Giieen, Judge:
Bill of exceptions No. 2 as this record is presented to us constitutes no part of the record, as the signature of the judge is not appended to it. This was probably the result of a clerical omission, but as the result reached would be the same, whether it were treated as a part of the record or not, we have concluded to treat the absence of the signature to it as a clerical error, this mode of regarding it being most favorable to the plaintiff' in error, for the reasons which we have already stated. So considered the point of law presented by the record is, whether our statute-law prohibiting the sale of spirituous liquor without'a license, and making such sale a misdemeanor is violated, when a merchant having a license to sell spirituous liquor in one county in this State goes to another county and takes an order for a quantity of whisky [749]*749of some person resident m that county, and sends it to him in a jug by express from the county, in which he had a license to -sell spirituous liquors, having first separated it from the bulk, in which he kept his whisky, and delivered it to the express company for transportation in the county where he had a license to sell, and which whisky is carried to the purchaser in such other county and received by him after the payment of the express charges, and the purchaser pays the seller for such whisky.
The question to be determined is, when and where on this state of facts did this whisky become the property of the purchaser? Was it when the order was given in Taylor county, or when the whisky was received and the express charges paid in Taylor county, or when the money was paid to the seller in Taylor county, or when this whisky was separated from the bulk of the whisky of the seller in Wood county, putin a jug and then delivered to the express company to be transferred to the purchaser' in Taylor county ? When did this purchase of this whisky amount to an actual sale, and when was it to be regarded as merely an executory contract? Benjamin in his excellent work on Sales has treated of this subject so extensively and ably, that little remains to be said on the general subject. He says in Book 2 chapter 1 § 308: “ The distinction between the two contracts is this, that in a bargain and sale the thing which is the subject of contract becomes the property of the buyer the moment the contract is concluded, and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the vendor; whereas in the executory agreement the goods remain the property of the vendor till the contract is executed. In the one case A. sells to B., in the other he only promises to sell. In the one case B. becomes the owner of the goods themselves as soon as the contract is completed by mutual assent. If they are lost or destroyed he is the sufferer. In the other case, as he does not become the owner of the goods, he cannot claim them specifically; he is not the sufferer if they are lost, cannot maintain trover for them, and has at common law no other remedy for breach of the contract than an action for damages.” And in § 309 hq says: “The agreement is just what the parties intended to make it. If [750]*750that intention is clearly and unequivocally manifested caclit quaestio. But parties very frequently fail to express tlieir intentions, or they manifest them so imperfectly as-to leave it doubtiul what they really mean, and when this is the-case,, the courts have applied certain rules of construction, which in most instances furnish conclusive tests for determining the controversy.” And in § 310 he says: “ Where the specific goods to which the bargain is to attach are not agreed on, it is clear that the parties can only contemplate an executory agreement. If A. buys from B. ten sheep to be delivered hereafter, or ten sheep out of a flock of fifty, whether A. is to select them, or B. is to choose which he will deliver, or any other mode of selecting the ten sheep from the remainder be agreed on it is plain, that no ten sheep in the flock can have changed owners by this mere contract; that something more must.be done before it can be true, that any párticular sheep can be said to have ceased to belong to B., and to have become the property of A.” And the author in chapter 4 beginning-with § 352 elucidates this contract for the sale of chattels, not specific, at considerable length. He says: “ When the agreement is for the sale of a thing not specified, as a certam quantity of goods in general, without a specific identification of them, or an appropriation of them to the contract,. as it is technically termed, the contract is an execu-tory agreement, and the property does not pass. See Browning v. Hamilton, 42 Ala. 484. Until the parties are agreed on the specific individual goods, the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfill his part of the contract by furnishing any parcel of goods answering the description, and the purchaser could not object to them if they did answer the description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained which are the very goods sold. It can make no difference, although the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. In such a case tlie reason still appears; the parties did not intend to transfer the property in one portion of the stock more than in another, and the law, which only gives effect to [751]*751their intention, does not transfer the property in airy individual portion."
