VREDENBURGH, J.
This was an action of trover, brought by the car works company against the railroad company, to recover the value of a passenger railroad car. The plaintiffs below recovered a verdict for $3700, and the case is now here on exceptions to the charge of the court.
The first exception is, that the court charged that the furnishing the plush and reps, in the manner disclosed in the evidence, did not, of itself, vest the title in the cars, or any of them, in Charles B. Dungan.
The evidence disclosed, that one Prevost, in the fall of 1862, agreed with Dungan, to construct for him five passenger cars, to be finished and put on the track at Trenton by the fifteenth of May, 1863, for $2250 each; that on the sixth and twenty-third of May, 1863, Dungan furnished to Prevost $2701.80 in plush and reps, for the fronts and backs of the seats, the costs of the same to be allowed from the price of the cars. On the eighteenth May, 1863, the plaintiffs were incorporated, and Prevost made their president, continuing so until the twenty-sixth September, 1863; that on the ninth of July, 1863, Prevost conveyed all his stock . and other [523]*523property connected with liis car factory, including this plush and reps, and a skeleton car, valued at $1286.34, to the plaintiffs; that after this assignment to the car company by Prevost, Dungan and Prevost met, and Prevost, as president of the car company, agreed that the five cars should be finished as quickly as possible, according to the said agreement, except as to price, which was to be increased, but no definite sum fixed, and the aforesaid agreement, as to the plush and reps, carried out. The car company went on and finished all the five ears, putting in each the requisite quantity of the plush and reps. It does not appear that at the time the skeleton car was transferred as aforesaid, by Prevost to the car company, that any of the plush and reps had been put upon it. Dungan never paid for any of the cars, otherwise than by the furnishing, as aforesaid, of the said plush and reps.
Did this furnishing, of itself, vest the title of this car in Dungan ?
The railroad company claim under Dungan. They claim that they paid to Prevost, on the* twenty-third May, $2700 in plush and reps, which was more than enough to pay for the whole car at the contract price of $2200, and that this car, as it progressed to completion, from its beginning to its end, always belonged to Dungan, and that Prevost could not transfer it to the car company, and that the conveyance of the skeleton by Provost to the car company was void. It does not appear by the case that, when the plush and re])S were furnished to Prevost on the twenty-third of May, 1863, that any part of this ear was in esse.
Taking this evidence, then, most strongly in favor of the railroad company, it is the case of an executory contract for the sale of an article not in existence, but to be manufactured, and where the contract price is paid in advance.
But in such cases, no title passes until the thing is completely finished, and is either delivered to the orderer, or is appropriated to his benefit, or set apart for him, or is accepted by him. Story on Sales, § 233, and cases there cited; Muck-[524]*524low v. Mangles, 1 Taunt. 318; Laidler v. Burlinson, 2 Mees. & W. 614 ; Clarke v. Spence, 4 Adol. & El. 448.
This is not a case where the car was to have been built under the superintendence of a person appointed by the orderer, or where, by the terms-of the contract, stipulated instalments of the price were to be made at particular stages of the work.
Taking the evidence, therefore, in its strongest possible aspect against the car company, it was a case pure and simple, of payment in advance, for an article not in esse, but to be manufactured, and, consequently, the skeleton car belonged to Prevost, .and passed from him to the car company. Nor does it alter the case, if, after such transfer; the car company went on and finished the car under the original agreement.
The title would not pass until it was entirely finished, and either delivered to the orderer, or appropriated to his benefit, or set apart for him, or accepted by him.
In neither case would the simple payment of the money in advance vest the title in Dungan, and so no error is shown in the charge.
Nor would it alter the case if we do not consider this furnishing of the plush and reps as payment, but as the property of Dungan, and put in the car by the manufacturer. The car would still remain the property of the manufacturer, and the plush and reps pass to him as the owner of the car.
It would not, then, be a case where the orderer furnished all the materials for the car, but only a very small proportion of them, the great bulk- of them being furnished by the manufacturer. In such cases the property in the thing manufactured remains in the manufacturer. 2 Kent 361 ; Merritt v. Johnson, 7 Johns. R. 473; Atkinson v. Bell, 8 Barn. & Cress. 277. There is no error in the charge in this regard.
The next error complained of is, that the court refused to charge that the conduct of George A. Allen amounted to a ratification of the delivery of the car in dispute, to Dungan, but charged that that was a matter for the jury. George A. Allen, on the twelfth of April, 1863, was the agent of the car [525]*525company, and the ear being finished, they were anxious to deliver it, and get the purchase money. It appears by the evidence that, after the skeleton ear had been passed by Prevost to the car company, it was agreed, between Prevost and Dungan, that the price of the car should be enlarged, but how much, had never been settled or agreed upon. Under these circumstances, Allen shipped the car to Millville, to his own order, and without any further action on the part of Allen or the car company, it got into the possession of Dungan. How this conduct, on the part of Allen, ratified any delivery by the car company, is more than I can see. It was going quite as far as the railroad company had a right to ask, when the court told the jury that it was for their consideration whether the car company had ratified any delivery or not.
