concurring.
The opinion is based upon the assumption that the stipulation entered into by the attorneys at the trial -of the case was an admission that the entire mass of corn in the granary on the farm was the thing which was sold to Seldomridge. I think this is not the meaning of the stipulation. It is not in accordance with the other evidence in the case, and I am sure that defendant’s attorney never intended to make a stipulation which would defeat him.
I concur in the conclusion, however, for the reason that where there is a contract for the sale of unascertained goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract by the seller, with the assent of the buyer, the property in the goods thereupon passes to the buyer. The assent of the buyer may be expressed or implied, and it may be given either before or after the appropriation is made. 35 Cyc. 297; Sale of Goods Act, rule 5 (2 Mechem, Sales, p. 1482).
In this case Merriman appropriated the corn to the buyers before the attachment by the execution of the bill of sale and by pointing out the property to his brother-in-law for the purposes of delivery to the buyer and notifying the buyer of such appropriation.
In the absence of any appropriation by the seller in this case, 1 think the plaintiff’s attachment would have been good, because the title to the corn would still have been in Merriman.