11 Iowa 32 | Iowa | 1860
The question presented for our consideration
It is claimed the sale was complete, for the reason that the delivery was as perfect as could, at the time be made in view of the character of the property sold. Delivery, it is conceded, completes the sale and vests the property in the vendee, but such delivery, in its character, must depend upon that which is the subject of the sale. This rule, however, has more particular application to cases, where there is a sale of the entire thing, as a ship at sea or the like, or to the position or situation of the article sold, as goods in transitu, or where they are inaccessible, as logs in a boom. But in this case there was an attempted sale of a portion of a bulk, and the question is, whether there was such a designation of that sold as amounted to a delivery, and hence a complete transfer of the title.
• As to the general rule upon this subject there is no controversy. In Cook v. Fagan, 7 Iowa 142, it was stated thus : “Where some act remains to be done in relation to the articles which are the subject of the sale, as weighing or measuring; or, as in this case, that of separating and setting them apart from the bulk, so that they may be distinguished and identified, the performance of such act is a “ pre-requisite, and until it is performed, the property does not pass to the vendee.” (Citing Davis v. Hill, 3 N. H. 382; 7 Cow. 85; 3 Greenl. 44; 2 Hill 137; Story on Cont. section 800; 1 Pars, on Cont. 441.) The same general rule is stated thus by Chancellor Kent, (2 Com. 496 :) “When the goods sold are mingled with others, they must be ascertained, designated and separated from the mass, before the property can pass. It is a fundamental principle pervading everywhere the doctrine of sales of chattels, that if goods be sold while mingled with others, by number, weight or
In Woods v. McGee, 7 Ohio 467, the earlier and more recent English decisions upon this subject are examined, and it is shown that the later cases adhere to the settled principle, that where a part of an individual mass of property is sold it is necessary that some further act should be done, specifying and identifying the part sold, before the action of trover will lie. See 12 East. 614; 5 Taunt 176; 2 M. & S. 397.
Mr. Story, in his work on sales, section 296, says : “ No sale is complete, so as to vest in the vendee an immediate right of property, so long as anything remains, to be done between the buyer and seller in relation to the goods. The goods sold must be separate and identified by marks or numbers, so as to be completely distinguished from all other goods, or from the bulk or mass with which they happen to be mixed. If they be sold by weight, or measure, or numbers, the specific quantity bought must be weighed, or counted or measured, so as to be separate and distinct from all similar goods.” And to the same effect is Story on Cont. section 504, and see McDonald v. Hewett, 15 John. 350; Riddle v. Varnum, 20 Pick. 280; Sumner v. Sawlet, 12 Ib. 82.
We have thus, from different authors and cases presented, in a condensed form, the general principle which now obtains, and which, in the language of Grimke, J., 7 Ohio, supra: “looking to every combination of circumstances, establishes a rule, which should be liable to as little fluctuation as possible.” Guided by this rule, was there such a delivery of this property as passed the title to plaintiffs, and such a consequent right to the possession as that they can maintain this action ?
The facts in this case, however, are different from either of those supposed, and so radically different that we do not see that it can be brought within the principle governing them. Plaintiffs were to have 25,000 brick from the west end of the kiln, and they bring replevin upon the ground that this number of brick was so specifically set apart to them, or that this was so susceptible of being done by the officer that their identification is entirely certain and possible.
Judgment reversed.