The next complaint is, that the court refused to charge that it was the implied contract of the defendants to cany said car to Glassboro’, but charged that it was for the jury to decide to what point the defendants undertook to carry the car.
It was immaterial to the matter in dispute whether the defendants agreed to carry it to Glassboro’, or elsewhere. Suppose it was the implied contract to carry the car to Glass-bond, what effect could it have had on the case ? Could it prove either that the car company did not own the car, or that the defendants had not converted it ?
The next complaint is, that the court refused to charge that the fact of the car being in possession of the foreman of the car company, in the manner described in the evidence, was conclusive of the right of Dungan to take the car at the place of its destination.
But the manner in which the foreman of the car company had possession, as described by the evidence, was that he was sent by the car company with the ear to see that it ran properly, that the journals did not heat, and that, ho had no authority to deliver it to any one.
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VREDENBURGH, J.
This was an action of trover, brought by the car works company against the railroad company, to recover the value of a passenger railroad car. The plaintiffs below recovered a verdict for $3700, and the case is now here on exceptions to the charge of the court.
The first exception is, that the court charged that the furnishing the plush and reps, in the manner disclosed in the evidence, did not, of itself, vest the title in the cars, or any of them, in Charles B. Dungan.
The evidence disclosed, that one Prevost, in the fall of 1862, agreed with Dungan, to construct for him five passenger cars, to be finished and put on the track at Trenton by the fifteenth of May, 1863, for $2250 each; that on the sixth and twenty-third of May, 1863, Dungan furnished to Prevost $2701.80 in plush and reps, for the fronts and backs of the seats, the costs of the same to be allowed from the price of the cars. On the eighteenth May, 1863, the plaintiffs were incorporated, and Prevost made their president, continuing so until the twenty-sixth September, 1863; that on the ninth of July, 1863, Prevost conveyed all his stock . and other [523]*523property connected with liis car factory, including this plush and reps, and a skeleton car, valued at $1286.34, to the plaintiffs; that after this assignment to the car company by Prevost, Dungan and Prevost met, and Prevost, as president of the car company, agreed that the five cars should be finished as quickly as possible, according to the said agreement, except as to price, which was to be increased, but no definite sum fixed, and the aforesaid agreement, as to the plush and reps, carried out. The car company went on and finished all the five ears, putting in each the requisite quantity of the plush and reps. It does not appear that at the time the skeleton car was transferred as aforesaid, by Prevost to the car company, that any of the plush and reps had been put upon it. Dungan never paid for any of the cars, otherwise than by the furnishing, as aforesaid, of the said plush and reps.
Did this furnishing, of itself, vest the title of this car in Dungan ?
The railroad company claim under Dungan. They claim that they paid to Prevost, on the* twenty-third May, $2700 in plush and reps, which was more than enough to pay for the whole car at the contract price of $2200, and that this car, as it progressed to completion, from its beginning to its end, always belonged to Dungan, and that Prevost could not transfer it to the car company, and that the conveyance of the skeleton by Provost to the car company was void. It does not appear by the case that, when the plush and re])S were furnished to Prevost on the twenty-third of May, 1863, that any part of this ear was in esse.
Taking this evidence, then, most strongly in favor of the railroad company, it is the case of an executory contract for the sale of an article not in existence, but to be manufactured, and where the contract price is paid in advance.
But in such cases, no title passes until the thing is completely finished, and is either delivered to the orderer, or is appropriated to his benefit, or set apart for him, or is accepted by him. Story on Sales, § 233, and cases there cited; Muck-[524]*524low v. Mangles, 1 Taunt. 318; Laidler v. Burlinson, 2 Mees. & W. 614 ; Clarke v. Spence, 4 Adol. & El. 448.
This is not a case where the car was to have been built under the superintendence of a person appointed by the orderer, or where, by the terms-of the contract, stipulated instalments of the price were to be made at particular stages of the work.
Taking the evidence, therefore, in its strongest possible aspect against the car company, it was a case pure and simple, of payment in advance, for an article not in esse, but to be manufactured, and, consequently, the skeleton car belonged to Prevost, .and passed from him to the car company. Nor does it alter the case, if, after such transfer; the car company went on and finished the car under the original agreement.
The title would not pass until it was entirely finished, and either delivered to the orderer, or appropriated to his benefit, or set apart for him, or accepted by him.
In neither case would the simple payment of the money in advance vest the title in Dungan, and so no error is shown in the charge.
Nor would it alter the case if we do not consider this furnishing of the plush and reps as payment, but as the property of Dungan, and put in the car by the manufacturer. The car would still remain the property of the manufacturer, and the plush and reps pass to him as the owner of the car.
It would not, then, be a case where the orderer furnished all the materials for the car, but only a very small proportion of them, the great bulk- of them being furnished by the manufacturer. In such cases the property in the thing manufactured remains in the manufacturer. 2 Kent 361 ; Merritt v. Johnson, 7 Johns. R. 473; Atkinson v. Bell, 8 Barn. & Cress. 277. There is no error in the charge in this regard.
