
    Lansing and Lansing against Turner and Strafford.
    This was an action on the case, for a breach of contract, m not delivering to the plaintiffs, in agoodand marchant"able condition, a certain quantity of beef, purchased by them, of the defendants. The cause was tried, at the Rensselaer circuit, in 1806, before Mr. Chief Justice 'Kent.
    
    On the trial, a bill of parcels of the beef, and a receipt of payment in full given by- the defendant the 5th January, 1805, was -proved. It appeared in evidence, that the contract for the beef was made in the autumn of 1804, . „ ■ and was to remain in the possession of the defendant, uri.til it was sent by the plaintiff to the city of New-York, 
      The beef was put up in the autumn of that year, and was we“ salted and packed. In the spnng or summer Gf 1805, one of the plaintiffs requested one of the defend-antg t0 ]et the jjeef remain some time longer, as the plaintiffs had no convenient place in which to store it. Iri 1 May, 1805, one of the defendants told the plaintiffs that the beef was in good order.
    
      ffacertain ouandty of short time af-hut of parcels-1 antl B i)aid ,lle purchase money in full, ana tiratYbe^beef ¡YiY custody of A "nUl u should be sent to New-York, months”1 after) B received a part, which proved to be had, and the whole was found, on inspection, to be unmer-chantable. In an action brought by B for the'non-delivery of good and merchantable beef, it was held, that on the payment of the purchase money, the property was transferred from the vendor to the vendee, and it remained in the custody of the vendor at the risk of the vendee ; and that, as the- beef was'good at lite time the money- was paid, the vendee must bear the loss of its subsequent deterioration.
    
      An inspect or of beef testified, that in October, 1805, he inspected, at the request of.the plaintiffs, 20 barrels of beef, lying on the dock of the defendants, which had been sent to New-Yorlc by the plaintiffs, and returned; that the beef was unfit-for market; and he examined severa^ barrels of the residue, lying in the slaughter-house of the defendants, and found it unfit' for market. Turner, one of the defendants, was present at the examination, and the plaintiffs offered to take the beef, and pay for it, according to the contract, if he would say it was merchantable. Turner said the beef was ready for delivery, and had been for some time, and was well put Up.
    The 20 barrels inspected were taken by the plaintiffs from the defendants, about the 20th of August, 1805, and sent to New-Yorls, but was returned as unmerchantable. The inspector thought the extreme heat of the season had spoiled the beef. Both parties offered to pay the inspector. .
    The judge charged the jury, that by the agreement, the defendants were bound to deliver the beef, in a good merchantable order! at any time when the plaintiffs called for it; -that the defendants might, at any time, have put an end to their liability, by gi ving notice to the plaintiffs-to take the beef away,. That though they had given notice that the beef was ready, and requested the’plain tiffs to take it away, prior to the 20th of August; yet as they had not shown when the notice was given, tL jury ought to fix it as .near the 20th of August, as the,! could, being the time when the 20 barrels Were received t that as the beef was not merchantable in October, Í805, it was to be presumed, that it was not so when the plaintiffs were requested to take it; that if the jury should be of this opinion, they might find a verdict for the plaintiffs, for the price of the beef, with the ihtefest, front thetime the money was paid ; or if the jury should be of Opinion, that the first ténder was waived by the defendants, and that the tender was to be considered as made in October, then they should find for the plaintiffs the aínount. The jury found a verdict for the plaintiffs for $1370, being the whole amount.
    A motion was now made to set aside the verdict, and for a new trial. 1st. Because the verdict was against law and evidence. 2d. For the misdirection of the judge. 3d. Because the damages were excessive»
    
