This was an action of replevin, brought by the Culvers, appellees, against the appellants, Rumsey and Walker, Hoffman, sheriff, and August Martin, for a quantity of wheat which had been seized by the sheriff by an attachment in favor of Rumsey & Walker, and against said Martin. The case was submitted to the court, for trial without a jury, on an agreed statement of facts, from which, directly, or by clear inference, it appears that, August LI, 1879, the Culvers, being the owners of wheat, the quantity unknown, contained in a railroad car on the track of a railroad company, having the possession of it as bailee or agent of the Culvers, bargained with said Martin at Chicago, where the grain wTas, to sell by sample to him, said Martin, the contents of said car (designated as car *454357), for cash, to be paid as soon as such contents could be weighed out, at the rate of 92 cents a bushel for the number of bushels which should be found to be in said car, such number to be ascertained by weighing by said Martin.
' Those being the circumstances and terms of the contract, the first question is, did the contract, ipso facto, pass the property in the commodity out of the sellers and vest it in the buyer?
If it be said that the question whether the property passed to the buyer by the contract, is, in many cases, made to depend upon the intentions of the parties as was laid down in Seckel et al. v. Scott, 67 Ill. 106, and the cases there referred to, then it may be answered, that, by those authorities, such intention is always a question of fact to be found by the j ury, and the court in this ease, sitting in the place of a jury, has found there was no such intention.
We take it to be clear law, that when in a contract of sale of the contents of a car or bin, it being grain, but the quantity of which is unknown, and the sale is for cash, to be paid as soon as the grain can be weighed, which weighing is necessary in order to ascertain the price to be paid by the buyer, and there is no provision as to delivery, the property in that case, the grain, does not pass to the buyer by the bargain, even though the weighing is to be done by him, and there was nothing to be done by the seller to ascertain the identity, or the quantity or quality of the commodity. The payment of the price is a condition preliminary to the property passing to the buyer; and that could not be done before the quantity w7as ascertained by weighing.
The material features of this case are peculiar throughout, and must control in its decision. In Hanson v. Meyer, 6 East, 614; a quantity of starch was contracted to bo sold at a certain price per hundred; the vendor gave the vendees an order ad- , dressed to the keeper of the warehouse where the starch lay, directing him to weigh and deliver ail his starch to the vendees. The court held that the order itself did not amount to a delivery or authorize the vendees to take the starch by their own .act; and that the property did not pass before the weighing, *455which, by the terms of the contract was to precede the delivery and ascertain the price. Lord Ellenborough, Ch. J., in delivering the opinion of the court, said : “By the terms of the bargain, two things in the nature of conditions or preliminary acts on their (the buyers) part, necessarily preceded the absolute vesting in them of the property contracted for; the first of them does so according to the generally received rule of law in contracts of sale, viz.: the payment of the agreed price or consideration for the sale; the second, which is the act of weighing, does so in consequence of the particular terms of this contract, by which the price is made to depend upon the weight. The weight, therefore, must be ascertained, in order that the price may be known and paid.” He distinguished that case from Hammond v. Anderson, 1 Bos. &P. New. R. 69, by saying that in the latter case, the bacon was sold for a certain fixed price, and that the weighing mentioned in the case was merely for the buyer’s own satisfaction, and formed no ingredient in the contract. In the case at bar the weighing is an actual ingredient of the contract, to be done by the buyer, it is true, but it was necessary to ascertain the price. The sale was for ready money; there being no provision as to delivery, the payment of the price and delivery were, therefore, to be concurrent acts.
Sheply v. Davis, 5 Taunt. 617, was similar to Hanson v. Meyer, and the Common Pleas followed the same ruling. The court, Gibbs, Ch. J., speaking of the effect of a delivery order, said: “If anything remained to be done as between vendor and vendee, the delivery could not be complete.” So, in Swanwick v. Sothern, 9 Ad. & E. 895, Lord Denman stated the rule of the English law to be thus: “ If the whole of a commodity be sold, but weighing is necessary to ascertain the price, because the quantity is unknown, the weighing must precede the delivery; and the symbolical delivery without such weighing will not be sufficient. But where the identity of the goods and the quantity are known, the weighing can only be for the satisfaction of the buyer, as was held in Hammond v. Anderson, 1 New. R. 69; in such case symbolical delivery is sufficient.” Many more English cases could be cited where the same distinction is recognized, between the case when the quantity *456of the commodity is unknown and the weighing is an ingredient of the contract itself' and that class where the quantity is known, and the act of weighing is only for the satisfaction of the buyer.
The case of Ward v. Shaw, 7 Wend. E. 404, is one where the lines of that distinction are more marked, and the case more directly in point than any other we have been able to find. Ward brought trover against Shaw to recover the value of two fat oxen which had been taken by the latter, as sheriff, out of the possession of one Crawbuck by virtue of an execution against the latter, in favor of one Platt. The cattle came into the possession of Crawbuck, under these circumstances : He was a butcher and agreed to purchase them of Ward, at §7.50 for each cwt., which the quarters should weigh when slaughtered, he to take the cattle into his possession, prepare them for slaughtering, slaughter them in the week in which the contract was made, and when slaughtered take the quarters to market, weigh them, and pay for the cattle the amount the weight of the quarters would come to at §7.50 for each cwt., which sum was to be received by Ward in full, as well for all the other parts of the cattle as the quarters. Crawbuck took the cattle into his possession, and on the same day they were levied on and taken under Platt’s execution, which was issued on a judgment obtained previous to said contract between Ward and Crawbuck.
