, nothing further remained to be done, and the title passed to the purchaser. But Strong, Justice, in *Crofoot*v. *Bennett, (supra,)*goes much farther, and says : *“*If the goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them, in order to ascertain what would be the price of the whole, at a rate agreed upon between the parties, the title will pass.

The agreement here was that the purchasers were to take the hay at the weight marked upon the bales, less five pounds on each bale. The hay was not to be weighed. It consisted of an *entire cargo,*and was, therefore, plainly identified. There was no separating of a part from a bulk. *(Field*v. *Moore, Lalor’s Sup.*418.) In short, there was nothing for the plaintiffs to do, except to put the barge alongside the defendants' schooner.

But it was said, that as the purchase was of good shipping hay, the defendants had a right to have it inspected, or examined, for the purpose of seeing that the hay was of the required quality. It is enough, perhaps, to say that such inspection formed no part of the contract. The defendants, doubtless, had the right to examine the hay, and were not *28bound to receive any not of the quality represented. With that, however, the plaintiffs had nothing to do. It was not a condition of the sale, and imposed no duty or obligation on them. If this hay was not good, it might be rejected, but in ascertaining whether it was good, the defendants were the actors, and the plaintiffs had nothing to do with it. So, again, it was the right of the defendants to keep the tally of the weight, for their own information and satisfaction. The plaintiffs had already done that, and were informed and satisfied, and there was, therefore, nothing for the plaintiffs to do in ascertaining the weight.

Under the evidence, therefore, and the finding of the jury upon it, this seems to me a clear case of a completed sale, and, hence, the requests to charge were properly refused.

The evidence upon which the jury found the facts against the defendants, was conflicting, and their verdict cannot be disturbed.

I am in favor of affirming the judgment, and order.

Barbour, J.

(dissenting.) This action was brought to recover the price of 1227 bales of hay, alleged in the complaint to have been sold and delivered by the plaintiffs to the defendants. The answer admitted the sale and delivery of 122 bales, and •contained an offer to pay therefor, with interest and costs to that time, but denied as to the remainder.

Upon the trial, the testimony showed that the plaintiffs had a cargo of hay, consisting, in fact, of 1227 bales, in the barge Norfolk, lying off the' Charles street pier, a portion of which was piled upon deck, and the remainder, some 500 bales, was in the barge’s hold, the hold being full, and each bale being marked, upon one of the slats, with its weight; and that a bargain was then made between the plaintiffs and the defendants for the sale and delivery of the hay to the latter.

The case shows that the witnesses differed somewhat, in regard to the terms of that bargain. All agree, however, in stating that the price fixed was $1.30 per hundred pounds for good shipping hay, and one dollar a hundred for the clover ; *29the weight to be ascertained by deducting five pounds from the weight marked upon each bale.

■ One of the plaintiff's, of record, being the one who made the bargain on their behalf, testified that, after the price had been agreed upon, he asked the negotiating defendant “ where he would have the hay ?” and that he replied, pointing to" a schooner, “ put your hay alongside that schooner, and we will take care of it,” or, “ I will take care of it,” or, “ I will send a man around to take care of it.” The witness subsequently stated, “ I am certain he said he” (the defendant) “ would send a man around ;” and he was further examined and testified as follows :

> Ques. “ Who was to take the barge to the schooner ?”

> Ans. “ We were to do that.”

> Ques. “ That was in the contract ?”

> Ans. “Tes, sir; he told us to take the barge to the schooner, and we did so.”

> Ques. “ Who was to take the hay off your barge and put it on the schooner ?” .

> Ans. “ The men that worked for us on the barge.”

> Ques. “ I understand that the men in your employ were to put it on board the schooner, and they did so, all that was put on board ?”

> Ans. “ Tes, sir; I think they did so ; they did.”

The other plaintiff, substantially, corroborated the evidence of his partner in regard to the terms of the bargain, and also testified with the aid of his own memorandum, that he tallied the hay when put on board the barge at Albany, from the marks upon the' bales, and proved the quantity of each kind, as stated in the complaint.

Hone of those facts were controverted by any other witness, except that the defendant who made the bargain, on behalf of his firm, with another witness, testified that the sale of the clover hay was not absolute, but that the plaintiffs reserved to themselves the right to retail the same or any part of it, at a price exceeding a dollar per hundred, and that it was agreed *30that the defendants should take .what should remain unsold by the plaintiffs.

■ It was also proved, without contradiction, that, immediately upon the closing of the bargain, the defendants directed a man, (Mr. Rixford,) in the presence and hearing of the plaintiffs, to go" and “ inspect the hay,” or, “ to attend to it,” that Mr. Rixford, accordingly, went on board, and “tallied” the hay by taking the weights marked upon the bales as they were rolled from the barge to the deck of the schooner; that, after 122 bales of shipping hay had thus been transferred to the schooner, a fire, breaking out in the vicinity, swept over both vessels, and entirely consumed them, with their contents.

