Handt, C.J.,
delivered the opinion of the court.
This was an action of trover, brought by the defendant in error, to recover the value of six bales of cotton weighing four hundred and fifty pounds each, alleged to have been purchased by him from one Eliza Boles in October, or November, 1863 ; to which the defendants below pleaded the general issue and several special pleas.
On the trial below, the plaintiff introduced as a witness Samuel Melton, who was asked by the plaintiff whether the plaintiff owned cotton - on the premises of Eliza Boles; and thereupon the defendants objected to the witness answering the question, and asked him if the evidence of the plaintiff’s title to the cotton about which he was interrogated, was in writing, [363]*363and in the nature and terms of a contract signed by plaintiff and Mrs. Boles ; to which he replied that it was in writing, so signed, and was in his possession. But the court overruled the objection, and permitted the witness to answer, and to state the terms of the contract by which the cotton in controversy was alleged to have been sold by Mrs. Boles' to the plaintiff. To this, the defendants excepted, and this is the first error assigned.
It appears that the title of the plaintiff consisted in a written contract by which he became the purchaser of the cotton, in which the nature and terms of the purchase were stated; and it was shown that this written instrument was in the possession of the witness. It was the best evidence of the contract, and should have been produced. ' This is, without question, the established rule of law; and its .wisdom as a general rule is clearly shown in the subsequent proceedings in this case, by which it appears that the case turned to a considerable degree upon the exact terms of the contract by which the plaintiff became the purchaser of the cotton in controversy.
Ve think the court erred in not sustaining the objection, and in not requiring the plaintiff to produce the written contract.
The next errors assigned are the instructions granted for the plaintiff; and those asked in behalf of the defendants, a*rid refused or modified; and the overruling of the motion for a new trial on the ground that the verdict was not sustained by the evidence.
The propriety of these assignments depends mainly on the evidence adduced on the part of the plaintiff, to show title to the cotton in controversy in the plaintiff: which, as it appears in the record, is to the following effect:
Samuel Melton testified that the plaintiff was the owner of eight bales of cotton in 1863, on the' plantation of Mrs. Boles, to weigh four hundred and fifty pounds each, but then in the seed and in a house on the farm over a mile from her residence; that plaintiff had not sold or disposed of the cotton; that he was agent of plaintiff, and resided within eight miles of Mrs. Boles ; that plaintiff resided in Panola county; that the witness [364]*364purchased the cotton as agent for plaintiff in August, 1863, from Mrs. Boles, who represented to him that she was the owner of ten bales of cotton in the seed in a house on her plantation, and that it was in one common bulk, and proposed to sell him the whole ten bales; that he declined to buy ten bales, but agreed to buy eight bales of the cotton, and she agreed to sell him eight bales ; that she said she thought there were ten bales, but he told her she had better sell eight, it might not hold out, and the contract was, that the cotton was to remain where it was in the house until after the war, and was then to be hauled by her to some neighboring gin (she having none), ginned, with bagging and rope furnished, baled, hauled, and delivered at Canton, and there weighed, and to weigh four hundred and fifty pounds each bale, all at the expense and labor of Mrs. Boles, and for which he paid her $720 in Confederate treasury notes at the time of the purchase, being twenty cents per pound for the cotton when delivered, including all that the seller was to do ; that he agreed to release her from liability if the cotton was destroyed by unavoidable accident before delivery at Canton, and it was to be delivered there in a reasonable time after the war ended, after request to do so, and it was to be at the plaintiff’s risk.
Mrs. Boles testified to the contract substantially as the witness Melton, and that she had a lot of cotton in 1863, in the seed, in a room of a house on her plantation, which she estimated at ten bales, eight bales of which she sold to Melton, as agent for plaintiff; that she did not sell the lot of cotton to plaintiff for eight bales more or less, nor as a whole, but sold him eight bales of the lot or pile.
