in other particulars, an important item of the transaction. No time was set for the measurement, or for giving the note, the latter being consequent only on the former; all showing that the contract was but executory in fact and intention. The property therefore remained in the vendor, and the plaintiffs had no legal right to recover its value in trover; property in the plaintiffs being necessary to enable them to do so. They were at no time debarred from suing for damages for a breach of the contract, if any such had occurred. We think the court below were right in their decision, and this judgment must be affirmed. Judgment affirmed.12 BOSWELL v. GREEN. (Supreme Court of New Jersey, 1856. 25 N. J. Law, 390.) 13 POTTS, J.18 This was an action of replevin, brought by Edward M. Green against William Boswell, sheriff of the county of Mercer. Boswell, by virtue of executions in his hands, seized a lot of coal, lying at the coal yard of Fish & Co., as the property of Dewar, Mein & Kay, the defendants in execution. Green thereupon issued his writ of replevin, claiming to have purchased the coal from Dewar, Mein & Kay. The sheriff gave the usual bond; the coal was left in his possession, and subsequently sold for the benefit of the execution creditors. On the trial, the verdict was for Green, the plaintiff, and the jury assessed his damages at $2866.43 and costs. The several matters assigned as errors will be noticed in the order in which they were discussed on the argument. V. Another ground of error assigned is, that the court charged the jury, "that it was not necessary to pass the title to the coal, that the whole quantity should be ascertained; and that the title to the coal, if the jury believed the witnesses, did vest in the plaintiff before the aggregate price was known; and that the coal was not till then at the risk of the seller, but at the risk of the said Green, after the delivery by J. S. Fish & Co.;" whereas the judge ought to have charged, that it was necessary to pass the title, that the whole quantity of coal should be ascertained, and that the title did not vest in the plaintiff before the aggregate price was known, and that there was no delivery by Fish & Co. 12 Perhaps the leading American case in support of the rule of Hanson v. Meyer is Lingham v. Eggleston, 27 Mich. 324 (1873), in which Cooley, J., in a longer opinion, quotes Blackburn's criticism of the rule, and says: "But the authorities are too numerous and too uniform to justify citation, which hold that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted." 13 The statement of facts and part of the opinion are omitted. The quantity of coal was not ascertained at the time of the making and delivery of the bill of sale of the 6th September.14 It lay on the wharf of Fish & Co. All that Kay, in the name of the firm, did was to deliver the paper, at the time it was signed, to Green. Fish says: "On the morning of the 6th September, Green called on me with the order of that date. I told him I had no objection to giving the coal to him, subject to the claim of Fish & Co. for $108.18 for wharfage. I gave him possession, subject to our claim, by signing at the foot of the order this note: 'Possession delivered of the above mentioned coal in compliance of the above order, subject to a payment of $108.18 for unloading and wharfage on this coal. September 6, 1854. J. S. Fish & Co.'" The coal remained where it lay, and on the morning of the 7th was levied on by the defendant under the executions in his hands, and subsequently sold by him, to wit, 464 tons of egg coal, 133 tons of chestnut, and 251⁄2 tons of stove coal. The sheriff paid Fish & Co. the $108.18 the morning after the sale. These are substantially the facts proved. The question is, was the sale and delivery to Green complete, so as to vest the title in him on the 6th September? The defendant's counsel insists it was not, and the title did not vest, because the quantity of coal had not been ascertained. There is abundant authority for the doctrine that the property does not pass absolutely unless the sale be completed; that it is not completed until the happening of any event expressly provided for, or so long as anything remains to be done to the thing sold to put it into a condition for sale, or to identify it, or discriminate it from other things, or to determine its quantity, if the price depends on this, unless this is to be done by the buyer alone. 1 Parsons on Cont. 441; Simmons v. Swift, 5 Barn. & Cress. 