That evidence, thus uncontradicted, established the fact, I think, beyond controversy, that it was understood and agreed by the parties to the bargain, and as a part thereof, *first,*that the barge should be placed alongside the schooner by the plaintiffs ; *second,*that the hay should be put on board the schooner from the barge by them ; *third,*that, as the hay was thus placed on the schooner by the plaintiffs, the defendants’ man, (Mr. Rixford,) was to take care of it for them, by taking a tally of the hay, from the marks upon the bales, as it was put on board *;*involving, of course, the making of such a list or tally as would distinguish the good shipping hay from the clover.

I have been thus particular in stating the evidence and my conclusions thereupon, for the reason, *first,*that the judge charged the jury, in effect, that if there was anything, under the contract, remaining to be done by the vendors when the fire occurred, the title did not pass ; and secondly, no exceptions were taken to the charge of the court; and because the only exception to a refusal to charge as requested; that requires more than a passing consideration here, was an exception to the refusal of the court to charge the jury “ that the plaintiffs can only recover for the hay actually delivered on board the schooner ; ” a request that covered the entire controversy between the parties, and which would have been, if complied with, equivalent to a direction to find a verdict according to *31the theory of the defendants’ answer. The question, then, so far as concerns that exception, is, whether the defendants were entitled, upon the uncontroverted evidence, to such a verdict.

A rule of the civil law, which has been incorporated in the French Code, is thus stated ; *“*Where goods are sold, not being the whole of an entire lot or parcel, *(ne sont pas vendues*’ era *bloc,)*hut by weight, count, or measure, the sale is perfect only in the sense that the things sold are at the risk of the vendor until they are weighed, counted, or measured; but if an entire lot or parcel has been sold, *(marchandises vendues*era *bloc,)*the sale is perfect, although the goods have not yet been weighed, counted, or measured.” ' *(Code civ. de Fr., liv.*3, *tit.*6, *c.*1, *art.*1585, 6.) But that arbitrary distinction, although it would, doubtless, have prevented an enormous amount of litigation, has never been recognized either in England, or with us ; the common law rule being that although a contract for the sale of goods be complete and binding in other respects, the property in them remains in the vendor, and they are at his risk, so long as any thing remains to be done under the contract of sale, as between him and the buyer. It is the delivery of the goods, with us, that completes the contract of sale, and vests the title thereto in the purchaser ;• until which event, if postponed, the contract to sell and buy is but a mere executory agreement. If, therefore, (without enumerating other instances not directly pertinent to this case,) the vendor is, by the agreement of sale, to remove the goods to a certain place, where the purchaser is to receive them, the title does not pass at the time of the making of such agreement, nor until the goods are so transferred. So, too, if goods are sold by weight, number, or measure, so that the aggregate price to be paid therefor cannot he ascertained until they are counted, weighed or measured, it is held, as a general rule, that the delivery is not made, nor the title passed, before the quantity of the goods sold, and the aggregate price to be paid therefor, shall have been ascertained and determined ; and that, in the meantime, for the purposes of such weight, count, or measure, the right of possession and the ownership remain in the vendor. *32*(Story on Cont.*§ 503 *et seq. Chitty on Cont.*375 *a. Ross on Vendor and Purch.*28. *Long on. Sales,*154. *Outwater*v. Dodge, 7 *Cowen,*85. *Rapelye*v. *Mackie,*6 id. 250. *Russell*v. *Nicoll,*3 *Wend.*112, *Ward*v. *Shaw,*7 id. 406. *Sumner*v. *Hamlet,*12 *Pick. 82. Macomber*v. *Parker,*13 id. 175. *Zaguny*v. *Furrell, 2 Camp.*240, *n. Rugg*v. *Minett,*11 East, 210. *Wallace*v. *Breeds,*13 id. 522. *Simmons*v. *Swift,*5 5. (6 *Cress.*857. 2 *Kent’s Com.*495, 6. *Joyce*v. *Adams,*8 N. Y. Rep. 291. *Terry*v. *Wheeler,*24 id. 520.)

The rule that no title is vested in the buyer, before the goods are removed by the vendor, or, until they are weighed, &c. where they are sold by weight, measure, or count, is however, applicable and conclusive only in cases in which the evidence to be found in the contract, considering the condition of the goods and the acts remaining to be done, is insufficient to show that it was 7/ie *intention of the parties*that the right of possession and ownership of the goods should be vested in the purchaser immediately upon and by the making of the agreement of sale. Where that fact clearly appears, the rule in question is inapplicable. *(Riddle*v. *Varnum,*20 *Pick.*280. *Kelley v. Upton, 5 Duer, 336.)*

There is also another rule to be considered in this case; which is, that where, the seller has done everything that is required of him as to a portion of the goods, but something still remains to be done before delivery, as to the rest, the goods which have been separated and designated by the performance of the required acts, become the property of 'the buyer, and are at his risk ; but the part in respect to which something remains to be done, is at the risk of the seller, and, as to them, the sale is incomplete.