The current of English authorities sustain these views of Benjamin. See Wallace v. Breeds, 13 East. 522; Busk v. Davis, 2 M. & S. 397; White v. Wilks, 5 Taunt. 176; Gillett v. Hill, 2 C. & M. 530; Austen v. Craven, 4 Taunt. 644; Shepley v. Davis, 5 Taunt. 617. See also Campbell v. Mersey Docks Co., 14 C. B. N. S. 412; Whitehouse v. Frost, 12 East. 614. These eases are all reviewed by Benjamin in his work on Sales. Very many American cases are in accord with these English decisions. See Warren v. Buckminister, 24 N. H. 336; Scudder v. Worster, 11 Cush. 573; Ropes v. Lane, 9 Allen 502; Golder v. Ogden, 15 Penn. St. 528; Waldo v. Belcher, 11 Ired. 609; Field v. Moore, Hill & D. 418; Merrill v. Hunnewell, 33 Pick. 215, 218; Gardner v. Dutail, 9 Mass. 427; Messer v. Woodman, 22 N. H. 172; Bailey v. Smith, 43 N. H. 141; Hutchinson v. Hunter, 7 Penn. St. 140; Bell v. Farrar, 41 Ill. 400; Rodee v. Wade, 47 Barb. 63. But there are numerous cases, in which it has been held, that a severance was not necessary to' complete the sale and transfer of the property, and it has been held when the subject-matter of the sale is part of an ascertained mass of uniform quality and value, that no selection is required; and in this class of cases it has been affirmed by authorities of the highest character, that severance is not as a matter of law necessary in order to vest the legal title in the vendee to the part sold, and that the title may and will pass if such is the clear intention of the contracting parties, and if there is no other reason than want ol separation to prevent the transfer of title.
These views are sustained to a greater or less extent by the following cases: Morrison v. Dingley, 63 Me. 553; Chapman v. Shepherd, 39 Conn. 413; Phillips v. Ocmulgee Mills, 55 Ga. 633; Kimberly v. Patchin, 19 N. Y. 330; Cashing v. Breed 14 Allen 380; Warren v. Milliken, 57 Me. 97; Hall v. Boston, & Worcester R. R. Co., 14 Allen 439; Waldron v. Chase, 37 Me. 414. But these cases conflict more or less with many of the cases both English and American, which we have before cited; and whatever may be the law with reference to a necessity for a severance, where the goods are of a uniform [752]*752value and quality, it is well settled, that such severance is necessary to vest the property in tlie vendee and complete the sale, whenever the goods are not of a uniform quality and value. See Chapman v. Shepherd, 39 Conn. 413; Hutchinson v. Hunter, 7 Penn. St. 140; Wood v. McGee, 7 Ohio 466; Foot v. Marsh, 51 N. Y. 288; Warren v. Buckminster, 24 N. H. 336; Kein v. Tupper, 52 N. Y. 550; Southwell v. Breerley, 5 Ore. 143.
In Pleasants v. Pendleton, 6 Rand. 473, it appeared, that the sale was of a certain number of barrels of flour, part of a larger parcel of the same brand and of equal value. The contract was complete in every respect, except the separation of the barrels sold ; the court held, that the title passed. Judge Cabell said: “But it by no means follows, that the same principle applies to cases where the tilings sold are not portions of a larger mass to be separated by weighing and measuring, but consists of divers separate and individual things of the same kind and between which there is no difference,” (see page 500.) We need not determine whether the fact, that the goods sold or agreed to bo sold are a part of a mass of uniform goods and of equal value, would render a separation unnecessary in order to vest the property in the vendee. Por all -the cases agree, that no sale can be complete so as to pass title to property, where the mass itself out ot which the goods agreed to be sold is not ascertained. Indeed in such a case it is impossible tb conceive how any property could pass by an agreement to sell, as the goods sold are in no way ascertained or indicated till they are delierved. As Park, j udge, said in Dixon v. Yates, 5 B. & Ad. 313-340, “When there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained.” This being unquestionably the law, it seems to me it is obvious, that none of the orders for whisky, solicited by the defendant in this case, in the county of Taylor, and which were accepted by him, though he as a member of his firm had the unquestioned right to complete on the spot his contract to sell the whisky of his firm, without any subsequent approval by the firm, and though he did complete such contract in Taylor county and his firm became bound to fulfill such contract, yet it is impos[753]*753sible to consider such, contract for a sale as transferring any property to the vendee for the obvious reason, that not only was the whisky agreed to be sold entirely unascertained,' but there was not even a larger quantity of whisky ascertained or designated, out of whicli thq wdiisky agreed to be sold was to be taken.
