¶1delivered the opinion of the Court:
¶2That the property in this wheat was not transferred to the appellants, seems clear, from the fact, that the plaintiff sold and delivered it to other parties.
¶3On the point that defendants were bound by the declaration .of Hubbard, after the first load of wheat was weighed, that “ it would do,” and that such declaration was an admission that the wheat filled the sample, cannot be so regarded, for, at the time he said so, there had been but one wagon-load examined, and to that, only, could it apply. When he returned, with his partner, Belden, who examined the other loads, they were found not to be up to the sample, and were rejected. This was the defendants’ right. Instructions 9, 11, 12, given for the plaintiff, were, therefore, not proper. As the series of instructions must be regarded, we are inclined to think, the defect in instruction 9 was' covered by others which were given, but that cannot be alleged of 11 and 12. Instruction 11 is as follows :
“ If the jury believe, from the evidence, that a contract was made and entered into, as alleged in the declaration, between the plaintiff and defendants, and that within the time and at the place agreed upon, the said plaintiff was ready and willing, and then and there tendered to the said defendants a quantity of wheat, and that defendant, Hubbard, after an examination of said wheat, said it would do, or words to that effect, and accepted the same, and afterwards refused to pay for the same, ór to furnish a.place for plaintiff to unload, then the jury will find for the plaintiff, although they should further find that the wheat was not as good in quality as the sample by which it was sold.”
¶4The proof is clear, but one load of wheat was examined when the admission was made. On the examination of the other loads, they were rejected, as not equal to the sample.
¶5For these reasons, the 12th instruction was objectionable:
“ The jury are instructed, that although they may believe, from the evidence, that the wheat in controversy was sold' by sample, and that the wheat delivered or tendered by plaintiff was not as good as sample shown, they must still find for the plaintiff, provided they further find, from the evidence, that the defendants, or one of them, after an examination of the wheat tendered or delivered, accepted the same and said it would do, or used words to that effect.”
¶6The purchasers were not concluded by the hasty examination of one load.
¶7For the reasons noticed, the judgment must be reversed and the cause remanded.
¶8Judgment reversed.