(a) Blackshear v. Burke, 74 Ala. 239;
Obermeier v Core, 25 Ark. 562; McNail v. Ziegler, 68 Ill. 224; Freeman v. Nichols. 116 Mass. 309; Mackaness v. Long, 85 Pa. 158. Mere delivery of part will not, however, divest the vendor of his lien, as to the whole, if anything remains to be done by the vendor to the part undelivered. Simmons v Swift, 5 B, & C. 857. See on this subject Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 4 B. & P. 69; Hanson v. Meyer, 6 East, 614; Ward v. Shaw, 7 Wend. 404; Payne v. Shadbolt, 1 Camp. 427; Brewer v. Salisbury, 9 Barb. 511; Weld v. Cutler,. 2 Gray, 195; Haskall v. Rice, S. J. Ct.
Mass. 1858,11 Law Rep. 561. Of course if the vendee obtains possession by fraud, he can derive no rights, and the vendor can lose none by such a delivery. Earl of Bristol v. Willsmore, l B.& C. 514. See also Hussey v. Thornton, 4 Mass. 405; Donahue v. Cromartie, 21 Cal. 80.
(b) Anonymous, Dyer, 30 a. See also Langfort v. Tiler, 1 Salk. 113. But see Greaves v. Ashlin, 3 Camp. 426, contra. See also Blackburn on Contract of Sale, p. 328, et seq.
(c) Bailey v. Smith, 43 N. H. 141; Gardner v. Lane, 9 Allen, 492; Strauss v. Boss, 25 Ind. 300; McClung v. Keley, 21 Iowa, 508.
1 Where anything remains to be done, as weighing, measuring, or testing to determine the price, property does not pass although goods be ascertained and they are in a state for acceptance. Johnson v. Lancashire R. Co., 3 C. P. D. 499; Foster v Ropes, 111 Mass. 10; Gibbs v. Benjamin, 45 Vt. 124; Lingham v. Eggleston, 27 Mich 324; Dyer v. Libby, 61 Me. 45; Smart v Batchelder, 57 N. H. 140; Southwestern Co. v. Stanard, 44 Mo. 71; Ormsbee v. Machir, 20 Ohio St. 295; Lester v East, 49 Ind Morrison v Dingley, 63 Me. 553; Leigh v. Mobile, etc. R. Co., 58 Ala. 165; Gravett v. Mugge, 89 Ill. 218'; Burrows v. Whitaker, 71 N. Y. 291.- But the title to specific goods passes before delivery, if such intent is expressed or implied, although the seller has to do something more to the property, Marble v. Moore, 102 Mass. 44.'!, as to test or to count, Russell v. Carrington, 42 N. Y. 118; Watts v. Hendry, 13 Fla 523. Wilkinson v. Holiday, 33 Mich. 386; Straus v. Minzesheimer, 78 Ill 492; Groat v Gile, 51 N. Y. 431; Morrow v. Heed, 30 Wis. 81; but if the intention is that something be done before completion, whether by the seller, buyer, or a third person, the title does not pass, Foster v. Ropes, 111 Mass. 10; Prescott v. Locke, 51 N. H. 94; Pike v Vaughn, 39 Wis. 499: Darden v. Lovelace, 52 Ala. 289; Flanders v. Maynard, 58 Ga 56; although placed in the buyer's hands. Kein v. Tupper, 52 N, Y. 550. To pass title to an unfinished specific chattel, an express intent must appear, Thorndike v. Bath, 114 Mass. 116; with express or implied acceptance, Brown v. Foster, 113 Mass 136; Higgins v Murray, 73 N Y. 252; Zaleski v. Clark, 44 Conn. 218. See Goddard v Binney, 115 Mass. 450; Pratt v. Maynard, 116 Mass. 388; Shawhan v. Van Nest, 25 Ohio St. 490; Seckel v. Scott, 66 Ill. 106. Morrow v. Delaney, 41 Wis. 149, decided that under a contract declaring that the plaintiff " has this day sold " certain specified logs lying in a certain place, " which are to be scaled where they now lie," the title passed to the buyer and the logs were at his risk. See Hahn v. Fredericks, 30 Mich. 223, as to the title of hard wood mixed with soft in piles passing before separation. - The title to goods not specified will not pass until appropriation. Indianapolis R. Co. v. Maguire, 62 Ind. 140; Smyth v, Ward, 46 Ia. 339. See Chapman v. Shep-ard, 39 Conn. 413; Phillips v. Ocmulgee Mills, 55 Ga. 633; Morrison v Dingley, 63 Me. 553; Cumberland, etc. Co. v. Andes Ins Co., 64 Me 466; Kein v. Tupper, 59 N. Y. 550; Hurff v. Hires, 40 N. J. L. 581; Ferguson v Northern Bank, 14 'Bush, 555; Southwell v. Beezley, 5 Oreg. 143; Keeler v. Goodwin, 111 Muss. 490; Home Ins. Co. v. Heck, 65 Ill. 111. As to election, see Lynch v O'Donnell, 127 Mass. 311 A hundred bushels of wheat out of two hundred, and is to send bags or boxes for them which the seller is to fill; and the buyer sends bags enough for twenty bushels which the seller fills, and afterwards the seller refuses to send any wheat whatever, it is held, that the property in the twenty bushels put into the bags passes to the buyer; but not so of the other eighty. (d) Where several parties store grain in an elevator, in one mass, they are tenants in common of the mass; and if an order of the vendor on the owners of the elevator, to deliver to a purchaser a certain quantity, is accepted by the owners in their customary manner, that quantity passes to the purchaser. (dd)1 It has been held, that where articles in process of manufacture under an agreement to make and deliver to the vendee, he supplying certain specified parts necessary to their completion, are lost by fire, while in possession of the maker, their completion and delivery being delayed solely by the neglect of the vendee to furnish the parts specified, the loss must fall upon the maker, and not upon the vendee. (e) Nor is the sale completed while anything remains to be done to determine its quantity, if the price depends on this; unless this is to be done by the buyer alone. (f) And even if earnest, delivery by the vendor to a carrier by the buyer's order is an appropriation, Krulder v. Ellison, 47 N. Y. 36, Odell v. B. & M. R. Co., 109 Mass. 50; Sneathen v. Grubbs, 88 Pa. 147; Green Bay Bank v. Dearborn, 115 Mass 219; Groff v. Belche, 62 Mo. 400; as well as a discount of bill of lading is such of goods named therein. Holmes v. German Sec. Bank, 87 Pa. 525 , First National Bank v. Pettit, 9 Heiskell, 447. A vendor cannot send in excess of an order and make the buyer select. Rommel v. Wingate, 103 Mass. 327; Borrowman v. Free, 4 Q. B. D 500; Tailing v. O'Riordan, 2 L. R. Ir. 82. - K.
(d) Aldridge v. Johnson, 7 E. & B. 885. See also Langhton v. Higgins, 4 H. & N. 402, for a direct authority upon this point.
(dd) dishing v. Breed, 14 Allen, 376. See post, vol. 2, p. * 137, note (bb).