The next error complained of is, that the court refused to charge that the conduct of George A. Allen amounted to a ratification of the delivery of the car in dispute, to Dungan, but charged that that was a matter for the jury. George A. Allen, on the twelfth of April, 1863, was the agent of the car [525]*525company, and the ear being finished, they were anxious to deliver it, and get the purchase money. It appears by the evidence that, after the skeleton ear had been passed by Prevost to the car company, it was agreed, between Prevost and Dungan, that the price of the car should be enlarged, but how much, had never been settled or agreed upon. Under these circumstances, Allen shipped the car to Millville, to his own order, and without any further action on the part of Allen or the car company, it got into the possession of Dungan. How this conduct, on the part of Allen, ratified any delivery by the car company, is more than I can see. It was going quite as far as the railroad company had a right to ask, when the court told the jury that it was for their consideration whether the car company had ratified any delivery or not.
The next complaint is, that the court refused to charge that it was the implied contract of the defendants to cany said car to Glassboro’, but charged that it was for the jury to decide to what point the defendants undertook to carry the car.
It was immaterial to the matter in dispute whether the defendants agreed to carry it to Glassboro’, or elsewhere. Suppose it was the implied contract to carry the car to Glass-bond, what effect could it have had on the case ? Could it prove either that the car company did not own the car, or that the defendants had not converted it ?
The next complaint is, that the court refused to charge that the fact of the car being in possession of the foreman of the car company, in the manner described in the evidence, was conclusive of the right of Dungan to take the car at the place of its destination.
But the manner in which the foreman of the car company had possession, as described by the evidence, was that he was sent by the car company with the ear to see that it ran properly, that the journals did not heat, and that, ho had no authority to deliver it to any one. For the court to have charged as asked, would have been, first, to charge a fact to [526]*526exist, the contrary of which was distinctly proved, and then from such unproved fact, to draw an illegal inference.
The next complaint is, that the court refused to charge that the railroad company never had any possession of the car for the purpose of delivering it to any one, but simply to pass it over their road.
But this would have been to charge against the proof. The proof shows that it was received by them to pass over their road to the order of George A. Allen, the agent of the car company, for that purpose, and not simply to pass it over their road. The evidence further shows, that for whatever purpose they possessed the car, whether to pass it over their road simply or not, that they did, in fact, use it for another purpose, viz., to carry passengers in it over their road.
The next error complained of is, that the court refused to charge that the receipt, if a consignment to any one, was a consignment to the Cape May and Millville Railroad.
The receipt reads as follows: “ Trenton, September 12th, 1863. Received of Trenton Car Company one passenger car, Cape May and Millville Railroad, Millville, to order of George A. Allen, marked way line to Camden, which we promise to forward to the railroad station in Camden, subject to the conditions expressed on the back of this receipt.”
Now when defendants undertook to forward this car, it was plainly to the order of Allen, at Millville; but even if otherwise, the matter was entirely immaterial, both as to the question of property and of conversion.
The next complaint is, that the court charged that the running of this car, for several days after it came into the possession of Dungan, between Camden and Cape May, over the defendants’ and the lower roads, as a part of the complement of cars to be furnished by Dungan, under an agreement between them, and the using of it by the defendants, in common with the others so furnished, for the accommodation of their local passengers, while it was passing and re-passing on their road, was a conversion.
The defendants and the Glassboro’ and Cape May and [527]*527Millville roads run in connection, and each furnish their proportion of cars which run over all the roads, carrying the through and way passengers. Dungan, after he illegally got possession of this car, put it on the through line as part of the complement ho or the Cape May road was to furnish, and it was so used for about two weeks. This was, on the part of the defendants, simply using this car for their own gain, by an agreement with Dungan. While passing over defendants’ road, it was used by them, in point of fact, as much as their own cars were, carrying their through as well as their local passengers. Dungan had got possession of the car wrongfully ; he could not use it himself without a conversion, nor could he' give any better right to the defendants than he had himself. The very moment the defendants put passengers in it for their own profit, it was a conversion.
The evidence of conversion in this case is very ample. When, the car first came to Camden, the defendants’ contract was to carry it forward as freight. Instead of doing so, they filled it with their own passengers. This was a conversion, at the option of the plaintiffs. They continued to use it for a couple of weeks afterwards, by agreement with Dungan. This was a conversion. Instead of delivering the car to Allen, as they had contracted, they delivered it to Dungan, which was also a conversion; and, finally, before suit brought, they put their own name upon the car, and otherwise put it out of the power of the plaintiffs ever again to get possession of it.
I see no error in the proceedings below, and they should be affirmed.
For affirmance — Zabriskie, C., Haines, Vredenburgh, Bedle, Dalrimple, Woodhurr, Cornelison, Fort, Wales, Crement. 10.
For reversal — None.
Judgment affirmed.
Cited in Elliott et al. v. Edwards, et al. 6 Vroom 268.