On the trial there was a verdict and judgment for the defendant, the presiding judge instructing the jury that the contract between Ward and Crawbuck, and the delivery of the cattle to Crawbuck, vested the title and ownership in him, and that they were subject to the execution. On error from the Supreme Court, a well-considered and instructive opinion was delivered by Savage, Ch. J., holding that the instruction to the jury, by the court below, was wrong, and after laying down the general rule applicable to contracts of sale of personal property, where no credit is given for the price, and no agreement for immediate delivery, the learned judge quoted the above observation of Lord Ellenborough, in Hansen v. Meyer, and then said: “ The sale being for cash, and by weight, the *457vendor is not bound to deliver until payment is made. Payment cannot be made until the price is ascertained by the act of weighing. Should, therefore, the vendee refuse to slaughter the oxen according to contract, and put them to work on a farm, the vendor may re-take them. Should he refuse to pay, after weighing the quarters, the owner may take possession of his slaughtered cattle, for the property has not passed under such a contract until payment is made or waived. The terms of the contract in this case forbid the idea of the waiver of payment when the cattle were delivered to be prepared for slaughter. The rule laid down in Hanson v. Meyer, is, that the property does not pass when anything remains to be done, by the vendor; when the thing to be done is necessary to ascertain theprice and the sale is for cash, it can make no difference whether that thing is to be done by the vendor or the vendee. The property is not to pass till payment, and until the price is ascertained, payment cannot be made or waived, unless'by express terms; the acts of the vendor cannot, before that time, be construed into a waiver.” The court putting the decision of the case upon its own peculiar, circumstances, further said: “In general the act of weighing or measuring is to be done by the seller, but parties have a right to stipulate that the purchaser shall do such act. It is sufficient that the vendor has an interest in the act to be done; and has a right to be present when the weight is ascertained, then, and not before, can the vendor demand payment. If payment is then made, or waived, the property ¡lasses absolutely, otherwise not.”
That case was a much stronger one for the execution, than the one at bar is for the attachment creditor, because in the former, the seller made what was apparently an actual delivery of the cattle to the purchaser, while in the present case, there is no pretense that the sellers made any actual delivery, and what uras done on their part tended only to show a symbolical .delivery. The facts tending to show such symbolical delivery are simply that, after the terms of the sale were agreed on, the sellers gave to the buyer an order addressed to the railroad company in whose custody as bailee or agent of the sellers, the car was which contained the wheat, directing such company to *458deliver that car on the track to the buyer. The agreed statement of facts shows that Martin, the buyer, accepted this order and immediately, on the same day, without, so far as the case "shows, presenting it at all to the bailee or agent, or in any manner obtaining any delivery of the car, or assent or recognition of the order by such bailee or agent, took possession of it, and without the knowledge or consent of the sellers weighed out two hundred and sixty-six bushels of the wheat, hauled it away, put it in a car of another 'party, mixing it with other grain, where it was immediately seized and taken away by virtue of the Rumsey & Walker attachment, Martin never having paid one cent of the purchase price.
It is clear under the circumstances, that the vendors had never assented to that possession and those acts on the part of Martin, and that upon the law to be applied to them, the property and ownership in the wheat had not passed to and become vested in him, as whose property it was seized; because, although 266 bushels of the wheat had been weighed, yet none of the price of it had been paid, and the vendors had done no act which could operate as a waiver of such payment. This must be considered as having been so found, by the court below in finding the defendants guilty, and propertyin the plaintiffs.
It is the settled law of England, and'it ought to he the law hero, that, where goods are in the possession of a third party as bailee or agent of the vendors, if the vendors make a contract of sale of them while so situated, for cash, and the vendee has not paid for them,1 the giving by the vendor to the vendee of a delivery order addressed to such bailee or agent, directing him to deliver the goods to the vendee, hut which is not presented to such bailee or agent and assented to by him, will have no effect in changing the propertyin such goods from the vendor to the vendee.
The property and possession will he regarded as still remain, ing in the vendor, for the reason that until such bailee or agent attorn to the vendee to whom such order is given, he will be regarded as remaining the agent of the vendor, and his possession as that of the vendor: Ben tall v. Burn, 3 B. & C. 423; *459Farnia v. Home, 16 Mees. & W. 119; McEwen v. Smith, 2 House of Lords Cases, 309; Benj. on Sales, 2nd Ed. 132-3.
Martin not being entitled to a delivery by the terms of the contract, and the vendors giving to him merely the delivery order upon their bailee or agent, which was not, as we have seen, equivalent to actual delivery, it is preposterous to claim that the vendors made an absolute and unqualified delivery, under the circumstances stated, which amounted to a waiver of payment, and converted the cash sale into one on credit. These attaching creditors of Martin would have acquired just as much right to hold this grain if they had attached it as Martin’s the moment the bargain of sale was closed, as when they did. The matter of weighing being an ingredient in the contract, the vendors were interested in that act, and had a right to be present.
It was entirely consistent with what was done to assume that they intended to secure that right when the delivery of the car on the track to the buyer, by their agent, was made. But, by Martin taking possession of his own independent act, removing the wheat and mixing it with other grain, the vendors were deprived of that right. But it is enough that the vendors made no actual delivery, and that Martin’s possession was not with their assent.
The judgment of the court below will, therefore, be affirmed. Affirmed.