At the former hearing of this case, (see 9 Allen, 502,) it appeared that a sale and delivery of certain barrels of No. 1 mackerel had been made by Wonson & Brothers to Garland, as the agent of other parties, which was completed on the 21st of November 1862. The case was recommitted to the auditor to report as to certain facts. One of the matters to be considered was, whether any of these same mackerel had been sold and delivered to the plaintiffs prior to that date. It there appeared that the agreement made by the plaintiffs with Won-son & Brothers in September 1862, for the purchase of all the mackerel that Wonson & Brothers should pack that year, was executory, and did not pass the property of the No. 1 mackerel in question. The further report finds that these mackerel are enumerated in a bill of parcels annexed to the report as “ No. 9.” This bill was rendered to the plaintiffs on or about November 10th, the prices of the mackerel having been fixed before, on the arrival of the different vessels, as stated in the report. It is further found that from their knowledge of the business and observation of the properties of the different kinds and quantities of mackerel packed out from the different fares that season, the parties had satisfied themselves that there were upon the premises the number of mackerel of the kinds and quantities billed to the plaintiffs, and probably more, but the plaintiffs took no means to ascertain if the number billed to them had been actually inspected. One of the plaintiffs then gave directions as to storing them in the warehouses, but the bill was not settled till November 24th.
Upon the principles stated in our former opinion, no mackerel would pass to the plaintiffs on the 10t"n of November that had not then been inspected, and were not in some way delivered, for the inspection was to precede the delivery. The payments did not constitute a delivery, for they were advances designed to be made beforehand. But the report further finds that by or before November 20th the warehouses were all filled by Won-son & Brothers in conformity with the directions of one of the *600plaintiffs; that one of the plaintiffs was in attendance and saw them stored as he had directed; that before they were thus stored they were inspected and marked, and were in all respects ready for immediate shipment. It thus appears that as to these No. 1 mackerel Wonson & Brothers had completed everything which was to be done on their part before the 21st of November, and that the plaintiffs had them in their possession, and also a bill of sale of them. A settlement of accounts remained to be made. This was done on the 24th of November, but the sale and delivery was not delayed till that time. It thus appears that this sale of the No. 1 mackerel to the plaintiffs was completed prior to the sale to Garland.
The report also states some new facts in respect to the mackerel not sold to Garland, and not included in any of the bills of sale. On the first of December two bills of parcels were made which were then said to contain an enumeration of all the mackerel on the wharves and premises of Wonson & Brothers not included in any former bill to the plaintiffs, and from an examination of the packer’s books this appeared to be the fact. They were accepted by the plaintiffs as such. On the 19th of December the plaintiffs settled their account with Wonson & Brothers, having overpaid the bills. The parties then went upon the wharf; one of the Wonsons opened the doors of the warehouses; one of the plaintiffs saw the condition of the warehouses and the barrels on the wharf not housed or covered, and it was agreed that the mackerel should be stored during the winter in the warehouses and on the wharves for a certain price agreed. All the barrels had then been inspected and branded, and were ready for immediate shipment. There was .bus an actual delivery to the plaintiffs of the whole of the mackerel under an agreement for the purchase of the whole, and the intent of the parties was to complete the sale of the whole. The only defect in the transaction was that the biffs of parcels did not enumerate all the articles that had been thus sold and delivered; and, though money enough had been advanced to pay for the whole, yet the payment had been unad justed. These defects were the result of mistake, and not of *601intention. According to the principles stated in Macomber v Parker, 13 Pick. 175, and Riddle v. Varnum, 20 Pick. 280, the jury were authorized to find upon these facts that all these mackerel were then sold and delivered to the plaintiffs, so that as between the parties, they then became the property of the plaintiffs, notwithstanding the errors in the bills of parcels.
Exceptions overruled.