The question at issue in the present case is not whether the property in certain chattels has passed, as between vendor and vendee, but whether a purchaser has acquired a valid title thereto as against an attaching creditor of the vendor. It often happens that under a contract of sale a title may pass as between the immediate parties to the contract which *43cannot be set u)3 to defeat the rights of third persons. For example, a delivery of property may not be necessary to vest a title in a vendee as against his vendor, but it is always essential to pass the title as against creditors or bona fide purchasers without notice. Upon the same principle, no right by way of estoppel can arise in favor of the plaintiff in this action, on the ground that the original owner of the property in controversy has done certain acts, the effect of which is to preclude him from asserting any title to it as against the plaintiff. Such acts might avail the plaintiff, if the issue was between him and his vendor. But the creditors of the latter cannot be affected by them. They have the right to hold the property by attachment to secure their debts, unless it appears that a valid sale and delivery has vested a legal title to it in the plaintiff. Besides; the effect of an estoppel suo vigore is not to pass a title to property, but to preclude a party from setting up any right or claim to it. A debtor cannot, by his dealings with a third person to which his creditor is neither party nor privy, shut out the latter from his right to sequestrate his debtor’s property by attachment and execution. The only mode in which such right can be defeated is by proof of a valid sale and delivery under and by virtue of which a title to the property has passed to and become vested in the vendee prior to the attachment or seizure by a creditor.
The single test, then, by which to determine which of the two parties to .this action has the better title to the property in dispute is, to ascertain whether the plaintiff’s evidence shows a valid sale and delivery to him prior to the attachment by the defendant. The solution of this question depends, we think, on the most elementary principles, although in their application to the facts in proof a nice discrimination may be required.
The ordinary definition of a sale, as a transmutation of prop™ erty from one person to another for a price, does not fully express the essential elements wtiich enter into and make up the contract. A more complete enumeration of these would be, competent parties to enter into a contract, an agreement to sell, and the mutual assent of the parties to the subject matter of the sale and to the price to be paid therefor. A learned author adds *44to this summary the brief and significant remark, “ If any of these ingredients be wanting, thére is no sale.” Atkinson on Sales, 5. Story on Sales, § 8. Blackb. on Sales, 110. Thus it cannot be doubted that if under a contract of sale a delivery was made, through mistake, of an article different from that agreed upon by the parties, there would be no sale of the article delivered, and no property in it would pass, for the simple reason that the vendor had not agreed to sell nor the vendee to buy it. There would in fact be “ no contract between the parties in respect to the article actually furnished ; ” or, to express it in different words, when a material mistake occurs in respect to the nature of the subject matter of a sale, there is no mutual assent, and therefore the contract is void. Story on Sales, §§ 148, 458. And so it was held when this case was before us at a previous term. 9 Allen, 492. This principle is well expressed in the maxim of the civil law, “ Cum in corpore dissentitur, appwret nullam esse acceptionem.”
Applying thip principle to the facts proved at the trial, it would seem to be clear that no title passed to the plaintiff in the barrels of salt and No. 3 mackerel, because he made no agreement for the purchase of these articles. His agreement or contract of sale was for articles of an entirely different kind, and at the time of the attachment he did not know that the articles which had been delivered to him were not the same in kind as those which he had agreed to purchase. Nor had he then assented to receive the articles delivered as being in conformity to or in pursuance of his previous contract of sale, unless it can be said that a party assents to that of which he has no knowledge.
But it is very strenuously and ingeniously urged in behalf of the plaintiff that the ease at bar, on the facts developed at the ast trial, does not come within the principle above stated, and that it is distinguishable from the case as before presented to the court. The ground of this contention may be briefly stated thus. The plaintiff offered to prove that the vendor knew that the property which he delivered to the plaintiff was not the same in kind as he had agreed to sell and the plaintiff to buy, but en tirely different, and that he intentionally delivered to the latter *45the barrels of salt and of No. 3 mackerel instead of the articles which he had previously agreed to sell to him, and that this fact was entirely unknown to the plaintiff until after the attachment by the defendant. Upon the offer of proof, it is insisted that the case comes within that class in which a vendor has fraudulently misrepresented the quality of the property which is the subject matter of the contract of sale, and thereby deceived and defrauded his vendee ; and that although the latter might at his election rescind the contract and avoid the sale, yet the title to the property passes and becomes vested in the vendee, subject only to the right of rescission and avoidance by him.
But this argument seems to us to overlook an essential distinction between cases of that nature and the one at bar. In the former, the minds of the parties meet in regard to the subject matter of the sale. The one agrees, to buy, the other to sell, the same identical chattels. The mistake or fraud relates solely to the quality, not to the identity, of the article. But in the latter, there has been no mutual agreement or understanding concerning the specific property which the vendee is to receive under his contract. No particular chattel or mass, purporting to be the same as that bargained for, and seen and known by both parties as that which was the subject of sale between them, has been delivered and received, but an entirely different article, which the vendee has never seen, which he did not agree to buy, and of the nature of which he is wholly ignorant, is passed over to him instead of the property which he agreed to purchase. How can it be said that any property passes under such circumstances ? The vendee has not agreed to buy the article. He has not assented to its delivery to him, either under the contract of sale or in substitution of that which he agreed to buy. He does not know what the article is. To uphold such a transaction as a valid sale and delivery would be to say that the title to property can pass to a vendee, which he has never agreed to purchase and to the delivery of which he has not assented; in other words, that a valid.sale and delivery exist where the essential elements of the contract are wanting. The fallacy of the argument urged in behalf of the plaintiff consists in the assumption that the *46vendee agreed to receive the barrels of salt and of No. 3 mack erel in fulfilment and completion of the previous contract of sale; or, in other words, that he accepted “ the identical body corpus or mass of property,” as the one which he had agreed to buy. But we do not understand that any such acceptance or assent is proved. On the contrary, it is expressly proved that, when the form of delivery was gone through with, the plaintiff believed that the contents of the barrels conformed to the agreement, and was ignorant that articles of a different kind were in fact contained in them. It is not a case, therefore, where through deception and fraud a vendee gives his consent to take a particular article which he sees and identifies as the one which he had agreed to purchase, but concerning the quality of which he is deceived and mistaken; but the very different case of the delivery tó a vendee of property which he had neither agreed to buy, nor to receive in fulfilment of a previous contract of sale.
