The defendant moves to have the verdict set aside, as against evidence. He contends that the evidence is insufficient to warrant the jury in finding that the hay sued for was delivered. As the action is in form for goods sold and-delivered, it was essential for the plaintiff to prove an actual delivery to, and acceptance by, the defendant, or the action could not be maintained. It appears that the hay was taken from the plaintiff’s mow by men employed and paid by the defendant. It was pressed, put into bands, weighed, and branded with the defendant’s name. These acts were sufficient to constitute a delivery, if accompanied by the requisite intention of both parties that the property should then pass.
Was the evidence sufficient to warrant the jury in finding that it was the intention of the parties that the property should then pass? Weighing, and marking with the purchaser’s name, have always been regarded as very significant facts bearing upon the question of delivery. In this case the pressing and weighing and branding was paid for by the defendant, and there does not appear to have been any arrangement by which this expense could, in any event, be charged to the plaintiff. Why should the defendant incur this expense, with no provision for reimbursement, if he did not understand that the hay was his? Why should the plaintiff *48permit the hay to be branded with the purchaser’s name, if he did not understand that the property had passed ? All the terms and conditions of sale had been previously agreed upon. Can the proposition be maintained that the evidence was insufficient to authorize the jury to find a delivery ? That a verdict finding such a delivery, is so clearly against evidence that it cannot be permitted to stand ? We think not. They probably found that the capture of Richmond and the surrender of Lee caused a sudden decline in the price of hay, and that this was the true reason why the defendant sought to escape from the consequences of the bargain he had made, and not the want of a delivery.
The fact that it was one of the conditions of the sale, that the plaintiff should haul the hay to the depot, is not inconsistent with the proposition that it might have been delivered, so as to become the property of the defendant, at' the barn. And whether the plaintiff had fully performed his part of the contract, or if not, whether he was prevented from so doing through the fault of the defendant, wex*e facts to be determined by the jury, under proper instructions from the court as to the requirements of the law; and, as nothing appears to the contrary, it is to be presumed that proper instructions were given upon these points.
The presiding judge instructed the jury, that if the defendant, by himself or servant, with the knowledge and consent of the plaintiff, took the hay sued for from the plaintiff’s mow, and pressed it, and branded it with his own name, and the plaintiff understood and intended that these acts should divest him of all ownership in the hay, and that the title should be thereby absolutely and unconditionally vested in the defendant; and the defendant so understood it, and intended, by these acts, to become owner of the hay, and to have the title thereby absolutely and unconditionally vested in him, then no other or further delivery was necessary to take the contract of sale out of the operation of the statute for the prevention of frauds and perjuries, and enable the plaintiff to maintain an action for goods sold and delivered; and that whether such was the understanding and intention of the parties was a question of *49fact, to be determined by tlie jury in view of all the evidence in the case bearing upon the question.
We think these instructions were appropriate and correct.
Motion and exceptions overruled. Verdict on the Judgment.
AppletoN, C. J.; DiciceRSON, Baheows, and DaNFORTH, JJ., concurred. KeNT and Taplet, JJ., dissented.