The chief question in this case arises under the refusal of the court to charge the jury, that the contract of sale was entire, and could not be satisfied by a delivering or tender of delivering of a quantity less than the whole.
The evidence justifies the finding of an actual delivery of seventy bales; They were taken from the warehouse, sampled and weighed, and by the diriection of the defendants re-stored.for their account. That constituted a delivering of the seventy bales. Before a like delivering of the remainder could be made, the warehouse and its contents were destroyed.
The bought and sold notes did not make this a complete sale, so as to vest the title to all the cotton in the defendants. Something remained to be done by the seller to ascertain the quantity, and by the purchaser to ascertain the quality. To vest the title in a purchaser upon a sale unaccompanied by a, delivery, nothing must remain to be done by the seller (Bradley agt. Wheeler, 4 Robt., 18, (affirmed on appeal, 44 N. Y., 5 Hand, 495.) It is true, that in one case (Croft agt. Bennett,. 2 N. Y., 258,) it is held that mere having to xveigh the commodity to ascertain the price of the whole, at" the rate agreed upon where the goods are otherWise clearly identified, will not prevent it being a complete sale, but I think, the clear weight of authority is otherwise, and if anything remains to be done by the seller to ascertain its identity, quantity or quality, the title does not pass until all *449this is done (Bradley agt. Wheeler, supra, where the cases are collected.)
The commodity in this case was divisible and capable of a separate physical delivery, Each bale could be separately weighed and sampled, and as weighed and sampled, passed over to the purchaser; but that circumstance did not make the contract divisible, or of itself, render it capable of a separate physical performance.
The fact as found by the jury, that the sale was of a specific definite lot of cotton, and not of one hundred and nineteen bales of cotton, of a certain quality, did not release the plaintiffs from the necessity of a complete performance, as a condition precedent to a recovery, unless such a performance was rendered impossible, or was excused by what happened after the partial delivery was made.
The verdict iu this case cannot, in my judgment, be sustained on the ground that the title to all of the cotton had become vested in the defendants, by the mere force of the bought and sold notes.
The sales was of one hundred and nineteen bales of cotton, of specific marks, at 31J cents a pound. The quantity had to be ascertained by actually weighing, and I think, it is very clear, that the weighing was to be done by, or under the direction of the plaintiff.
On this point I am unable to distinguish this case from Joyce agt. Adams, (8 N. Y., 291.)
The bought and sold notes were in terms almost identical, and the cotton was, before delivery, destroyed by fire. That was held to be an incompleted sale, and the title to the cotton as remaining in the seller. And the court put its decision on the ground that it was the duty of the seller to weigh the cotton before the price could be computed, u and until that was done, the cotton was not even ready or in a condition for delivery.”
It is clear, therefore, I think, that treating this as an entire *450and indivisible contract, the plaintiff cannot recover upon it, as a completed sale of the whole number of bales.
And it also follows, that whether treated as a contract for the sale of a specific lot of cotton, or as merely a contract for the sale and delivery of one hundred and nineteen bales of a certain quality of cotton, in either case, a delivery of any number of bales less than +he whole would not be a performance of the contract.
■ What is an entire, and what is a severable contract is not defined. Much depends upon the nature of the contract.. Something upon the intention of the parties. Where there is a purchase of different articles,- at different prices, at the same time, the contract would be several as to each article, unless the taking of the whole was rendered essential by the nature of the subject matter, or by the act of the parties. But when the purchase is of a specific commodity—or of several of a specific commodity, at a fixed price, either for the whole or for each part, and there is no intention expressed of implied of a several performance, the complete fulfilment of a condition precedent.
The contract in this case was entire and inseverable and required a full performance. It was for the sale and purchase of one hundred and nineteen bales of cotton, to be paid for on delivery, and a delivery of any number less than the whole would not be a performance of the condition.
In Russell agt. Nicoll, (3 Wend., 112,) a contract for the sale' of five hundred bales of cotton, cash on delivery, was held to be an entire contract, imposing no obligation on the' purchaser to receive less than the whole, and in Baker agt. Higgins, (21 N. Y., 397,) which was a contract for the sale of a specific quantity of brick, at a stipulated price per thousand, it was held to be an indivisible contract. In that case, there had been a part delivery, and acceptance of such part by the purchaser, and the action was to recover .for such part at the stipulated price, and it was held, that the seller *451could not recover without showing a' delivery, or an effort to deliver the whole.
This is not a case of acceptance of a part of the goods, while in the course of accepting the whole, so as to construe-it into a waiver of an exact performance of the entire contract. No such waiver can be imputed to the defendants. Their demand was for the whole, and it was no fault of theirs that the delivery was stopped.
They were ready to receive, and did no act which could be deemed a waiver of their legal right, to refuse payment-for' the portion delivered, until they had received the whole.
' I have not regarded it as material, whether the purchase in this case was of specific and identified cotton, or generally of the number of bales of cotton mentioned in the contract. The rule as to performance is the same in either case, and the defendants had the right to require a delivery of the whole number, and the plaintiffs could have no right of action for any part without showing a delivery, or an offer to deliver, the whole number of bales mentioned in the bought and sold notes.
Nor was performance excused in this case by the happening of the fire, by which all the cotton, including the seventy bales actually delivered, was destroyed. Performance is excused when it is prevented by the act of God or of the law, but the happening of a casualty or inevitable accident or other unforeseen contingency will not.
In Norton agt. Woodruff, (2 N. Y., 153,) the property was destroyed by fire before delivery, and the court held, it did not excuse performance.
And in Joyce agt Adams, (supra,) after a delivery of part, the remainder was destroyed by fire. The purchaser brought his action to recover a deposit, &c., upon the contract, and the court sustained the action.
• The rule on this subject is very clearly stated by Mr. Justice Edwards in Havemeyer agt. Bingham (12 N. Y., 99, 107.)
*452He says, u when a party by his own contract, creates a. duty or charge upon himself, he is bound to make it good; notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract.”
The meritorious question in this case is, which of the parties shall suffer the loss; one or the other must, but I cannot see any reason why the defendants should be selected.
They had no title to the whole property so as to make it. their loss, nor were they responsible tor any part until there was a delivery of all.
. The respondent’s counsel relied very much upon the case of Bradley agt. Wheeler, (supra,) as settling the law of the case in his favor.
, But a moment’s examination of this case, will show that the facts are quite different, and that decision is put on the ground that nothing remained for the seller to do, and therefore, it. was a completed sale resting the title in the purchaser.
, In conclusion, I am of opinion, that the defendants were entitled to have the jury instructed as they requested, and that their exceptions to the refusal was well taken.
\ They were also entitled to have their motion for nonsuit, granted.
( For these errors, the judgment should be reversed, and á, new trial ordered, with costs to the appellants to abide the event.
Freedman, J. concurred.