¶1The chief question in this case arises under the refusal of the court to charge the jury, that the contract of sale was entire, and could not be satisfied by a delivering or tender of delivering of a quantity less than the whole.
¶2The evidence justifies the finding of an actual delivery of seventy bales; They were taken from the warehouse, sampled and weighed, and by the diriection of the defendants re-stored.for their account. That constituted a delivering of the seventy bales. Before a like delivering of the remainder could be made, the warehouse and its contents were destroyed.
¶3The bought and sold notes did not make this a complete sale, so as to vest the title to all the cotton in the defendants. Something remained to be done by the seller to ascertain the quantity, and by the purchaser to ascertain the quality. To vest the title in a purchaser upon a sale unaccompanied by a, delivery, nothing must remain to be done by the seller (Bradley agt. Wheeler, 4 Robt., 18, (affirmed on appeal, 44 N. Y., 5Hand, 495.) It is true, that in one case (Croft agt. Bennett,. 2 N. Y., 258,) it is held that mere having to xveigh the commodity to ascertain the price of the whole, at" the rate agreed upon where the goods are otherWise clearly identified, will not prevent it being a complete sale, but I think, the clear weight of authority is otherwise, and if anything remains to be done by the seller to ascertain its identity, quantity or quality, the title does not pass until all *449this is done (Bradley agt. Wheeler, supra, where the cases are collected.)
¶4The commodity in this case was divisible and capable of a separate physical delivery, Each bale could be separately weighed and sampled, and as weighed and sampled, passed over to the purchaser; but that circumstance did not make the contract divisible, or of itself, render it capable of a separate physical performance.
¶5The fact as found by the jury, that the sale was of a specific definite lot of cotton, and not of one hundred and nineteen bales of cotton, of a certain quality, did not release the plaintiffs from the necessity of a complete performance, as a condition precedent to a recovery, unless such a performance was rendered impossible, or was excused by what happened after the partial delivery was made.
¶6The verdict iu this case cannot, in my judgment, be sustained on the ground that the title to all of the cotton had become vested in the defendants, by the mere force of the bought and sold notes.
¶7The sales was of one hundred and nineteen bales of cotton, of specific marks, at 31J cents a pound. The quantity had to be ascertained by actually weighing, and I think, it is very clear, that the weighing was to be done by, or under the direction of the plaintiff.
¶8On this point I am unable to distinguish this case from Joyce agt. Adams, (8 N. Y., 291.)
¶9The bought and sold notes were in terms almost identical, and the cotton was, before delivery, destroyed by fire. That was held to be an incompleted sale, and the title to the cotton as remaining in the seller. And the court put its decision on the ground that it was the duty of the seller to weigh the cotton before the price could be computed, u and until that was done, the cotton was not even ready or in a condition for delivery.”
¶10It is clear, therefore, I think, that treating this as an entire *450and indivisible contract, the plaintiff cannot recover upon it, as a completed sale of the whole number of bales.
¶11And it also follows, that whether treated as a contract for the sale of a specific lot of cotton, or as merely a contract for the sale and delivery of one hundred and nineteen bales of a certain quality of cotton, in either case, a delivery of any number of bales less than +he whole would not be a performance of the contract.
¶12■ What is an entire, and what is a severable contract is not defined. Much depends upon the nature of the contract.. Something upon the intention of the parties. Where there is a purchase of different articles,- at different prices, at the same time, the contract would be several as to each article, unless the taking of the whole was rendered essential by the nature of the subject matter, or by the act of the parties. But when the purchase is of a specific commodity—or of several of a specific commodity, at a fixed price, either for the whole or for each part, and there is no intention expressed of implied of a several performance, the complete fulfilment of a condition precedent.
¶13The contract in this case was entire and inseverable and required a full performance. It was for the sale and purchase of one hundred and nineteen bales of cotton, to be paid for on delivery, and a delivery of any number less than the whole would not be a performance of the condition.
