The principal question in this case is whether there was a sufficient delivery of the butter to pass the title as between the parties. There is no dispute that there was a good contract of sale, and no question arises under the statute of frauds.
The defendant accepted by telegram the plaintiffs’ offer to sell him sixty tubs of butter of a specified quality at twenty-seven cents per pound. The plaintiffs had in their storehouse a large quantity of butter. Upon the receipt of the defendant’s telegram accepting their offer, they were impliedly authorized, as the defendant’s agents, to set apart and appropriate to him the goods called for by the contract. This they immediately did, weighing the butter, setting it apart, and marking each tub for the purpose of designating it as the defendant’s property. They then at once sent him a bill of all of it, marked “ Cash on demand.” This completed the sale and passed the title. Arnold v. Delano, 4 Cush. 33, 38. Ropes v. Lane, 9 Allen, 502, 510. Merchants’ National Bank v. Bangs, 102 Mass. 291, 295. Marble v. Moore, 102 Mass. 443. Morse v. Sherman, 106 Mass. 430. Safford v. McDonough, 120 Mass. 290. Gilmour v. Supple, 11 Moore P. C. 551, 566. Tarling v. Baxter, 6 B. & C. 360. Benjamin, Sales, (6th Am. ed.) §§ 353, 354, 357, and cases cited in the note.
If the contract is not in such form as to be binding under the statute of frauds, such an appropriation does not constitute an acceptance under that statute, nor does it change the possession, and thereby deprive the vendor of his lien for the price. Safford v. McDonough, ubi supra. But if the vendee in such a case after-wards refuses to take the goods and pay for them, the vendor may recover the price if he keeps them in readiness for delivery to the purchaser. Under a contract of sale, when the goods have been so appropriated and set apart, the vendor has done that which by the terms of the agreement makes the whole consideration payable; and so long as he remains ready to do *311whatever else is to be done to give the vendee the benefit of his purchase, he is entitled to receive the agreed price without deduction on account of his retention of his lien upon the property. Morse v. Sherman, 106 Mass. 430. Putnam v. Glidden, 159 Mass. 47. White v. Solomon, 164 Mass. 516.
There was sufficient evidence to warrant the judge in finding that the butter answered the requirements of the contract. The plaintiffs appropriated it to the defendant as butter of the quality called for. Their conduct then and afterwards was equivalent to a declaration that it conformed to the agreement of the parties. Afterwards shipments were made from time to time of a part of it, amounting to forty tubs in all, which were accepted and paid for by the defendant without objection. This was an admission by the defendant that the quality of the forty tubs was such as he expected. The bill sent to the defendant in the first place gave the separate weight and tare of each tub of butter. The defendant directed the shipping to him of the remaining twenty tubs, and the only dispute between the parties at that time was in regard to the terms of payment, the plaintiffs asserting that the property was to be paid for on demand, before parting with the possession, and the defendant contending that he was entitled to receive it and to have three months from the time of sale in which to make payment. While these facts do not make it certain that the twenty tubs remaining in the possession of the plaintiffs were of good quality, they warrant an inference in favor of the plaintiffs’ contention, in the absence of anything to show the contrary. The last instruction requested was therefore rightly refused.
Exceptions overruled.