On the twenty-seventh day of January, 1847, the defendants had 259 bales of cotton in store in New York, in three parcels; one of 100 bales, and one of 64 bales, stored in the store of W- S. Moore, 296 Water street, and one of 95 bales, stored elsewhere. On that day, through the medium of a broker, the parties made a contract by which the defendants agreed to sell the plaintiffs 259 bales of cotton, 164 bales described as Charleston, and 95 bales as Mobile, at the price of thirteen and a half cents per pound, which they agreed to deliver within or at the expiration of thirty days; the plaintiffs on their part agreed to purchase the cotton mentioned at the price named, and. to pay at that time the sum of five dollars per bale, towards the purchase price, and upon the delivery of the cotton to pay the balance of the price, with seven cents per bale for storage, also for the insurance thereof and interest on the price after the expiration of ten days. The plaintiffs paid the defendants at the time of making the contract, the stipulated sum of five dollars per bale, and policies of insurance were effected insuring the defendants against loss by fire in the usual form, in which it was stipulated, that the loss ¿should be paid according to the actual cash value of the cotton at the time of the loss, in sixty days after the delivery of the proofs thereof. On the night of the 23d of February, 1847, the two parcels of 100 bales and 64 bales were *295destroyed by fire in the building in which they were stored, and the loss on the 7th day of April thereafter, was paid to the defendants at the value agreed upon, being less- than the price by from one cent and a half to two. cents per pound.
The cotton was not weighed at the time, or after the making the contract, and remained at the time of the fire in the same situation as it did at the time of making the contract.
On the fourth or fifth March, 1847, the defendants delivered to the plaintiff's ninety-five bales of cotton for which they paid them the contract price, the storage at seven cents per bale, the insurance at sixteen cents per 100 pounds and the interest on the balance of the purchase price deducting the sum of five dollars per bale, from the sixth day of February, 1847. It was agreed between the parties that the adjustment of this parcel of cotton should not prejudice the rights of either in respect to the other parcels under their contract. On the second day of March, the plai Liff's mat’e a formal demand on the defendants for the delivery of the other two parcels of 100 and 64 bales of cotton, and not being complied with, on the eighth of that month, demanded of the defendants a return of the five dollars per bale, which they had so advanced them at the time of making the contract, and being refused this action was brought for its recovery.
On the trial, the plaintiffs’ counsel requested the judge to charge the jury as follows: 1st. That the contract of the 27th of January, was entirely executory, being a mere agreement to sell, and that it did not change the title to the cotton: 2d. That with regard to a contract of sale, the rule was that where anything remained to be done by or on behalf of the vendor, to ascertain the quantity or price, or to put the goods in a deliverable state, the sale was not complete, and the property did not pass: 3d. That there was nothing in the present contract to take the case from the general *296rule of law, which threw the risk of loss on the person in whom the property was vested at the time: and, 4th. That the defendants bound themselves to deliver the cotton-at all hazards, and having failed to do so, the plaintiffs had a right to treat the contract as rescinded, and recover the deposit. The judge refused so to do and charged the jury, that the plaintiffs’ right of recovery depended on the contract given in evidence. By its terms the plaintiffs were to pay storage, interest and insurance, treating the subject as being at their expense and risk by all the stipulations of the contract, and that the deposit was evidently for the purpose of meeting the possible fall of price, not covered by the usual fire insurance or a lien on the property, the only risk not covered by other terms of the bargain, and therefore the defendants were not liable to refund the deposit, so far as as it was necessary to make good the price in the contract. The plaintiffs’ counsel excepted to the charge and also to the omission or refusal of the judge to charge as requested.
The common law fixes the risk where the title resides; if the property did not pass to the plaintiffs by virtue of the terms of the contract at the time of making it, the risk of it did not attach to them, and the defendants having failed to deliver the cotton' according to the terms of the agreement, the plaintiffs may consider it rescinded and.recover back whatever" they paid towards -the purchase price thereof.
It is a general-rule of law, that where a contract is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he can not take them away without paying the price. But if anything remains to be done on the part of the seller as between him and the buyer, such as weighing, measuring or counting out of a common parcel, before the goods purchased are to *297be delivered, until that is done the right of property has not attached in the buyer; and the future risk of. course remains with the seller.
In this case, the subject matter of the contract of sale, so far as it respected the number of bales and brands was identified by it, but it did not call lor the cotton stored at 296 Water street. Any other bales of cotton of the description specified would as well have answered the obligation of the sellers with the buyers. And besides, the cotton was to be paid for at thirteen and a half cents per pound, and to be» delivered by the sellers within or at the expiration of thirty days thereafter, when the balance of the price was to be paid. The weight had not been ascertained by the contract, and no mode was specified in which it was to be ascertained; but it was necessary that it should be before the price could be computed. It was shown that by the course and practice of the trade it was incumbent on the sellers at their own expense to have that done by a weigher; until that was done, the cotton was not even ready or in a condition for delivery. The contract, from its nature and terms, was clearly and wholly executory on the part of the sellers, leaving the title of the cotton in them, to be thereafter passed to the buyers, on the performance of certain things by them; and until these were performed, the risk of it remained with them. Downer v. Thompson, 2 Hill, 137; Long on Sales, 267; Rapelye v. Mackie, 6 Cow. 250; M’Donald v. Hewett, 15 Johnson R. 349; Hansel v. Meyer, 6 East. 614; Whitehouse v. Frost, 12 East. 614; Zagury v. Funnell, 2 Camp. 240; Simmons v. Swift, 5 Barn. and Cress. 857; 2 Kent’s Commentaries, 495; 6 Story’s Contracts, §§503, 504, 505.)
The judge at the trial charged the jury that the deposit of five dollars per bale by the plaintiffs was evidently for the purpose of meeting the possible fall of price not covered by the insurance or a lien on the property, and therefore the defendants were not liable to refund it, so far as *298it was necessary to make good the price of the cotton as agreed upon by the contract. In that, I think the learned judge erred. In my judgment it is clear, that it was intended as an advance towards the payment of the purchase price of the property, and so it seems to have been understood by the parties; for by the bill of the 95 bales delivered, this deposit on that part was applied as so much payment of the purchase price.
The propositions which the judge was requested to charge the jury were substantially correct, and the exception to his refusal so to charge was well taken. The judgment must be reversed and a new trial ordered, with costs to abide the event.
Gardiner, Taggart, Willard and Mason, JJ., concurred with Judge Jewett
Ruggles, Ch. J., Johnson and Morse, JJ., gave no opin ion.
Judgment reversed and new trial ordered.