The contract obligated McCormick to deliver the flour in controversy to Bartels & Co., at the city of Denver. The carrier was not the designated agent of the vendees, and consequently a delivery to him cannot be regarded as a delivery to them. The flour, at the time the contract was made, was yet to be manufactured and the title could not vest in the vendees until it was ground and until there was a delivery and acceptance by them. The rule applicable to the sale of a specific and ascertained article cannot obtain here. Something was to be done on the part of the seller, and until it was performed, and until there was a delivery and acceptance on behalf of vendees, the title remained in him. The carrier to whom the flour was committed for transportation, as well as the appellants who received it from them, must be regarded as the agents of the vendor, and the law perpetuates this agency until some act is performed by the vendees which passes the title to them. After the flour reached Denver, and after Matzdorf had delivered it to the Salomons, and taken their receipt therefor, Bartels made a demand of them for the flour. The learned judge who tried the case, when resolving the motion for a new trial, was of the opinion that this demand was tantamount to an acceptance of the flour, and from the date of the demand, title vested in the vendees so as to enable them to maintain this action. It is clear that the flour in question was appropriated by McCormick to Bartels. His intention to deliver it to them is manifested by the directions given the carrier. Now it would seem, this being so, that if the appellees at any time assented, under such circumstances as to be bound by that assent, to what had been done by McCormick, if there was a meeting of their minds, the wrongful act of the carrier, or of any tliird person, would not take away from the acts of the buyer and seller the consequence and effect which the law would otherwise ascribe to them. Sewell v. Eaton, 6 Wis. 479; Benjamin on Sales, 246 to 271.
The evidence is clear that the appellees did assent, for upon finding that the flour was in possession of the defendants, Julius Bartels, acting on behalf of the plaintiffs, *522repaired to the store of Salomon’s, was shown the flour, claimed and demanded it as the flour of the plaintiffs. So far as he could do so, he assented to every thing which McCormick had done, and this too, knowing the failure of McCormick to comply with the contract, knowing that the delivery had not been made at the place agreed upon, knowing also that McCormick had not paid the freight; so that every fact upon which depended the final and absolute effect of his acceptance, was within his knowledge at this time, saving only the correspondence or failure of the flour to correspond with the quality contracted for. But the jury have found that in fact the flour was of the quality contracted for, and this being so, it is immaterial that Bartels did not at the time know it, for they had not an arbitary power to reject or to return it, if once accepted, but only in case it was inferior to that for which the plaintiff had bargained, and when the demand is unconditional, as in this case, the acceptance must be regarded as absolute. The stipulations of the contract of sale were inserted for the plaintiffs’ benefit, and a compliance with them they were at liberty to waive. Lewis v. Western Railroad Co., 11 Metc. 515.
They might have accepted the wheat elsewhere than at the place of delivery named, if they saw fit, and they were at liberty to accept it incumbered with a lien for the carriage, if it seemed to them to be for their interest, and if they did this with the assent of the vendor, they become invested with the property.
