The plaintiffs contracted with the defendant for the purchase of 2300 bushels of wheat, portion of a larger quantity in store at Ogdensburgh, and paid Mm therefor, part at the time of purchase, and the balance at a subsequent period. The contract of purchase was consummated on the 14th July, 1864, and on the 28th of the same month 1600 bushels of the wheat contracted for were destroyed by fire—the balance of the 2300 bushels having been previously removed. There was no actual delivery of *61the wheat at, or subsequent to, the time of sale; nor was it separated from the mass in store. Subsequent to the sale the defendant used, or as he claimed, “ borrowed,” 700 bushels of the wheat, for which he returned an equivalent to the plaintiffs. The action was brought to recover for the 1600 bushels destroyed by the fire.
The first question presented by the case is in regard to the effect of the transaction between the parties. Was it a bargain and sale, by which the title to the property passed to, and vested in, the plaintiff, or was it an executory contract of sale, merely ? If the latter, the property remained the property of the defendant, at his risk ; and having received full pay therefor, he was bound to deliver it on the plaintiffs’ demand, or answer for its value; and its accidental destruction by fire, before delivery, could afford no defense against the plaintiffs’ claim. It was insisted by the plaintiffs, on the trial, that such was .their condition. They insisted that the sale was not complete to pass the title, inasmuch as the wheat was not delivered, pointed out or placed- under their control; but remained in bulk in the hands of a bailee, where it had been placed by the defendant, mixed with a larger quantity belonging to the defendant and others. With a view to determine the point whether or not the title passed to the plaintiffs, the judge, at the trial, submitted to the jury the following question : “Was it understood between the parties, at the time, that the wheat was at the plaintiffs’ risk ?” The jury answered, “ No.” If this question was a proper one for the jury, it stands determined by their verdict, that the title did not pass, and that the property remained the property of the defendant at the time of the fire. In this view the plaintiffs were entitled to recover the amount specified in the general verdict, being the value of the 1600 bushels not delivered by the defendant. This brings us to an examination of the evidence laid before the jury for their consideration. Does this evidence show conclusively that the title did or did not pass ? Qr was this a question for the jury, on the evidence ?
*62It was proved that the plaintiffs, by an oral agreement with the defendant, agreed to purchase of him 2300 bushels of wheat, then in store in an elevator, and paid him the stipulated price therefor. The wheat was in bulk, mixed with a larger quantity belonging to the defendant and others. It stood credited to the defendant, with other wheat, on the books of the keeper of the elevator. Ho executed bill of sale was given to the plaintiffs, nor was any order for the grain given them on the keeper of the elevator. The quantity sold was not separated from the mass in store, nor was there any attempt at a manual delivery. It was understood that the defendant might use or borrow a portion or all of the wheat, on condition that he would restore an equivalent in amount and quality ; and he did so borrow 700 bushels, prior to the fire, which he restored to the plaintiffs, according to the understanding. There was, too, a serious conflict of evidence on the point whether it was expressly stipulated by the parties, at the time of the purchase, that the grain should thereafter remain at the plaintiffs’ risk. The defendant testified that it was so expressly agreed, and he introduced evidence confirmatory of his testimony. On the other hand, two of the plaintiffs gave this assertion a flat denial. Under this state of the evidence it was proper, in my judgment, to submit to the jury the question whether the ' wheat was there? after to remain at the plaintiffs’ risk. The jury found that it was not to remain at the plaintiffs’ risk; in other language, that the title did not pass. In support of the verdict, cases are cited wherein it is held that, in order to pass the title to the vendee, there must be an actual delivery ; or the property must be so designated that possession may be taken without any further act on the part of the vendor. These decisions stand as sound law ; nor are they at all in conflict with those cases wherein it is decided that the title may pass to the vendee, if such be the intention of the parties, in case of a sale of a specified quantity, not separated from a mass in which it is included. In Whitehouse v. Frost, (12 Taunt *63614,) the vendors sold ten tons of oil out of forty tons secured in one cistern. There was no measurement or actual delivery. It was held that the title passed. This is one of several cases referred to in the opinion in Kimberly v. Patchin, (19 N. Y. Rep. 330,) wherein the Court of Appeals decided that upon a sale of a specified quantity of grain, its separation from a mass indistinguishable in quality or value, in which it is included, is not necessary to pass the title, when the intention to do so is otherwise clearly manifested. (See also Olyphant v. Baker, 5 Denio, 379, and cases cited.) The conclusion of the Court of Appeals in Kimberly v. Patchin, as expressed in the opinion (p. 338) was, that upon a simple bill of sale of gallons of oil or bushels of wheat, mixed with an ascertained and defined larger quantity, it may or may not be considered that the parties intended that the portion sold should be measured before the purchaser became invested with the title. So it seems that in such case the title may or may not pass, according to the intent of the parties. In the' case in hand the sale was complete, except that there was no actual delivery or separation of the property sold, from the mass in which it was included. How it became necessary to inquire into the intent of the parties ; whether they agreed or understood that the title passed, or remained in the defendant, the vendor. Proof was given by both parties, bearing on the point, raising a conflict of evidence. It therefore became a question for the jury to settle, and they found that the title did not pass, but the property remained the property of fhe defendant, Hor can it be said that their finding is either unsupported by or contrary to evidence. Therefore, according to the verdict of the jury, the transaction operated as a contract to sell, and was not a transfer of title. . They found that the wheat remained at the defendant’s risk. Giving effect to the verdict, the plaintiffs were entitled to recover $4448.77, the value of 1600 bushels, being the quantity undelivered on the contract of sale. The judge, however, permitted a recovery for only 1400 bushels, under *64the view of the facts and law adopted by him. This was an error in favor of the defendant, of which the latter can not complain ; and the plaintiffs have acquiesced by omitting to take exception or appeal. My conclusion, above stated, necessarily leads to an affirmance of the judgment.
[St. Lawrence General Term, October 2, 1866.But if wrong in such conclusion—if the title to the wheat in fact passed to the ' plaintiffs on the sale, July 14th—it must follow, I think, that the subsequent acts of the defendant operated as an appropriation of the 1400 bushels for which a recovery was allowed. The defendant at the time of the sale secured permission to use or borrow a portion of the wheat, and he exercised his right to the extent of appropriating 2100 bushels. As regards the 700 bushels, no question is made; nor can there be, I think, in regard to the 1400 bushels. All that was needful to transfer the title from the plaintiffs had been performed. In this view of the fiase, I deem it unnecessary to do more than refer to the opinion of the learned judge before whom the trial was conducted, and who directed the judgment. On the theory adopted by him, the cases he cites fully sustain his conclusion.
The judgment must be affirmed.
Bockes, James, Rosekrans and Potter, Justices.)