after stating the foregoing facts, delivered the opinion of the Court:
It is unnecessary to pass upon the effect of the memorandum agreement of November 2nd. The case turns on whether the memorandum agreement of October 28th constitutes an executed sale of the cheese, whereby the title passed from Schujahn to the appellees.
We are of the opinion that the sale was executory merely, to be completed in the future by the delivery to, and acceptance by the appellees. The contract provides for final acceptance in futuro, and it seems plain that if any of the cheese had not been of the quality named, rejection would have been within the power of the appellees. The transaction was thus incomplete, remaining open to some further act upon the part of the appellees. A transaction thus situated is not such sale as passes in prsesenti the title to the property.
The order appealed from will be reversed, with instructions to the District Court to enter an order dismissing the petition of the appellees.