
    Cook v. Logan.
    Where some not remains to be done in I’elation to articles which are the subject of sale, as that of weighing or measuring, or that of separating and setting them apart from the bulk, so that they may be distinguished and identified, the performannce of such act is a prerequisite, and until iL is performed, the property does not pass to the vendee.
    Where one of two jointowners of a certain quantity of wheat, which was stored in a bin upon the land of L., sold toL. twenty bushels of the wheat, in payment of an individual debt, and with the price of which he was credited on the books of L., but the wheat sold was not separated from the main bulk, nor was there any agreement, as to when it was to be separated or delivered ; and where the plaintiffs claimed the right to remove all the wheat, to which defendant objected, until he received the twenty . bushels, and thereupon the plaintiffs brought an action of replevin for the wheat; Held, That the right of property in the twenty bushels of wheat did not pass from the plaintiffs.
    
      Appeal from the Des Moines District Court.
    
    Wednesday, October 27.
    Plaintiffs were jointownersof about three hundred bushels of wheat, which was stowed by them in a bin upon the land of defendant. One of the plaintiffs being indebted to defendant, sold him twenty bushels of this wheat. The price was agreed upon, and defendant credited the amount upon his book. The wheat sold was not divided or separated from the main bulk; nor was there any agreement as to when it was to be separated or delivered. Plaintiffs, after this, claimed the right to remove all the wheat, to which defendant objected, until he received the twenty bushels. Plaintiff thereupon brought replevin. Trial and verdict for defendant for the value of the twenty bushels, judgment thereon, and plaintiffs appeal.
    
      J. C. <j- B. J. Hall, and Starr Phelps, for the appellants.
    
      Browning de Tracy, for the appellee.
   Wright, C. J.

The instructions as given and refused, involve the question whether the sale of the wheat was so complete, as to pass the title to defendant, and entitle him to retain the same as against the plaintiffs..

We think it quite clear,that under the contract, as proved, the right of property did not pass from plain tiffs, nor, as a consequence, vest in defendant. The rule is that where some act remains to be done in relation to the articles which are the subject of the sale, as that of 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 pre-requisite, and until it is performed the property does not pass to the vendee. Davis v. Hill, 3 N. H., 382; Outwater v. Dodge, 7 Cow., 85; Brewer v. Smith, 3 Greenl., 44; Downer v. Thompson, 2 Hill, 137; Story on Cont., section 800; 1 Parsons on Con,, 441.

Judgment reversed.  