It further appears by the evidence, that the cotton was removed from the plantation in August, 1865, and taken to the plantation of Owen G. Baldwin, who had it ginned and baled, and hauled it to Canton and sold it, and that it tinned out six bales; that the roof of the house where the cotton was, on Mrs. Boles’ plantation, had several bad leaks in it, and the cotton was badly rotted in several places, and a large amount of it was rotted so that the witness who hauled the cotton from that place [365]*365had much trouble in separating the rotten from the other cotton in loading the wagons.
On this evidence the question arises, whether the plaintiff acquired such title to the eight bales of cotton as to entitle him to maintain trover against a subsequent purchaser from Mrs. Boles.
According to the evidence, it must be taken that there were ten bales of cotton in the bulk owned by Mrs. Boles, and stored on her plantation, at the time of the sale. It was so estimated and stated by her to the plaintiff’s agent at that time, and he made the purchase under the idea that he was purchasing eight of the ten bales, then in bulk on the plantation, to be after-wards separated, ascertained, and delivered. On this state of facts the law is well settled to be that, “ where goods, part of an entire bulk, are sold, the contract is incomplete, and no property passes, if such part has not been distinguished and separated from the bulk. Until the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answering a particular description; and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, out of the entire bulk, it is clear that there can be no intention to tranfer the property in any particular lot of the goods more than another, until it is ascertained which are the very goods sold. Chitty on Contr. 398. Thomas v. The State, 37 Miss. 353.” “ The goods sold,” says Ch. Kent, “must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before the property can pass.” 2 Kent’s Com. 496.
Against the conclusion to which these principles clearly lead, it is insisted, in behalf of the defendant in error, that, inasmuch as there turned out, after the cotton was ginned, only six bales of the entire parcel owned by Mrs. Boles and stored on her plantation, that in fact McKay purchased the entire lot when he purchased eight bales, and that no separation of the bales purchased by him from the bulk was necessary to pass title.. But in the first place, such was clearly not the understanding of the parties at the time of the purchase, and the question [366]
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Handt, C.J.,
delivered the opinion of the court.
This was an action of trover, brought by the defendant in error, to recover the value of six bales of cotton weighing four hundred and fifty pounds each, alleged to have been purchased by him from one Eliza Boles in October, or November, 1863 ; to which the defendants below pleaded the general issue and several special pleas.
On the trial below, the plaintiff introduced as a witness Samuel Melton, who was asked by the plaintiff whether the plaintiff owned cotton - on the premises of Eliza Boles; and thereupon the defendants objected to the witness answering the question, and asked him if the evidence of the plaintiff’s title to the cotton about which he was interrogated, was in writing, [363]*363and in the nature and terms of a contract signed by plaintiff and Mrs. Boles ; to which he replied that it was in writing, so signed, and was in his possession. But the court overruled the objection, and permitted the witness to answer, and to state the terms of the contract by which the cotton in controversy was alleged to have been sold by Mrs. Boles' to the plaintiff. To this, the defendants excepted, and this is the first error assigned.
It appears that the title of the plaintiff consisted in a written contract by which he became the purchaser of the cotton, in which the nature and terms of the purchase were stated; and it was shown that this written instrument was in the possession of the witness. It was the best evidence of the contract, and should have been produced. ' This is, without question, the established rule of law; and its .wisdom as a general rule is clearly shown in the subsequent proceedings in this case, by which it appears that the case turned to a considerable degree upon the exact terms of the contract by which the plaintiff became the purchaser of the cotton in controversy.
Ve think the court erred in not sustaining the objection, and in not requiring the plaintiff to produce the written contract.
The next errors assigned are the instructions granted for the plaintiff; and those asked in behalf of the defendants, a*rid refused or modified; and the overruling of the motion for a new trial on the ground that the verdict was not sustained by the evidence.
