"As to the oil running into the boats at the time, there was no delivery of that in law, because if the contract was for delivery in boat-loads, about 2,000 gallons, as stated by the witnesses on both sides, the boat was not filled so that plaintiff was bound to take it from the vendor.

"As to this latter it is clear under all the evidence. that if the plaintiff had shut off the oil and requested defendant to pay for what was in the boat, he could not have compelled defendant to receive it, nor to pay for it.

"In reference to the first boat, was there anything further to be done before the plaintiff had a right to require the defendant to take and pay for it?

"That depends upon whether the barge was sufficiently full, or not being full, whether Owsten, defendant's agent, had already taken possession of it, under such circumstances as to indicate he was satisfied to take it as it was.

"As to the latter the plaintiff can not recover in this action, because it is not pretended that the boat was in a condition to deliver."

The verdict was for the defendant.

The plaintiff took a writ of error, and assigned for error the rejection of their offers of evidence, the answers of the court to their points, and to the defendant's 2d point, and that "the court erred in the whole charge and in each part thereof, and especially in the assumption that the plaintiff was not entitled to recover unless the boats were so loaded that the defendants were bound to accept them."

J. F. SLAGLE, for plaintiffs in error, cited Snyder v. Wertz, 5 Wh. 163; Gilpin v. Howell, 5 Barr, 41; Penna. Railroad v. Zebe, 9 Casey, 318; Shaw v. Levy, 17 S. & R. 101; Hilliard on Sales, 86; Story on Sales, § 299, note 3; 300, 389; Winslow v. Leonard, 12 Harris, 17.

S. A. PURVIANCE and T. M. MARSHALL, for defendant in error, cited Rugg v. Minett, 11 East, 210; Story on Sales, § 299; Penna. Railroad v. Zebe, 9 Casey, 318.

The opinion of the court was delivered by THOMPSON, C. J. The question was submitted to the jury on the trial below,

and they found that the contract between the plaintiff and defendant was for the sale and delivery of four barge-loads of oil, and not a sale of oil by the barrel. Of course, until delivery, no specific oil passed to the defendant. Until this took place, he had only a right of action to recover for a breach of contract. It is unnecessary to say whether the defendant was bound to take and pay for the number of barrels in each completely laden barge; if there be a question about that it is not here, but whether the contents of partially laden barges in progress of being filled, passed as fast as it entered the barge. The court thought not, and so decidedly think we. The defendant could not be compelled to take a partly filled barge when he had contracted for full ones, any more than if he had contracted for a barrel of oil, could he have been compelled to accept one, half or quarter full; this would hardly be contended for, yet the principle is the same: Winslow, Lanier & Co. v. Leonard, 12 Harris, 14; Story on Sales, §§ 296, 299. Under the finding of the jury there is little room for argument against the ruling complained of. Nor do we see any error in rejecting the offers of testimony. ments of error was according to rule and we might have dismissed them all without notice, but did not, hoping for more accuracy in the future.

Not one of the assign

Judgment affirmed.

SNEATHEN ET AL. V. GRUBBS ET AL.

(88 Pennsylvania State, 147. Supreme Court, 1878.)

Incomplete sale of coal. G. & Co. agreed in writing that they would deliver to S. & W. at their landing in Pittsburgh, two barges of coal, "price to be 44 cents per bushel, Cincinnati or Louisville gauge. Terms cash, when delivered in Pittsburgh, free of all charges." S. & W. furnished the barges, and the coal was placed therein by G. & Co., but owing to the low water in the river they could not be taken to Pittsburgh. While thus lying at the works the coal was levied upon by creditors of G. & Co. S. & W. brought an action of replevin. Held, that as the delivery of the coal had not taken place and the terms of the contract of sale had not been performed, no title to the coal passed which could be enforced in replevin by the purchasers; and that the remedy for breach of contract of sale was in a different action.

Before AGNEW, C. J., SHARSWOOD, MERCUR, Gordon, PaxSON, and TRUNKEY, JJ. WOODWARD J., absent.

Error to the Court of Common Pleas of Washington County.

Replerin by J. B. Sneathen and B. F. Wilson, partners, trading as J. B. Sneathen & Co., against J. W. Grubbs & Co. The facts, in substance, were these.

