It was conceded, I think, at the trial, that the title to the destroyed cotton had not passed to the purchaser (the plaintiff.) At all events, it appears to me clear, from the evidence, that it did not pass to him. The mere transference of the order for delivery was not sufficient; other acts remained to be done, which were essential to perfect the title. After the order was given, the vendors had to proceed to put the cotton in suitable condition, by picking off the damaged portion of it, if any, sewing up and mending the bagging and ropes, and supplying new, if necessary, and putting it in proper condition, generally, for actual delivery. They had also, in the presence of the sampler furnished by the vendee, to compare the bulk with the samples, by which it was purchased, and pass it, if found to conform to the sample. Then it was necessary to pass it to the scales, to be weighed by the owner’s weigher, and then to send the bill, with the weigher’s return, to the vendee. Indeed, the judge at the trial expressly held that the title to the destroyed cotton had not passed, “ because there remained other acts to be done, which were essential to perfect the title.”.
The judge dismissed the complaint solely on the ground “ that the sale was of specific property, of bales of cotton according to their marks; that the delivery of no other property than that called for would have satisfied the con*287tract, and that the destruction of the property by fire relieved the party from his obligation to perform the contract.”
This, in my opinion, is entirely at variance with the whole current of common law authority upon this subject. As I took occasion to say, in Niblo v. Binsse, (44 Barb. 54,) “ From the earliest period of our legal history, no excuse for non-performance has been recognized, except where the performance has been rendered impossible by the act of God, by the act of the law, or by the act of the other party; or, in the language of Coke, (Coke Litt. 206,) ‘ in all cases where a condition is possible at the time of making it, and before the same can be performed, the condition becomes impossible by the act of God, or of the law, or of the obligee, &e., there the obligation is saved.’ ” But accidental fire is not deemed, in legal acceptation, the act of God. This was distinctly held in Tompkins v. Dudley, (25 N. Y. Rep. 272,) by the Court of Appeals; and in Niblo v. Binsse, the case to which I have referred, the same principle was recognized, although the judgment of the general term was reversed on another point. (1 Keyes, 476.) The distinction is well expressed by Lawrence, J., in Hadley v. Clarke, (8 T. R. 267,) “ Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and hath no remedy over, there the law will excuse him; but when the party, by Ms own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity; because he might have provided against it by his contract.” In Harmony v. Bingham, (2 Kern. 108,) the Court of Appeals, after quoting the authorities in. support of this principle, adds that “this principle has been uniformly followed, and that, too, even in cases in which its application has been considered by the court as attended with great hardness.”
This principle applies to contracts of sale, in which the *288property is specially designated, as well as to those in which it is not designated; although the civil differs from the cpmmon law, in this respect.
[New York General Term, November 1, 1869.The dismissal of the complaint should be set aside and a new trial ordered; costs to abide the event.
Judgment affirmed.
Clerke, Geo. G. Barnard and Cardozo, Justices,]