
    Frank F. Latta, Appellant, v. A. R. Menching, Appellee.
    SALES: Requisites and Validity — Delivery—Intention Governs. TJp1 on the sale of com in a crib, the physical delivery or transfer of the corn is not essential, if it was the intention of the parties that the right of possession and control should pass to the purchaser, and that the sale should be regarded as completed.
    SALES: Requisites and Validity — Executory Contracts — Identifiea2 tion of Goods. It is essential, in an executory contract of sale, that the materials sold be identified, and the contract is ex-ecutory as long as anything remains to be done to identify the particular property which is the object of the contract. So held where com in a crib, to he delivered in three months, was not identified, but was to be identified when hauled, by being selected from the mass of corn in a crib, and rotten corn was to be excepted.
    
      
      Appeal from Harrison District Gowrt. — J. B. Rockafellow, Judge.
    July 7, 1919.
    Action for damages consequent on breach of contract. Defendant tendered the return of money paid in excess of the price of the corn taken. Jury was waived, and recovery for damages was denied, and judgment entered for the amount tendered. The plaintiff appeals.
    
    Affirmed.
    
      Roadifer & Roadifer, for appellant.
    if: L. Robertson and Paul E. Robertson, for appellee.
   Ladd, C. J.

About April 11, 1917, the plaintiff called on the defendant to assess his property, and, in the course of their conversation, proposed to purchase his corn. After some parley, the price was fixed at $1.25 per bushel; plaintiff was to haul the corn in July; and it was to be weighed on Hanneman’s scales. Plaintiff handed defendant a check on the First National Bank of Missouri Valley, in words following:

“Missouri Valley, Iowa, April 11, 1917, No.--

“Pay to A. R. Mencliing, or order, $500.00

“Five Hundred no/100 Dollars,

“Part payment on corn at $1.25 per bushel to be weighed on Banneman’s scales in Magnolia to be hauled in July.

“Frank F. Latta.”

About 400 bushels of white corn were in a wire crib, Avithout cover, and about 1,000 btishels of yellow corn in a board crib, with the ordinary roof. The corn in I he Avire crib was to be first hauled.

The plaintiff testified that he had said to Mencliing, Avhen buying the corn, that he would take no rotten corn, or that he had the right to throw out the corn he considered not good. On the other hand, defendant testified that he told plaintiff that lie had to “'take the corn the way it came.” Sometime in May, plaintiff hauled from the wire crib 158 bushels and 20 pounds of corn, and, in loading, sorted out and left in one corner of the crib about a bushel of rotten or defective corn, besides throwing some over to the hogs. The plaintiff says that defendant argued that the former ought to “take the rotten corn,” to which plaintiff responded that “the agreement was that he was not to take any rotten corn at that price.” The defendant denied having insisted on plaintiff's taking the rotten corn when hauling, but admitted that he told him, at the time of making-the contract, that there was mouldy corn at the bottom and side of the wire crib. The defendant covered this crib with boards, but these seem not to have sheltered the corn entirely from the rain.

Tt is to be observed that the contract was entered into about three months before plaintiff was to haul the corn; and, in view of this, the plaintiff’s version of the contract, that he was not to take the. corn as it came from the crib, but might reject the so-called . rotten ears, is the more reasonable. This must have been the finding of the distinct court; for otherwise, a different conclusion must have been reached. Assuming, then, that the terms of sale were as related by the plaintiff, we have the one inquiry, and that is: Was there a delivery of the corn at the time of the contract? If so, plaintiff was entitled to the corn, even though he did not haul it away in July, as agreed; for the sale had been completed, and he had become the owner. If, however, there was then no delivery of the corn, the sale was executory, and title to the corn had not passed to plaintiff, and he might not insist on performance after the time agreed upon. See Tiedeman on Sales, Section 208. There was no physical delivery or transfer of the corn from the possession of one to that of the other. But this is not essential, if the intention of the parties to the contract appears to have been that the right of possession and control passes to the purchaser, and the sale be regarded as completed. . n'I

In First Nat. Bank v. Reno, 73 Iowa 145, the contract purported to be a present sale, and the court, in the course of the decision, said:

“The question whether the title to personal property which is the subject of a contract has passed to the vendee under the agreement is one of intent. If there has been an actual delivery, and nothing remains to be done to ascertain the price or quality of the article, the strong presumption is that the intention was to pass the title. On the other hand, if the delivery has not been made, and something yet remains to be done in order to ascertain its quality or price, such as inspecting or weighing it, the presumption is equally strong that it was the intention that the ownership should remain in the vendor. But in neither case is the presumption conclusive. It would be competent for the parties to contract, in the one case, that the title should remain in the vendor, notwithstanding the delivery, or, in the other, that it should pass to the vendee in advance of delivery.”

In Welch v. Spies, 103 Iowa 389, the sale in question was of not less than 1,600 nor more than 2,000 'bushels of corn. There were 1,600 bushels in one crib which had not been opened, and, though corn had been taken from another crib, 700 bushels remained in it. These cribs burned, after the contract was entered into, and the suit was for the purchase price of the corn. Under the evidence, some of the corn in the latter crib was held to have been reserved for the use of others, and the sale of the corn in the unopened crib was held to have been completed, the conclusion appearing to rest on the statement of the buyer to the seller, when paying him $50 on the purchase price, “The money is yours and the corn is mine/’ — to which the purchaser assented.

See Sempel v. Northwestern H. L. Co., 142 Iowa 586, and Rhynas v. Keck, 179 Iowa 422, in each of which the authorities were reviewed. In the latter case, the sale of 28 hogs was negotiated; and, in the words of the opinion, “nothing other than payment upon weighing and physical change of location was left to be done,” and the sale, under the circumstances shown, was held to have ^een completed. The authorities seem well agreed that an essential to an executed contract of sale is that the materials sold be identified, and that a contract of sale is ex-ecutory, as long as anything remains to be done to identify the particular property which is the object of the contract.

This rule was stated in Courtright & Co. v. Leonard, 11 Iowa 32, and has been followed ever since, the court there saying that:

“Where some act remains to be done in relation to the articles which are the subject of the sale, as weighing or measuring, or, as in this case, that of separating and setting them apart from the bulk, so that they may be distinguished and identified, the performance of such act is a prerequisite, and until it is performed, the property does not pass to the vendee.”

Had the parties agreed that the corn should be taken from the wire crib as it came, — that is, regardless of quality, — and that, after removing all from that crib, the balance should be taken from the other crib, nothing would have been essential to be doné other than weighing the corn to ascertain the quantity, and the payment of the remainder of the purchase price; and there would have been some basis for saying that the facts brought the case within the holding of Rhynas v. Keck, supra. But the evidence indicates affirmatively that the corn sold was not identified, but was to be identified when hauled, by being selected by plaintiff from the mass of corn in the cribs. The rains falling on the wire crib wet the corn, and, for all that appears, the corn, but little affected, if at all, when the contract was made, might so decay as to be rejected, when the time to haul came. Plaintiff, then, might reject corn practically sound at the time of the contract, if it appeared to be decayed when hauled. Something was to be done: that is, the good corn sorted from the rotten, including such as had become rotten after the making of the contract. Such separation was essential to the identification of that sold from the corn in bulk, and plainly indicates that the parties, in contracting, did_ not intend that possession of the corn should pass until it was hauled. Because of this, the trial court did not err in holding that the contract was executory, and that, as plaintiff did not haul the com when agreed, there cannot be a recovery for breach of contract. — Affirmed.

Weaver, Gaynor, and Stevens, JJ., concur.  