Opinion by
Judge Cofer:Under the provisions of the contract between the appellant and appellee, the title to the tobacco in contest remained in the latter. Although a contract for the sale of goods be completed and binding in other respects, the title remains in the vendor, and the goods at his risk, if any material act remains to be done before delivery to distinguish the goods sold, or to ascertain the price, or to fit them for delivery, unless what remains to be done is to be done by the purchaser, and the possession is delivered to him either actually or constructively.
The tobacco in contest was not delivered, nor was it ready for delivery, and t:he price was not ascertained. The tobacco was to be as*664sorted, tied up into hands, and delivered by the vendor; and until these things were done the title remained in him.
McHenry & Hill, for appellant. Walker & Hubbard, for appellee.The appellant’s remedy was by action for a breach of the contract, and not for the recovery of the tobacco. The court, therefore, properly instructed the jury to find for the defendant. Nor was there any error in afterward allowing the defendant to introduce evidence as to the value of the tobacco which had been taken possession of by the appellant, or in the assessment of the value by the jury.
Judgment affirmed.