By the Court,
Mullin, J.It is a singular fact that the courts in England, have been, for centuries, striving to settle the law by which sales of chattels are governed. It is not yet settled, in that country, nor in this, whether the vendor or the vendee is owner of an article purchased of a mechanic, before completion, and the price paid, where there is no absolute delivery made to the purchaser. When I say it is not settled, I do not mean to say there is not a preponderance of authority in favor of the ownership of one of the parties, but that it is so conclusively settled as not to be open to question.
So long as courts permit intention to enter into the de*598termination of questions of this kind, so long will cases be left to be determined by their own- peculiar facts and circumstances ; and while that is the ease, the law of sales will be involved in doubt, and parties to them in litigation.
The general rule is, that a sale is not complete, so as to vest title to the property purchased in the vendee until delivery, by the vendor. It is also a rule equally general, that title does not pass while anything remains to be done by the vendor in order to ascertain either the quantity or price of the thing agreed to be sold.
These rules apply not only to property in esse, but also to that which is thereafter to be manufactured. In Atkinson et al. v. Bell et al., (15 Eng. C. L. 216.) A. having a patent for certain spinning machinery, received an order from B. to have some frames made for him. A. employed 0. to make the frames for B., and informed the latter that he had done so. After the machines were completed, B. ordered them tobe altered. They were completed according to the new order, and put in boxes for B., and 0. notified B. that they were ready, but he refused to accept them. It was held that C. could not recover the price for goods bargained and sold, or for work, labor and materials. Bayley, J. said: “ I cannot say that the property passed to the defendants, so as to enable the plaintiffs to recover on the counts for goods sold, or for .work and labor. It is said there was an appropriation of these specific machines by the maker, and that the property thereby vested in the defendants. I think it did not pass. When goods are ordered to be made, while they are in progress the materials belong to the maker. 'The property does not vest in the one who gives the order, until the thing ordered is completed ; and although while the goods are in progress the maker may intend them for the person ordering, still he may afterwards deliver them to another, and thereby vest the title in that other. * * * They were I.’s goods, although they were intended for the defendants, and *599he had written to them so. If they had expressed their assent, this case would have been within Rohde v. Thwaites, (6 B. & C. 388,) and there would have been a complete appropriation,' vesting the property in the defendants. But there was not any such assent to the appropriation, and therefore no action for goods bargained and sold was maintainable.”
In Maberly v. Sheppard, (10 Bing. 99,) the defendant employed the plaintiff to construct a wagon, and while it was in the plaintiff’s yard, unfinished, procured a third person to fix on the iron work, for which he paid. The defendant also purchased tilt from another person, which was carried to the plaintiff’s yard and put on the wagon. It was held that there-was no acceptance, within the statute of frauds. Tindal, Ch. J., speaking of the alleged acceptance of the wagon, says : “ It is contended that the. fact of the iron work used for the wagon having been purchased by the defendant of another person who assisted the plaintiff’s men in putting it up, and charged the defendant for his time, is such an act of ownership, exercised upon the wagon by an agent of the defendant, as brings this case within the principle above referred to. It must be observed, however, that this was not an act done after the wagon was finished and capable of delivery, but merely whilst it was in progress; and that after such assistance had been rendered, and the' iron work fixed, the wagon was left in the plaintiff’s yard to be finished by him. If the wagon had been completed and ready for delivery, and the defendant had then sent workmen of his own to perform any additional work upon it, such conduct might have amounted to an acceptance.”
In Mixer v. Howarth, (21 Pick. 205, the defendant went into the plaintiff’s shop and selected a piece of cloth for lining a buggy. The plaintiff had on hand the body of a buggy nearly finished, but not lined. It was understood that the plaintiff was to finish the buggy for the defendant in two weeks. It was completed, and the defendant had *600notice thereof, and was requested to take it away, but declined. An action was brought for work .and labor, &c., the price of a carriage sold, and upon the special agreement. Shaw, Oh. J., delivering the opinion of the court, holds that the transaction was not a sale within the statute of frauds, and hence an agreement in writing was not necessary to make it a valid promise to pay. “ It is very clear, we think, that by this contract no title passed to the defendant. The carriage contemplated to be sold did not then exist. It was to be constructed from materials partly wrought, indeed, but not put together. It was therefore essentially an agreement by the defendant with the plaintiff to build a carriage for him, and on his .part to take it when finished and pay for at an agreed or a reasonable price.” The court further held, in the case, that the remedy, in such a case, for not accepting the article is on the agreement.
Andrews v. Durant, (11 N. Y. 35,) recognizes the same general principles.
The only case cited by the respondent’s counsel having any bearing on the question before us, is that of Brown v. Salsbury, (9 Barb. 511.) The learned justice who delivered the opinion in that case was unable to find an authority to support him; and it seems to me that the case is quite in opposition to a series of well considered cases, both in this country and in England, and is not law.
_ In Ghitty on Contraéis, 378, it is said, in the case of a contract to manufacture goods and then sell them, it is a general rule that no property in the material passes to the purchaser until the article has been finished and delivered, or is ready for delivery and appropriated to the benefit of, or set apart for, the purchaser with his assent, and accepted by him ; and that even when the contract contains a specification of the dimensions and other particulars of the article to be manufactured, and fixes the precise mode of payment by months and days. (See Laidler v. Burlinson, *6012 Mees. & Wels. 602; 4 id. 685; 2 Pars, on Cont. 334, note f; Bennett v. Platt, 9 Pick. 558.)
[Oneida General Term, January 7, 1863.Mullin, Morgan and Bacon, Justices.]
It is said by the respondent’s counsel that it was a question for the jury, to say whether or not there was a delivery of the cutter, and that they must have found that there was a delivery, and their finding is conclusive. There is not in the return a single word of' evidence tending to show a delivery, or that either party contemplated a delivery till after the cutter was completed. The finding, on such evidence, that there was a delivery, cannot be of .much force.
The judgments of the county court, and of the justice, must be reversed.