In August 1875, the defendants made with plaintiffs the following agreement in writing:

"PITTSBURGH, August 10th, 1875. "We have this day agreed to load for Sneathen & Wilson, and deliver in their landing at the Point, two (2) barges coal from our mines near Greenfield, Washington County, Pa., price to be four and one-quarter (41) cents per bushel, Cincinnati or Louisville gauge. Terms cash when delivered in Pittsburgh, free of all charges. (Signed)

J. W. GRUBBS & Co.

It appeared that the coal was to be delivered at the first rise of the river. The barges were delivered to the defendants, who took them to their works and loaded them, but could not return them to Pittsburgh on account of the low stage of water. On the 21st of September, 1875, while the loaded barges were lying at defendants' works, J. W. Grubbs, one of the defendants, filed his petition in bankruptcy. A few days prior, however, a number of creditors who had judgments before justices of the peace, had executions issued thereon and levied on the barges of coal, but were restrained from proceeding therein by an injunction issued by the United States District Court. The barges not having been returned to plaintiffs, they, on the 16th November, 1875, issued a writ of replevin, and the barges, with the coal therein, were delivered to them. Afterward the execution creditors presented their petition to the court, praying leave to intervene, which was allowed.

In their general charge the court, inter alia, said:

Now from the forms of this contract and the undisputed fact that the coal had not been delivered in whole or in part to the plaintiffs when they brought their action, I feel bound to instruct you, as a matter of law, that, as to the coal,

the property therein had not passed to the plaintiffs, and consequently that they are not entitled to damages for its detention. As to the coal, therefore, you should find that the property was in the defendants, and you will assess damages to the defendants for the detention of the coal by the plaintiffs from the 16th of November, 1875, to the date of your verdict, and the measure of the damages will be the interest on what you may estimate as the value of the coal from November 16th, 1875, to the present time.

"This instruction may seem to you to be a hardship to the plaintiffs, but it results logically from the rule of law that in a sale of personal goods and chattels the property therein does not pass to the buyer so long as anything remains to be done to it by the seller."

Verdict for plaintiffs for damages for detention of barges $120, and for defendants $522.98 interest on the value of the coal. Plaintiffs took this writ, and for error, inter alia, assigned the above portions of the charge.

JOHNSTON & FETTERMAN, for plaintiffs in error.

The facts do not present the case of a simple contract for the sale of a chattel and non-delivery thereof by the vendor, but do show that the defendant agreed to load a barge, to be furnished by plaintiffs, with coal for the plaintiffs, and afterward to return or deliver the barges with the coal to plaintiffs at a place designated, and the aggregate value thereof to be dependent upon the sale thereof in one of two markets.

It is conceded that by the mere agreement to load the barges with coal, no property in the coal vested in plaintiffs; but after the coal was mined and separated from the other coal by defendants and loaded into the barges of plaintiffs, there was such an appropriation of it to the contract by the defendants that the property therein became vested in the plaintiffs, subject only to the right of the defendants to be paid therefor as soon as the quantity was ascertained. The position we assume is fully sustained by authority: Rugg v. Minett, 11 East, 210; Langton v. Higgins, 4 Hurlst. & N. 402; Aldridge v. Johnson, 7 E. & B. 885; Benjamin on Sales, Secs. 358, 359, 370; Dennis v. Alexander, 3 Barr. 50;

Golder v. Ogden, 3 Harris, 528; Winslow v. Leonard, 12 Id. 14; Hutchinson v. Hunter, 7 Barr. 140; Records & Co. v. P. W. & B. Railway Co., 9 Phila. 55.

CRUMRINE & DONNAN, for defendants in error.

To determine this question of the passing of title, well settled rules of law have long since been established and are constantly applied by the courts; two of which rules, as stated by Blackburn 151, 152, and discussed by Benjamin, Sec. 318 et seq., are as follows:

1st. Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.

2d. Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, meas uring, or testing the goods, where the price is to depend upon the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in a state in which they ought to be accepted.

The contract imposed a further duty upon the defendants after the coals had been loaded in the barges, to wit, to transport them into plaintiffs' landing, which was the only place where plaintiffs were bound to accept them as in a deliverable state; property in them had not passed to plaintiffs when they were seized and delivered under the writ of replevin. This position is fully sustained by the following authorities: Acraman v. Morrice, 8 C. B. 449; 1 Langdell L. C. on Sales, 676, 681; Logan v. Le Mesurier, 6 Moore, P. C. 116; 1 Smith's Leading Cases, 148; Shaw v. Nudd, 8 Pick. 9; Mc Candlish v. Newman, 10 Harris, 460; Lester v. McDowell, 6 Id. 91; Nesbit v. Burry, 1 Casey, 208; Nicholson v. Taylor, 7 Id. 128; Thompson v. Franks, 1 Wright, 327; Rochester Oil Co. v. Hughey, 6 P. F. Smith, 322; Bigley v. Risher, 13 Id. 152; Mitchell v. Commonwealth, 1 Wright, 187.