As the Judge instructed the jury to find a verdict for the defendant, he must be taken to have decided that there was no evidence of a sale of the goods to the plaintiff, Where there is <my evidence to support a plaintiffs claim, it is the duty of the Judge to submit the question to a jury, who are the exclusive judges of its weight. This doctrine must have been a part of the law from the earliest times at which the respective functions of the Judge and jury were discriminated. The earliest distinct expression of it that I know of was by Bulleb, J., in Company of Carpenters, &c., 1 Doug. 875. “ Where there be any evidence is a question for the Judge. Whether sufficient evidence is for the jury.”
Since then it has been repeated innumerable times. Of course, after a while it became a question as to what was the meaning of the phrase, “ any evidence.” Did it mean the slightest scintilla of evidence, or such only as that from which a jury might reasonably infer the existence of the alleged fact. The latter view has been adopted in this State and in England, and so far as my researches have extended, in other States generally. This was the view taken by this Court in State v. Vinson, 63 N. C. Rep. 335, upon the authorities there cited. In addition to those are the following eases in this State, which speak an uniform language: Jordan v. Lassiter, 6 Jones 130; State v. Revels, Busb. 200; Sutton v. Madre, 2 Jones 320; Cobb v. Fogleman, 1 Ired. 440.
There is a recent case iu the English Court of Exchequer Chamber, which puts the doctrine so clearly as to excuse a quotation. The question in that case was, whether certain articles which had been sold to an infant were necessaries. Willes, J., says: “ There is in every case a preliminary question which is one of law, viz: whether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies. If there is not, the Judge ought to withdraw the question from the jury and direct a non-suit if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant. It was *455formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a soinUlla. in support of the ease; but it is now settled that the question for the Judge (subject, of course, to review,) is, as stated by Maule, J., in Jewell v. Parr, 13 C. B. 916; 76 E. C. L. R., not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. In Toomey v. London and Brighton R. W. Co., 3 C. B. N. S. 150, (91 E. C. L. R.,) WilliaMS, J., enunciates the same idea thus : “ It is not enough to say that there was some evidence — a scintilla of evidence clearly would not justify the Judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude that there was negligence” — the fact in that case to be established. And in Wheelton v. Hardisty, 8 E & B. 262, (92 E. C. L. R.,) in the considered judgment of the majority of the Court, it is said: “ The question is, whether the proof was such that the jury would reasonably come to the conclusion that the issue was proved 2” This, “ they say,” is now settled to be the real question in such cases by the decisions in the Exchequer Chamber, which have, in our opinion, so properly put an end to what had been treated as the rule, that .a case must go to the jury if there were what had been termed a scintilla of evidence.” Ryder v. Wombwell, (1868) L. E. 4 Exch. 32. By thus quoting from recent English cases we do not mean to extend or alter any rule of practice or evidence heretofore recognized in this State. The great importance of this understanding of the phrase, “any evidence,” will be seen by considering it as it may be applied in criminal actions.
The question then is, was there any evidence in this case of a sale of the goods in question to the plaintiffs. A sale is defined by Benjamin as “ a transfer of the absolute or general property in a thing for a price in money.” To the completion of this contract, as of all others, there must be the mutual assent of the parties to its terms. Such mutual assent cannot *456exist unless the terms are definite. The thing sold must be ascertained. Until the specific thing is agreed on, the agreement can only be executory. Benjamin on Sales, 227-8.
And for a like reason, the price to be paid must also be certain, or some guide must be agreed on by which it can be found with certainty. There may be a sale for a reasonable price, in which case, if the party afterwards differ, the price must be made certain by the verdict of a jury. Or there may be a sale at a price to be afterwards fixed by valuers. In such case, if the valuers refuse to fix the price, the sale is considered incomplete or else as rescinded by the refusal. If, indeed, the thing sold has been delivered to the vendee and consumed, so that the parties cannot be put in statu quo, the vendee is liable for a reasonable price. Benjamin on Sales, 69; Clarke v. Westroppe, 18 C. B. 765. But there cannot be an executed sale so as to pass the property where the price is to be fixed by agreement between the parties afterwards, and the parties do not afterwards agree. One element of a sale is wanting, just as a different element would be if the thing were not ascertained. If in such ease the thing was actually delivered and consumed, the vendee would be liable, not upon the special imperfect contract, but on an implied contract to pay a reasonable price. In Devane v. Fennell, 2 Ired. 36, it is said that if upon a contract for the sale of goods anything remains to be done by the vendor to ascertain the price, &c., the sale is incomplete, and if the actual possession has been delivered to the vendee, it is still constructively in the vendor.
To apply these principles to the evidence for the plaintiff in the present ease; The plaintiffs being creditors of WyckofF & Shepperd, sued out an attachment against them, and sent a deputy sheriff and another person as their agent, to the store of Wycoff & Shepp&i'i. The attachment was not levied and no claim is set up on that account. The agent proposed to take the goods in question, or as much of them as might be required for the purpose, in payment of the plaintiffs’ debt, but he and Shepperd did not agree upon the price. There*457upon, as the case states the testimony of tile agent, who was a witness for plaintiffs, “the agent and Shepperd agreed to box up all the goods without an inventory, haul them to Trout-man’s depot on the A., T. & O. E. E., next morning, which was Thursday; that on the next Monday Shepperd was to go down with the goods to Charlotte and agree on the price with Wittowsky, and if they agreed, the debt to plaintiffs was first to be paid out of the price and the remainder paid over to Shepperd,” &c.
The goods were accordingly hauled to the depot and the agent of the Eailroad Company was told that they were to go to plaintiffs at Charlotte, and that Shepperd was to go with them. The plaintiffs’ agent, with the consent of Shepperd, sold some guano and a set of counter scales which w'ere at the store, and before the goods were carried to the depot, and received the price. The goods were not sent to Charlotte, but remained at the depot; no price was afterwards agreed on between plaintiffs and Shepperd, and on Monday night they were levied on by the defendant as sheriff.
In all the transaction, we think there is no evidence of an executed sale; nothing from which it could be reasonably or fairly inferred that it was the intent of the parties to it to transfer the absolute property in the goods to the plaintiffs.
There may be a doubt as to who had actual possession and control of the goods while at the depot, whether the plaintiffs or Shepperd. That cpiestion is not assumed either way, and no stress is put on it. But if the goods had happened to have beeD burned at the depot and 'Wycoff & Shepperd had sued the plaintiffs for the price as on an execnted sale, by what rule would the price have been ascertained % Not by any furnished by the contract between the parties, which shows that the contract was incomplete.
Pee Cubiam. Judgment affirmed.
I assented to the decision ás delivered in the *458opinion of brother Rodman, upon the explanation therein, that it was not to be interpreted as an innovation upon the established rule, that the jury are the sole judges of the weight of evidence without any intimation of opinion on the part of the Judge.