¶1The instructions as given and refused, involve the question whether the sale of the wheat was so complete, as to pass the title to defendant, and entitle him to retain the same as against the plaintiffs..
¶2We think it quite clear,that under the contract, as proved, the right of property did not pass from plain tiffs, nor, as a consequence, vest in defendant. The rule is that where some act remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, or, as in this case, that of separating and setting them apart from the bulk, so that they may be distinguished and identified, the performance of such act is A pre-requisite, and until it is performed the property does not pass to the vendee. Davis v. Hill, 3 N. H., 382; Outwater v. Dodge, 7 Cow., 85; Brewer v. Smith, 3 Greenl., 44; Downer v. Thompson, 2 Hill, 137; Story on Cont., section 800; 1 Parsons on Con,, 441.
¶3Judgment reversed.