The contract of July 16 was a contract for the sale of twelve specific machines and not a contract for the sale of twelve machines of a particular description. By its terms it purports to be a present sale, but it was a sale of “ 12 automatic time-table machines complete,” and there was evidence that no one of the “ 6 machines now standing in the shop of the Automatic Time Table Company ” was complete.
The bill of exceptions is somewhat obscure on this point. But as we interpret it there was evidence that apart from the Gordon batteries no one of these six machines was complete. We speak of the parts of the machine other than the Gordon batteries because it seems to have been the undisputed fact that as matter of practice these batteries were not put into the machines until they were set up for use on the premises of the purchaser or licensee, and setting up these machines on the premises of the plaintiff was not part of the obligation of the vendor under the contract here in question. It appeared that that was to be paid for by the vendee in addition to the purchase price named in the written contract.
The contract does not say that the “ 12 automatic time-table machines ” were complete, but it says that the defendant sells to the plaintiff “ 12 automatic time-table machines complete.” Evi*256dence that the six here in question were in fact incomplete was admissible as one of the circumstances under which the contract was made and so one of the circumstances in the light of which it was to be construed.
Since something had to be done to the machines to put them in a deliverable state and a different intention did not appear, the property in the six machines here in question did not pass on the execution of the contract. The transaction was governed by the sales act (St. 1908, c. 237), and it is there so provided in § 19, Rule 2. The rule was the same at common law. Wesoloski v. Wysoski, 186 Mass. 495, and cases cited.
The defendant contends that the cases of Q-lover v. Austin, 6 Pick. 209, Glover v. Hunnewell, 6 Pick. 222, Sumner v. Samlet, 12 Pick. 76, Thorndike v. Bath, 114 Mass. 116, Mauger v. Crosby, 117 Mass. 330, and Whittle v. Phelps, 181 Mass. 317, are decisions to the contrary. Those are cases where it appeared that it was the intention of the parties to sell the chattel in its unfinished condition with an agreement by the seller to complete it; or, in the language of St. 1908, c. 237, § 19, those were cases where a different intention did appear.
The contract of July 16, therefore, was not a contract of present sale of six unfinished machines with an agreement on the part of the defendant to complete them, but it was a contract, to complete the six unfinished machines which on completion were to become the property of the plaintiff.
The defendant has contended that the delivery of the six machines not in dispute passed the property in the six here in question, and that Damon v. Osborn, 1 Pick. 476, 481, Lee v. Kilburn, 3 Gray, 594, 598, and Rice v. Codman, 1 Allen, 377, are decisions to that effect. Those cases are not decisions to that effect, and the case of Foster v. Ropes, 111 Mass. 10, is a decision that that contention is wrong at common law. The rule of the common law is the rule under the sales act. The cases relied upon by the defendant do not help him. Damon v. Osborn was not a sale of specific goods. It was held there that goods bargained and sold would lie before a separation was made. See however Barrie v. Quinby, 206 Mass. 259. The sale in the case of Lee v. Kilburn was held to be a sale of specific goods where nothing remained to be done. It was held that as *257against a messenger in bankruptcy the title passed without delivery and it was said that: “ The taking possession of part was in legal effect, the taking possession of the whole.” In Rice v. Codman the fact that part of the specific goods sold had been taken away was spoken of as showing that the statute óf frauds had been satisfied.
The next contention of the defendant is that the fire of August 8 brought this case within St. 1908, c. 237, § 8, cl. 2, and the plaintiff had to elect between avoiding the whole contract for all twelve machines or paying the whole price for the six the title to which passed to it at the date of the contract. It is not necessary to consider what the result would have been in the case at bar if the case had been brought within St. 1908, c. 237, § 8, cl. 2. The bill of exceptions went no further than to state that the “ fire greatly damaged the six machines standing in the defendant’s premises,” and the statute applies where the specific goods perished after the contract was made or so greatly deteriorated in quality as to be substantially changed in character.
The learned counsel for the defendant misconceives the character of the action now before us when he contends that the plaintiff has not put himself in a position to sue on the footing that the contract is rescinded. This is not an action founded on the rescission of the contract of July 16, but it is an action on that contract to recover damages for the defendant’s failure to complete the six machines which at the date of the contract were standing in its shop, and on completion of them to pass the title to the plaintiff.
The defendant’s last contention is that there was a variance. The supposed variance consists in this: It is alleged in the declaration that the plaintiff paid the defendant $2,400 in cash. The proof was that: “ $1,200 was allowed for capital stock in the defendant company previously issued to the plaintiff company, and paid for at the said price, which stock was then returned to the defendant company; $1,000 was actually paid in assuming and paying a note of the defendant company then outstanding ; $151 was also allowed on account of another note also assumed and paid by the plaintiff company; $48 was allowed on account of two advertising contracts the plaintiff company *258had outstanding which were assigned to the defendant company; and $1 in money was actually paid when said instrument was signed.” With the exception of the two notes assumed and paid by the plaintiff all these were cases of mutual debts set off by agreement and so payments in cash within Brech v. Barney, 183 Mass. 133. It is stated that the notes were “ paid.” We interpret that to mean that the plaintiff at the time of the execution of the contract paid those notes, at the defendant’s request, to the holder of them. That was a payment in cash.
Exceptions overruled.