The opinion of the Court was delivered by
Gibson, C. J.
The material question is, whether the property passed by the sale and delivery in the first instance. The facts were not contested. Eldred, the vendor’s agent, sold a raft of boards to Tustin, the purchaser’s agent, at a certain rate the thousand feet, and delivered it to a person employed by the latter to take it, at the purchaser’s expense and risk, from Richmond on the Delaware to a place on the Schuylkill, where it was after-wards moored. The delivery was unconditional, pursuant to the contract and complete: why then did it not pass the property and put it at the purchaser’s risk ? Because, say the purchaser’s counsel, the number of feet contained, or the sum total of the price, was not settled by the terms of the contract; and the consequence attempted is, that the sale was imperfect in its members. Had there been no delivery, or a conditional one, the purchaser -would not perhaps have been bound till the number of feet and entire price had been ascertained ; but the parties evinced, by taking the last step, that nothing remained to be done in order to perfect the contract. If I deliver a chattel in execution of an agreement to sell it fn terms to be fixed subsequently, the ownership and risk of the property doubtless remain with me in the mean time; but such delivery is conditional, and after an ineffectual effort to perfect the sale, no delivery at all. On the other hand, it is a rule, perhaps without an exception, that whenever there has been an absolute delivery pursuant to a bargain perfect in its members, or capable of being made so by reference to something else than supplemental conditions by the parties or an arbiter appointed by them, the ownership of the property is vested by it. I grant that a sale may be fatally defective in its members; and that, by the civil as well as the common law, the specification of a price is necessary to constitute it. But there is abundant authority to show that it may be supplied by arbitrament, where there is a provision in the contract for it; and why not by calculation where the contract furnishes a basis for it? Surely the price is certain enough when the sum of it can be obtained by computation. For instance, I sell my fat bullocks grazing in a particular field, at so much the head; there are five of them, but the number is not specified in the contract; they are delivered and driven away, but rush over a precipice and break their necks: surely it will not be said that I am to lose the price of them, because the aggregate amount of it or the number was not specified by the terms of the bargain. [367]*367Yet the principle is necessarily' the same, whether the number be five or five hundred. But I would be bound to bear the loss, were the number, however inconsiderable, determinable by a process provided in the contract. But where no such process is provided, may not a farmer sell his growing crop by the bushel, so as to change the ownership of it in the mean time, without fixing the quantity by an estimate before it is threshed ? To sell by the bushel and fix the quantity would, in effect, be to sell for a round sum. Had, indeed, the agents of the parties before us made it a condition that the number of feet in the raft should be counted or estimated by a particular person, the sale would have been incomplete, and the property at the vendor’s risk till that were done, insomuch that he might have passed the title to another, leaving the prior vendee to his action for a breach of the contract; but by the bargain actually made, the vendor sold just so many feet as the raft actually contained. There is no process pointed out to ascertain the number; and why may he not recover in proportion to the number ascertained by the evidence ? A sale is imperfect only where it is left open for the addition of terms necessary to complete it, or where it is deficient in some indispensable ingredient which cannot be supplied from an extrinsic source. But when possession is delivered pursuant to a contract which contains no provision for additional terms, the parties evince, in a way not to be mistaken, that they suppose the bargain to be consummated. Even where actual possession has not been taken, the ownership and risk pass by the contract, if nothing remains to be done to the property by the vendor, such as counting, measuring, weighing or filling up, to ascertain the number, quantity or weight. Thus in Rugg v. Minett, (11 East 210), turpentine had been sold at so much the hundred weight' in casks, to be taken at the marked quantity, except two out of which the others were to be filled up before delivery; and those two wpre sold as containing indefinite quantities. The buyer employed a person to do the filling, but before he completed it, the warehouse, with its contents, was destroyed by fire; and it was held that the property in those filled up had passed to the buyers, because nothing remained to be done to them by the vendors. ' Now the number of them, like the number of feet in this raft, could be ascertained only by extrinsic proof; and the case, therefore, is in point. In perfect consistence with it is Zagury v. Furnell, (2 Camp. 240), in which a sale of goat skins by the bale, containing a specified number, was held not to pass the property, because the usage of the trade, which was consequently a part of the contract, made it the duty of the seller to count the skins in each bale before they were delivered. So in Hanson v. Meyer, (6 East 614), an agreement to sell all the vendor’s starch in a particular warehouse, at so much the hundred weight, the number of hundreds to be ascertained before delivery, did not presently pass the ownership. There is no lack of author[368]*368ity for the principle, that while any thing remains to be done by the terms of the contract, to ascertain the entire price, the property remains at the risk of the vendor; and in Withers v. Lyss, (4 Camp. 237), the sale of an unascertained quantity of rosin in a particular warehouse, not taken away but requested to be kept in the names and at the disposal of the purchasers, was held not to have been completely delivered; but it certainly would have been otherwise had the actual custody of it been changed. In that event the sale would have been perfect, provided the quantity could have been ascertained by proof. In the case before us, the raft was actually delivered ; and, in the absence of stipulation to the contrary, the delivery evinced that no more was to be done by the seller. Had he been unable to prove the number of feet which were contained in it, the sale would have been incomplete, and he could not have recovered. As he was able to satisfy the jury on that head, we must take it that the title passed to the vendee. Did the subsequent transactions revest it ?
