Bigelow, C. J.
1. The evidence offered by the defendant and rejected was clearly incompetent. This is not an action in which an assignee in insolvency is seeking to recover property belonging to the insolvent debtor for the purpose of distribution amt ng all the creditors. It is a controversy between two creditors, each of them striving to hold property of their debtor against the other for the purpose of appropriating it in payment of their preexisting debts, by way of preference over other creditors. Neither of them can claim any rights in this action under the proceedings in insolvency. The provisions of the insolvent laws for the avoidance of sales, transfers and attachments, which may operate as a preference, are designed exclusively for the benefit of those who come in under the assignee or otherwise to obtain an equal share of the property of the insolvent in the mode provided by law; and these provisions cannot be invoked in aid of a person who stands only in the position of a creditor, endeavoring to secure his whole debt, either by means of a sale or by an attachment. Penniman v. Cole, 8 Met. 496, 500. Burt v. Perkins, 9 Gray, 320. The rights of creditors under the insolvent proceedings can in no way be affected by the result of the issue between the parties to this suit. If the property in controversy can be rightfully claimed by the assignee in insolvency for the benefit of creditors, his title to it can be asserted with like effect, whether the plaintiff or the defendant succeeds in establishing a right of possession and property in this action.
2. Other and more interesting questions were raised at the max. and remain to be considered. The first and most important one is, whether on the evidence adduced at the trial any tme passed to the plaintiff, under the contract of sale set up by lira, to that part of the property replevied which is described ,.n the writ “ as forty-six barrels of No 3 mackerel, and fortveight barrels fihed with salt.” The facts in regard to the articles are few and simple. The plaintiff entered into a contract of sale with the original owners of the property, under whom both [498]*498parties claim, for one hundred and thirty-five barrels of No. 1 mackerel, at ten dollars per barrel, amounting with inspector’s fees to $1397.25, for which payment was made by the plaintiff by releasing claims against the vendors for about thirteen hundred and fifty dollars, and by money to the amount of about fifty-five dollars. This transaction took place on the 26th day of November 1862. No delivery, however, of the mackerel included in the contract of sale then took place, but subsequently five or six weeks afterwards, a delivery was made of certain barrels supposed to contain No. 1 mackerel, in pursuance of the contract; of the barrels so delivered, a large number.did not contain No. 1 mackerel, but instead thereof, forty-five barrels contained No. 3 mackerel, and forty-eight contained salt only, and these were delivered by mistake as a part of the one hundred and thirty-five barrels of No. 1 mackerel which were agreed to be sold to the plaintiff.
On these facts, it seems to us to be inconsistent with elementary principles to hold that any property in the barrels of No. 3 mackerel and of salt passed to the plaintiff. To constitute a valid sale of goods, wares and merchandise, complete and consummate, so as to pass the property to them, there must be an agreement or contract of sale by which the vendor agrees that the articles shall pass to and become the property of the vendee. Without such contract or agreement, there can be no sale. Delivery is not always essential. As between the vendor and vendee of specific chattels in esse, the title will pass when the contract of sale is complete without delivery. But the minds of the parties must meet, and there must be a mutual assent to the transfer of certain specified property, before any change of title to it can be effected. Until this takes place that is, until there is an agreement to sell certain specific identical goods, there can be no actual sale or change of ownership. So strictly is this held, that where goods, part of an entire bulk or mass, are agreed to be sold, the contract of sale is deemed to be incomplete and no property passes, if such part has not been separated or designated in such manner that it may be distin guished from the mass or bulk with which it is mingled. Until [499]*499the parties are agreed as to the specific, identical goods, the contract can be no more than an agreement to supply goods of a certain kind, or answering a particular description. The reason of this is obvious. There can be no transfer of property until the parties have ascertained and agreed upon the articles sold. Before they are designated and set apart in some form, there is nothing to which the contract of sale can attach, or on which it can operate. Chit. Con. (10th Amer. ed.) 393-398. Aldridge v. Johnson, 7 El. & Bl. 885. Scudder v. Worster, 11 Cush. 573. It necessarily follows from these fammar principles, that where parties to a contract of sale agree to sell and purchase a certain kind or description of property not yet ascertained, distinguished or set apart, and subsequently a delivery is made by mistake pf articles differing in their nature or quality from those agreed to be sold, no title passes by such delivery. They are not included within the contract of sale; the vendor has not agreed to sell nor the vendee to purchase them; the subject matter of the contract has been mistaken, and neither party can be held to an execution of the contract to which he has not given his assent. It is a case where, through mutual misapprehension, the contract of sale is incomplete. Delivery, of itself, can pass no title; it can be effective and operative only when made as incidental to and in pursuance of a previous contract of sale. Such a case seems clearly to fall within that class in which, through mistake, a contract which the parties intended to make fails of effect; as where in a negotiation for a sale of property, the seller has reference to one article and the buyer to another, or where the parties supposed the property to be in existence when in fact it had been destroyed. In such cases the contract is ineffectual, because the parties did not in fact agree as to the subject matter, or because it had no existence. Rice v. Dwight Manuf. Co. 2 Cush. 86. So in the case at bar. The contract of sale did not pass the uroperty, as against attaching creditors, because there was no delivery to the vendee of fnat which constituted Lhe subject matter of the contract; the delivery of different articles from those embraced in the contract is inoperative, fo [500]*500the reason that there is no agreement for their purchase and sale. And this is the precise distinction which marks the line between the case at bar and those cited by the learned Counsel for the plaintiff. In all of the latter, the particular articles which formed the subject of the sale and delivery were mutually agreed upon ; there was no mistake or misapprehension concerning them; the same goods which the vendor agreed to sell and the vendee to buy, were delivered. The mistake was only as- to the quality of the article; it was the same identical thing in specie as that respecting which the parties had negotiated. Although in such cases there can be no doubt of the right of the vendee to rescind the sale and return the property, by reason of a breach of warranty or fraud, there is as little doubt that the title to the property passes, subject only to such disaffirmance by the vendee.
