HORR et al. v. BARKER et al., 8 Cal. 603

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 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.

But in this case, West had a certain number of barrels, all of the same kind, in the hands of a third person. When each order was drawn and accepted, and the whole number of barrels charged to West, and the proper number credited to each purchaser, there remained nothing further to be done. The further act to be done, must be necessary, either to ascertain the quantity or number, so that the parties may know what has to be paid by one, and received by the other, or to separate the quantity from the mass. If the further act be idle, it need not be performed. It must be material. Story on Sales, § 298.

Each purchaser, in this case, knew precisely what he had to pay, and the warehousemen were responsible to each purchaser for a specified number of barrels. The title, to the entire lot had passed from West to the different purchasers; and the flour remained with Tilden & Little in the same state it would have been in, had each purchaser first separated his number of barrels from the mass, and then they had all put them together afterwards. The flour being all of the same kind, and the entire lot sold by West, there was no practical end to be accomplished by marking, counting, or separating.

There being no choice, because of there being no difference between the barrels, the parties had the right to, let their different portions remain together, and had a loss accrued, without their fault, the same would have fallen upon each in proportion to his share of the whole. Where so many pounds of an

article are sold out of a large mass, the same must be weighed, because one pound is not separated from another, but the whole mixed in one undistinguishable. mass. But in this case, each barrel was separate and distinct from all the others. They were not mixed, but were easily distinguished, one from another, without weighing, measuring, or counting. In the cases referred to by the counsel of defendants, the mass remained in the possession of the seller. This was a ..material ' circumstance to show the intention of the parties. The strongest case cited by defendants, is the case of Suyefam. v.

Jenkins, 3 Sandford, 614. In that case, plaintiff had a receipt in store for five hundred barrels of flour, given by Gillet, the owner of a flouring-mili. At the time the receipt was given, Gillet had on hand six hundred barrels, and the five hundred barrels were not separated from the mass. And when the sheriff levied, Gillet had sold all of the six hundred but forty-six barrels. He had, however, in the meantime, manufactured other flour of the same brand, which he intended to substitute for that sold, so far as it would go. Under these circumstances, the Court held, that the title did not pass to the purchaser.

But. in this case, Gillet was the manufacturer and the seller, and was not a warehouseman. It was evident, from the fact that he had sold most of the five hundred barrels, and was manufacturing more of the same brand, to supply the place of that sold, and from the other circumstances .of the transaction, that the sale was an executory contract in fact. But the case of Riddle v. Varnum, 20 Pick. R., 280, is a case which supports the view we have taken. The object is to ascertain the intention of the parties. If they intend it as an absolute transfer, then it is so, as between themselves.

In the present case, there can be no doubt as to the intention of the parties. They considered it an absolute transfer, complete in every particular. Judgment reversed, and cause remanded.