The propriety of these assignments depends mainly on the evidence adduced on the part of the plaintiff, to show title to the cotton in controversy in the plaintiff: which, as it appears in the record, is to the following effect:
Samuel Melton testified that the plaintiff was the owner of eight bales of cotton in 1863, on the' plantation of Mrs. Boles, to weigh four hundred and fifty pounds each, but then in the seed and in a house on the farm over a mile from her residence; that plaintiff had not sold or disposed of the cotton; that he was agent of plaintiff, and resided within eight miles of Mrs. Boles ; that plaintiff resided in Panola county; that the witness [364]*364purchased the cotton as agent for plaintiff in August, 1863, from Mrs. Boles, who represented to him that she was the owner of ten bales of cotton in the seed in a house on her plantation, and that it was in one common bulk, and proposed to sell him the whole ten bales; that he declined to buy ten bales, but agreed to buy eight bales of the cotton, and she agreed to sell him eight bales ; that she said she thought there were ten bales, but he told her she had better sell eight, it might not hold out, and the contract was, that the cotton was to remain where it was in the house until after the war, and was then to be hauled by her to some neighboring gin (she having none), ginned, with bagging and rope furnished, baled, hauled, and delivered at Canton, and there weighed, and to weigh four hundred and fifty pounds each bale, all at the expense and labor of Mrs. Boles, and for which he paid her $720 in Confederate treasury notes at the time of the purchase, being twenty cents per pound for the cotton when delivered, including all that the seller was to do ; that he agreed to release her from liability if the cotton was destroyed by unavoidable accident before delivery at Canton, and it was to be delivered there in a reasonable time after the war ended, after request to do so, and it was to be at the plaintiff’s risk.
Mrs. Boles testified to the contract substantially as the witness Melton, and that she had a lot of cotton in 1863, in the seed, in a room of a house on her plantation, which she estimated at ten bales, eight bales of which she sold to Melton, as agent for plaintiff; that she did not sell the lot of cotton to plaintiff for eight bales more or less, nor as a whole, but sold him eight bales of the lot or pile.
It further appears by the evidence, that the cotton was removed from the plantation in August, 1865, and taken to the plantation of Owen G. Baldwin, who had it ginned and baled, and hauled it to Canton and sold it, and that it tinned out six bales; that the roof of the house where the cotton was, on Mrs. Boles’ plantation, had several bad leaks in it, and the cotton was badly rotted in several places, and a large amount of it was rotted so that the witness who hauled the cotton from that place [365]*365had much trouble in separating the rotten from the other cotton in loading the wagons.
On this evidence the question arises, whether the plaintiff acquired such title to the eight bales of cotton as to entitle him to maintain trover against a subsequent purchaser from Mrs. Boles.
According to the evidence, it must be taken that there were ten bales of cotton in the bulk owned by Mrs. Boles, and stored on her plantation, at the time of the sale. It was so estimated and stated by her to the plaintiff’s agent at that time, and he made the purchase under the idea that he was purchasing eight of the ten bales, then in bulk on the plantation, to be after-wards separated, ascertained, and delivered. On this state of facts the law is well settled to be that, “ where goods, part of an entire bulk, are sold, the contract is incomplete, and no property passes, if such part has not been distinguished and separated from the bulk. Until the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answering a particular description; and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, out of the entire bulk, it is clear that there can be no intention to tranfer the property in any particular lot of the goods more than another, until it is ascertained which are the very goods sold. Chitty on Contr. 398. Thomas v. The State, 37 Miss. 353.” “ The goods sold,” says Ch. Kent, “must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before the property can pass.” 2 Kent’s Com. 496.
Against the conclusion to which these principles clearly lead, it is insisted, in behalf of the defendant in error, that, inasmuch as there turned out, after the cotton was ginned, only six bales of the entire parcel owned by Mrs. Boles and stored on her plantation, that in fact McKay purchased the entire lot when he purchased eight bales, and that no separation of the bales purchased by him from the bulk was necessary to pass title.. But in the first place, such was clearly not the understanding of the parties at the time of the purchase, and the question [366]*366whether title to the eight bales contracted for passed to the plaintiff, must be determined by the understanding of the parties in regard to the quantity and condition of the bulk of cotton at the time of the sale. And, secondly, it appears, by the testimony of the witness, ¥m. A. Baldwin, that 'the cotton in the bulk was badly rotted, and that a large amount of it was thereby lost, and was rejected from that which was hauled away to be ginned. This may account for the failure of the cotton to produce the number of bales calculated on by the parties when the purchase was made.