The jury were left to judge of the authority given to the agents as a question of fact; and as there was evidence to found a conclusion that their powers were general, we must treat the case as if the fact were so; and 'ive must say that Eldred was competent, with the assent of the other party, to rescind the sale, revest the title, and make a conditional sale to the same vendee on terms which would leave the property at his principal’s risk till the conditions were performed. Was that done?
It certainly was not intended. When he first met Scott, the purchaser, there was no proposal on either side to recede from the bargain or alter its terms.
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The opinion of the Court was delivered by
Gibson, C. J.
The material question is, whether the property passed by the sale and delivery in the first instance. The facts were not contested. Eldred, the vendor’s agent, sold a raft of boards to Tustin, the purchaser’s agent, at a certain rate the thousand feet, and delivered it to a person employed by the latter to take it, at the purchaser’s expense and risk, from Richmond on the Delaware to a place on the Schuylkill, where it was after-wards moored. The delivery was unconditional, pursuant to the contract and complete: why then did it not pass the property and put it at the purchaser’s risk ? Because, say the purchaser’s counsel, the number of feet contained, or the sum total of the price, was not settled by the terms of the contract; and the consequence attempted is, that the sale was imperfect in its members. Had there been no delivery, or a conditional one, the purchaser -would not perhaps have been bound till the number of feet and entire price had been ascertained ; but the parties evinced, by taking the last step, that nothing remained to be done in order to perfect the contract. If I deliver a chattel in execution of an agreement to sell it fn terms to be fixed subsequently, the ownership and risk of the property doubtless remain with me in the mean time; but such delivery is conditional, and after an ineffectual effort to perfect the sale, no delivery at all. On the other hand, it is a rule, perhaps without an exception, that whenever there has been an absolute delivery pursuant to a bargain perfect in its members, or capable of being made so by reference to something else than supplemental conditions by the parties or an arbiter appointed by them, the ownership of the property is vested by it. I grant that a sale may be fatally defective in its members; and that, by the civil as well as the common law, the specification of a price is necessary to constitute it. But there is abundant authority to show that it may be supplied by arbitrament, where there is a provision in the contract for it; and why not by calculation where the contract furnishes a basis for it? Surely the price is certain enough when the sum of it can be obtained by computation. For instance, I sell my fat bullocks grazing in a particular field, at so much the head; there are five of them, but the number is not specified in the contract; they are delivered and driven away, but rush over a precipice and break their necks: surely it will not be said that I am to lose the price of them, because the aggregate amount of it or the number was not specified by the terms of the bargain. [367]*367Yet the principle is necessarily' the same, whether the number be five or five hundred. But I would be bound to bear the loss, were the number, however inconsiderable, determinable by a process provided in the contract. But where no such process is provided, may not a farmer sell his growing crop by the bushel, so as to change the ownership of it in the mean time, without fixing the quantity by an estimate before it is threshed ? To sell by the bushel and fix the quantity would, in effect, be to sell for a round sum. Had, indeed, the agents of the parties before us made it a condition that the number of feet in the raft should be counted or estimated by a particular person, the sale would have been incomplete, and the property at the vendor’s risk till that were done, insomuch that he might have passed the title to another, leaving the prior vendee to his action for a breach of the contract; but by the bargain actually made, the vendor sold just so many feet as the raft actually contained. There is no process pointed out to ascertain the number; and why may he not recover in proportion to the number ascertained by the evidence ? A sale is imperfect only where it is left open for the addition of terms necessary to complete it, or where it is deficient in some indispensable ingredient which cannot be supplied from an extrinsic source. But when possession is delivered pursuant to a contract which contains no provision for additional terms, the parties evince, in a way not to be mistaken, that they suppose the bargain to be consummated. Even where actual possession has not been taken, the ownership and risk pass by the contract, if nothing remains to be done to the property by the vendor, such as counting, measuring, weighing or filling up, to ascertain the number, quantity or weight. Thus in Rugg v. Minett, (11 East 210), turpentine had been sold at so much the hundred weight' in casks, to be taken at the marked quantity, except two out of which the others were to be filled up before delivery; and those two wpre sold as containing indefinite quantities. The buyer employed a person to do the filling, but before he completed it, the