In an action at common law, by a vendee against a vendor, for damages for not delivering the property sold, in accordance with the contract, it was only necessary to for him to aver, in his declartion, the making of the contract, performance or readiness to perform on his part, and neglect or refusal to deliver on the part of the vendor, after demand, when demand was required by the contract. The same averments in a complaint under the Code would constitute a valid cause of action.
The plaintiff, in the case before us, was not satisfied with averring the facts above specified, but proceeds to aver that during the night after the delivery of a part of the property purchased, the residue was destroyed by fire. Upon the face of the complaint it is made to appear that there was a contract for the sale of two hundred and forty-three bales of cotton at 45f- cents a pound; that on the 16th of September, following the- making of the contract, and while it remained in the possession of the defendants, one hundred and twenty-eight bales were delivered, and the balance, one hundred and fifteen bales, were destroyed by fire. Upon these facts, the title of all the cotton was in the plaintiffs, and if they desired to get rid of this legal conclusion it was their duty to aver such facts as would have shown that in law the title had not passed. The demurrer raised this precise question, and the ruling of the judge at special term, that a cause of action was stated in the complaint, was erroneous. On the contrary, the complaint shows that the whole cotton was at the time of the fire, owned by the plaintiffs.
*104[New York General Term, November 2, 1868.There is no rule of law better settled than that the title to property sold does not pass to the vendee when any thing remains to be done in order to ascertain the precise property sold, or the price to be paid. ¡But whether the kind or the quantity of property has been ascertained, so as to pass the title, are facts to be proved in each case, and cannot, ordinarily, arise upon a complaint properly drawn. If, however, the pleader will insert in his complaint allegations not essential to a statement of his cause of action, and which show that he has no cause of action, and there are other facts which, if alleged, would show he had a cause of action, he must set them out, or his complaint, if demurred to, must be declared defective.
There is no presumption of law that property sold has not been separated, weighed or measured, so as to pass title. If these acts are not done,'it devolves on the party insisting on these omissions, to show them, and. thus discharge himself from a liability which would otherwise devolve upon him.
The order appealed from must be reversed, and an order ■ entered that the defendants have judgment, on the demurrer, unless the plaintiff shall pay the costs of this appeal; and if paid, then he has leave to amend his complaint within twenty days from the service of a copy of this order.
J. F. Barnard, Mullin and Bngraham, Justices,]