
    Railroad v. Ford.
    Contract. Executed or executory. A cow was agreed to be sold for thirty dollars, but the price had not been paid nor the cow delivered, and the cow was killed by railroad. Another coiv was delivered to the purchaser, and vendor sued for the value of cow killed. Held: the suit might well lie. The title to the cow was still in the vendor.
    FROM HAMILTON.
    • Appeal in error from Circuit Court of Hamilton, July Term, 1871. J. B. Hoyl, J.
    
      Cooke, for railroad, said:
    This was a suit by defendant in error against plaintiff in error for killing a cow. The only question presented here is, whether the cow, at the time it was killed or injured, was the property of the plaintiff below, who had sold the cow to Vinson, who had agreed to pay him thirty dollars for it, and the plaintiff had agreed to take it.. The cow was to be delivered and the money paid in about a week) but which had not been done at the time it was injured by the train of defendant. It is insisted for plaintiff in error, that by this contract the title passed from Ford to Vinson, and that Ford had no right to maintain this action for the injury to the animal. The Circuit Judge was so requested to instruct the jury, which he declined, but instructed . them that the title did not pass upon this contract, unless there had been ■a delivery of the property or the money paid.
   McFaRLAítd, J.,

delivered the opinion of the court.

Ford brought this suit to recover the value of a cow, alleged to have been killed by the cars of the railroad company. He recovered, and the company have appealed in error.

The only question made, arises upon the effect of the testimony of Ford and one Vinson. In stating the value of the cow, they stated that Ford had sold the cow to Vinson for thirty dollars; that she was to have been delivered in about a week, but was killed before that time. No money had been paid. That after this cow was killed, Ford delivered Vinson another cow in the place of the one killed. Upon this the court was asked to instruct the jury, that the agreement of Ford to sell the cow to Vinson for thirty dollars, and the agreement to take her at • that price, completed the contract and passed the title to Vinson, so as to defeat Ford from maintaining this action, although the cow had not been delivered nor the money paid. This instruction was refused. The general proposition is no doubt correct, that when the contract is complete, according to the agreement of the parties, leaving nothing further to be done by-either, then the title passes, although there be no formal delivery or payment of the money. But this must be understood to prevail only in the absence of a contrary stipulation. The parties may annex any qualification to the general terms of the contract that they may agree upon; and the title will not be held-to have passed by a contract, when it appears that the pai’ties intended that it should not: 1 Col., 92; 2 Sneed, 22. In this case the testimony raising this question seems to have come out incidentally in the-testimony of the plaintiff’s own witnesses. They were not cross examined, so as to bring out fully the terms of the contract between Ford and Vinson, as to whether they regarded the sale complete before the cow was killed. But we see very clearly that they did not so understand it, for the reason that after the cow was killed Ford delivered Vinson another cow in her place. This must be regarded as a settlement of that question between the only two parties interested in it. They agreed that when she was killed; she was Ford’s cow; and they had the right to settle that question. The • Circuit Judge may not have settled the rule accurately, but, upon the facts of this case, it was not error to refuse the proposition asked for. If there be any error in the charge, it is a mere abstract error, not affecting the merits.

Affirm the judgment.  