The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by
Shepley, C. J.There is not a perfect agreement of the decided cases upon the question presented by the exceptions.
The law appears to be entirely settled in England in accordance with the instructions. Atkinson v. Bell, 8 B. & C. 277; Elliott v. Pybus, 10 Bing. 512; Clarke v. Spence, 4 Ad. & El. 448.
The case of Bement v. Smith, 15 Wend. 493, decides the law to be otherwise in the State of New York. The case of Towers v. Osborne, Stra. 506, was referred to as an authority for it. The plaintiff in that case does appear to have recovered for the value of a chariot, which the defendant had refused to take. No question appears to have been made respecting his right to do so, if he was entitled to maintain an action. The only question decided was, whether the case was within the statute of frauds.
In the case of Bement v. Smith, C. J. Savage appears to have considered the plaintiff entitled upon principle to recover for the value of an article manufactured according to order and tendered to a customer refusing to receive it.
This can only be correct upon the ground, that by a tender the property passes from the manufacturer to the customer against his will. This is not the ordinary effect of a tender. If the property does not pass, and the manufacturer may commence an action and recover for its value ; while his action is pending it may be seized and sold by one of his creditors, and his legal rights be thereby varied, or he may receive benefit of its value twice, while the customer loses the value.
The correct principle appears to have been stated by Tindal, C. J. in the case of Elliott v. Pybus, that the manufacturer’s right to recover for the value depends upon the question, whether the property has passed from him to the customer. The value should not be recovered of the customer, unless he has become the owner of the property, and can protect it against any assignee or creditor of the manufacturer.
To effect a change in the property there must be an assent of both parties. It is admitted, that the mere order given for the manufacture of the article does not affect the title. It *110will continue to be the property of the manufacturer until completed and tendered. There is no assent of the other party to a change of the title exhibited by a tender and refusal. There must be proof of an acceptance or of acts or words respecting it, from which an acceptance may be inferred, to pass the property.
This appears to be the result of the best considered cases.
There is a particular class of cases, to which this rule does not apply, where the customer employs a superintendent and pays for the property manufactured by instalments as the work is performed. Exceptions overruled.