It is not always an easy matter to determine whether a contract for the sale of goods is so far executed as to pass the title to the vendee. In respect to goods in esse at the time of' the contract, it is a general rule that the contract of sale itself transfers the right of property to the purchaser, if the vendor has nothing more to do before delivery. (2 Kents Com. 492.) But where the thing to he sold is yet to he manufactured, the title does not pass until there has been some act on the part of the vendor which amounts to a delivery, and some act on the part of the vendee which amounts to an acceptance. (Andrews v Durant, 1 Kernan, 40. Newcomb v. Cramer, 9 Barb. 402. Johnson v. Hunt, 11 Wend. 137. Gregory v. Stryker, 2 Denio, 628. Mixer v. Howarth, 21 Pick. 205.)
In this case, the parties to the contract had agreed that the shingles should be the property of the defendants as fast as they were made. Still the contract was executory. To make a sale complete, so as to vest .the title in the vendee, the thing sold must not only be in existence, hut it must he identified. *474The contract itself conveyed no present right of property to the defendants. Though Davis agreed that the shingles he was about to make should, as fast as made, become the property of the defendants, still, as it was an agreement to be executed in futuro, his right was, not to the shingles, but in action for not executing the agreement.. Before the title would vest, even after the shingles had been made, something must have been done which would amount at least to a constructive delivery. The shingles must have been in some way designated and set apart, so as to be capable of being identified as the property of the purchasers. (See, Lansing v. Turner, 2 John. 13; 2 Kent’s Com. 468 ; Field v. Moore, Lalor’s Sup. 418.) Had Davis seen fit, after manufacturing the shingles, to dispose of them as his own property, instead of delivering them to the defendants in execution of his contract, it seems to me very clear that their only remedy must have been by an action for the non-performance of the contract, and not for a wrongful disposition of their goods. Suppose Davis had made, with another person, another contract, in all respects like that under consideration, whereby he had agreed to deliver the same quantity of shingles as fast as made, could it be pretended that the defendants would, by the mere operation of their contract, become the owners of all the shingles made by Davis, as soon as manufactured ? 'It would then need, as now, that in some way the shingles should be designated as delivered in execution of the contract, in order to change the right of property. And they would then have become the property of the one or the other of the parties to whom he had.agreed to sell them, according to their designation.
The county judge, in a very sensible argument to maintain his theory of the case, has supposed the destruction of the shingles by fire. The loss, in that event, would, he thinks, have fallen on the defendants, and not on Dayis. If he is right in this, the case has been correctly decided, for the loss would undoubtely fall on the owner. But I cannot see that *475this inquiry serves in any way to solve the question of ownership. It is still necessary to determine, from the facts in the case, whether the right of property had ever vested in the defendants. I am of opinion that it had not. The judgment of the county court should therefore be reversed, and that of the justice affirmed.
[Albany General Term, December 7, 1857.Wright, Harris and Gould, Justices.]