The familiar case of the bezoar stone, which was the subject of the action in Chandelor v. Lopus, Cro. Jac. 4, will illustrate our meaning. In that case, there can be no doubt that the property in the stone passed to the vendee, subject to a rescission and avoidance of the sale by him on the ground of fraud, because both parties knew and understood the specific subject of the sale. The deceit was not in regard to that, but only as to the quality or value of the stone. The vendor and vendee contracted concerning the same identical thing, and it was delivered by the former and received by the latter. The mistake was not as to the res, but as to its incidents. But suppose a different state of facts; that the jeweller had agreed to sell to the plaintiff a bezoar stone of a particular quality, which was not shown to the vendee, and which was not selected or identified as the specific subject of the sale; and that subsequently he should deliver a common crystal inclosed in a box, the contents of which were unknown to the vendee, as and for the stone which he had agreed to purchase. It certainly could not be said that, by such an act of delivery merely, the property in the crysta' passed to and became vested in the vendee. No doubt it wouk so pass if the vendee, on knowing the contents of the box. *47accepted it in fulfilment of the contract of sale. But the title would then vest, not by virtue of the delivery, but of the subsequent assent of the vendee. The same illustration, carried a little further, will more clearly develop the point at issue. Suppose the fraud had been practised by the vendee and not by the vendor, and that the former, after agreeing to purchase a bezoar stone contained in a particular box, while the attention of the jeweller was diverted, should remove the stone and transfer to the box a valuable diamond belonging to the jeweller; and that the latter, supposing the box still to contain the bezoar stone, should deliver it to the vendee, who should thereupon depart in possession of the diamond. Could it be contended that the property in the diamond passed ? Would not replevin lie in favor of the jeweller on discovery of the fraud ? Clearly so. And yet the delivery was of that “ identical corpus ” in pursuance of the previous contract of sale. The jeweller might, it is true, on discovery of the fraud treat it as a sale, and hold the vendee responsible for the full value of the diamond. The latter would be estopped by his own fraud to deny the sale. But if the jeweller did not elect to regard it as a sale, his property in the diamond would not be divested, and he could recover it on due process. There would have been no valid sale and delivery of the article, because the contract of sale did not include it, and no delivery of it was ever knowingly made by the vendor. We cannot distinguish such a case in principle from the one at bar.
But it is said that the vendor delivered to the plaintiff the barrels which contained the salt and the No. 3 mackerel, and that these we re received and accepted by the vendee as a completion or fulfilmsnt of the contract of sale. We do not think that this is an accurate statement of the real transaction. It would be so if the barrels had been the subject matter of the sale, and not a mere incident of it. The parties contracted solely for the sale of mackerel of a certain specified well known kind, and not for she barrels in which they were contained. These mackerel, which constituted the real subject matter of the contract, the vendee never saw, nor did he ever knowingly assent or agree *48to receive any other article or a different Mnd of the same article as a substitute therefor. If it had appeared that he agreed to buy certain fish which were in a heap or in open and uncovered boxes, so that the subject matter of the sale was identified and known to both parties, the case might have stood differently. But, on the facts proved at the trial, the plaintiff agreed to buy a certain article; the vendor delivered to him wholly different articles, which he had not agreed to purchase, and there is no evidence that the plaintiff assented to receive or accepted the articles until after the attachment had been duly made by the defendant.
We by no means intend to say that a sale is incomplete and no property passes to a vendee in cases where an agreement for sale is made with reference to certain chattels, which prove to be of an inferior quality, though of the same kind considered as an article of merchandise as that contracted for. As has been already said, in this class of cases the title does pass and vest by delivery in the vendee as against creditors, although he may have the right, on discovery of the misrepresentations or fraud as to their quality, within a reasonable time to disaffirm the contract, rescind the sale and return the property to the vendor. But we do intend to decide that no property passes to a vendee as against creditors where the contract of sale relates to and includes one kind of property, and a delivery is made to the vendee of a wholly different kind, without the knowledge of the vendee or any assent on his part, either express or implied, to take and receive the substituted article in place of the one which he agreed to purchase.
The only doubt which we have had is, whether this rule or principle is applicable to that portion of the property in controversy which is of a different grade from that which formed the real subject matter of the contract between the parties; that is, whether the delivery of the barrels of No. 3 mackerel ought to be regarded as a delivery of the same article as that contracted for, but of an inferior quality. But on careful consideration of this part of the case, the majority of the court are of opinion that, under the provisions of Gen. Sts. c. 49,. §§ 33-56, each *49grade of mackerel may be properly regarded as a distinct kind of merchandise, and, when made the subject of a contract of sale, that each grade stands on the same footing in relation to the other grades as if it was an article of an entirely different species. For this reason no distinction can be made between the barrels containing the No. 3 mackerel and those containing salt. No title to either had vested in the plaintiff prior to the attachment, because neither of them were included in the contract of sale, and the plaintiff had not assented to receive them in fulfilment of the contract. Exceptions overruled