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Bigelow, C. J.
1. The evidence offered by the defendant and rejected was clearly incompetent. This is not an action in which an assignee in insolvency is seeking to recover property belonging to the insolvent debtor for the purpose of distribution amt ng all the creditors. It is a controversy between two creditors, each of them striving to hold property of their debtor against the other for the purpose of appropriating it in payment of their preexisting debts, by way of preference over other creditors. Neither of them can claim any rights in this action under the proceedings in insolvency. The provisions of the insolvent laws for the avoidance of sales, transfers and attachments, which may operate as a preference, are designed exclusively for the benefit of those who come in under the assignee or otherwise to obtain an equal share of the property of the insolvent in the mode provided by law; and these provisions cannot be invoked in aid of a person who stands only in the position of a creditor, endeavoring to secure his whole debt, either by means of a sale or by an attachment. Penniman v. Cole, 8 Met. 496, 500. Burt v. Perkins, 9 Gray, 320. The rights of creditors under the insolvent proceedings can in no way be affected by the result of the issue between the parties to this suit. If the property in controversy can be rightfully claimed by the assignee in insolvency for the benefit of creditors, his title to it can be asserted with like effect, whether the plaintiff or the defendant succeeds in establishing a right of possession and property in this action.
2. Other and more interesting questions were raised at the max. and remain to be considered. The first and most important one is, whether on the evidence adduced at the trial any tme passed to the plaintiff, under the contract of sale set up by lira, to that part of the property replevied which is described ,.n the writ “ as forty-six barrels of No 3 mackerel, and fortveight barrels fihed with salt.” The facts in regard to the articles are few and simple. The plaintiff entered into a contract of sale with the original owners of the property, under whom both [498]*498parties claim, for one hundred and thirty-five barrels of No. 1 mackerel, at ten dollars per barrel, amounting with inspector’s fees to $1397.25, for which payment was made by the plaintiff by releasing claims against the vendors for about thirteen hundred and fifty dollars, and by money to the amount of about fifty-five dollars. This transaction took place on the 26th day of November 1862. No delivery, however, of the mackerel included in the contract of sale then took place, but subsequently five or six weeks afterwards, a delivery was made of certain barrels supposed to contain No. 1 mackerel, in pursuance of the contract; of the barrels so delivered, a large number.did not contain No. 1 mackerel, but instead thereof, forty-five barrels contained No. 3 mackerel, and forty-eight contained salt only, and these were delivered by mistake as a part of the one hundred and thirty-five barrels of No. 1 mackerel which were agreed to be sold to the plaintiff.
