The opinion of the court was delivered by
Hall, J.The whole controversy in this case relates to a charge in the plaintiffs’ account of $15,75, for sacking a quantity of wool sold to the defendants by the plaintiffs, which charge -the auditors disallowed on the strength of a usage, shown before them, for the seller generally, though not universally, to sack wool at his own expense, the buyer furnishing sacks, — one of the defendants being admitted to testify in regard to the usage.
. Without deciding whether the defendant was competent to prove a usage, or determining that the usage found was sufficient to justify the disallowance of the charge, we are of opinion that the legal effect of the contract, in connection with the other facts found by the auditors, was such as to excuse the defendants from liability.
No principle of law is better settled, than that a contract of sale, whatever may be its terms, is incomplete, until there has been a delivery of the goods, either actual, or constructive. There could have been no constructive delivery, in this case, at the time of the making of the contract, because payment was not then made, and because, also, the quantity of the wool remained to be ascertained, before the sum to be paid could be known. Until the quantity of wool was ascertained by weighing, the property remained in the plaintiffs’ rooms and was at their risk. Hanson v. Meyer, 6 East 614. Ward v. Shaw, 7 Wend. 404. Chitty on Cont. 376.
It was the business of the plaintiffs, the vendors, to complete the sale by the delivery of the wool; and such delivery was not in point of fact made, until after the wool was sacked, — the sacking having preceded the weighing. Until the weighing the duty of the vendors, in regard to the sale, was not perfected. It is not intended to say, that the plaintiffs could have taken no other mode to deliver the *25wool, than that which they adopted. Possibly they might have completed a delivery by weighing the wool in fleeces and setting it apart for the vendees, — notifying them of what had been done. But the plaintiffs took no such course. They elected to pack the wool in the sacks of the defendants ; and having done so, in the absence of any express contract of the defendants to pay for services preceding the delivery, (which express contract the report negatives) we think nothing can be recovered for such services.
The result is, that the judgment of the county court is reversed, and judgment rendered for the defendants.