
    Rapelye and Smith, survivors of Lawrence, against Mackie and others.
    UTICA,
    Aug. 1826.
    The plaintiffs, having cotton at three stores, 69 bales ma^rk-(f G t* th store of B., same market the store of 66 bales &aCoedto'thé defendants, delivering forma biii^of parcels thus : “ 66 bales, say 19,800 lbs.— $12 per cwt.-1 per cent off;” the defendants paying at the time, $1800, in part for the whole. Then the cotton in M. & W’s store, was destroyed by fire, and the demanded of the plaiutiffs an order for the 68 bales, which was refused ; but the plaintiffs gave an order for 36 bales. These were then weighed by the plaintiffs; and another bill of parcels delivered to the defendants, including the 36 bales, according to the weigh master’s bill; and the 30 bales at a certain weight each, with the remark, 44 deduct, for supposed loss 150.” The 36 bales were delivered at the time of weighing.
    Assumpsit for goods sold and delivered, and goods 0 1 ~ bargained and sold, tried at an adjourned circuit in the c*ty and county of New-York, January 30th, 1824, be-^ore ®DWARDS) U. Judge ; when the jury found a verdict for the plaintiffs, for 471 dollars 90 cents, being the price, with interesL of 66 bales of cotton, (after deducting $ 1800 paid by the defendants,) which the plaintiffs claimed on the trial to have sold and delivered to the defendants.
    Th® facts proved at the trial are sufficiently stated in the opinion of the court,
    
      J- Duer, for the defendants,
    moved for a new trial. He made the following points, and cited the authorities which follow, in support of them :
    1. Where goods sold are parcel of a larger quantity, the property does not vest absolutely in the vendee, so long as there is no selection or designation of the part sold, or separation of it from the part unsold. (2 John. Rep. 16. 14 id. 167. 7 East, 558. Shep. Touch.>224. Long on Sales, 149.)
    g, Where any act of the seller, such as counting, weigh- . . . 07 ° ing, &c. remains to be done, to ascertain the exact quan-80⅛ ⅛6 property does not vest absolutely in the vendee ; but until such act is done, remains at the risk of the vendor. (2 II. Bl. 123. Bull. N. P. 50. 12 John, Rep. 165. 13 id. 53. Long on Sales, 154 to 157. 5 Taunt 617. 2 31. & S. 397. 15 John. Rep. 349. 2 Campb. 240. Ross on Vendors and Purchasers, 28.)
    
    
      Held, that the property of the 30 bales did not vest in the defendants ; and that, therefore, the plaintiffs could not recover the price.
    The 30 bales not being identified in the contract, and specifically sold, the contract might have been satisfied by a delivery of 30 bales with the mark mentioned, from any other place beside Brooklyn ; or if the contract related to Brooklyn^ then out of any other store there, beside M. & JV9s; or if the contract had been to sell the 30 bales at M. & W's ; yet, they, not being weighed, did not pass.
    When something remains yet to he done, as between buyer and seller, or for the purpose of ascertaining either the quantity or price of the article sold, there is no delivery; and the property does not pass, though the price be in part paid.
    And so, if there be a part delivery, the other part not yet ascertained, will not pass.
    And there need not be an express agreement that something farther shall be done. It is «enough that it appear, from the circumstances of the case, to be necessary.
    
      3. In the present case, there was neither an actual nor constructive delivery to the defendants, of the 30 bales of cotton that were burnt in the store of Merry and Waite. (2 N.R. 61.)
    4. That the payment of part of the price, does not, of itself, alter the property in the thing sold ; but only binds the bargain. (2 Bl. Com. 448.)
    
      G. Griffin, contra,
    insisted on the following points, (among others,) and cited the authorities which follow, in support of them:
    1. There was a complete sale by the plaintiffs to the defendants, on or before the 21st of August, 1822, of the 30 bales of cotton consumed by fire in the store of Merry and Waite. (11 East, 211. id. 219, per Bayley, J. id. 210. 2 H. Bl. 504. 4 2?. & P. 69. 6 East, 614. 14 id. 614. 4 Campb. 237. 13 East, 522. 4 Taunt. 644. 5 id. 176. id. 617. 2 M. ⅜ S. 397. 7 East, 558. I Pickering, 476. Noy’s Max. 88. 2 BL Com. 448.)
    2. The contract of sale was entire; and by accepting the two parcels that remained, after the fire, the defendants recognized and ratified the contract in tolo.
    
   Curia, per

Woodworth, J.

On the 21 si of August, 1822, the plaintiffs sold to the defendants 66 bales of cotton, marked G. G. & Co. As evidence of the salet the bill of parcels delivered to the defendants was produced, on which the charge is made thus : “ 66 bales, say 19,800 lbs. $12 per hundred, $2376, 1 per cent, off.” The defendants paid, at the time, $1800.

