Horr v. Barker

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The only question in this case is, whether the charge of the Court below was correct. ' And the solution of this question will depend upon whether the title to the flour passed from West to the several purchasers.

The delivery by accepted orders upon the warehousemen, would have been clearly sufficient, had the property been segregated. Story on Contracts, § 792; 5 John. R., 335; 3 Caines R., 132.

If the whole lot had been sold to the same person, the delivery would have been sufficient. What difference then will it make in principle when the whole lot is sold to different persons in different parcels ? Suppose that West had drawn but one order, directing his warehouseman to deliver so many barrels to the first,

- so many to the second, and so many to the third party ? Would the title then have passed ?

It is laid down in general terms that no sale of goods is complete so long as anything remains to be done between the buyer and seller. “ The goods sold,” says Mr. Justice Story, “ must be separated, and identified by marks or numbers, so as to be completely distinguished from all other goods, or from the bulk or mass, with which they happen to be mixed. If they bp sold by weight, or measure, or number, the specific quantity must be weighed, or measured, or counted, so as to be separate and distinct from all other similar goods.” Story on Sales, § 296.

The language in which this general rule is expressed would seem to include the principle of the present case. But upon an examination of the cases put by the learned author» in illustration of the rule, the precise application of it is shown not to [608]embrace the facts of this transaction. In the first instance put by him, the starch had to be weighed to ascertain the quantity; in the second, the skins had to be counted to see whether each bale contained the agreed number, and in the third, the ten tons of hemp had to be weighed from a mass containing thirty tons. All these cases are clearly distinguishable from this case.

When the vendor sells an entire lot of articles, not knowing the number, and at a certain price per article, then a count must necessarily be made, before the seller has done all that was material for him to do. So, when an entire lot is sold at so much per pound, or so many pounds out of a larger quantity, and there has been no weighing done, so as to ascertain the quantity in the first case, or to separate the portion sold from the larger mass, in the second instance, there is no delivery; especially, when the property remains in the possession of the seller.