857; Alexander v. Gardner, 1 Bingham's N. C. 671, per Justice Park; Swanwick v. Sothern, 9 Adol. & Ellis, 895, per Lord Denman; Hanson v. Meyer, 6 East, 614; Rapelye v. Mackie, 6 Cow. (N. Y.) 250; Outwater v. Dodge, 7 Cow. (N. Y.) 85; Ward v. Shaw, 7 Wend. (N. Y.) 404; and see cases collected in Ross on Contracts, p. 1, etc. But these are all cases upon the construction of contracts, where the intention of the parties was the real question in controversy. Where it is clear, by the terms of the contract, that the parties intended that the sale should be complete before the article sold is weighed or measured, the property will pass before this is done. Tarling v. Baxter, 6 Barn. & Cress. 360, per Bayley, J.; Logan v. Mesurier, 6 Moore's P. C. Cases, 131, per Lord Brougham; Riddle v. Varnum, 20 Pick. 14 The bill of sale was as follows: "This is to certify, that Edward M. Green has this day purchased of us all the coal, our property, now on the wharf of Jona S. Fish & Co. at $4.70 per ton for the egg and stove coal, and $4 for chestnut; and we hereby direct the said Jona S. Fish & Co. to deliver possession of said coal to said Green. "Dated Sept. 6, 1854. Dewar, Mein & Kay." WOODW.SALES (2D ED.)-3 (Mass.) 280. It must be so. There is nothing illegal in such a contract; and where contracts are legal, made in good faith, and not contrary to public policy, courts are bound to give them effect according to the clearly expressed intention of the parties to make them. In this case the bill of sale, the order for delivery, and the memorandum of delivery were in writing. The intention to sell and pass the title and possession at the time was clear upon the face of the papers, and was supported by the evidence. The legal inference, from the facts and documents before the court, undoubtedly was that the title passed, and so the court told the jury. There is no error in this. * * * The judgment should be affirmed. The Chief Justice, and ELMER and HAINES Justices, concurred.15 SANGER et al. v. WATERBURY et al. (Court of Appeals of New York, 1889. 116 N. Y. 371, 22 N. E. 404.) Appeal from judgment of the general term of the supreme court, in the second judicial department, entered upon an order made December 14, 1886, which affirmed a judgment in favor of the defendants, entered upon a verdict directed by the court. This was an action of replevin brought to recover the possession of 238 bags of coffee identified and described in the complaint as follows: "89 bags, marked No. 6, H. L. B. & Co., D. B. & Co.; 32 bags, marked No. 8, H. L. B. & Co., D. B. & Co.; 14 bags, marked No. 10, H. L. B. & Co., D. B. & Co.; 29 bags, marked No. 12, H. L. B. & Co., D. B. & Co.; 68 bags, marked No. 14, H. L. B. & Co., D. B. & Co.; 6 bags, marked No. 16, H. L. B. & Co., D. B. & Co." * * * The complaint alleged, and the answer admitted, "that on or about the 22d day of July, 1885, the said goods. were sold by the plaintiffs to the defendants John K. Huston and James E. Huston, * * * on the credit of sixty days for one-half thereof, and of ninety days for the balance thereof." It appeared that the plaintiffs, on the 6th day of July, 1885, purchased of Boulton, Bliss & Dallett 605 bags of coffee, then stored with E. B. Bartlett & Co. On the 22d day of July the plaintiffs sold the 238 bags of coffee hereinbefore referred to to J. K. Huston & Co., of Philadelphia. That firm, on the 24th day of July, upon the security of the coffee thus purchased, borrowed from the defendants Waterbury & Force $2,300, and then transferred the coffee to them. On July 27th following, said firm failed, making a general assignment. On the next day, the plaintiffs commenced this action, by means of which the coffee was taken from the possession 15 See, also, Allen v. Elmore, 121 Iowa, 241, 96 N. W. 769 (1903), in which certain hay was sold, and it was agreed that "it might be weighed, as taken away, on a neighbor's scales." The buyer paid a portion of the purchase price in cash and was to have time for the payment of the balance. Held, the property passed. of Waterbury & Force. The coffee then was, as it had been from the time of the purchase by the plaintiffs, actually deposited in the warehouse of E. B. Bartlett & Co., and had not as yet been weighed. PARKER, J. (after stating the facts as above). The appellants contend that the title to the coffee in controversy did not pass to J. K. Huston & Co., and that therefore the transfer to Waterbury & Force did not vest in them the title or the possession. The sale is admitted; but as the coffee had to be weighed, in order to ascertain the amount to be paid to plaintiffs, it is insisted