The first request by the plaintiff for instructions to the jury, and the first request by the defendant, related to the same subject, namely, the rights of the plaintiff under the contract, irrespective of possession taken by him. The plaintiff asked the court to rule that, by the terms of the agreement, he was entitled to all the stock in trade, without possession thereof. The defendant, on the other hand, asked for a ruling that the plaintiff, in order to establish a title to any portion of the goods, must prove that he took possession of such goods, and retained the same. We are of opinion that the jury should have been instructed according to the request of the defendant. Prior to the agreement of September 2, the original mortgage to the plaintiff had been given up, and no new written agreement and no distinct and completed oral agreement had been entered into. The plaintiff’s title therefore depended solely on the agreement of September 2, under which the stock in trade was not to be his property till the process of canning and preparing for market should be completed. It does not appear to have been understood by the parties that the plaintiff should furnish the entire capital employed. The money advanced by him was treated as a loan, for the purpose .of enabling the firm to purchase fruit, vegetables, &c., and the firm with the aid of this money was to go on and prepare the articles, and, after this had been done, a change of title was to be effected by *216giving a bill of sale to the plaintiff, or by his taking possession, and until the giving of such bill of sale, or such taking of possession, the title would remain in the firm. Chase v. Denny, 130 Mass. 566. Moody v. Wright, 13 Met. 17, 32. On this point, therefore, the plaintiff’s exception must be overruled, and the defendant’s exception sustained.
The plaintiff also asked the court to rule that there was evidence which would authorize the jury to find that the possession taken by him, as shown by his bill of exceptions, applied to the stock in the Summer Street store, as well as to that in the Pleasant Street store; and this instruction we think ought to have been given. It was not necessary to take an actual manual possession of every article. Possession, like delivery, may be of a part for the whole. The written agreement applied to the whole stock of goods, wherever it might be, and the plaintiff’s right to take possession of the whole stock remained the same after the removal of the principal portion of the goods into the new store. Since it was not necessary for the plaintiff to take actual possession of all the goods in detail, it could not be held, as matter of law, upon the evidence, that his act of taking possession of the bulk of them under his. agreement was not intended by him to apply to all the stock in trade which he was entitled to take possession of, or that his act was not so accepted by O’Hara. If the plaintiff went to the Pleasant Street store for the purpose of taking possession, and there, in the presence of both partners, said that under the agreement he had a right to take possession and did take possession, and that Fairbank could not sell any more; and if he put O’Hara in as keeper, with directions as stated in the bill of exceptions, and if by this he intended to exercise all his right of taking possession under the agreement, and to put O’Hara in as keeper of all the goods covered by the agreement, wherever they might be, and if O’Hara accepted the trust, — it cannot be said, as matter of law, that there was no evidence of the plaintiff’s taking possession of the goods in the Summer Street store. Shurtleff v. Willard, 19 Pick. 202, 210. It was a question for the jury to determine whether possession was taken of a part for the whole. Phelps v. Cutler, 4 Gray, 137. Ingalls v. Herrick, 108 Mass. 351, 354. Pratt v. Chase, 40 Maine, 269. The plaintiff’s exception on this point is sustained.
*217In reply to the plaintiff’s third request for instructions, the court ruled that there was no evidence to go to the jury of a mm mingling of the goods by the defendant. The bill of exceptions discloses no facts which show that this ruling was wrong. The court further ruled that the plaintiff could only recover, so far as depended on the question of possession, what he could show was in the Pleasant Street store, and in his actual possession. This ruling would require modification, as already indicated.
The defendant requested a ruling, that if O’Hara, having been appointed keeper by the plaintiff, voluntarily allowed the defendant to take possession of the goods under the attachment, or subsequently as messenger in insolvency, and made no claim that he was holding them for the plaintiff when the defendant took possession, it would be a failure of continuity of possession which would be fatal to the plaintiff’s title. This request was properly refused. The plaintiff, by taking possession, fixed his rights, which were not defeated by the act or omission of O’Hara. The defendant took the goods by virtue of his precepts. Until he did so, the plaintiff’s rights continued. By his act, the plaintiff’s rights were infringed.
Exceptions sustained.