This action was brought to recover the amount of a note made by defendants for $7,176.30, payable in four months from date, and delivered to the plaintiff upon a contract entered into by the parties, of which the following is a copy:
“ Bought of S. M. Welch 340 Bales of Broom Corn, 81,763 lbs., at 10 cts., $8,176.30.
“ The above constitutes my entire stock of corn now held by me, and all upon the fourth floor of my store, and sold to them as it is, entire, and includes my entire purchase. The terms agreed upon are $1,000 cash, remainder in their note at 4 months, the corn to be held by me as collateral for the note, and they to pay all my charges for storage, insurance and labor, and cartage when delivered.
“ S. M. Welch.
“ All the following is agreed to by us.
“ Moffat Bros.”
The $1,000 were paid, and note given. Before the note matured the defendants caused the corn to be weighed, and ascertained that the quantity in store was 3,514 pounds less than that mentioned in the contract, of which plaintiff was informed.
Defendants refused to accept the corn, on the ground that the quantity fell short of that stated in the contract. An effort was made by defendants to compromise the matter, but it failed, and this action was then brought.
If the contract was executory, the inability of the plaintiff to deliver the quantity of corn called for by the contract relieved defendants from their obligation to pay.
But it is an executed contract; in other words, if it was a sale in presentí, delivery to be made in futuro, the title to the corn passed, and defendants are bound to pay.
The sale is, in terms, of the entire stock of corn, estimated at 81,763 pounds; the title is to remain in the plaintiff, as collateral to the note, and they (defendants) are to pay storage, insurance, labor and cartage.
*578Nothing remains to be done in order to complete the sale. The parties proceed on the assumption that the title has passed to the purchasers, subject to plaintiff’s lien for the price. 1 Wait’s L. & P. 473; Havemeyer v. Cunningham, 35 Barb. 515; Evans v. Harris, 19 id. 417; 2 Duer, 318; Kimberly v. Patchin, 19 N. Y. 330.
The parties were mutually mistaken in their estimate of quantity, and for that reason the defendants are entitled to a deduction for the quantity not capable of delivery. Wheadon v. Olds, 20 Wend. 174.
A new trial is denied, and judgment" ordered for plaintiff on the verdict.
Ordered accordingly.