delivered the opinion of the Court.
Mrs. Ursula Hieby sued Perry L. Moffitt and Charles Flick, doing business as Green Valley Packers, and the United States Fidelity & Guaranty Company, as surety upon their bond, to recover damages for the nonperformance of a contract with reference to the sale and purchase of certain citrus fruit grown by Mrs. Hieby in her orchards located in Hidalgo County, Texas. A cross-action for damages was filed by Moffitt and Flick. At the close of the evidence the court granted plaintiff’s motion to instruct the jury to render a verdict in her favor and against Moffitt and Flick on their cross-action, and upon such verdict judgment was rendered against the defendants for the sum of $2,866.27.
Upon appeal to the Court of Civil Appeals Moffitt, and others, presented the point that the trial court erred in not permitting the jury to pass upon their defense that a subsequent oral contract, dated March 12, 1948, superseded the earlier written contract of November 21, 1947. The next point urged in the Court of Civil Appeals by Moffitt, and others, was that the trial court erred in refusing to submit to the jury the question of whether Mrs. Hieby, the seller, breached her implied obligation to take proper care of and to water the orchard. Moffitt and Flick also pleaded that the trial court committed error in refusing to submit to the jury the question of whether or not the citrus fruit was damaged by an Act of God, which was alleged to have been a windstorm on December 2, 1947. The Court of Civil Appeals reversed and remanded the judgment of the trial court, holding that the failure of the trial court to submit to the jury the question of whether Mrs. Hieby breached her implied obligation to care for and water the orchards, as well as the failure to submit to the jury the question of whether or not the fruit was damaged by an Act of God, was reversible error. That court also held that the trial court was correct in not submitting an issue to the jury as to whether or not there was a subsequent new contract made by the parties in lieu of the original written agreement. 225 S. W. 2d 441.
*164The contract sued upon was as follows:
“Bought of Mrs. Ursula Hieby
Kind of Produce — Ruby Red Grapefruit
Location of Produce — No. 79 North % — 317 S ^
319 Bentsen subd.
Agreed Price 70.00 per ton
Time of Payment — when picked
Probable Harvesting Date, Weather permitting, Feb. 1, 1948
Buyer not liable for damages caused by any Act of God prior to harvesting. Owner or Seller hereby warrants that the commodities covered by this contract are not mortgaged and seller hereby states that he has not been induced or persuaded to sell such commodities at the price herein named by any representation as to the market by buyer but has made his own independent investigation of same, and further that he has not been induced or persuaded by buyer to breach any contract heretofore executed by seller covering the same commodities. This contract, including the probable harvesting date, is subject to all regulations of State and Federal Departments and Laws.
Seller agrees that if harvesting is paid by buyer it is to be charged to seller’s account.
Remarks: Clean trees last picking — phone 856 R
All terms of this agreement have been reduced to writing herein.”
With respect to the first point presented in this Court by petitioner, Mrs. Ursula Hieby, that the Court of Civil Appeals erred in sustaining the assignment of error of respondents to the effect that the trial court erred in refusing to permit the question to go to the jury of whether petitioner breached an implied obligation properly to care for and water the orchards in question, to the extent that the citrus fruit did not have a normal development and growth and did not reach the size and quality required by respondents in their package fruit business, we are of the opinion that the contention of petitioner is correct. The agreement entered into by the parties appears on its face to be an executed contract. It definitely states that ruby red grapefruit on certain acreage was bought of the seller at an agreed price of $70.00 per ton, payment to be made when the fruit was picked. A provision is inserted in the contract that “all terms of this agreement have been reduced -to writing herein.” Prior to the execution of the contract by the seller and the buyer, negotiations had been carried on with reference to the sale of the grapefruit and an offer of $80.00 per ton for *165the choice or ring picked fruit had been made to the seller by the buyer. Mrs. Hieby refused the offer of $80.00 per ton because she wanted to sell all of the fruit in the orchard instead of only the choice or premium grade. Consequently, the parties agreed on a sale price of $70.00 per ton and the buyer agreed to clean the orchards of all fruit. Thus, it is apparent that there was in contemplation of the parties to the contract that some of the fruit would be of an inferior kind. Too, it is significant that payment was based on tonnage rather than size of the grapefruit. Pursuant to the contract Moffitt and Elick, shortly after the contract was signed on November 21st, and by the 28th of the following month, which was December 1947, they ring pick the orchards five times. After that date no additional fruit was gathered by them. On March 24, 1948, Mrs. Hiebey, after notice to Moffitt and Elick, sold the fruit that was left in the orchards to other parties for the best price obtainable, gave Moffitt and Elick credit for what it brought, and filed suit against them for the difference between what she received and the contract price of $70.00 per ton. On the trial of the case there was evidence to the effect that by the end of January, 1948, which was conceded to be correct by Charles Elick, one of the defendants, that the price of grapefruit had dropped as much as fifty per cent under the contract price of $70.00 per ton. However, Moffitt and Elick stated that this drop in price did not affect them by reason of the fact that they had sold all the fruit for which they had contracted on the basis of prices prior to the decline of the market value of the grapefruit. It is to be noted that while testifying in the case Moffitt stated that when the grapefruit was purchased from Mrs. Hie-by it was “up to our specifications.”
