Bay, Judge,
delivered the opinion of the court.
This was a suit by attachment to recover $8,167.30, the value of 1934 barrels of flour, alleged to have been sold and delivered by plaintiffs to defendants in October, 1858, and which defendants agreed to pay for on delivery.
The affidavit, on which the attachment issued, stated that the defendants had failed to pay the price or value of the flour in the petition mentioned and delivered to defendants, which by contract said defendants were bound to pay upon the delivery thereof.
The defendants pleaded in abatement, that the plaintiffs never delivered to them the flour mentioned and described in the petition and affidavit, and that it was not true that they had failed to pay the price or value of said flour delivered to them, which by contract they were bound to pay on delivery. Upon the trial of the plea in abatement, the jury found for the plaintiffs. Subsequently $ for the want of a plea to the merits, judgment by default was entered, and damages assessed at $8,494. In due time defendants filed their motion for a new trial upon the plea in abatement, which being overruled they sued out a writ of error. All the questions arising upon the record, grow out of the trial on the plea in abatement. The proof in the case shows that it was a cash sale, and that the sale took place on the 23d of October, 1858, at which time the flour was on the levee at St. Louis. The agreement of the parties was that the flour should be delivered on board of such boats as the defendants might designate. The defendants designated the canal boats [471]*471“B. S. Shephard” and “Progress,” on which plaintiffs delivered 1934 barrels, and informed defendants of the fact, and then demanded payment, or what was equivalent thereto, which was refused. The defendants suspended payment and went to protest on the 28th of October, the day before the attachment was sued out. Dray tickets were delivered to defendants by plaintiffs on different days, for 1619 barrels, and defendants obtained bills of lading for the same, it being in proof that it is not usual to issue bills of lading except to the person who produces the dray tickets, unless a written guarantee against the same is furnished. The flour was purchased for shipment to New York, and defendants drew upon it on their consignees in New York, and negotiated the drafts for upwards of $6,000, supposing at the time that all the flour was shipped.
It was also in proof that the uniform custom in St. Louis is to deliver in such cases the dray tickets to the vendee, in order that he may have the evidence of his right to control the property, and to further enable him to obtain the necessary bills of lading. It was further proved that the shipping clerk of plaintiffs retained, by direction of plaintiffs, dray tickets for about 315 barrels, and refused to deliver them to the defendants. Defendants had been in the habit for years of purchasing flour from plaintiffs for shipment to New York, and the dray tickets were always sent to them, though nothing was said about dray tickets in regard to this purchase; but defendants expected, as a matter of course, to receive them, as it had always been usual and customary.
Upon this state of facts, the court instructed the jury, as follows:
“ If the jury believe from the evidence that the flour in plaintiffs’ petition mentioned was sold by plaintiffs to defendants, to be delivered on board such boats as defendants should name, and defendants named the canal boats Progress and B. S. Shephard, and that said flour was delivered by plaintiffs on board of said boats, and that said -flour was to be paid for on delivery, and that, after said flour was deliv[472]*472ered as aforesaid, defendants were informed that said flour had been placed on board of said boats, and were called on for the price of said flour and failed to pay the same, or notified the plaintiffs, or either of them, that they could not pay for the said flour, then the jury will find for the plaintiffs on the plea in abatement.
“ If the jury believe from the evidence that defendants have failed to pay the price or value of flour sold and delivered to them by the plaintiffs, which by their contract or agreement they were to have paid upon delivery, then they will find for the plaintiffs.
“ If the jury believe from the evidence that the flour in plaintiffs’ petition mentioned was sold by plaintiffs to defendants, to be delivered on such boats as defendants should name, and that it was so delivered, and that defendants were to pay for the same on delivery, and defendants have failed to pay the price or value of said flour on request, after such delivery, then they will find for the plaintiffs.”
“ The question before the jury is, not whether the plaintiffs are entitled to recover the value of the flour sued for, but whether the ground of attachment, set forth in the affidavit upon which the attachment was obtained, is true. The affi- • davit alleges that the defendants had failed to pay the price or value in the petition mentioned and delivered to them, which by contract they were bound to pay upon the delivery. This allegation is denied by the defendants, and its truth is the question to be determined by the jury. If the jury believe from the evidence that said allegation is true, they will find for the plaintiffs; but if they do not so believe, they will find for the defendants. •
“No. 3. The jury is instructed that, in order to constitute a delivery of the flour mentioned, it was necessary that the plaintiffs should have parted with the flour and the entire possession thereof, and all right to control, use and direct the disposition thereof; and if the jury believe from the evidence that plaintiffs did not so deliver 315 barrels or any other quantity of said flour, but retained the same under [473]*473their control, or retained' the right and power to control the same, then there was no delivery of the part so retained.”
