| N.H. | Jul 15, 1861
The poles appear to have been ready for delivery at the time and place designated, and the question is, were they delivered so as to pass the title between the parties, and enable the plaintiff to maintain his suit for goods sold and delivered; or was enough done to support his count for goods bargained and sold.
His proof tends to show 2130 poles of the kind agreed upon, ready for delivery, and notice to the defendant; but there is no evidence from which the jury could have found that the 2000 were designated and set apai’tfrom the larger bulk, nor that there was an actual delivery of the entire bulk to the defendant. It is a ease, then, where, as between the buyer and seller, something remained to be done before the property passed, namely, the designation and setting apart of the 2000 from the entire quantity, and it comes within the principle recognized in Ockington v. Richey, 41 N. H. 275. As it was said in that case, if by the agreement of the parties nothing had remained to be done before the title passed, but the whole had actually been delivered, with proper stipulations for the return of the surplus beyond the 2000, the case would have been different, as was held in Page v. Carpenter, 10 N. H. 77. But there is no such evidence here ; on the contrary, upon notice by the plaintiff’s agent, the defendant’s agent said he would see to it immediately, “ and have them counted out and paid for.” Upon this evidence we think the jury could not have found a delivery, and therefore as no title passed to any specific 2000 poles, the count for goods sold and delivered is not sustained. Hanson v. Meyer, 6 East 614; Seminary v. Swift, 5 B. & C. 57; Fuller v. Bean, 34 N. H. 290; Mason v. Woodman, 22 N. H. 172; Warren v. Buckminster, 24 N. H. 336; also, Shepard v. Pressey, 32 N. H. 49.
Nor can the count for goods bargained and sold be maintained, because, although a delivery in such case is not essential, yet the sale must have been complete, and the title must have vested in the defendant. To complete the sale between the parties, delivery is not necessary, but the sale must be otherwise complete; for if any thing remain to be done as between them, before a present right of property vests in the buyer, the count for goods bargained and sold can not be maintained; but the action should be special, for refusing to receive and pay for the goods which the defendant has agreed to purchase. 1 Ch. Pl. (10 Am. Ed.) 347, and notes; 2 Ch. Pl. 264, and notes; Atkinson v. Bell, 8 B. & C. 277; Outwater v. Dodge, 7 Cow. 85" court="N.Y. Sup. Ct." date_filed="1827-02-15" href="https://app.midpage.ai/document/outwater-v-dodge-5464845?utm_source=webapp" opinion_id="5464845">7 Cow. 85. So it is said that a count for not accepting goods sold will not lie unless there has been an actual sale; and the property in the goods has become vested in the defendant. 2 Ch. Pl. 265, in note; 4 Cow. Phill. Ev. 114, and note 327 on page 209 of notes; Elliott v. Pybus, 10 Bing. 511, where it is said by Tyndal,
The title to the goods in this case not having vested in the defendant, there must be
Judgment on the nonsuit.