
    Downer vs. Thompson.
    The plaintiff, under color of complying with the defendant’s order for 250 barrels of cement, shipped on board a canal boat 260 barrels, and on its being offered to the defendant, he refused to receive any of it on account of the excess: Held, that he could not be made liable either as for goods bargained and sold, or for goods sold and delivered.
    Had there been an exact compliance with the terms of the order, the property would have passed on delivery to the carrier; and then the plaintiff might have recovered as tor goods sold and delivered.
    In general, a delivery to a carrier for the account and risk of the consignee, is in law a delivery to the latter.
    A sale of goods is incomplete and passes no title to the vendee, so long as any thing remains to be done by the vendor, such as weighing, measuring or counting out of a common parcel.
    Whether the case stated in Long on Sales, p. 274, (ed. 1839,) of a certain number of dollars sent in a barrel, among others not intended for the consignee, can be sustained as an exception to the general rule, quere.
    
    Assumpsit, tried at the Oneida circuit on the 8th of October, 1840, before Gridley, C. Judge. The declaration contained counts for goods bargained and sold, and also for goods sold and delivered. The facts appearing on the trial were as follows:
    The defendant who resided at Hastings, Westchester county, on the 21st of August, 1838* addressed an order to the plaintiff, who resided at Chittenango, Madison county, for 250 barrels of cement, to be forwarded as soon as practicable. On the 4th of September following, the plaintiff shipped on board a canal boat 260 barrels, which arrived at Hastings on the 17th of the same month, and were offered to the defendant. He objected, among other things, that there were more barrels than he had ordered, and finally refused to receive any of the cement. The boatmen having it in charge proceeded to New-York, and there stored it.
    The defendant’s counsel insisted at the trial that the evidence did not sustain either the count for goods bargained and sold, or that for goods sold and delivered. . He therefore moved for a nonsuit, which was granted, and the plaintiff excepted. The latter now moved for a new trial on a hill of exceptions.
    
      W. McCall S. Beardsley, for plaintiff.
    
      C. P. Kirkland J A. Spencer, for defendant
   By the Court,

Cowen, J.

The difficulty of the plaintiff lies in his not having numerically complied with the order, which was for 250, not 260 barrels. Had he shipped the 250 barrels, no doubt the property would have passed, and the count for goods sold and delivered been well sustained; because a delivery to the carrier for the account and risk of the consignee, is in law a delivery to "the latter. (Coxe v. Harden, 4 East, 211.) But neither count was satisfied by the shipment or offer of the 250 barrels from among a larger • number, the true amount being neither counted nor weighed out. The property yet remained to be specified before the defendant could know what to call his own; and it is entirely settled, that where any act yet remains to be done by the vendor, such as weighing, measuring, or counting out of a common parcel, no property passes. Short of this, there is no sale, much less a delivery. (Long on Sales, 267, et seq. ed. of 1839.) The exception at page 274, mentioned by the plaintiff’s counsel,. of a certain number of dollars sent in a barrel among others not intended for the consignee, is a different case. It went on the ground that the dollars were all of the same value, which cannot be predicated of the barrels in question. Beside, there is perhaps some difficulty in sustaining the exception without running foul of a strong current of cases.

We think no action will lie, unless it be a special assumpsit for not accepting the cement.

New trial denied.  