One Wilson was in possession of a mill-house, and in it had a quantity of corn. He sold to the plaintiff's intestate all the corn then in the house for two dollars and a half per barrel, and agreed to let it remain in the house till the purchaser could take it away in his vessel. Plaintiff's intestate paid Wilson, subsequently, thirty-five dollars towards the corn. Wilson afterwards sold and delivered the corn to the defendant, who converted it. A verdict was rendered for the plaintiff, subject to the opinion of the Court. And his Honor being of opinion against the plaintiff, upon the question reserved, the verdict was set aside, and the plaintiff submitted to a nonsuit. The principles applicable to this case have so recently been discussed and settled in this Court, that it *Page 172 will only be necessary for us to refer to them. In WALDO v. BELCHER, 11 Ired. 612, it was held upon the authority of the cases of WHITE v. WILKS, 5 Taun. 196, AUSTIN v. CRAVEN, 4 Taun. 644 BURK v. DAVIS 2 M. and Sel. 397, and DEVANE v. FENNEL, 2 Ired. 36, that, if a part only, of a large quantity of goods be sold, and cannot be ascertained without weighing or measuring or other act separating and distinguishing it from the rest, the purchaser cannot obtain a title to the goods until his portion has been set apart. But, say the Court, "when the property is specific, and is in a condition to be identified and delivered, and the intention is proven to be that the property shall presently pass, it does pass." ALLMAN v. DAVIS, 2 Ired, 12, where a wagon was sold, but retained by the seller to put bows upon it, is given as an instance of delivery inferred from the intention of the parties that the title should pass. Another illustration is there given, which is almost identical with the present case: "If one sell all the corn in a certain crib, at $2 60 per barrel, and it is the intention that the corn shall presently pass to the purchaser and become his property, it does pass, although it is necessary afterwards to have the corn measured to ascertain the amount, and fix the sum to be paid: because, supposing the thing to be in a condition to be delivered, the fact that something remains to be done to ascertain the quantity and fix the amount to be paid, only raises the presumption that it was not the intention of the parties that the property should pass until the weighing or measuring was done. But this presumption may be rebutted, and the property does pass, if the jury are satisfied that such was the intention."
In the present case, the fact that the parties, after the contract of purchase was made, agreed upon the quantity, and part of the price was actually paid, in connection with the other circumstances, certainly furnishes sufficient evidence to justify the inference that the parties intended the *Page 173 property in the corn to pass. That being so, the verdict which was taken, subject to the opinion of the Court whether, upon the evidence, the plaintiff could recover must stand, because the plaintiff's right to recover depends upon the question whether there was any evidence sufficient to justify the jury in finding that the parties intended a delivery of the corn; and we have just said that there was.
The judgment of non-suit must be set aside, and judgment must be entered here for the plaintiff, for the amount of damages assessed by the jury in the Court below.
Judgment reversed.