The opinion of the Court was delivered by
Gibson, C. J.— The statute by which the court belbw is constituted, directs that when the defendant shall have given no evidence, the presiding judge may direct a nonsuit, if the plaintiff’s evidence be insufficient in his opinion to make out a case; and hence it results, not only that the evidence must be taken to be true, but that every inference of fact which a jury might draw from it in.favour of the plaintiff, must be drawn by the Judge: else the plaintiff might be deprived of his constitutional privilege, and the statute would be so far void. In such a case, therefore, the defendant’s prayer for a nonsuit is effectively a demurrer to evidence, with this limitation, that the Judge is not at liberty to give judgment for the plaintiff should he think the case made out: in that event the nonsuit is refused, and the cause is put to the jury. What then is the case which a jury might deduce from the evidence before us ?
The defendant, Smyth, being pressed for payment by Craig, Bellas and Company, consented to let the molasses in question stand in the yard of his distillery, either as their property, or as collateral security, but on condition that they would take his notes at sixty and ninety days, in lieu of the one-half cash, and the other at sixty days, as he had promised them. He pointed out the molasses, consisting of four hundred hogsheads, to be ascertained by counting them off in rows from a particular point, and in a particular way. He agreed to send them the rum hé should distil from the article, to be sold by them and the proceeds applied to his debt; and on these terms, in the first instance, the matter was arranged.
*19Had it rested there, the plaintiff, or the firm he. represents, could not have recovered as in the case of a pawn; for at this time there was no delivery of possession, and consequently no pawn. Indeed, retention of possession was necessarily a part of the arrangement, because it was indispensable to enable the defendant to carry the other parts of it into effect.
But subsequently to the defendant’s failure, which occurred shortly afterwards, he sold and agreed to deliver to Craig, Bellas and Company, three hundred and fifty of these hogsheads, as well as twenty-five hogsheads of rum distilled in the mean time from the other fifty, and set apart in a shed, the whole to be gauged and the price fixed at their warehouse by Stevens, a grocer; and this done, the notes previously given were to be delivered up. Next morning he repeated the conditions of the sale, and told the purchasers to go to the yard and mark the hogsheads according to the former method of ascertainment, promising to meet them there, and directing them to haul away without further delivery, should he fail to attend. They accordingly marked both the rum and the molasses with the initials of the firm; the notes were withdrawn from bank for delivery, but handed to the plaintiff who had taken the place of the firm; and they were tendered to the defendant, who refused to receive them or part with the property. The question then is, whether there is enough in these facts to constitute a sale on the general principles of the contract unaffected by positive provisions, such as those of the British Statute of Frauds which are not in force here.
The subject of the sale was sufficiently certain. The rum was in a shed by itself; and the rows of hogsheads containing the molasses w.ere particularly designated. Even without such designation, the lot would have been sufficiently ascertained by the marking, pursuant tó the vendor’s direction. A sale of articles to be selected by the vendee, is certain enough, after selection made. Here the particular hogsheads had been marked by the vendor’s assent, and whether with a view to delivery, it was properly the province of the jury to say; for that the separating of particular goods from a larger quantity, preparatory to actual delivery, is constructive delivery in point of law, was affirmed by Lord Lough-borough in the celebrated case of Lickbarrow v. Mason, (1 H. B. 363), and here the hogsheads were marked expressly by the vendor’s' direction, in order that the vendees might take possession of them without any further act to be done-by him. So far then as the fact of delivery is involved in the question, the sale seems pretty clearly to have been executed; but the fact is nevertheless determinable by a jury having regard to the intention of the parties in the marking and separation.
The pinch of the case,-however, is to determine whether the vendor was at liberty to stop short before the contract was made complete in all its parts by the ascertainment of the quantity and *20price, through the agency of him to whom the gauging and valuation were referred. If I deliver a chattel on terms that the price of it be subsequently fixed by the vendee and myself, I may balk the contract by insisting on more than he will be willing to give for it, and thus regain the possession of my property with which I had parted only conditionally. But though the price be not settled by the parties, yet if they agree on a method of settling it irrespectively of anything to be done by themselves, it is the same between them when subsequently settled as if the sum to be given had been an original condition of the bargain; but if the person to whom the naming of it was referred, die in the mean time, or refuse to act, the contract is at an end. Such a sale is conditional, but not executory like a contract to sell at a day to come, which is complete in itself, though some act remain to be done in pursuance of it: on the contrary, it is a contract, which, being imperfect in itself as regards one of its terms, is to take effect only when the deficiency is supplied by the performance of a condition precedent, the prevention of which by an act of providence or the obstinacy of the agent, defeats the sale entirely. Nor does the property pass by it, in the first instance; for the sale, being on a condition precedent, does not allow the title to vest before the condition has been performed, and therefore if the vendor sell the thing again in the mean time, the second purchaser will take it clear of dispute, though the vendor will be answerable in damages, when the price is named. All this is text law, and so well understood, both by civilians and common law jurists, that no more is necessary than to refer to Ross on Vendors, (p. 60), where the authorities for it may be consulted. But here the rum and molasses were to be gauged, and the price fixed at the purchaser’s warehouse; an act that was prevented by the vendor’s retention of the property in his actual custody. There is no precedent in the books, for such a case; and it is not easy to determine it satisfactorily on principle. The difficulty is to comprehend why such an authority, like a submission to an arbitrator, or a letter of attorney, may not be revoked before it has been executed. It is settled, however, that a power coupled with an interest in the execution of it, is irrevocable; as in Walsh v. Whitcomb, (3 Esp. Ca. 565). In Bromley v. Holland, (7 Vez. 28), it was said by Lord Eldon, that he would not permit a power of attorney given for a valuable consideration to be revoked; and the principle seems applicable to every case where the power is necessary to effectuate a security. Was the power given for that purpose in this instance l It was given to effectuate a sale in discharge of a debt. If the notes had been actually delivered up, the contract would indisputably have been executed on the part of the vendees; but independent of that, the debt, of which the notes were only the evidences, had been taken as the consideration of the purchase, and the sale may still be said to have been *21executed so far as regards tender of those evidences and payment ' of the purchase money. In addition to this, the vendees had been lulled into a false security by the arrangement, at a time when a vigilant use of every instant in seeking other security was of peculiar value to them; and to suffer the vendor to rescind the contract by a trick, when the time for action had gone by, would be to sanction a fraud. Still it may be asked, how is it to go into effect before performance of the act which was a condition precedent to it ? Simply by taking prevention for performance, as is often done in regard to dependent covenants, and directing the jury to allow the vendor a reasonable price for the articles in their estimate of the damages. By this means, the bargain may be carried into effect; and if the vendor-should be deprived by it of the benefit of Mr. Stevens’s judgment, he will have himself to blame for it.
Judgment reversed, and procedendo awarded.