      Russell and Foot, for the defendants.
    On the 5th Jañ¿ uary, 1805, when the bill of the beef was delivered to the plaintiffs, and payment made by them, there was a complete sale, and the property became vested in the plaintiffs. The defendants were, afterwards, mere bailees for safe keeping ; and the only ground of action against them, would be for negligence in this respect. Still, there was no sale on the 5tli of January, there was a complete sale and delivery on the 20th of August, when the plaintiffs received 20 barrels of the beefj for livery of a part, is tantamount to a delivery of the whole. If the property was sold, and delivered to the plaintiffs, no action can be maintained for the non-delivery of the beef. The plaintiffs should have brought their action, either on a warranty or fraud in the sale» An action for money had and received, would not lie, f though the plainttffs might bring trover» Admitting, however, that the plaintiffs were entitled to recover, in this form of action, the damages were exeessive, for the jury, have assessed the damages to the whole amount, though twenty . i • barrels had been actually received by the plaintilis.
    
      Woodworth and Allen, contra.
    The contract was for the sale of good and merchantable beef; there was no time fixed for delivery. The defendants were bound to deliver it, at any time when the plaintiffs called for it.
    There was no actual delivery at the time the money was paid, and whatever may be the legal effect of such payment, the circumstances of this case will exempt it from
    the operation of the general rule. When the 20 barrels were returned, both parties agreed to have them inspected ; this, as well as the repacking and tendering it, shows that the defendants did not consider it as delivered at the time the money was paid. The charge of the judge was correct ; for if the time of the tender was not shown, it was right to presume it to have been near the 20th of August. It was necessary to make the tender; it was also requisite, that the beef should be merchantable, when tendered ; and it was fairly left to the jury to infer, whether it was good at the time. If it was bad in August, it must have been so some time before, or near the 20th of August. Besides, by agreeing to the inspection, the tender was waived ; but if the agreement was to keep the beef, until the plaintiffs called for it, the defendants could not exonerate themselves from their obligation by a tender.
    
      
       Blk. Com. 448, 449, 2 Caines 38, Hun & others, v. Bonew, 2 Caines 156. Selden v. Hickkock.
    
    
      
      
         Cowper 818. ower v Wells.
      
    
   Thompson, J. delivered

the opinion of the court.

The principal question in this case, is, whether, in judgment of law, there was a delivery of the property. The purchase was made in the autumn of 1804; and the consideration money paid the following January, at which time, there is little or no doubt, that the beef was in good order. It remained, however, in the actual possession of the defendants, until the succeeding summer, when it was found to be damaged ; and on whom the loss ought to fall, is now the point in dispute. The pron r r r perty m the beef was so far transferred, on the payment of the consideration money, that it must be considered as remaining at the plaintiff’s risk. Blackstone, in his Commentaries, lays down the rule generally, that a bargain struck, and payment of the purchase money, vests the property of the chattel in the vendee. To illustrate his rule, he puts the case of a horse, dying in possession of the vendor, after the payment of the consideration, and the loss he says must fall on the vendee. This, I apprehend to be the rule in all cases, on the sale of a specific chattel, where the identity of the article cannot bo controverted. The inference of law being, that a vendor is a mere-bailee, retaining the possession at the request of the vendee. The sale is not executed so as to vest the property in the vendee, without an actual, or a presumed delivery, and the latter is to be inferred from circumstances; as where there is a designation of the goods by the vendor to the use of the vendee,, the marking them, or making them up for delivery, the removing them for the. purpose of being delivered, and the like, (1 H. Black. 363.) In the present case, there is no controversy respecting the identity or designation of the beef sold, nor does it appear but that the plaintiffs purchased the whole which the defendants had in their store-house. The only testimony respecting the delivery, was that of James Giles, who swore, that at the time the money was paid for the beef, he understood it was to remain in the defendant’s slaughter-house, until it was shipped to New-York. Under these circumstances, I should suppose, that the inference of law would be, that it was at the risk of the vendee with respect to future damage, unless occasioned by the gross negligence of the vendor. If there was a delivery, the present.action is not maintainable, it being founded on a supposed breach qf contract, for non-delivery. But we are not authorised by the case, to direct a nonsuit to be entered, J . We can therefore, only award a new .tnaJ, with costs, to * abide the event of the suit,

New tria) granted. 
      
       2 Blk.Com 448.
      
     