¶14In Russell agt. Nicoll, (3 Wend., 112,) a contract for the sale' of five hundred bales of cotton, cash on delivery, was held to be an entire contract, imposing no obligation on the' purchaser to receive less than the whole, and in Baker agt. Higgins, (21 N. Y., 397,) which was a contract for the sale of a specific quantity of brick, at a stipulated price per thousand, it was held to be an indivisible contract. In that case, there had been a part delivery, and acceptance of such part by the purchaser, and the action was to recover .for such part at the stipulated price, and it was held, that the seller *451could not recover without showing a' delivery, or an effort to deliver the whole.
¶15This is not a case of acceptance of a part of the goods, while in the course of accepting the whole, so as to construe-it into a waiver of an exact performance of the entire contract. No such waiver can be imputed to the defendants. Their demand was for the whole, and it was no fault of theirs that the delivery was stopped.
¶16They were ready to receive, and did no act which could be deemed a waiver of their legal right, to refuse payment-for' the portion delivered, until they had received the whole.
¶17' I have not regarded it as material, whether the purchase in this case was of specific and identified cotton, or generally of the number of bales of cotton mentioned in the contract. The rule as to performance is the same in either case, and the defendants had the right to require a delivery of the whole number, and the plaintiffs could have no right of action for any part without showing a delivery, or an offer to deliver, the whole number of bales mentioned in the bought and sold notes.
¶18Nor was performance excused in this case by the happening of the fire, by which all the cotton, including the seventy bales actually delivered, was destroyed. Performance is excused when it is prevented by the act of God or of the law, but the happening of a casualty or inevitable accident or other unforeseen contingency will not.
¶19In Norton agt. Woodruff, (2 N. Y., 153,) the property was destroyed by fire before delivery, and the court held, it did not excuse performance.
¶20And in Joyce agt Adams, (supra,)after a delivery of part, the remainder was destroyed by fire. The purchaser brought his action to recover a deposit, &c., upon the contract, and the court sustained the action.
¶21• The rule on this subject is very clearly stated by Mr. Justice Edwards in Havemeyer agt. Bingham (12 N. Y., 99, 107.)
¶22*452He says, u when a party by his own contract, creates a. duty or charge upon himself, he is bound to make it good; notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract.”
¶23The meritorious question in this case is, which of the parties shall suffer the loss; one or the other must, but I cannot see any reason why the defendants should be selected.
¶24They had no title to the whole property so as to make it. their loss, nor were they responsible tor any part until there was a delivery of all.
¶25. The respondent’s counsel relied very much upon the case of Bradley agt. Wheeler, (supra,) as settling the law of the case in his favor.
¶26, But a moment’s examination of this case, will show that the facts are quite different, and that decision is put on the ground that nothing remained for the seller to do, and therefore, it. was a completed sale resting the title in the purchaser.
¶27, In conclusion, I am of opinion, that the defendants were entitled to have the jury instructed as they requested, and that their exceptions to the refusal was well taken.
¶28\ They were also entitled to have their motion for nonsuit, granted.
¶29( For these errors, the judgment should be reversed, and á, new trial ordered, with costs to the appellants to abide the event.
¶30Freedman, J. concurred.
¶31I dissent in this case. The cotton was fully in .the possession of defendants; the sampler Bolton, after tie had examined the cotton and found it to correspond with . the samples, weighed it, and placed the same in storage for defendants at their request and by their direction; surely this is surrendering the goods to their possession.
¶32Where an article sold is removed out of the care of the *453vendor so that he cannot exercise control over it, and where it is placed under the slightest control of the purchaser, then, and in that case it is clearly at the purchaser’s risk (Brooms Com., 414). The cotton in the store house was actually delivered at the time the warehouse receipt and the samples were given by plaintiffs to defendants. This gave the defendants the entire command and control of the goods against all the world; and surely when they took out and unstored the seventy bales, had it examined and sampled by their own servants, and then re-stored at their own cost and risk in their own names, it will not be contended this was not a delivery of such seventy bales. Why was the balance of the property not sampled and turned over 1 it was not the fault of the plaintiffs, for they had turned over to defendants all evidence of title; they had surrendered all absolute control. Defendants’ agent, the storekeeper, was in charge of the property; he held it by virtue of the warehouse receipt they sent him; Bolton, their sampler, had examined it, and specially re-stored it in defendants names at their (defendants) own request. Bolton and the storekeeper declined to sample any more that day : their refusal was not the act of the plaintiffs agents/ but the act of defendants agent; before the balance of the cotton was examined, a fire consumed it so that it could not be examined and delivered ; surely it will not be contended that the seventy bales taken1 possession of by defendants and stored by them in their own name and at their risk, must not be paid for. Lord Elleeborough held (2d Campbell’s Nisi Prius, 243), that the transferring of goods on a warehouseman’s books was a delivery sufficient to transfer title (see 7th Term R., 71; also Wilkes and Fontain agt. Ferris, 5 Johns., 335).
