¶1This case was before us and decided at the October term (35 Mich., 169), when we held the contract was an executory one, and that the title to the oats and wheat had not passed. A new trial having been ordered, was had and proceeded upon the theory that the parties at the time of their agreement did not intend that the title to any particular one hundred bushels of oats should then pass, but that the oats should be delivered at some future time when demanded, but that the title to the wheat should and did then pass, and that such possession as could be given of growing wheat was given at that time: in other words, that there was a present sale of the wheat and possession given, payment therefor to be made, not in money, but oats at a future day. The case was submitted to the jury upon this theory, and they found in favor of the plaintiff below. There can be no doubt but that the parties had a right to make such a contract, and that when made it would be binding. The wheat could have been sold for money payable in the future, and it could in the same way have been made payable in oats, or any other commodity the parties chose to agree upon, and time could as well be given for the delivery of the oats, as for the payment of the money.
¶2It is also claimed that the wheat being in shocks, and not divided at the time the writ of replevin was issued, such an action could not be sustained. Thé defendant in that suit did not have or claim any interest in the other undivided half of the wheat, and we do not see how he has any right to raise this question.
¶3We discover no error. The judgment must be affirmed, with costs.