Field, C. J. and Baldwin, J. concurring.
We think the judgment should be affirmed.; The case seems to have been fairly submitted to the jury upon the facts, and we see no such error in their verdict as would justify us in setting it aside upon the ground that it is not sustained by the evidence. The Court did not err in giving the instruction asked by the plaintiff. If the jury believed from the evidence that by the understanding of the parties the possession of the hay was deemed to have accrued to the defendant upon the payment of two hundred dollars, it being proved that such payment had been made, the plaintiff was certainly entitled to a verdict. The question was, whether there had been a delivery, and any agreement of the parties upon the subject was a legitimate matter of inquiry and investigation. VThe fact that the hay purchased by the defendant was mixed with other hay belonging to the plaintiff, made no difference. If he agreed to accept it in that condition, and there was any understanding that it should be considered as delivered, the contract for its delivery must be regarded as executed. It is claimed that this instruction was entirely hypothetical, and that there was no evidence whatever to authorize it. We do not think so. The quantity of hay originally *127contracted for was sixty tons. ( It was then in stacks, and the plaintiff was to bale it and deliver it to the defendant, by placing it in a certain corral.^ In performing this part of the contract, the plaintiff baled and placed in the corral something over two tons more than the quantity contracted for. The defendant being informed of the facts, paid to the plaintiff two hundred dollars of the price, and entered into some negotiations for the purchase of the excess, which purchase was not, however, finally consummated. Under these circumstances, we think it was properly left to the jury to determine whether the parties did not consider the delivery complete, and that the property in the hay had passed to and vested in the defendant,
The instruction asked by defendant was properly refused. It assumed that there could not have been a delivery, whatever may have" ' been the understanding of the parties, until the exact quantity contracted for was segregated and set apart to the defendant.
Judgment affirmed.