delivered the opinion of the Court. The question presented for adjudication is, whether upon the evidence detailed in the report of this case, it would have been competent for the jury to return a verdict in favor of the defendant. If such a verdict could by law be sustained, the parties agree, that judgment shall be entered for the defendant.
The point in controversy is, as to the property in certain timber and plank attached by the deputy of the defendant as belonging to Curtis & Barstow. Was the property in these articles in the plaintiff, or in Curtis & Barstow, at the time of the attachment ?
It is admitted by the plaintiff, that a contract in reference to the sale of the articles had been made, between himself and Curtis & Barstow, but he denies that the sale was so far completed as to vest, the property in Curtis & Barstow prior to the attachment.
The leading objection to the alleged transfer of the property, is founded upon the fact, that the timber and plank were contracted for at a certain price, by the thousand feet, and that at the time of the attachment, they had not been surveyed and the measure of them ascertained.
The general doctrine on this subject is, undoubtedly, that when some act remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the performance of such act is a prerequisite to the consummation of the contract; and until it is performed, the property does not pass to the vendee. But in the case of sales where the property *284to be sold is in a state ready for delivery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties, that the sale is perfected, and the interest passes immediately to the vendee, although the weight or measure of the articles sold remains yet to be ascertained. Such a case presents a question of the intention of the parties to the contract. The party affirming the sale must satisfy the jury, that it was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascertaining the price of the articles sold, at the rate agreed upon.
These views are fully sustained by the decision of this Court in the case of Macomber v. Parker, 13 Pick. 182. The objection was there taken in relation to a contract for the sale of a quantity of bricks, in which it was stipulated, that the bricks were to be counted ; and this not having been done before an attachment of the same, it was insisted, that the sale was not complete. But it was held, that if it was the intent of the parties to the contract to complete the sale prior to the counting, then the property might well pass, although that operation might yet remain fo be done, for the purpose of ascertaining the amount to be paid for the article sold. See also Hawes v. Watson, 2 Barn. & Cressw. 540.
The Court are of the opinion, that upon a proper application of these principles to the present case, the jury would have been warranted from the testimony to find, that it was the intention of the parties here contracting to make the sale of the articles complete and absolute before the measure of them was ascertained.
There is evidence in the case, from which the jury might have inferred a delivery to Curtis &i Barstow of the articles sold. This will be found in the written memorandum which the plaintiff received from the vendees, and in the testimony of Josselyn as to a conversation between himself and the plaintiff. In connexion with this may be considered the evidence of an actual payment of two hundred dollars on account of the purchase, and the fact that payment for the residue was not a condition precedent to the delivery, inasmuch as, by the terms of the contract, a credit of ninety days was *285given. If such a delivery were found by the jury, the sale might be considered as perfected, and the property would pass to the vendees, as is well settled.
It was further contended, that the plaintiff might avoid the sale and reclaim the goods, if the vendee became insolvent before payment was made for them. This right, we apprehend, exists only while the goods are in the possession of the vendor or of a carrier employed to convey the same to the vendee, and with the change of possession the lien of the vendor on the goods for the payment of the price of the same is wholly lost, If the jury would have been authorized to infer a delivery to the vendee, tliev might also have found against the lien of the plaintiff.
Upon the whole matter, the Court are of opinion, that the jury would have been authorized to return a verdict for the defendant; and agreeably to the stipulations of the parties, the plaintiff must become nonsuit.