dissenting.
This is an action of trover to recover the value of the difference between one hundred and twenty five tons of coal gross weight, and the same number of tons net weight. The plaintiff received one hundred and twenty-five tons of the coal net, and was prevented by the defendants, as he claims, .from removing the balance. The case is presented on a motion to set aside the verdict as against evidence, and the weight of evidence, and on exceptions.
*558In proof of his title to the fourteen tons of coal in controversy, the plaintiff testified that in May, 1869, he sent the firm of William Wallace & Co., coal merchants of Boston, an order to ship him a cargo of coal not exceeding one hundred and twenty-five tons; that in July following, they shipped a cargo of coal to Gar-diner, sending him at the same time, a bill of two hundred and fifty tons, and a bill of lading for the same amount; that he declined to take more than he ordered; that they subsequently sent him a bill of one hundred and twenty-five tons ; that he bought that amount at a stipulated price per ton, in July, commenced removing it immediately thereafter, and paid for it on' the eighteenth day of August following, according to agreement. It further appeared in evidence that the coal was in bulk at Gardiner; that it was not re-weighed by the shippers, and that the plaintiff had removed, in all, one hundred and twenty-five tons net, by the last of September, when the defendants prevented his teamster from taking away any more of it. William P. Wallace, of the firm of William Wallace & Co., testified that he sold the plaintiff one hundred and twenty-five' gross tons of coal, and that he directed his agent in Gardiner, who subsequently sold to defendants for him one hundred and twenty-five tons of the same cargo, “to see that Mr. Mox-rison gets one hundred and twenty-five tons gross.”
The defendants denied that they prevented the plaintiff from taking more of the coal, and claimed that subsequently to the plaintiff’s purchase, they boxxght one half Of the cargo, consisting in all of two hundred and fifty tons; that their purchase was not made subject to the precedent right of the plaintiff to take away one hundred and twenty-five gross tons, and that the terms of division agreed upon were, that either party should take one hundred and twenty-five tons net, and then stop, until the other should take that amoxxnt, and that they should then divide the loss or gain. In other respects the evidence introduced by the defendants did not materially conflict with the plaintiff’s evidence.
In returning a verdict for the plaintiff, the juxy must have foxxnd that at the time of the alleged conversion of the coal by *559the defendants, on the twenty-fifth day of September, 1869, the plaintiff was the owner thereof; and the question, presented for determination, under the motion, is whether the evidence warrants such finding.
Mr. Long, in his treatise on sales, says : “Three particulars are included in a valid sale, namely, a thing which is the subject of it, a price and a consent of parties......The thing sold must-be specific, or ascertained; the price must be certain, or ascertainable by reference to some criterion by which it may be fixed; and there must be a consent of the parties upon the thing sold, upon the price, and upon the sale itself.” The general and inflexible rule is that where, by the terms of the contract, anything remains to be done by both parties, or by either, precedent to delivery, the title does not pass; the contract is executory and incomplete, as a sale, and not executed and perfected. But, say the court in Kimberly v. Patchin, 19 N. Y., 333, “actual delivery is not indispensable in any case in order to pass the title, if the thing to be delivered is ascertained, if the price is paid, or credit given, and if nothing further remains to be done in regard to it.” In other words, all the requisites of a valid sale may exist without a delivery. “In the case of sales where the property sold is in a state ready for delivery, and the payment of money, or giving security therefor is not a condition precedent to the transfer, it may well be the understanding of the parties,” remarks Dewey, J., in Riddle v. Varnum, 20 Pick., 283, “that the sale is perfected, and the interest passes immediately to the vendee, although the measure, or weight of the articles sold, remains to be ascertained.”
These principles of law applied to the facts in the case at bar make the sale of the coal sued for to the plaintiff executed and complete, and show the title thereto to have been in him at the time of its alleged conversion by the defendants. In view of the evidence in the case, it does not admit of denial that the parties to the alleged sale intended that the title to the coal should be transferred to the plaintiff; their mutual consent to the sale, the one to sell and the other to buy the coal, is unquestionable. The kind and quantity *560of the thing sold were ascertained, the price was certain, a credit was given, and the amount was paid long before the alleged conversion. There was no agreement of the pai'ties that anything further should be done by both or either of them to complete the sale. Nor did anything in fact remain to bo done in order to ascertain the quantity, quality, price or value of the thing sold. Moreover, more than seventh-eighths of the coal bought by the plaintiff had been removed from the pile by him when the defendants interposed to prevent his taking away the balance. The contract has all the requisites of a completed sale.
