concurring. If the testimony of Hugh 0. Donnell be rejected the plaintiff has no case, because it is proven that the whole quantity of salt was deposited in the warehouse, and there is no sufficient evidence to rebut the presumption that plaintiffs have received the whole quantity. They have accepted the transfer of the warehouse receipt, and paid the price. The return of the assistant keeper to the Customhouse on the 22d April, 1858, shows that the im*440porters were permitted to withdraw the whole 8021 sacks, and the plaintiffs surrendered to the warehouse keeper the permit for the whole. It was incumbent upon the plaintiff at least to show that there was a deficiency of quantity at this time, and this he cannot do unless he resort to the testimony of Donnell. If we give credence to Donnell’s testimony, it does indeed prove the deficiency, but it also shows that it took place by the unlawful withdrawal of the salt from the bonded warehouse of the government between the date of the sale of the salt by the defendants to the plaintiffs, and the payment of the duties by the defendants, at which time the salt had first been placed under the free control of the plaintiffs. It is true that it was incumbent upon the defendants, as vendors, to pay the duties upon the salt, and thus perfect the delivery. But this act to be performed on the part of the defendants did not prevent the sale from being complete at the time the price was agreed upon and paid, and the warehouse receipt was transferred to the plaintiffs. For, as the District Judge has correctly said, the sale was en bloc. There was a single object sold, viz, the cargo of salt of the ship Echo, stored in the bonded warehouse of the government. And the sale was perfect so soon as there was a concurrence of wills upon the object, and the price to be paid for the same, and the property of the thing was transferred to the purchaser, and from that time it was at his risk, unless the defendant had been put in default for not delivering the same. O. C. 2431, 2442, 5443, 2445.
The defendants were permitted by the plaintiffs to defer the payment of the duties until such time as the plaintiffs might desire to remove the salt. This did not render the sale any the less perfect as between the parties; nor did it prevent the property in the salt from vesting in the vendees. The defendants wore only bound to redeem the salt, and this perfected its delivery. “ Where the object sold is out of the vendor's possession, he must redeem it at his cost, and deliver it to the buyer, unless it be differently agreed between the parties, or unless it evidently appears from the contract that the buyer himself has undertaken to reclaim it.” 0 . 0. 2458. In this case, all that was contemplated that the defendants should do, was to pay the duties, which they did, and thus complied with their contract. Not having been in default as to the contract of sale, nor guilty of any negligence on their part, they cannot be held responsible for any loss which has happened to the purchaser by the destruction or theft of the thing sold.
The delay spoken of in Article 2445 is the being in mora, as is quite apparent from the French text aud other Articles of the Oode. See 1904 and 2216.
I therefore concur in the decree in this case.
Land, J., absent.