Inasmuch as title to the grapefruit on the trees passed to the buyer as of the date of the contract, with a consequent delivery thereof made in the orchards, and there was nothing on the part of the seller that remained to be done in the matter, there was no implied obligation on the part of the seller to water the orchards or perform any other act with reference thereto. Had the parties so desired and had so agreed, it would have been quite easy for them to have inserted a stipulation in the contract to the effect that the seller should do whatever might have been deemed advisable under the circumstances with reference to the care to be taken of the orchards, as well as in regard to any other matters. This they did not do and there is no occasion for the courts to add to the contract as made by them.
*166The distinguishing characteristic in the case now under consideration is that the red grapefruit in the orchards was sold in bulk. The general rule, as quoted by Judge Coke of this court in the case of Cleveland v. Williams, 29 Texas 208, which is the rule laid down in Kent’s Commentaries, Vol. 2, p. 496, is as follows:
“If anything remains to be done, as between the seller and buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. This is a well-established principle in the doctrine of sales.” In discussing this rule, Judge Coke comments:
“This reason does not exist where the subject-matter of the sale is designated and defined, as where the whole bulk is sold. It is true, it may have to be weighed, counted, or measured; but if this is to be done to enable the parties to make a settlement, and not for the purpose of completing the sale, the right passed to and vests in the purchaser. It is certainly correct, as laid down in the books, that when anything remains to be done by the seller, such as counting, weighing, or measuring, the title does not pass, when either of these operations is necessary in order to separate the goods from a larger mass, of which they form a part; but when the entire mass is sold and must be measured, simply with a view to the ascertainment of its price, for the purpose of a settlement, the better opinion, on principle and authority, is, that the title passes. By keeping the distinction between a specific and an indefinite commodity in view, it is believed that most of the cases upon this subject can be explained, and their apparent conflict reconciled.” Citing cases.
In the case of Cleveland v. Williams, supra, an illustration is used which aptly points out the difference in sales where the present title to the property passes and those in which title does not pass, based upon whether or not something remains to be done in order to determine the consideration. We quote from that case:
“If a flock of sheep be sold at so much the head, and it is agreed that they shall be counted after the sale, in order to determine the entire price of the whole, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated, and their identity thus ascertained and determined.”
In view of the conclusion hereinabove reached that under the contract there was a completed sale of the red grapefruit, it is unnecessary to discuss the point as to whether the trial *167court erred in not submitting to the jury an issue presenting the defense that the fruit was damaged by an Act of God. In passing, however, we may observe that had an issue been submitted to the jury inquiring if the orchards had been damaged by the windstorm as alleged, there would have been no basis for a judgment to be rendered thereon. While there is evidence in the record as to the amount of damage caused by an alleged failure to water the orchards by the owner thereof, there is none with respect to the degree or amount of damage caused by the wind.
Moffit and Elick present a point of error to the effect, in substance, that the Court of Civil Appeals erred in holding that the trial court was correct in not submitting to the jury their defense that there was an oral contract of March 12, 1948, which superseded and took the place of the earlier written contract of November 21, 1947. This point is overruled. The allegation under this defense pleaded was that the seller and the buyers, after having disagreed with respect to their respective rights under the contract, entered into a new oral agreement under the terms of which the buyers would pay the seller, Mrs. Hieby, $35.00 per ton for the grapefruit that remained to be gathered, and would clean the trees. The Court of Civil Appeals correctly held that there was no consideration shown for this new oral agreement; that it was conditioned upon certain things to be done by the buyers; and that there was no compliance with the obligations that were pleaded.
Petitioner, Mrs. Hieby, complains that the Court of Civil Appeals erred in holding that the instant case is governed by the provision of Art. 719a-l-3a, Vernon’s Annotated Penal Code of Texas. We do not think such a construction can be given to the reference by the Court of Civil Appeals to the statute in question, which statement by the Court was that the evidence did not show that Mrs. Hieby had secured a Certificate of Maturity from the Texas Department of Agriculture prior to December 15, 1947, without which the grapefruit could not have been sold lawfully. It is quite obvious from its opinion that the Court of Civil Appeals did not give any weight to the matter referred to in deciding the case. Further, this alleged error is unimportant, since the statute does not apply to a sale of grapefruit on the trees.
The judgment of the Court of Civil Appeals is reversed and that of the district court is affirmed.
*168Opinion delivered May 17, 1950.