majority">Cole, J.

There was material conflict of the testimony as given by the plaintiff and defendant, each sustaining, in substance, the claim made by his pleading, and there was also more or less corroborating testimony sustaining their respective claims.

After the evidence was closed, the court gave to the jury two instructions, in substance: first, that if they found the' plaintiff’s claim established, their verdict should be for him; and, second, if they found the contract proved as claimed by the defendant, they should return a verdict for him.

The third instruction was as follows : “ There are no issues in the pleadings in this case, thát plaintiff made false or fraudulent representations about the cattle; nor that plaintiff did not use ordinary care in feeding or taking care of the cattle; nor is it material whether two or more of the cattle had the ‘ big jaw,’ at the time the cattle were to be delivered. The only issue is as to what the contract is between the parties.

“ If you find the contract to be as claimed -by plaintiff, he will be entitled to recover if he fulfilled it on his part; and, on the other hand, if the contract was as claimed by defendant, you should find for him.”

In order to test' the correctness of this instruction, let us make two or three inquiries. And, first, as to the character or kind of.the contract as claimed by the plaintiff. Is it an executory or executed contract ? In other *511words, did it provide for the doing of some other act, or the happening of some event, before the contract should be complete, or was it completed by its own terms %

1sa<ief™tCT: cutory: com-It is a rule that the property does not pass. absolutely unless the sale be completed; and it is not completed until the happening of any event expressly prov^e¿ forj or s0 ]ong as any thing remains to be done to the thing sold to put it into a condition for sale, or to identify it, or discriminate it from other things. Pars, on Con., vol. 1, p. 441.

Nor is the sale completed while any thing remains to be done to determine its quantity, if the price depends on this; unless this is to be done by the buyer alone. And even if earnest, or a part of the price be paid, the sale is not for that reason complete. If the sale be complete, the property in the thing sold passes to the buyer ; if not complete, it remains with the original owner. Id.

No sale is complete, so as to vest in the vendee an immediate right of property, so long as any tiling remains to be done between the buyer and seller in relation to the thing sold. Story on Sales, § 296, and authorities in note 2; Chitty on Con. (10th Am. ed.), 396, 397; Addison on Con. (2d Am. ed.), 225 to 228.

2ib7ju?y.e3ti011 Secondly, who determines whether there has been a completed sale or not ? And here the answer is plain that it is a question of fact for the jury to determine. 1 Parsons on Con., 441; De Widder v. McKnight, 13 Johns., 294.

3struct?on of. And, thirdly, what is the rule of construction or test of liability, as applied, respectively, to executory and completed contracts ? . As to the latter, it is a general rule, that, unless there has been a warranty, false representation or fraudulent concealment, the purchaser must take the property regardless of its defects, and the seller is without liability therefor.

*512As to the former — executory sales — tlie contract always carries an obligation- that the article sold shall be merchantable, at least not have any remarkable defect. Bacon’s Ab. Tender (B), pl. 2; Laing v. Fidgeon, 6 Taunt., 108; 1 Eng. Com. Law, 327; Gallagher v. Waring, 9 Wend., 20(i. e., 28); Hart v. Wright, 17 Wend., 267 (i. e., 277); Howard & Ryckman v. Hoey, 23 Wend., 350; Misner v. Granger, 4 Gilm., 69; Babcock v. Trice, 18 Ill., 520.

The third instruction, as given, is. at variance with these principles, and was therefore erroneous. In that instruction the court clearly assumes the contract to have been a completed sale, a fact within the province of the jury to determine, for he informs them that it is not material whether two or more of the cattle had the “big jaw” at the time they were to be delivered, while this fact was of the utmost importance and materiality.

The court should have instructed the jury as to what constitutes an executory sale, and also a completed sale, and thereunder left it for them to determine to which class the contract of sale in this case belonged. If it was an executory sale, then the plaintiff was bound to deliver merchantable cattle, at least of medium quality or goodness, and unless he did so he could not recover.

Reversed.

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