The only question, therefore, would seem to be whether or not the demand and avowed acceptance of Bartels while the flour was in Salomon’s possession, could operate to vest the title in them, notwithstanding the bailee or agent of the vendor refused to deliver. The authorities on this subject are not uniform, and the English and American are in open conflict. In Bental v. Burn, 3 B. & C. 423, the action was brought to recover £13 14s, the price of a hogshead of Sicilian wine. On the trial it appeared that the bankrupts had sold to the defendants a hogshead of Sicilian wine, then lying in the London docks, and at the same time *523a delivery order and invoice was made out and sent to the defendant, signed by the firm. There was no actual acceptance or delivery. Under these circumstances the court held that there could not have been any actual acceptance of the wine by the vendee until the Dock company accepted the order of delivery, and thereby assented to hold the wine as the agent of the vendee. In other words, that the Dock company refusing to deliver, there could be no actual acceptance of the goods by the vendee until he actually took possession of them. The principle here announced would seem applicable to the case at bar, and would be conclusive had not a different rule by a higher authority been prescribed. I refer to the case of Tome v. Dubois, 6 Wall. 548, where it is held that the conversion of personal property by a wrong-doer does not deprive the owner of the power of making a valid sale of it, and that a purchaser from the owner, upon giving the wrong-doer notice of the transfer, may demand the property, and in case of refusal, maintain an action for the wrongful retention of it. From this case it is apparent that when the vendor and vendee are of an agreeing mind, when the one intends to deliver, and the other to accept, that the object sought to be attained cannot be defeated by the wrongful act of a third person, who has no title except that arising from mere naked possession. It is further claimed, by the appellants, that before this suit could be instituted, it was the duty of the appellees to pay or tender to the Salomons the amount advanced by them to the carrier for freight. We think the Bartels did all they were required to do under the circumstances. They offered to pay the amount, which offer was not accepted. Besides, the Bartels could not pay until they knew the amount, and when the Salomons declined to give it, they absolved the Bartels from making an actual tender. The conduct of the appellants clearly shows that an actual tender would have been fruitless. Fred. Salomon informed Bartels when the demand was made that the flour would not be delivered up unless Bartels would return, or cause to be returned to him, the receipt that the Salomons had given Matzdorf for *524the flour. The objection then to surrendering the flour was not that the money advanced to the carrier, as freight, had not been paid. It was that the receipt of the appellants was outstanding in the hands of Matzdorf. There is nothing in the evidence to show that at the time the demand was made the receipt had fallen into the hands of a tona fide holder for value, and the effect of such a receipt in the hands of such a holder it is not now necessary to determine. So far as it appears, it was at that time in the hands of Matzdorf, and may remain there to this day.
It is claimed, however, by appellants, that McCormick sold the flour to Martzdorf. Whether or not there was a sale to Matzdorf; whether or not Matzdorf had authority to divert the flour from its destination, were questions submitted to the jury, and they resolved them against Matzdorf. We think, however, that the instructions of the court on this subject were calculated to mislead the jury, inasmuch as they seem to have limited the inquiry to a point of time anterior to the shipment. According to the view we take of the case, it was competent for McCormick to have changed his mind as to the disposition of the flour any time after the shipment, and prior to the demand and acceptance by the Bartels. As we have said above, the delivery to the carrier was not a delivery to the vendees. The flour was at McCormick’s risk, until acceptance by Bartels. If, during the time intervening between shipment and acceptance, McCormick made a valid sale to Matzdorf, then any demand or acceptance by the Bartels, while the flour was in the possession of the Salomons, would have been unavailing and nugatory. This view of the case was not clearly presented to the jury. The evidence on this whole subject of sale, and especially as to the time when the bill of sale was made out, is quite obscure There is considerable room for doubt, upon the evidence in the record, whether the bill of sale ante-dated in point of actual execution, or post-dated the demand and acceptance of the Bartels. The instructions proceeded upon a false theory, as to the time when Bartel’s rights vested, and as to the *525effect of the delivery to the carrier, and being calculated to mislead the jury, the judgment must be reversed, and inasmuch as the case must be tried again, it is proper to allude to the measure of damages.
At the time this suit was brought, the statute allowed the defendant in replevin to retrieve the goods by executing a forthcoming bond. This course was pursued here. The rule of damages in actions of replevin is not uniform. It depends on the character of the property. In an action to recover a horse, or other property having a usable value, the value of the use during the detention has been regarded as the correct measure of damages. In many cases, interest on the value, from the time of the wrongful taking, would be a proper measure, and this seems to be the rule applied in all cases where the property detained is merchandise, kept for sale, grain and all other articles of property, useful only for sale or consumption. Allen v. Fox, 51 N. Y. 565; Suydam v. Jenkins, 3 Sand. S. C. R. 614; Burgee v. Maybee, 21 Wend. 144.
Judgment reversed, and case remanded for further pro ceedings. Reversed.