delivered the opinion of the Court:
The opinion of the Appellate Court in this case, by Bailey, J., shows, quite satisfactorily, that this bill can not be maintained as a bill for the specific performance of a contract. Counsel for appellant, however, virtually conceding this, contend that the bill is not to be regarded as a bill for the specific performance of a contract, but as a bill for the discovery and surrender of property. The correctness of this position depends upon whether the contracts and modifications .set out in the bill give title to appellant in the property to which they relate, before delivery by appellee, and acceptance by appellant. We are clear in the opinion that they do not. The proposition in both contracts is in substantially the same language. It is: “I propose to build, and deliver to your factory, and set up in complete running order, improved and special machinery,” etc. In both, final payment is to be made when the machine is completed, and approved by appellant. It is true, that in the second contract it is provided that $250 is to be paid by appellant at the time of signing the contract, and $200 more is to be paid, in two payments, of $100 each, while the machine is being built; but that this is not intended to vest any present property, is clearly shown by the further stipulations that the amounts are to be applied on account, and that if the machine should prove a failure, or not meet with appellant’s approval, appellee was to construct another which would meet with his approval. The fact that appellant, on being shown a machine, and the drawings thereof, expressed himself satisfied therewith, and offered to accept the same, only shows that appellant was then willing to accept what appellee had done, as a compliance with his part of the contract. But the machine was not yet entirely perfected, and there was no delivery,—no acting upon the offer of appellant,—and so no property passed.
In contracts of sale, the rule is, “where, by the agreement, the vendor is to do anything to the goods, for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a-contrary intention, be taken to be a condition precedent to the vesting of the property.” Benjamin on Sales, (1st Am. ed.) 221; Blackburn on Sales, (Am. ed.) 60, *151.
Since no property passed in the machines, it is impossible that any property could have passed in drawings, specifications and explanations, which are but incidents to the machine, and the cases cited in appellant’s brief are therefore not analogous. Appellant has nothing but an executory contract, which, unfortunately for him, is of that peculiar character whereof specific performance can not be enforced by a decree in equity.
We are, moreover, of opinion, that relief was properly denied on the further ground that it affirmatively appears that appellee has placed it beyond his power to specifically perform his contract by sales and assignments to other parties, who, it is not alleged, are purchasers with notice, and who are not brought before the court.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Mr; Chief Justice Scott, dissenting.