Though the sale was of a certain number of tons of coal, the article was in bulk, undistinguishable from the surrounding mass from which it was bought. Eor this reason, it is argued that the coal was not sufficiently identified to pass the title to it, because it was not all weighed. But how could weighing the coal render the quantity sold more clear and unmistakable ? The plaintiff bought one hundred and twenty-five gross tons ; there was nearly twice that quantity in the heap out of which he made the purchase; weighing the coal could not increase or diminish the quantity bought; that was necessary, not to ascertain the quantity bought — which had already been done — but to determine when the plaintiff had taken from the pile the quantity that had been sold him. Nor was the weighing nécessary to fix the price of the coal, since that also had already been agreed upon by the parties. If, as in Simmons v. Swift, 5 B. & C., 857, it had been agreed between the parties that the coal should be weighed by two persons, each party to name one, in order to fix the price, and this had not been done; or, as in Gibbs v. Benjamin, 13 Law Reg., 95, the parties had not agreed upon the quantity sold, a different result would follow — as the contract would not have been complete; but nothing of the kind occurred in the case at bar; the parties by the terms of the contract of sale, having fixed the quantity and price of the coal, these could be no better known or identified after the coal had been weighed than they were before. The plaintiff knew what he bought, and bought what he knew, before he weighed it.
*561While it is undoubtedly true that in order to pass the title, in a sale of chattels, the articles, if not delivered, must be designated so that possession can be taken by the purchaser without any further act of the seller, this rule, from the necessity of the case, must be applied according to the nature of the article, and is to be somewhat modified or relaxed, when the article is not sold by a description of the characteristics which distinguish that particular thing, but by weight, measure, count, number or mark, as corn, coal, oil, flour, or lumber lying in bulk, especially where the parties obviously intended to transfer the title. In such case, an actual delivery is impracticable unless the whole is transferred to the purchaser, or the specified quantity sold. “As it is not possible,” says Comstock, J., in Kimberly v. Patchin, ante, “in reason and philosophy to identify each constituent particle composing a quantity, so the law does not require such identification. Where the quantity and the general mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it becomes a possible result for the title to pass, if the sale is complete in all its other circumstances.”
It has been seen that in the case at bar the “sale was complete in all its other circumstances.” It is the same in principle with Waldron et al. v. Chase, 37 Maine, 415. In that case, the corn was paid for when the sale was effected ; in this case, that was done in the first instance which was equivalent to payment — a credit was given, and the whole amount was paid for according to agreement a long time before the alleged conversion by the defendants; in both cases a part’of the article sold was separated by the purchaser from the surrounding mass. In that case it was held that where the owner of a quantity of corn in bulk sells a certain number of bushels therefrom, and receives his pay, and the vendee takes away a part, the property in the part sold vests in the vendee, although it has not all been measured or separated from the heap.
The court in that case expressly recognized the fact that there ÍS' a conflict of authorities, both English and American, upon this sub*562ject, and adopted the rule which is most consonant with principle and the weight of authority. That case was decided before the case of Scudder v. Worster et al., 11 Cush, 580, was reported, and before the opinion was rendered in Ropes et al. v. Lane, 9 Allen, 502. The principle upon which these decisions rest is clearly irreconcilable with the doctrine of Waldron et al. v. Chase. In the former eases, it was held that not even payment for the whole of the property sold in bulk, and a' separation of a part thereof, will transfer the title to the vendee in the part not thus separated, while in the latter case these facts serve to vest the title to the whole property in the vendee, as well that which has not, as that which has been separated. We regard the question as res judicata in this State. In view of the conflicting decisions upon this subject our court adopted the rule of the early English cases, and of the court in New York, and I am unable to see anything in the reasoning of the more recent cases in Massachusetts to change that rule.
Our conclusion is that the jury were authorized by the evidence in finding that all the requisites of a valid sale of one hundred and twenty-five tons gross by the owner to the plaintiff had been complied with, and that the title to that amount was vested in him when the defendants interposed to prevent his removing the balance of that quantity. The assertion and acts of ownership on the part of the defendants in respect to all the coal remaining in bulk, and especially their refusal to allow the plaintiff’s teamster to remove more of it, make out a clear case of conversion.
I do not understand that the learned counsel for the defendants seriously controverted the correctness of the instructions to the jury. However this may be, he has no legal ground of complaint, as they were quite as favorable to the defendants as the law of the case admits.