The opinion
Shaw C. J.
delivered the opinion of the Court. The main question in the present case is, whether the plaintiff had acquired such a title in the beef described, as to enable him to maintain an action of trover. The circumstances of the case are somewhat peculiar, and upon those circumstances we are of opinion, that the plaintiff has made a legal title.
*552 In the first place, there was a good contract of sale, made upon good consideration and without fraud. The vendor had the quantity at the time, corresponding in description with that sold, but mingled with a larger parcel. The bill of sale on the face of it, purports a delivery ; but, perhaps, taken in connexion with the receipt admitted to have been given by Titcomb at the same time, it may be inferred, that no constructive or other delivery was made. But as the price was paid at the time, the vendor had no lien for the price, and no other right of possession ; and, therefore, the right of possession followed the right of property, and nothing remained to make the property complete, but an actual or constructive delivery and a separation of the part sold, from the mass. The provision, that Titcomb would keep these barrels of beef, five months without expense, and then deliver or pay for them, was a stipulation for the benefit of the plaintiff, and did not prevent him from demanding possession sooner. But if it were otherwise, and if Titcomb had any right to retain possession, he waived it by giving up the possession to the plaintiff’s agent. When, therefore, Tituomb, upon the plaintiff’s request, delivered the larger parcel to the plaintiffs agent, upon a demand of the plaintiff’s goods, it constituted a good constructive delivery ; nothing remained but to separate the number of barrels belonging to each, they being all of equal value, in order to enable the plaintiff to have the specific barrels intended to be sold. And this delivery of the larger parcel, upon this demand and for this purpose, gave the authority to the plaintiff ór his agent to make such separation. Whilst they so remained in the plaintiff’s custody, the other purchaser, to wit, Burgess & Son, took their one hundred barrels, with the consent of the other parties, and Tit-comb took what he claimed, and those which were left were thus effectually separated and-remained as the plaintiff’s under the contract. He then acquired a complete property in the specific and individual barrels and half-barrels, for which the action was brought. It is found that by some means enough were not left for him ; but this does not impair his right, to those which were left. If 500 bushels of corn be sold out of a larger parcel, say 1,000 bushels, and the vendor receives storage until the vendee shall have the part purchased sepa *553 rated, if the vendor sells the other 500 to another purchaser, and it is measured and delivered, the vendor holding the 500 on storage for the first purchaser, this is as effectual a separation to vest the specific 500 bushels in the first purchaser, as if the 500 had been first measured and delivered to the first purchaser; it being understood, however, that in all other respects there had been enough done, to vest the property and right of possession in the vendee, by a contract of sale, a payment of the price, and a constructive delivery.
Such separation having been effected in the present case, in the events which have happened, before the attachment made by the defendant, we are of opinion, that the plaintiff had the complete property and right of possession in the goods attached, and that he may, therefore, maintain this action.