HOUGH, Circuit Judge
(after stating the facts as above). [1, 2] 1. The contention of plaintiff in error is that there was no actual sale, but merely an agreement to sell. Doubtless there is often difficulty in determining into which category the transaction falls, as was said in the Elgee Cotton Cases, 22 Wall. 187, 22 L. Ed. 863" court="SCOTUS" date_filed="1875-05-18" href="https://app.midpage.ai/document/the-elgee-cotton-cases-89064?utm_source=webapp" opinion_id="89064">22 L. Ed. 863. But there is no doubt that at common law mutual assent of the parties was enough to validate a sale of personalty. If by the agreement the property passed, the “bargain and sale” was complete. It was and is only if the passage of the property (i, e., the title) is to occur in the future, or on conditions inconsistent with immediate transfer, that the contract is executory. Hatch v. Oil Co., 100 U. S. at page 130, 25 L. Ed. 554" court="SCOTUS" date_filed="1879-11-17" href="https://app.midpage.ai/document/hatch-v-oil-co-90024?utm_source=webapp" opinion_id="90024">25 L. Ed. 554. And when controversy arises, as here, as to the true character of the agreement, the question is one of intention; the general rule being that the agreement is “just what the parties intended to make it.” 100 U. S. 131, 25 L. Ed. 554" court="SCOTUS" date_filed="1879-11-17" href="https://app.midpage.ai/document/hatch-v-oil-co-90024?utm_source=webapp" opinion_id="90024">25 L. Ed. 554.
*338But such intent is to be collected from what the parties did, and in this instance it is to be remembered that we are not concerned with the rights of creditors or other third parties; the inquiry is onfy whether as between Hammer and Eowle the sale was completed. It is contended that the method of shipment conclusively negatives the intent found by the jury under the instruction quoted above. But, as was held in Simmons v. Swift, 5 B. & C. 857, if the bargain is made, and nothing remains to be done to the goods, though the buyer cannot take them away without paying the price, “property passes immediately,” and this was distinctly approved in the Hatch Case, supra, 100 U. S. at page 132, 25 L. Ed. 554" court="SCOTUS" date_filed="1879-11-17" href="https://app.midpage.ai/document/hatch-v-oil-co-90024?utm_source=webapp" opinion_id="90024">25 L. Ed. 554.
As the jury were plainly told to decide whether it was intended that Hammer should withhold possession only, or withhold title also, until payment made, we think the instruction exactly right.
[3] 2. The plaintiff in error asserts that, by permitting the nature of Hammer’s Tampa business to be shown, the rule laid down by this court in Marshall v. United States, 197 Fed. 513, 117 C.C.A. 65" court="2d Cir." date_filed="1912-04-18" href="https://app.midpage.ai/document/marshall-v-united-states-8783900?utm_source=webapp" opinion_id="8783900">117 C. C. A. 65, was violated. The transaction which resulted in a sale in New York began .in Tampa; it could not be understood, without a knowledge of what was done there in respect of this particular shipment, and of Peak’s relations with the Institute. If such evidence of the whole transaction was injurious to the accused, it was the fault of relevant facts of his own making. The Marshall Case states the impropriety of proving “offenses” other than the one charged in the indictment, and confines the ruling to the “facts in the cabe in hand.” We discover no proof of other offenses. Hammer was licensed, and Rogers was a doctor; non constat that what Rogers distributed (other than the present consignment) was lawfully ordered and delivered.
Judgment affirmed.