delivered the opinion of the court:
This cause was before this court at the last June Term, and is reported in 1 Utah R. 335. It is now before us for rehearing, on petition.
The appellants were partners in the business of herding sheep, and had charge of some two thousand head, a portion of them belonging to and owned by themselves, and a portion owned by other people. One of the firm, 'William Henry Chipman, was indebted to the respondent, and contracted to pay him in sheep to the number of one hundred and forty-four, out of the flock then in charge of the partnership, but there was no change in the custody or possession of the sheep. William Henry Chipman, claiming to act on behalf of the firm, agreed with respondent to herd the one hundred and fortv-four head of sheep. There was, however, no separation of th 'se from the main flock, and which of the main herd were conveyed or sought to be conveyed was never ascertained, nor did it appear by the contract; nor were the one hundred and forty-four head marked or designated in any manner so as to be identified. The sale was therefore not completed — something remained to be done. Until there was an ascertainment, designation or delivery of the sheep, the contract remained executory and not executed. No property in the sheep, therefore, passed to the respondent, whereby he was authorized to bring this suit. Benj. on Sales, §§ 310, 311, 452, et seq.
These sheep were in charge of a partnership. Every member of the firm has an interest in every part of the partnership property. So long as the sheep contracted to respondent by Wm. Henry Chipman, remained as undistinguishable parts of the whole herd, so long did the partnership have an interest in them, and that interest was unascertained until there should be a settlement between the members of the firm and a separation of the sheep. The act of one partner, therefore, in attempting to transfer the sheep for his individual debt, was an attempt to make the partnership liable for his debt. This could not be done except by consent of the other partners. *350This consent was never sought or obtained, and hence the partnership is not bound.
"We therefore see no reason for changing the judgment entered in this cause at our last June Term. Let judgment be entered accordingly.
SchaeufjBR, C. J., and EmeRSON, J., concur.