The opinion of the Court was drawn up by

It appears from the bill of exceptions, that Daniel Nash, on September 13, 1888, by a contract in writing promised to deliver to the plaintiff three tons of good English hay, at his barn in Enfield, within six months. Before that time had elapsed, he removed from that place, leaving a quantity of hay in his barn there, estimated to be about three tons. The plaintiff’s right to recover in this action, which is trover for a conversion of a part of that hay by the defendant, must depend upon the question, whether Daniel Nash, before *320the maturity of the contract, had designated and set apart in the proper place, three tons of hay of a suitable quality in payment of the note. If he had, the property would be thereby vested in the plaintiff. If he had not, he would continue to be the owner, and the defendant, having used it, should account to him for it. The quantity of hay appears to have been deposited and left in the place named in the note within the time agreed upon. The acceptance of a part of it by the plaintiff would authorize the conclusion, in the absence of all opposing testimony, that it was of a suitable quality. If there be any defect, it will be found in the testimony to prove, that it was designated and set apart for the payment of the plaintiff’s note. When Daniel Nash removed, the testimony shows, that he carried away all his other property, leaving hay of the quantity and quality, and within the time and at the place named in the note. It does not appear, that there was left any other hay or property, with which it could have been mixed.

The defendant, who is a brother of Daniel, having been called upon by the plaintiff ££ for the hay due on the note,” pointed to a bam ££ and said, the hay was in the bam, and that they might take it.” The jury would be authorized to infer from this conversation, in connexion with the other facts, that the hay had been set apart by Daniel Nash and left in his barn in payment of the plaintiff’s note, and that the defendant knew it, if he was not the agent of his brother to deliver it. The fact, that the plaintiff weighed that part of the hay, which he removed about the time, when his note became payable, and indorsed it on the note, might indicate, that he did not intend to receive the quantity found in the barn in full payment of his note, should it fall short in quantity. Such intention could not alter the rights of Daniel Nash, or prevent his tender from becoming effectual, if he had in fact performed his contract. It might have been proper, and perhaps desirable, that the instructions of the presiding Judge should have stated more plainly, that the jury should bo satisfied, that the hay was of the quality and was deposited *321at the place, and within the time, agreed upon, and that it had been set apart and appropriated to the payment of the note. But there does not appear to have been any contest respecting the quality, or any conflict of testimony respecting the quantity, or the time, when it was deposited. The jury having been required to find, that the hay had been left for the payment of the note, would probably understand, that it should appear to have been set apart for that purpose. If there was any want of explicitness in the instructions, it might have been obviated by a proper request. The request presented, was properly refused. It was not necessary, that the hay “ should have been weighed and specially turned out.” The quantity might have been otherwise ascertained at the risk of the person making the payment. And no turning out, or change of position, was necessary, further than to separate or set it apart, so that it might be identified and removed by the owner.

Exceptions overruled.