| Cal. | Jul 1, 1860
Field, C. J. and Baldwin, J. concurring.
We think the judgment should be affirmed.; The case seems to have been fairly submitted to the jury upon the facts, and we see no such error in their verdict as would justify us in setting it aside upon the ground that it is not sustained by the evidence. The Court did not err in giving the instruction asked by the plaintiff. If the jury believed from the evidence that by the understanding of the parties the possession of the hay was deemed to have accrued to the defendant upon the payment of two hundred dollars, it being proved that such payment had been made, the plaintiff was certainly entitled to a verdict. The question was, whether there had been a delivery, and any agreement of the parties upon the subject was a legitimate matter of inquiry and investigation. VThe fact that the hay purchased by the defendant was mixed with other hay belonging to the plaintiff, made no difference. If he agreed to accept it in that condition, and there was any understanding that it should be considered as delivered, the contract for its delivery must be regarded as executed. It is claimed that this instruction was entirely hypothetical, and that there was no evidence whatever to authorize it. We do not think so. The quantity of hay originally
The instruction asked by defendant was properly refused. It assumed that there could not have been a delivery, whatever may have" ' been the understanding of the parties, until the exact quantity contracted for was segregated and set apart to the defendant.
Judgment affirmed.