These contracts in Taylor county wer.e obviously simple contracts to sell a certain quantity of whisky generally, not only no particular jug of whisky, but not even a jug of whisky to be drawn from any designated barrel or reservoir. Such contracts to sell given quantities of whisky would obviously have been fulfilled by the defendant, had he or his firm subsequently to such contract purchased the whisky, which he subsequently delivered; and doubtless this was often done in fulfilling just such contracts. AH the authorities hold that a contract for a sale of goods generally is necessarily but an executory contract. Such contracts cannot possibly pass the title to any goods, simply because no particular goods are specified as sold in the contract; nor is. there any designation of any particular stock of goods, out of which they are to be taken, and of course no property in any specific goods could possibly pass by such a contract, nor could any portion of any bulk or stock of such goods pass, for no particular bulk or stock of goods was specified or intended as the hulk or stock, from -which the goods sold -were to be taken. It is simply an executory agreement, a contract wdiereby the vendor promised and agreed, that he would sell goods of the character stipulated for, and which contract could be complied with by the Vendor purchasing such goods in the market and supplying them to his vendee.
' The principles which we have laid down have been frequently applied in this country to the sale of spirituous liquors. In most cases, as in the case before us, the contract for the sale of specified quantities of spirituous liquors was made, the agreement to sell not being of any specified barrel of whisky, but simply, as in the case before us, of a specified quantity, and it was not even agreed, as in the case before us, that the quantity to be sold was to be taken out of any specified barrel or reservoir; and the courts, so far as I have been able to ascertain, have constantly held such contracts [754]*754as executory contracts, not passing the title to any spirituous liquors to the vendee, till the spirituous liquors agreed to be sold were subsequently delivered. Under peculiar circumstances it has been sometimes contended, that' when spirituous liquors have been agreed to be sold by a merchant or his agent, this agreement for the sale being made at the residence of the vendee, and the spirituous liquor is subsequently sent by the merchant by express, that the sale was a complete .sale when the express agent handed the spirituous liquors over to the vendee in the place of his residence; but the conditions of the sale have to be peculiar before this can be even contended for as the law. For without peculiar conditions there can be no question, that it has been long regarded as well settled law, that where a vendor delivers goods to a carrier by order of the purchaser, such delivery is a delivery to the vendee, and vest in him property immediately omits delivery to the carrier; and therefore the place of sale is necessarily the residence of the vendor, whence the goods were shipped. The authorities sustaining this as law are numerous; ariiong them see Krulder v. Ellison, 47 N. Y. 36; Arnold v. Prout, 51 N. H. 587-589; Garland v. Lane, 46 N. H. 245-248; Woolsey v. Bailey, 27 N. H. 217; Smith v. Smith, 27 N. H. 244, 252; Putnam v. Tillotson, 123 Metc. 517; Staun-ton v. Eager, 16 Pick. 467; Johnson v. Stoddard, 100 Mass. 306-308; Torrey v. Corliss, 33 Me. 336; Barry v. Palmer, 19 Me. 303; Wing v. Clark, 24 Mo. 366; Odell v. Boston and Maine Railroad Co., 109 Mass. 50; Rodgers v. Phillips, 40 N. Y. 519; Stafford v. Walter, 67 Ill. 83; Strong v. Dodds, 47 Vt. 848; Morton, J., in Suit v. Woodhull, 113 Mass. 394; Kline v. Baker, 99 Mass. 253, 254.
