The plaintiff being the owner of one hundred and seventy barrels and six half-barrels of mackerel, stored the same in No. 10, Long wharf, a building belonging to D. T. Chase.
On April 30, 1868, D. T. Chase as agent for the plaintiff, who resided in Baltimore, negotiated verbally with the defendant for the sale of all said mackerel, being all the fish in said building, at a specified price.
On May 1, 1868, the defendant paid'D. T. Chase $600, and received from him the following paper :
“ Portland, May 1, 1868.
Received from Mr. E. G. Willard $600 on account of mackerel in store No. 10, Long wharf, at the purchaser’s risk, as regards fire. ■ D. T. Chase.”
On May 2d, the defendant sent a cooper to the building where the fish were stored, who examined each barrel, refilled with pickle such as needed it, and found two barrels in which the fish had rusted, which the plaintiff’s agent subsequently agreed to except from the sale and which he carried away from the building in which they were deposited.
On May 5th, the defendant sent an order on D. T. Chase for four barrels, which were accordingly delivered.
On and before May 9th, the defendant had made payments to the amount of $2,900 on account of the mackerel.
During the night, between May 9th and 10th, fifty barrels and two half-barrels were taken from the store-house of D. T. Chase by some persons then and ever since unknown.
*162After this, and at different times, the remaining barrels have been taken away by the defendant.
Upon whom does the loss of the fifty barrels and the two half-barrels, which were stolen, fall ?
The evidence shows a perfected sale. The goods to be sold were agreed upon. The purchaser removed a portion. He examined and refilled with pickle the barrels as far as was necessary. This involves the idea of possession. He paid the agent of the vender a large portion of the price as agreed upon.
The plaintiff had nothing to do with store No. 10. He did not own it. -He merely stored the fish there. When sold they remained there at the purchaser’s risk or at that of the depositary. As between-the depositary and.the purchaser the risk of the fire was assumed by the latter. So far as relates to the storage, D. T. Chase was acting for himself, in guarding against the risk of fire, not for the vender. Indeed the receipt presupposes a change of title and that the fish had been sold and purchased. Nothing indicates that either party intended that there should be any risk remaining on the vender in regard to the mackerel after somebody else had purchased them..
After May 1st, the bailee or depositary of the vender became the bailee or depositary of the vendee. Hatch v. Lincoln, 12 Cush. 31. Bryans v. Nix, 4 M. & W. 975. In Tuxwuth v. Moore, 9 Pick. 348, the property sold was with an innkeeper who had a lien upon the same for keeping. The sale was made and the innkeeper was notified by the seller and the purchaser of the sale, and was requested by the latter to keep the ware on his account. “It is objected,’’ says Parker, C. J., “ that there was no delivery, and there was none in point of form; but if the contract of sale was Iona fide and for a valuable consideration, which we take to have been settled by the jury, then if there was a symbolical delivery, or if the plaintiff came to the possession in virtue of the contract, the property passed, not only between vender and vendee, but against everybody.” “ The law considers it a sufficient delivery by a vender of a chattel to a purchaser, if he regards the holder of it to be a *163bailee if such purchaser and parties all assent.” Lane v. Sleeper, 18 N. H. 214.
“ When the terms of sale are agreed on, and the bargain is struck, and everything the seller has to do with the goods is complete, the contract of sale becomes absolute without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer.” 2 Kent’s Com. 92. All these elements are found in this case, as fully existing prior to the time when the barrels in controversy were stolen. Indeed, here, tliere was a removal of part of tbe barrels, a part-payment, the assumption of control over all, every requirement of the statute of frauds has been complied with, — much more, then, should the risk of the loss be on the purchaser, as between liiin and liis vender.
Exceptions sustained.
Cutting, Kent, Barrows, and Tapley, JJ., concurred.