The plaintiffs’ cotton was in three stores at Brooklyn; one kept by Van Bokkelsn, another by Caze & Richaud, and the third by Merry & Waite. There were 69 bales, of the mark sold, in the store of Van Bokkelen, and 30 bales in the store of Merry & Waite. A night or two after the delivery of the bill of parcels, the 30 bales were burnt. They had been weighed about the 16⅛ or 17⅛ of July. No order for delivery was given. The bill was a Pro forma bill; the weight not being precisely ascertained. The plaintiffs’ witness testified that he presumed the ivord, “ say,” denoted that the estimate was made from the invoices ; that had the weight been actually ascertained, and the cotton delivered, the deduction of 1 per cent. would have been carried out on the bill of parcels.

On the 5th of September, another bill was delivered to the defendants, charging the 36 bales according to the weigh master’s bill, which was produced. The 30 bales were inserted at a certain weight each, with a remark, “deduct for supposed loss, 150.” The 36 bales were weighed at the request of the plaintiffs, as the witness sup-posed, at the time of delivery to the defendants, and subsequent to the fire : and if the sale had been made by the original invoice, the cotton would not have been re-weighed, according to the usual course of business. After the fire, the defendants called for an order for 66 bales, which was refused ; but an order for 36 was given.

On this statement, I am of opinion the plaintiffs are not entitled to recover for more than 36 bales.

The ground Upon which the defence rests is, that, as to the 30 bales, burnt in the store of Merry & Waite, there never was a delivery. This is apparent from the fact, that there was no proof as to the identity of this parcel. It wmuld have been competent for the plaintiffs to deliver the number of bales sold, from any parcel, whether stored at Brooklyn, or in the city of New-York; and such a delivery would have satisfied the contract. The bill of parcels is general. There is no specification of the particular bales, or the place where stored. A number of bales containing the quantity, is all that appears to have been required. The defendants could not insist on receiving the specific quantity at Merry & Waite’s ; and unless they had this right, 1 do not perceive on what ground they are to be subjected to the loss. The principle would render them liable for property v.dueh the plaintiffs might or might not have elected to deliver, in satisfaction of the purchase. The case presented, is one where a smaller parcel is sold out of a larger, without any designation. Had there been, it may be presumed the plaintiffs would have produced proof of it. The broker who made the contract was in court, and not called.

But if it be admitted that the purchase was of cotton stored at Brooklyn, the only specification is, that the bales were marked “ G. G. & Co.” No reference is had to Merry Waite’s store in particular. At that very time the plaintiffs had 69 bales of this description at Van Bokke-len’s. Will it be pretended that a delivery of 66 bales of this parcel, would not have satisfied the purchase ? If it would, then it may be asked, where is the proof that the defendants had acquired an absolute right to the 30 bales burnt ?

There-is another conclusive objection against a recovery.

The cotton was to be weighed, before the delivery was complete. It is not necessary there should appear an express agreement was made to that effect. The first bill of parcels was well described by the plaintiffs’ clerk, as a proforma bill. It was conjectural as to the quantity. The one per cent, was not carried out for that reason. The subsequent act of weighing was indispensable, unless the defendants had agreed to accept the cotton according to the estimate made. The plaintiffs must have so considered it. It was re-weighed at their request. Then, for the first time, the one per cent. wras deducted. It was then ascertained that the quantity was less than originally calculated. These facts show very satisfactorily, that the delivery was not complete when the 30 bales were burnt. Indeed, it is difficult to conceive upon what principle the seller could consider that there was a delivery, when it Was not ascertained how much was sold, or the amount tobe received. The principle that runs through all the cases ' is, that when something remains to be done, as between ' buyer and seller, or for the purpose of ascertaining either the quantity or price, there is no delivery. Whether the question arises where the property is destroyed, or whertS the right of stopping in transitu is drawn in question, cannot make a difference. If a delivery has been made, the g°°ds are at the risk of the purchaser; and the seller’s right of stopping in transitu, ceases.

The delivery of the 36 bales after the fire, was not a recognition of the right to claim for the residue; The defendants demanded, and were entitled to 66 bales. The acceptance of a part is in exoneration of the plaintiffs, 'pro tanto ; leaving the question, respecting the residue, as it was before that delivery.

The following authorities will be found to support the doctrine upon which we rest the decision of this cause: 15 John. 349; 6 East, 614; 11 East, 210; 12 East, 614; 13 East, 522; 2 M. & S. 397; 4 Campb. 237.

There must be a new trial, with costs to abide the event.

New trial granted,'  