warehouse, with its contents, was destroyed by fire; and it was held that the property in those filled up had passed to the buyers, because nothing remained to be done to them by the vendors. ' Now the number of them, like the number of feet in this raft, could be ascertained only by extrinsic proof; and the case, therefore, is in point. In perfect consistence with it is Zagury v. Furnell, (2 Camp. 240), in which a sale of goat skins by the bale, containing a specified number, was held not to pass the property, because the usage of the trade, which was consequently a part of the contract, made it the duty of the seller to count the skins in each bale before they were delivered. So in Hanson v. Meyer, (6 East 614), an agreement to sell all the vendor’s starch in a particular warehouse, at so much the hundred weight, the number of hundreds to be ascertained before delivery, did not presently pass the ownership. There is no lack of author[368]*368ity for the principle, that while any thing remains to be done by the terms of the contract, to ascertain the entire price, the property remains at the risk of the vendor; and in Withers v. Lyss, (4 Camp. 237), the sale of an unascertained quantity of rosin in a particular warehouse, not taken away but requested to be kept in the names and at the disposal of the purchasers, was held not to have been completely delivered; but it certainly would have been otherwise had the actual custody of it been changed. In that event the sale would have been perfect, provided the quantity could have been ascertained by proof. In the case before us, the raft was actually delivered ; and, in the absence of stipulation to the contrary, the delivery evinced that no more was to be done by the seller. Had he been unable to prove the number of feet which were contained in it, the sale would have been incomplete, and he could not have recovered. As he was able to satisfy the jury on that head, we must take it that the title passed to the vendee. Did the subsequent transactions revest it ?
The jury were left to judge of the authority given to the agents as a question of fact; and as there was evidence to found a conclusion that their powers were general, we must treat the case as if the fact were so; and 'ive must say that Eldred was competent, with the assent of the other party, to rescind the sale, revest the title, and make a conditional sale to the same vendee on terms which would leave the property at his principal’s risk till the conditions were performed. Was that done?
It certainly was not intended. When he first met Scott, the purchaser, there was no proposal on either side to recede from the bargain or alter its terms. On the contrary, Scott expressly ratified what had been done, and in addition, proposed to fix the number of feet by an estimate, to which Eldred acceded, and a day was appointed to meet at the raft and make it. This new agreement, it will be remarked, was not only an independent but a conditional one, and being itself imperfect, was of no force being unexecuted. At the day appointed, Eldred and Tustin came, and met, not Scott, but a person on his part, who said that Scott would attend; but he came not, and nothing was done. Eldred then sought him, found him, and agreed with him to have the raft taken out of the water and counted at a day named. Eldred again attended and Scott did not, so that the second agreement turned out to be as abortive as the first, and both became as inoperative as if they had not been made. Moreover, it is obvious that neither of them was intended to impair or alter the sale. The object, a distinct and. independent one, was to relieve the purchaser from the alternative of taking the agent’s word for the number of the feet, or taking the trouble to ascertain it for himself. To hold that this turned the previous absolute sale into a conditional one, out of which the buyer could creep by refusing to co-operate in what was further to be done, and thus leave the property on the vend- [369]*369or’s hands at a place remote from the market, would be not only unreasonable but inconsistent with the evident purpose of the parties.
As to the declarations of Scott, on the one hand, that he had once considered himself the owner of the raft, and the consent of Eldred to remove it to Harding’s landing, on the other, it is enough to say that these, though indicative of the understanding of the contract by the parties, were not conclusive of the title, and that they were properly left to the jury. What is conclusive of it, however, is that the terms of the sale were unconditional and sufficiently certain to pass the property in the first instance; that there was no evidence of ah act done to rescind or alter it, and that when the subsequent negotiations failed, they left the contract where they found it.
It is impossible to imagine an objection to the competency of Eldred as a witness. The suggestion is that he may have incurred liability to his principal for negligence or misfeasance, from which he would be exonerated by a recovery in this action; the answer to which is, that there was no evidence of negligence or misfeasance, and that, in the absence of proof of it, the law presumes against it. Besides, exposure to the possibility of an action is one of those contingent interests which go only to credibility. Such were the principles that ruled a similar point in M’Creedy v. The Schuylkill Navigation Company, (3 Whart. 424), and which rule the point before us.
Judgment affirmed.