Benjamin in his book on Sales then' lays down the law on this point, see section 362: “In 1803 in' the case of Dalton v. Solomonson, 3 B. & P. 582 per Lord Alvanloy, C. L, it was treated as already settled law, that where a vendor delivered goods to a carrier by order of the purchaser, the appropriation is determined; the delivery to the carrier is a delivery to the vendee, and the property vests immediately. And in the. United States the law is established to the same effect.” Sometimes the courts have under peculiar circumstances held, that the property was vested in the vendee from [755]*755the time the goods left the warehouse of the vendor, or sometimes even before they left the warehouse of the vendor, and before they were delivered to the carrier. See Fragano v. Long, 4 B. & C. 219; Rhode v. Thwaites, 6 B. & C. 388; Alexander v. Gardner, 1 Bing. N. C. 671; Sparkes v. Marshall, 2 Bing. N. C. 761. But we need not consider under what circumstances the property vests in the vendee before it is delivered by the vendor to the carrier, and which is still in the warehouse of the vendor, because in the case before us, the whisky to be sent to Taylor county to different purchasers was all delivered to the common carrier in Wood county, and the defendant’s warehouse was in the same county, therefore the completed sale, the transfer of the property in the whisky to the several purchasers must have occurred in Wood county. Under circumstances similar to these in this case, so far as I have found, the courts have held, that the completed sale of spirituous liquors was in the place of the residence of the vendor, and from which place it was shipped to the purchaser in another State or county.
Thus Garbracht v. Commonwealth, 15 Penn St. R. 449, was a case almost exactly like the one before us, and the court held, that the sale of spirituous liquoi’s was in the county, in which the vendor resided, and from which he shipped the spirituous liquor to a purchaser in another county, who had agreed with a traveling agent of.the vendor in the county where the purchasers lived to buy of them the spirituous liquors. The whisky was thus ordered and sent by freight or express from the county, where the vendor resided, and where he had a license to sell, to the vendees in a county where license to sell liquors was not granted* and where the spirituous 1 iquors were received by the vendees in their county they paid the freight. It was decided, that the vendor could not be indicted for selling liquor without license in the county where the vendees resided, because the sale wás completed and the property passed, not when the contract for the sale was made, and not when the liquors were received of the common carrier by the vendees, but when they were delivered to the common carrier for transportation to the vendees; and therefore the sale was in the county where the liquors were shipped,, and where the vendor had a license to sell such liquors.
[756]*756This case was exactly similar to the case before us; the only difference in the facts being, that the orders for the liquors in that case were taken by á traveling agent ot the vendors, instead of one of the vendors in person as in this case. But though this fact is stated by the reporter, the court makes no reference to it, and it is obvious from the reasoning of the court, that precisely the same conclusions would have been reached had the vendor in person solicited and obtained the orders for the whisky. The decision is based on the legal inference, that the sale took place in the county in which the vendor’s residence was situated. And of course this inference would have been in no manner modified because the agreement to sell was made by the principal instead of by an agent.
The counsel for the State in this case seems to assume, that there is a difference in principle between the case before us and this Pennsylvania case, because the order in the case before us was procured by the principal, or one of the members of the firm of vendors, while in the Pennsylvania case the order for the liquors was procured through the solicitations of an agent. And entertaining these views the counsel for the State lias cited numerous authorities to show, that the contracts of a partner within the general scope of the business of the firm are full and complete contracts, and as immediately binding as if made by the firm; and that such contract made by a partner required no ratification by the firm, though some contracts made by an agent might require such ratification. The inference drawn is, that when such contract is made by a partner it is not an executory contract, though if made by an agent it might be an executory contract. He seems to have confounded an executory contract with a contract taking effect as a contract immediately. It is the nature of the contract, which determines whether or not it is an executory contract, and not the fact that it is made by an agent and requires ratification, nor the fact that it is made by the principal and takes effect at once. It does not follow because it takes effect at once as a contract, that it is not an executory contract. I regard, therefore, the numerous authorities referred to by the counsel for the State on this point, as entirely foreign to the case, and as throwing no light upon the point under consideration.