that the title remained in the plaintiffs. In aid of this contention is invoked the rule that where something remains 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 contract requires, the title remains in the vendor until the condition be complied with. The appellants cite a number of authorities which, they urge, so apply this rule as to make it applicable to the case here presented. It is said in Groat v. Gile, 51 N. Y. 431, that this "rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantity, and is necessary to be identified before it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascertained for the sole purpose of determining the total value thereof at certain specified rates, or a designated fixed price." This distinction is recognized and enforced in Crofoot v. Bennett, 2 N. Y. 258; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Bradley v. Wheeler, 44 N. Y. 495. In Crofoot v. Bennett, supra, the court say: "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." This expression of the court is cited with approval in Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42, in which case, after a full discussion of the authorities, the court approved the rule as laid down in Groat v. Gile, supra. Now applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold; because while, out of a larger lot, 238 bags of coffee were disposed of, nevertheless, as appears from the complaint and the testimony adduced, the bags were so marked that there was no difficulty about identifying the particular bags sold. There remained, therefore, nothing to be done except to weigh the coffee for the purpose of ascertaining the purchase price; for whether the 238 bags of coffee should prove to weigh more or less than the parties anticipated was not of any consequence. Whatever it should prove to be, for that number of pounds J. K. Huston & Co. had agreed to pay. This case, therefore, does not come within the rule contended for by the appellant, but, instead, is governed by the principle enunciated in Groat v. Gile. Having reached the conclusion that the title and the possession passed to J. K. Huston & Co., it becomes unnecessary to consider any of the other questions discussed, for the plaintiff is without title upon which to found the right to maintain an action. The judgment appealed from should be affirmed. All concur. SECTION 3.-"SALE OR RETURN" AND "SALE ON APPROVAL" ELPHICK v. BARNES. (Common Pleas Division, 1880. 5 C. P. Div. 321.) DENMAN, J. The plaintiff in this case sued the defendant for £65., the price of a horse and a cow sold and delivered. The defendant admitted that he agreed to purchase a horse and a cow, but alleged that they were not sold or purchased together at £65., but under two separate and distinct contracts. There was conflicting evidence as to this part of the defence; but, upon the argument before me (there having been no finding of the jury upon the point), it was agreed that I should decide the question; and I found for the defendant, that there were two separate and distinct contracts, the horse being to be sold for £40., and the cow for £25. The latter amount was paid into court; and no question remains for decision except that arising upon the defendant's answer to the plaintiff's demand so far as the price of the horse was concerned. This answer as set out in the statement of defence was as follows: "The price of the said horse was £40., and the plaintiff warranted it sound and well, and it was sold to the defendant on the terms that, if it did not answer the said warranty or suit the defendant, the defendant should be at liberty to reject the same. The said horse was neither sound nor well at the time of the sale to the defendant, but was suffering from internal inflammation, and in consequence of such unsoundness and illness, it died before a reasonable time in which to return the same had elapsed. The defendant, on discovery of the unsoundness, repudiated the contract, and gave notice thereof to the plaintiff." The jury found that there was no warranty of soundness, and that the horse was in fact sound at the time when the bargain was made. But the defendant's counsel at the trial relied not only on a warranty, but upon evidence that the plaintiff, at the time of the bargain being made, had agreed that the defendant might take the horse away and work him, and, if he did not suit the defendant by working in every 16 The Sales Act, § 19, contains no provision corresponding with rule 3 of section 18 of the Sale of Goods Act. 17 The statement of facts is omitted. |