The instructions, as they are set forth in the record, are exceedingly prolix and voluminous, and many of them, as they are transcribed in the record, are unintelligible. We will advert to such as appear to be objectionable.
The second instruction, at the instance of the plaintiff, directs the jury that if they believe from the evidence that McKay was the owner of the cotton on the 13th October, 1865, and that the defendants sold and converted it to their use, they should find for the plaintiff.
This instruction submitted the whole law of the ease to be determined by the jury. Whether the plaintiff was the owner of the cotton or not, was 'a question of law, to be determined by the court, after the ascertainment by the jury of the facts of the case. It was the province and duty of the court to direct the jury that, if they believed from the evidence that such or such were the facts, then the plaintiff was or was not the legal owner of the cotton ; but to tell the jury that if they believed from the evidence that he was the owner of the cotton, was to leave them without instructions as to the rules of law to govern them- in determining that issue, and to submit the law of the case to them. This mode of giving instructions is destructive of the safeguards which the law throws around legal rights, by referring to the courts the determination of questions of law, thereby rendering the rules of property settled and stable, and removing them from the arbitrary caprices of juries. We think this instruction erroneous under the facts of this case. Young v. Power, at last term.
[367]*367We think that the 12th instruction asked by the defendants was improperly refused. It states that if the cotton paid for was never ginned, baled, or weighed, until after the same' went into the possession of Baldwin, and that by the terms of agreement between Mrs. Boles and Milton, the cotton was not to be delivered until twelve months after the close of the war, and that the cotton sued for was sold to Baldwin in' October, 1865, and before the expiration of said twelve months, believing at the time that he had the right to do so, and was acting in good faith, then the law is for the defendants.
This instruction, taken in connection with the 1st instruction given in behalf of the defendants, states the law upon the merits of the whole case: the 1st instruction having reference to the title acquired by the plaintiff under the circumstances of the purchase from Mrs. Boles, and the 12th having reference to the right of the defendants to acquire title by subsequent purchase from Mrs. Boles or her agent. This instruction should have been given, with a modification as to the twelve months after, the close of the war allowed by the contract for the delivering of the cotton to the plaintiff1 — in which particular the instruction was not sustained by the evidence. But this matter of time is immaterial to the principle involved in the 'instruction.
With reference to the assignment that the verdict was contrary to the law and the evidence, and that the motion for a new trial should have been sustained on that ground, we think the assignment well taken.
The material facts of the case are few and simple, so far as they relate to the title of the plaintiff acquired under his contract with Mrs. Boles. We have above seen that they are insufficient to. pass a legal title to the cotton necessary to maintain this action. And the law to that effect was stated by the court in the first instruction given on behalf of the defendants. It is manifest that the verdict was not in accordance with that rule, and that it is not supported by the evidence.
The last error assigned is, that on the hearing of the motion for a new trial, the court permitted the plaintiff to discontinue [368]*368the action as to the co-defendants Taylor and Rickards, against the objection of the other co-defendants.
The objection may have weight with reference to the effect the discontinuance may have upon the rights and liability of these plaintiffs in error. But'we do not perceive how it is available to them by writ of error to that proceeding. If the plaintiff thought fit to discontinue his action as to two of the defendants after verdict, he had the power to do so, taking the hazard of the effect that step might have upon the subsequent liability of the remaining defendants. But such a discharge could not be assigned for error; and we do not intend to intimate any opinion as to whether it would affect the liability of the present plaintiffs in error or not.
It follows from these views that the judgment must be reversed, the verdict set aside, and the cause remanded for a new trial.