On these facts, it seems to us to be inconsistent with elementary principles to hold that any property in the barrels of No. 3 mackerel and of salt passed to the plaintiff. To constitute a valid sale of goods, wares and merchandise, complete and consummate, so as to pass the property to them, there must be an agreement or contract of sale by which the vendor agrees that the articles shall pass to and become the property of the vendee. Without such contract or agreement, there can be no sale. Delivery is not always essential. As between the vendor and vendee of specific chattels in esse, the title will pass when the contract of sale is complete without delivery. But the minds of the parties must meet, and there must be a mutual assent to the transfer of certain specified property, before any change of title to it can be effected. Until this takes place that is, until there is an agreement to sell certain specific identical goods, there can be no actual sale or change of ownership. So strictly is this held, that where goods, part of an entire bulk or mass, are agreed to be sold, the contract of sale is deemed to be incomplete and no property passes, if such part has not been separated or designated in such manner that it may be distin guished from the mass or bulk with which it is mingled. Until [499]*499the parties are agreed as to the specific, identical goods, the contract can be no more than an agreement to supply goods of a certain kind, or answering a particular description. The reason of this is obvious. There can be no transfer of property until the parties have ascertained and agreed upon the articles sold. Before they are designated and set apart in some form, there is nothing to which the contract of sale can attach, or on which it can operate. Chit. Con. (10th Amer. ed.) 393-398. Aldridge v. Johnson, 7 El. & Bl. 885. Scudder v. Worster, 11 Cush. 573. It necessarily follows from these fammar principles, that where parties to a contract of sale agree to sell and purchase a certain kind or description of property not yet ascertained, distinguished or set apart, and subsequently a delivery is made by mistake pf articles differing in their nature or quality from those agreed to be sold, no title passes by such delivery. They are not included within the contract of sale; the vendor has not agreed to sell nor the vendee to purchase them; the subject matter of the contract has been mistaken, and neither party can be held to an execution of the contract to which he has not given his assent. It is a case where, through mutual misapprehension, the contract of sale is incomplete. Delivery, of itself, can pass no title; it can be effective and operative only when made as incidental to and in pursuance of a previous contract of sale. Such a case seems clearly to fall within that class in which, through mistake, a contract which the parties intended to make fails of effect; as where in a negotiation for a sale of property, the seller has reference to one article and the buyer to another, or where the parties supposed the property to be in existence when in fact it had been destroyed. In such cases the contract is ineffectual, because the parties did not in fact agree as to the subject matter, or because it had no existence. Rice v. Dwight Manuf. Co. 2 Cush. 86. So in the case at bar. The contract of sale did not pass the uroperty, as against attaching creditors, because there was no delivery to the vendee of fnat which constituted Lhe subject matter of the contract; the delivery of different articles from those embraced in the contract is inoperative, fo [500]*500the reason that there is no agreement for their purchase and sale. And this is the precise distinction which marks the line between the case at bar and those cited by the learned Counsel for the plaintiff. In all of the latter, the particular articles which formed the subject of the sale and delivery were mutually agreed upon ; there was no mistake or misapprehension concerning them; the same goods which the vendor agreed to sell and the vendee to buy, were delivered. The mistake was only as- to the quality of the article; it was the same identical thing in specie as that respecting which the parties had negotiated. Although in such cases there can be no doubt of the right of the vendee to rescind the sale and return the property, by reason of a breach of warranty or fraud, there is as little doubt that the title to the property passes, subject only to such disaffirmance by the vendee. The error at the trial consisted in losing sight of the distinction between cases of this character and the one at bar; between an agreement to sell and deliver a specified article, concerning the quality of which the parties were deceived or mistaken, and an agreement to sell one article and a delivery by mistake of a wholly different article, which did not form the subject matter of the agreement. In the former the title passes at the election of the vendee; in the latter it does not. This view of the' principles of law applicable to the facts developed at the trial shows very clearly that the second instruction asked for by the defendant was in substance correct, and should have been given to the jury, as the ruling by which they were to be governed in considering and applying the testimony.
3. It is somewhat difficult to understand the precise posture of the case at the trial, on the point raised in the. third prayer for instruction submitted by the defendant. We are by no means sure that the point is open on the pleadings; but assuming it to be so, we do not think it tenable. It is certainly true as an abstract proposition, that an officer in serving a writ of replevin can take only such property as properly comes within the terms of the description contained in the writ. But it is an error to suppose that the term “ barrel ” necessarily imports a [501]*501definite and precise description of a particular article or thing. It may and often is used to designate a certain quantity, and not the vessel or cask in which an article is contained. There is nothing on the face of the writ to show that it was used in the latter sense; on the contrary, the evidence tended very clearly to show, and the jury have found under the instructions of the court, that the term “ barrel ” was not intended as a precise and definite description of the specific articles which the sheriff was commanded to replevy, but as a designation of the quantity of a particular kind or quality of mackerel which he was to take, irrespective of the mode in which it was packed, or the particular vessels or casks in which it was contained. Nor does the case stop here. It appears that the defendant so understood the description in the writ, and assented that it should be served by taking a sufficient number of half barrels to make up the quantity which the sheriff was required to replevy. After such assent the defendant cannot be permitted to say that the description in the writ was imperfect or insufficient to warrant the service of the writ. The plaintiff having acted on the strength of the assent of the defendant, and incurred the expense of completing the service and prosecuting the suit for the purpose of litigating the title to the property which was actually replevied, it would be unjust and unreasonable to allow the defendant now to defeat the right of the plaintiff to hold a part of the property on the ground of any defect or ambiguity in the description of the property in the writ. '
4. The only remaining point of exception arises on the first prayer for instruction. It seems to us the verdict rendered under the instructions given leaves no question open to the defendant on this point of the case. The jury must have found that x.ie half barrels of mackerel were included in the sale and delivery. A mere mistake in the bill of sale, or the description of the mode in which the property was packed, would not prevent the property passing by the delivery, if it was of the same kind and quality as that which the parties intended to include in their agreement.
[502]*502The result is, that the case must go to a new trial, in consequence of misdirection on the point raised in the second prayer for instructions submitted by the defendant.
Exceptions sustained,