The first question relates to the cider purchased of Tallman. By a contract for the sale of specific goods, the property immediately vests in the buyer, and a right of action for the price in the seller, unless a contrary intention exists. The question in such cases is one of intention. The agreement is just what the parties intended to make it. If that intention is clearly manifested, cedit questio. Terry v. Wheeler, 24 N. Y. 520; Kimberly v. Patchin, 19 id. 330; Russell v. Carrington, 42 id. 118; Benj. on Sales (2d ed.), 227. When the contract is that the seller shall deliver the goods to a carrier to be transported to the buyer, and they have been delivered accordingly, if the goods are afterward lost, the legal presumption is that the buyer is the owner, and entitled to sue for such loss.
In this case the cider was put in the plaintiff’s casks. It was *403thus ascertained — in other words, separated and identified. If the contract had been in writing, therefore, there could have been no question that the title had vested in the plaintiff before the loss. Cases supra; Krulder v. Ellison, 47 N. Y. 36. But the contract rested in parol, and for that reason was not valid as an executory contract without proof of an acceptance and receipt of part of the goods. % R. S. 136.
After a portion of the goods had been destroyed, the plaintiff received the residue thereof, and paid the price of the whole. We think these facts are quite sufficient to take the, case out of the statute cited, and to give to the plaintiff a right of action for the goods lost. Those facts were conclusive evidence between the parties to the sale, that the goods had been accepted, and it does not lie in the mouth of the defendant to make a contrary averment.
With respect to the cider purchased of Hill there is no question made that the title was in him at the time of the loss. He made a formal assignment of his claim for such loss to the plaintiff.
It is claimed, however, that this cider was in possession of the defendant as warehouseman. We think the evidence does not warrant that inference. The cider was delivered solely for the purpose of being transported to the plaintiff. The evidence that it was received to be stored until ordered to be sent to its destination is exceedingly slight, but the question arising upon it has been determined by the jury, under proper instructions from the court. We perceive no ground for disturbing this verdict. Indeed, we think the law fixed the liability of the defendant as that of common carrier. Ang. on Carr., § 29; Rogers v. Wheeler, 52 N. Y. 262; Edsall v. C. & A. R. R., etc., Co., 50 id. 661.
The judgment and order denying a new trial should be affirmed, with costs.
Judgment and order affirmed.