¶33It is urged that it required the delivery of the whole 119 bales to complete the sale. This ■ might have been so had not the defendants accepted and taken possession of the seventy bales, and had not the fire destroyed the balance. The taking possession of the 70 bales by defendant deprived *454plaintiff of possession or the right of possession; they, (plaintiffs), could not protect themselves by insurance or otherwise, and the destruction of the thirty-nine bales, the balance, deprived them of the' power, to deliver it, if it had not been •already delivered by the transfer of the warehouse receipt." The appropriation of a chattle by the purchaser is equivalent to a delivery. These defendants had taken the transfer of the property under their contract, they had re-stored it, they had insured it, in fact they did all that possibly could be done to possess themselves of it. This made them owners of it (1 C and B, 333; 5 B and C, 857; 2 B and Ald., 753; 7 M. & Gr., 882; 7 Exch., 594).
¶34Where a party has in any respect acted as owner of the goods this is a sufficient acceptance (Broom's Com., 414; Meredith agt. Meigh, 2 R. & B., 374; Currie agt. Auderson, L. J. Q. B., 87; Bushel agt. Wheeler, 15th Q. B., 442).
¶35The order to re-store was not an order to re-store in defend•ant’s name after the sampler had examined the cotton; but T read it, that it was an order to re-store on the warehouse 'receipts, the whole cotton before it was sampled, and that, ■the very instant the receipt was received by the warehouse’man. * e .
¶36The case of Joyce agt, Adams, differs widely from this .case. That was a conditional time contract. The cotton was to be delivered within thirty days, and it was expressly ■agreed, that title should remain in vendor in the meantime. Before the thirty days had expired, part of the cotton was burned, and could not be delivered ; but, even in that case, part of the cotton not burned—ninety bales—had to be paid ■for. Now, why should not the seventy bales here delivered be paid for ? It was compared with- the samples and weighed, and re-stored, and re-insured in defendant’s account' in his warehouse. The court severed the contract in the Joyce case, although it was a whole, and held that the cotton •delivered should be paid for. And, by the same line of reasoning, the court here can sever the contract, and. must
¶37*455hold those defendants liable for the seventy bales delivered to them. They may say these seventy bales were destroyed also; but they were destroyed when in the custody of the defendants, and when under their absolute control in their own store, where they ordered it to be put, and where they had it insured. The case of Joyce and Adams, is a case entirely in favor of the plaintiffs. The rule is settled, that where a contract is made and partly performed, and the performance of the balance is rendered impossible by unavoidable accident, the party in whose favor the part performance is made is entitled to recover for the part performed (Gilbert agt. Roberts, 19 L. J. Exch., 410; Smith agt. Hudson, 8 L. J. N. S., Exch.; Walker agt. Dixon, 9 B. & C., 387; Oxendale agt. Wetherel 4 M. & R., 429; 9 B. & C., 386. )
¶38In the case of Walker agt. Dixon, 2 Stark, 281; Lord Ellenborough held, that where a contract was made for 100 sacks of flour, (no particular flour being mentioned,) and part was delivered and defendant ready to take the ballance, plaintiff could not recover for the part delivered. But this ruling was reversed by the court in Banco, (9th B. & C., 387, ) and the contrary doctrine established.