In *Crawford*v. *Smith,*(7 *Dana,*59,) where a country merchant sold his whole stock at cost and carriage, and seven and one half per cent advance, and he and the purchaser commenced measuring and invoicing the goods, laying them by as they progressed, but, before they had finished, a thief broke into the store and stole some that were invoiced and laid away, and some that were' not, it was held that such of the stolen *33goods as were not measured and invoiced, remained the property of the seller ; but that those which had been measured, invoiced, and laid aside, had become the property of the purchaser, unless it was the intention of the parties that the goods should be weighed to ascertain the carriage. *(See also, Hanson*v. *Meyer,*6 *East,*614; *Rugg*v. *Minett,*11 *id.*210; *Simmons*v. *Swift,*5 *Barn. & Cress.*857.)

There is no difficulty in this case, arising from the fact that the number of the bales of hay, of each quality, and the weight thereof, as marked upon each bale, had not been ascertained by both parties, by actual examination, before the fire occurred. For, the vendors had taken a correct account, and knew how many bales there were, and their weight and description, and informed the buyers of all that at the time of the making of the contract. The sellers, therefore, did not need to take another account of those matters ; and, for that reason, the jury might well have arrived at the conclusions, upon the evidence, that there was nothing, in that regard, remaining to be done, as between the parties, after the contract of sale and before, delivery. The buyers, certainly, had a right, for their own satisfaction, to examine the hay, bale by bale, to ascertain whether the statement touching the number, weight, and quality, which had been made to them by the sellers, was correct or not, and to take a tally and account. But the vendors, although they were entitled to • be present and to participate in the taking of such account, were not bound, as between seller and purchaser, to do so; but might, at their option, waive the exercise of such *right;*and they not only did so by omitting to appear and take a part in such examination, but the buyers seem to have acquiesced therein by taking the account in their absence.

But the question as to where and how the hay was to be delivered to the purchasers under the contract, as it was understood by both parties, is of quite a different nature. Even if no express provision had been made in the contract itself in that regard, the facts that five hundred bales of the hay were stowed away in the barge’s hold, where it must have *34been impossible for the' buyers to reach and examine every bale, with the marks thereon, for the purpose of ascertaining the quality and quantity of the hay, even if they might have examined and taken an account of the seven hundred bales which were piled upon her deck, and that it was well understood between the parties that the hay was to be transferred, from the barge to the schooner, bale by bale, coupled with the further fact that the vendors, through their employees, actually transferred all that was placed upon the schooner, were, certainly, sufficient, in the absence of any evidence leading to a different conclusion, to justify the jury in finding that the vendors were, under the contract, as it was understood and acted upon by both parties, to make such transfer ; even if a finding to the contrary, if it had been made, ought not to have been set aside as against the evidence. Let that be as it may, however, the clear, positive, and uncontradicted evidence of the plaintiff Sutherland, himself, shows, not only that the vendors were, by the contract of sale, to remove the hay from the barge to the schooner, but that they, through their employees, were actually engaged in doing so when the fire occurred. This, taken in connection with the further facts in the case, above adverted to, conclusively proved that the plaintiffs were to deliver the hay by transferring it, bale by bale, from their barge to the. schooner of the defendant, and that they did so transfer and deliver 122 bales and only that number. The jury, therefore, were required by the direction which was given to them by the court, touching the question of delivery, to find a verdict for the plaintiff's for the value of the 122 bales, and no more; and their verdict having been rendered in favor of the plaintiffs for the entire amount claimed by them, the judgment thereupon entered must be set aside, because such verdict was contrary to the charge of the court.

It follows, of course, that the court erred in refusing to charge that the plaintiffs were only entitled to recover for the hay actually delivered on board 'the schooner.

Except for the question of .costs, it would be quite immaterial whether the error for which "the judgment is reversed, *35was that of the court, or of the jury. But where the judgment appealed from is reversed, for the reason that the verdict is contrary to the charge, the costs of the appeal are charged to the appellant, while the costs of appeal on reversal because of an error of the court, are awarded in his favor. In this case, neither of those" rules can, properly, prevail.

The judgment should be reversed, and a new trial directed, with costs of appeal to the party who shall eventually succeed upon the issues; unless the plaintiffs shall, within ten days from the service of the order to be entered hereupon, elect to reduce the damages in the judgment to the value of the 122 bales of hay which were delivered, with interest, to be ascertained and fixed by the contract, and the testimony of Mr. Rixford, at fol. 114 of the case ; in which event, the judgment should be amended accordingly ; but no costs on appeal ought to be given to either party.

Judgment and order affirmed.