There was evidence tending to show that the captain had authority from the defendant’s intestate to sell the fish, and that he sold to Potter and Wrightington what fish they might want at half a cent a pound. The fish were in bulk, and the quantity which Potter and Wrightington would take was uncertain, and it was necessary to weigh and separate them from the rest of the cargo. No title to any specific quantity passed therefore at the time of the bargain. Young v. Austin, 6 Pick. 280. Merrill v. Hunnewell, 13 Pick. 213. Scudder v. Worster, 11 Cush. 573. Foster v. Ropes, 111 Mass. 10. The sale was an executory one. The subsequent arrangement made with the plaintiffs on behalf of the defendant’s intestate by the captain, without the knowledge or consent of Potter and Wrightington, to sell the cargo on commission, could not affect or avoid the previous contract with Potter and Wrightington ; and when they sent their teams to the vessel for fish pursuant to directions which there was evidence that the captain knew or understood, the delivery must be referred to the contract between the principals rather than to the mistaken belief on the part of the agents of the defendant’s intestate that it was a sale effected through their own instrumentality. It was competent for the court to find, upon the evidence before it, that in sending the money as they did to the defendant’s intestate the plaintiffs were acting under a mistake of fact, to which their own negligence had in no way contributed.
The question as to the admissibility of the evidence relating to usage has not been argued, and we treat it as waived.
Exceptions overruled.