In connection with instruction No. 3, the court further instructs the jury that if the plaintiffs placed all the flour sold to defendants aboard the boats designated by the defendants, and notified the defendants of the fact, and after, such notice demanded payment of the defendants for the flour,— these facts would deprive the plaintiffs of the right to- control the flour, and would confer that right and power on the defendants.
The main question in the case is, whether there was a delivery of the 315 barrels for which plaintiffs retained the dray tickets. '
The theory of the court, as enunciated in the instructions given, was that if the flour was delivered on the boats designated by the defendants, and defendants notified thereof, and that defendants failed to pay for the same, or notified plaintiffs that they could not pay for the same, and that plaintiffs had parted with the possession of the flour and all right to control the disposition thereof, then the delivery was complete, and plaintiffs’ cause of action accrued, notwithstanding the retention by the plaintiffs of a portion of the dray tickets. Also, that the delivery of the flour on the boats, and notice to the defendants thereof with a demand for payment, would deprive the plaintiffs of the right to control said flour, and would confer that right upon the defendants.
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Bay, Judge,
delivered the opinion of the court.
This was a suit by attachment to recover $8,167.30, the value of 1934 barrels of flour, alleged to have been sold and delivered by plaintiffs to defendants in October, 1858, and which defendants agreed to pay for on delivery.
The affidavit, on which the attachment issued, stated that the defendants had failed to pay the price or value of the flour in the petition mentioned and delivered to defendants, which by contract said defendants were bound to pay upon the delivery thereof.
The defendants pleaded in abatement, that the plaintiffs never delivered to them the flour mentioned and described in the petition and affidavit, and that it was not true that they had failed to pay the price or value of said flour delivered to them, which by contract they were bound to pay on delivery. Upon the trial of the plea in abatement, the jury found for the plaintiffs. Subsequently $ for the want of a plea to the merits, judgment by default was entered, and damages assessed at $8,494. In due time defendants filed their motion for a new trial upon the plea in abatement, which being overruled they sued out a writ of error. All the questions arising upon the record, grow out of the trial on the plea in abatement. The proof in the case shows that it was a cash sale, and that the sale took place on the 23d of October, 1858, at which time the flour was on the levee at St. Louis. The agreement of the parties was that the flour should be delivered on board of such boats as the defendants might designate. The defendants designated the canal boats [471]*471“B. S. Shephard” and “Progress,” on which plaintiffs delivered 1934 barrels, and informed defendants of the fact, and then demanded payment, or what was equivalent thereto, which was refused. The defendants suspended payment and went to protest on the 28th of October, the day before the attachment was sued out. Dray tickets were delivered to defendants by plaintiffs on different days, for 1619 barrels, and defendants obtained bills of lading for the same, it being in proof that it is not usual to issue bills of lading except to the person who produces the dray tickets, unless a written guarantee against the same is furnished. The flour was purchased for shipment to New York, and defendants drew upon it on their consignees in New York, and negotiated the drafts for upwards of $6,000, supposing at the time that all the flour was shipped.
It was also in proof that the uniform custom in St. Louis is to deliver in such cases the dray tickets to the vendee, in order that he may have the evidence of his right to control the property, and to further enable him to obtain the necessary bills of lading. It was further proved that the shipping clerk of plaintiffs retained, by direction of plaintiffs, dray tickets for about 315 barrels, and refused to deliver them to the defendants. Defendants had been in the habit for years of purchasing flour from plaintiffs for shipment to New York, and the dray tickets were always sent to them, though nothing was said about dray tickets in regard to this purchase; but defendants expected, as a matter of course, to receive them, as it had always been usual and customary.
Upon this state of facts, the court instructed the jury, as follows:
“ If the jury believe from the evidence that the flour in plaintiffs’ petition mentioned was sold by plaintiffs to defendants, to be delivered on board such boats as defendants should name, and defendants named the canal boats Progress and B. S. Shephard, and that said flour was delivered by plaintiffs on board of said boats, and that said -flour was to be paid for on delivery, and that, after said flour was deliv[472]*472ered as aforesaid, defendants were informed that said flour had been placed on board of said boats, and were called on for the price of said flour and failed to pay the same, or notified the plaintiffs, or either of them, that they could not pay for the said flour, then the jury will find for the plaintiffs on the plea in abatement.
“ If the jury believe from the evidence that defendants have failed to pay the price or value of flour sold and delivered to them by the plaintiffs, which by their contract or agreement they were to have paid upon delivery, then they will find for the plaintiffs.
“ If the jury believe from the evidence that the flour in plaintiffs’ petition mentioned was sold by plaintiffs to defendants, to be delivered on such boats as defendants should name, and that it was so delivered, and that defendants were to pay for the same on delivery, and defendants have failed to pay the price or value of said flour on request, after such delivery, then they will find for the plaintiffs.”
