
    Abraham Sanger, Jr., and Charles W. Wells, App’lts, v. Leander Waterbury and William H. Force, Impl’d, etc., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 22, 1889.)
    
    Sale — When title passes.
    Plaintiffs sold to H. & Oo. a specified number of bags of coffee which were parts of a larger lot. They were designated by marks upon the bags. H. & Co. sold the coffee, which remained in the warehouse, and after-wards failed. There was no actual delivery of the coffee, and the bags had not been weighed. Held, that as the bags were so marked as to clearly identify those sold, and the weighing was only to be done to ascertain the price to be paid, the title passed to H. & Co.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment in favor of defendants for $2,648.85, entered upon a verdict directed by the court.
    The action is the possessory action of replevin brought to recover the possession of 238 bags of coffee identified and described in the complaint as follows:
    “89 bags, marked No. 6, H. L. B. & Co., D. B. & Co.
    32 bags, marked No. 8, H. L. B. & Co., D. B. & Co.
    14 bags, marked No. 10, H. L. B. & Co., D. B. & Co.
    29 bags, marked No. 12, H. L. B. & Co., D. B. & Co.
    68 bags, marked No. 14, H. L. B. & Co., D. B. & Co.
    6 bags, marked No. 16, H L. B. & Co., D. B. & Co.”
    The complaint alleged and the answer admitted “ that on or about the 22d day of July, 1885, the said goods * * * were sold by the plaintiffs to the defendants, John K. Huston and James E. Huston * * * on the credit of sixty days for one-
    half thereof, and of ninety days for the balance thereof.” Upon the trial one of the plaintiffs testified that the goods seized by the sheriff in this action were on the 22d day of July sold by him to the firm of J. K. Huston & Co. It appears that the plaintiffs on the 6th day of July, 1885, purchased of Boulton, Bliss & Dallett 605 bags of coffee then stored with E. B. Bartlett & Co. On the 22d day of July the plaintiffs sold the 238 bags of coffee herein-before referred to, to J. K. Huston & Co., of Philadelphia. The r1efp.nrla.ntR, Huston, on the 24th day of July, upon the security of the coffee thus purchased borrowed from the defendants, Waterbury and Force, $2,300, and then transferred the coffee to them. July 27th following the Hustons failed, making a general assignment. On the next day, July 28th, the plaintiffs commenced this action by means of which the coffee was taken from the possession of Waterbury and Force. The coffee then was, as it had been from the time of the purchase by the plaintiffs, actually deposited in the warehouse of E. B. Bartlett & Co., and had not as yet been weighed. The action came on for trial before Mr. Justice Bartlett and a jury, and resulted in the direction of a verdict by the court in favor of the defendants.
    
      William, W. Goodrich, for app’lts; Edward N. Shepard, for resp’ts.
    
      
       Affirming 4 N. Y. State Rep., 895.
    
   Parker, J.

The appellant contends that the title to the coffee in controversy did not pass to J. K. Huston & Co., and that, therefore, the transfer to Waterbury and Force did not vest in them the title or the possession. The sale is admitted. But as the coffee had to be weighed in order to ascertain the amount to be paid to plaintiffs, it is insisted that the title remained in the plaintiffs. In aid of this contention is invoked the rule that where something remains to be done by the seller to ascertain the identity, quantity or quality of the article sold, or to put it in the condition which the contract requires, the title remains in the vendor until the condition be complied with. The appellant cites a number of authorities which he urges so apply this rule as to make it applicable to the case here presented. It is said in Groat et al. v. Gile, 51 N. Y., 431, that “ this rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantity, and is necessary to be identified before it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascertained for the sole purpose of determining the total value thereof at certain specified rates or a designated fixed price.” This distinction is recognized and enforced in Crofoot v. Bennett, 2 Comst., 258; Kimberly v. Patchin, 19 N. Y., 330; Bradley v. Wheeler, 44 id., 495. In Crofoot v. Bennett, supra, the court says: “ If the goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass." This expression of the court is cited with approval in Burrows v. Whitaker, 71 N. Y., 291, in which case, after a full discussion of the authorities, the court approved the rule as laid down in Groat v. Gile, supra.

How, applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold, because while out of a larger lot 238 bags of coffee were disposed of, nevertheless, as appears from the complaint and the testimony adduced, the bags were so marked that there was no difficulty about identifying the particular bags sold. There remained, therefore, nothing to be done except to weigh the coffee for the purpose of ascertaining the purchase price. For, whether the 238 bags of coffee should prove to weigh more or less than the parties anticipated was not of any consequence. Whatever the weight should prove to be, for that number of pounds J. K. Huston & Co. had agreed to pay.

This case, therefore, does not come within the rule contended for by the appellant, but instead is governed by the principle enunciated in Groat v. Gile.

Having reached the conclusion that the title and the possession passed to J. K. Huston & Co., it .becomes unnecessary to consider any of the other questions discussed, for the plaintiff is without title upon which to found the right to maintain an action.

The judgment appealed from should be affirmed.

All concur.  