[757]*757There are other eases, in which the courts have held the sale of spirituous liquors, under circumstances similar to those existing in this case and in said Pennsylvania case, as a sale of the spirituous liquors where the vendors reside and where the liquors were shipped to the vendees and not a sale of the liquors where the vendees resided. They are all based substantially on the same reasons, which have led us to the same conclusion. The following are some of these eases: Boothbay v. Plaisted, 51 N. H. 437; Banchor v. Warren, 33 N. H. 183; Smith v. Smith, 27 N. H. 244; Woolsey v. Bailey, 27 N. H. 219; Gassett v. Godfrey, 26 N. H. 415; Garland v. Lane, 46 N. H. 245; Buller v. Northumberland, 50 N. H 33; Hill v. Spear, 50 N. H. 253; Webster v. Munger, 8 Gray 584; Adams v. Coulliard, 102 Mass 167. The three last cases were suits brought by non-resident vendors against persons, who had bought liquors for sale in States where the sale of spirituous liquors was entirely forbidden. And the question was, whether the vendors had not so assisted in violation of the-State laws as to prevent them from recovering their debts. But in none of these cases nor in many others of a similar character re-poi’tedwas it even contended, that the sales were made in the States where the vendees resided, though made just as the sales in this case were made. They were regarded as sales made where the vendors resided. In -the case before us there has been no violation of law, either by the vendor or by the vendee. The verdict was therefore right. The instructions were not drawn accurately, but taken together they would not have misled the jury, and this being the case, the verdict should not be set aside because of the want of accuracy in some portions of the instructions. See Huffman v. Alderson, 9 W. Va. 616.
It is urged in this case by the counsel for the State, that the instructions given were based on the supposition, that the defendant was the agent and salesman of Hughes & Co., and that if these instructions were correct with reference to contracts made by such agent, they ought not to have been given, as the defendant was not simply a salesman and an agent, .but he was a partner in the firm of Hughes & Co. There is nothing in this 'objection to these instructions. While it would have been better to have given them with [758]*758reference to such contracts being made by a partner instead of by an agent, as they would have been more apparently applicable to the case proven, yet they would have required no qualification because of the fact that the salesman was a partner of the firm, who sold the liquor. There was nothing prejudicial to the State in these instructions in this respect.
The first instruction it is claimed was erroneous because it set out, “ that the State must prove beyond all doubt, that the liquors charged to be sold in the indictment wore sold to E. M. Gelhouseu.” Now it was unnecessary to allege in the indictment to whom the liquors were sold, but it having been thus alleged, the proof had to correspond. Upon general principles it would seem to be necessary to allege to whom spirituous liquors were sold, but it has been so long-held otherwise in this State, that it must- now be regarded as law, that the name of the person to whom the spirituous liquors were sold need not be mentioned. Com. v. Dove, 2 Va. Cas. 26, and Halstead v. Com., 5 Leigh 724. But if the person is named in the indictment to whom it is charged the sale was made, on the principles of pleading, the evidence must correspond with such allegation.
It is objected, that this instruction lays down the law incorrectly in saying, that the State must prove this sale beyond all doubt, and that at the most it should only have said beyond all reasonable doubt. No doubt the law would have been laid down more clearly if this word “reasonable,” in this part of this instruction, had been used to qualify- the word “doubt,” but as it was done directly afterwards in the same instruction I can hardly think, that the jury could have been misled by this instruction taken, as a whole. When we look at the evidence we can then say with confidence, that the supposed error could not have prejudiced the State, for we see from it, that the sale of whisky charged was proven beyond all doubt, and the only real question in the case was, whether this sale was proven to have occurred in Taylor county. The jury therefore, we must infer, regarded the sale of the whisky as proven, and they under the instructions of the court properly' held, that the sale was in Wood and not in Taylor county. There was then no error in .the instructions given, for which the judgment of the court below [759]*759should be reversed. My conclusion therefore is, that said judgment should be affirmed.
Tiie Other Judges Concurred,
Aeeirmed.