“ The question before the jury is, not whether the plaintiffs are entitled to recover the value of the flour sued for, but whether the ground of attachment, set forth in the affidavit upon which the attachment was obtained, is true. The affi- • davit alleges that the defendants had failed to pay the price or value in the petition mentioned and delivered to them, which by contract they were bound to pay upon the delivery. This allegation is denied by the defendants, and its truth is the question to be determined by the jury. If the jury believe from the evidence that said allegation is true, they will find for the plaintiffs; but if they do not so believe, they will find for the defendants. •
“No. 3. The jury is instructed that, in order to constitute a delivery of the flour mentioned, it was necessary that the plaintiffs should have parted with the flour and the entire possession thereof, and all right to control, use and direct the disposition thereof; and if the jury believe from the evidence that plaintiffs did not so deliver 315 barrels or any other quantity of said flour, but retained the same under [473]*473their control, or retained' the right and power to control the same, then there was no delivery of the part so retained.”
In connection with instruction No. 3, the court further instructs the jury that if the plaintiffs placed all the flour sold to defendants aboard the boats designated by the defendants, and notified the defendants of the fact, and after, such notice demanded payment of the defendants for the flour,— these facts would deprive the plaintiffs of the right to- control the flour, and would confer that right and power on the defendants.
The main question in the case is, whether there was a delivery of the 315 barrels for which plaintiffs retained the dray tickets. '
The theory of the court, as enunciated in the instructions given, was that if the flour was delivered on the boats designated by the defendants, and defendants notified thereof, and that defendants failed to pay for the same, or notified plaintiffs that they could not pay for the same, and that plaintiffs had parted with the possession of the flour and all right to control the disposition thereof, then the delivery was complete, and plaintiffs’ cause of action accrued, notwithstanding the retention by the plaintiffs of a portion of the dray tickets. Also, that the delivery of the flour on the boats, and notice to the defendants thereof with a demand for payment, would deprive the plaintiffs of the right to control said flour, and would confer that right upon the defendants.
It has been argued with much apparent earnestness by the learned counsel for the defendants, that without the dray tickets the defendants could not obtain the necessary bills of lading; and as the plaintiffs had failed to deliver to them the tickets, or other evidences of ownership, they were unable to exercise exclusive control over the flour, aqd therefore there was no delivery.
It is true that the agent of the transportation company testifies that dray tickets are made the basis of bills of lading, and without their production, or a satisfactory guarantee against them, he would not, as a general thing, grant bills of [474]*474lading, — though he would have given them to the defendants in this instance if: they had requested it, as he understood there was more flour on the boats than called for by the dray tickets in possession of the defendants, and, in fact, did offer to include all in the second bill of lading, but Powell refused to take bills for more than his dray tickets called for.
The fallacy of the argument consists in the fact, that it assumes that the question of delivery in a case like this is to be determined upon the information which the transportation company may have of the sale and transfer of the flour to the defendants. "Whether there was a delivery or not can only be ascertained by the acts of the parties ; for it is a question between them, and is in no sense dependent upon the will, knowledge or acts of the transportation company. The fact that the company might have refused, in the absence of dray tickets, to acknowledge the right of the defendants in the property does not impair or diminish that right, for it is a right conferred by the plaintiffs and not by the company. The delivery of dray tickets to the vendee may be a customary and convenient method of furnishing evidence of title, but it is certainly not necessary to perfect such title. The refusal of the company to give defendants bills of lading does not even tend to prove that they had not the legal right to control the flour and the disposition thereof.
It is conceded that no sale of goods is complete, so as to vest in the vendee an immediate right of property, so long as anything remains to be done by the vendor; but what remained to be done by the vendors in this case ? Their contract was to deliver the flour on the boats to be designated by the defendants, and the defendants did designate the boats, and the flour was so delivered, and defendants notified thereof. Nothing, therefore, remained for them to do. They had fully complied with the terms of the contract, and the power to control the disposition of the property passed to the ven. dees. We are of opinion, therefore, that the court committed no error in the instructions given, nor in refusing to give those asked by the defendants.
[475]*475Another point made by the plaintiffs in error is in reference to the action of the court respecting the return of the sheriff on the writ of attachment. It seems that the defendants’ counsel, in his argument to the jury, commented upon the return of the officer, and the fact was then disclosed for the first time that the return was defective in omitting to state the entire quantity of flour attached. The court permitted the return to be amended, and also permitted plaintiffs’ counsel to comment upon the return as amended. The defendants’ counsel then asked the same privilege, which was refused.
The return of the sheriff was not competent evidence upon the issue submitted to the jury, and the court should not have permitted counsel to comment on the same; but as the plaintiff was permitted to refer to a defective return, no good reason can be given why the privilege should not have been extended to the opposing counsel in respect to the true and amended return. Rut the court told the jury that the return of the sheriff was not a matter for their consideration. The defendants, therefore, sustained no injury by the action of the court in reference thereto.
With the concurrence of the other judges,
the judgment of the court below will be affirmed.