¶39In the case of Hind agt. Whitehouse, 7 East, 558, 3d. Smith, 528,) a quantity of sugar was sold by samples, and the samples handed over, but before the sugar was weighed and delivered it wras destroyed by fire.
¶40Held, that the delivery of samples completed the sale so; in the case of Tarling agt. Baxter, (6 B. & C., 360; 9 D. & R., 272,) where a stack of hay was bought for ¿£145, to be paid for and weighed afterwards. It was to stand on plaintiffs ground until paid for; in the meantime, and before it was paid for, it was destroyed by fire. Held, that there was a delivery to the defendant, and that the loss fell upon the purchaser ; and so it was held in the case of Gilmour agt. Supple, 11 More, P. C. C., 551.) In that case a quantity of timber in logs was sold on credit. It had *456not been measured, and was being taken by, or towed to defendants boom rooms. The weather was ugly, and the defendant’s men suggested, that it should be chained for the . night outside the booms—this was done. A storm arose, the raft broke away and was lost. .The defendant was held liable because his men took or assisted in taking the raft, and tying it to the outside of the boom ponds. It is conceded here (case at bar,) that the broker had full power .to bind both parties, and the making and delivery of the sales note to each of the parties, and the entry in the books, made a perfect, contract. Not only was this done, but samples were delivered to Bolton, the sampler, who received them for defendants, so that all that was left to be done in this case, was to compare the goods with the samples, and this was the work of the defendants. It was a work absolutely for their benefit, because plaintiffs had sold the cotton—119 bales, weighing so much, and marked so and so, and' at the prices so and so, and “I hereby transfer warehouse -receipts to you,” which was done. This completed the- sale, so far as it could be completed, by plaintiff, because bulky articles can- only be delivered in this way. This is familiar learning.
¶41This was all the law required of the plaintiff, and if . the defendants for then- own safety had this property examined and compared with the samples, it was to protect themselves with a view to the proper deductions in their favor if the goods ran short. But more than delivery of the sales, notes and warehouse receipts took place here. Beattie & Tupper, the defendants, had it re-stored in their own name. This was done by them, and in writing across the storage receipts. “ Restore for account, Beattie & Tupper.” Now, I hold, that the receiving of this storage receipt by Tapper & Beattie and their writing across its face, re-store in our- name, and the handing of that storehouse receipt so endorsed by thém (Tupper & Beattie) to the warehouse-man, was taking absolute possession and control and title of said cotton; and *457that consequently, plaintiffs lost all title to it, and this before it was even weighed or sampled. Will it be doubted, that defendants could have sold the cotton ? Certainly not. Then if so, why was it not at their risk?
¶42Save for its effect upon the validity of the contract, with reference to the statute of frauds, the question of delivery is wholly immaterial. Title not possession determines the risk. This doctrine is now settled. This is the true rule, and the defendant’s position in this case is in conflict with it. I hold, therefore, that the broker was the agent of both parties, and as such properly bound them both by signing the same contract for buyer and seller Grant agt. Fletcher, (5 B. & C., 436.) I bold, that the bought and sold notes were a sufficient memorandum of the bargain, within the statute of frauds Groom agt. Affalo, (6 B. & C,, 117.) I hold also, that a broker who is employed by both parties, the one to sell, and the other to buy, is the agent of both, and a memorandum of the terms of the sale made by him in writing and delivered to the parties, is the best evidence of the contract Merritt agt. Clason, (12 Johns., 102.) I further hold, that when the articles are ponderous or bulky, or cannot conveniently be delivered manually, it is enough, that they are put under absolute power of the vender, or that his authority as owner is formally acknowledged, or that any act is done importing a surrender on one side and an acceptance on the other (1 East., 192; 5 Johns,, 335; Story on Sales, 311, 12 Mass., 33; Sanborn agt. Small, 3 Sandf., 230.) And finally I hold, that the transfer of the warehouse receipt to Beattie & Tupper and their indorsement thereon, u re-store in our name,” and the receipt of that warehouse receipt by the warehouse-keeper and the re-storing of the 70 bales thereunder, conveyed the absolute title in the cotton to the defendants in this action.
¶43The judgment should be sustained.