2 Where one partner sold goods which were in the hands of warehousemen, giving at the same time a written order upon the warehousemen for the goods, and notice to them that the goods are no longer the goods of the firm, this is a sufficient delivery as between the vendee and a subsequent purchaser from another partner, although the first vendee has never presented the order to the warehousemen. Anthony v. Whea-tons, 7 R. I. 490 (1863).
3 Ibid. But if goods not finished are bought and paid for, and afterwards delivered to a warehouseman to keep for the vendee, this passes the title as against creditors of the vendor, although the vendee himself had not notified the warehouseman of his title. Hunter v. Wright, 12 Allen, 548 (1866).
4 Burge v. Cone, 6 Allen, 412 (1863).
5 Batre v. Simpson, 4 Ala. 305; Burrall v. Jacot, 1 Barb. 165. See, also, Godts v. Rose, 17 C. B. 229; 33 Eng. Law & Eq. 268. The plaintiff orally with an order on the company for the same, accepted by the company, passes the title to the whole quantity sold.1 So on the sale of a specified quantity of grain, part of a cargo stored in an elevator, the delivery by the vendors to the vendees, upon payment of the agreed price, of a receipted bill of sale, and, subsequently, of an order for the grain purchased, drawn upon the elevator by the person upon whose account the cargo was stored, and who was superintendent of the elevator, sufficiently manifests an intention to pass the title, and renders the transaction an executed contract, without actual separation or delivery of the property.2
§ 1033. The delivery of a sample as a sample will not, however, constitute a sufficient delivery of all the goods. The question, whether a delivery of a part is a delivery of the whole when there is no agreement so to consider it, depends solely upon the question, whether the contract is an entirety or not.3 If the contract be an entire contract, and incapable of severance, the delivery of a part necessarily is a delivery of the whole.4 But if it be a severable contract, the delivery of a part is only a delivery pro tanto. The same rule applies to the acceptance of the buyer, under the Statute of Frauds, contracted to sell to the defendant two pockets of hops of which samples were shown, hut which were lying in a warehouse in London. On his return to London, the plaintiff went to the warehouse and selected two out of three pockets which he had there, and directed the warehouse-keeper to mark them "to wait the buyer's order;" hut no alteration was made in the warehouse-keeper's books, and he continued to hold the plaintiff liable for the rent. Held, no evidence would warrant a jury in finding that the appropriation of the two pockets in the London warehouse was either originally authorized or subsequently assented to by the buyer, and that consequently the property in them did not pass by the contract. Jenner v. Smith, Law R. 4 C. P. 270 (1869).
1 Warren v. Milliken, 57 Me. 97 (1869).
2 Russell v. Carrington, 42 N. Y. 118 (1870).
3 A sale of personal property and a receipt acknowledging payment, with delivery of a portion, do not necessarily transfer to the vendee title in the whole property sold. Whether the delivery of a part was for the whole is a fact to be determined by the jury. Pratt v. Chase, 40 Me. 269 (1855).
4 See Brewer v. Salisbury, 9 Barb. 511; Chamberlain v. Farr, 23 Vt. 265.
§ 1034. If the buyer unreasonably refuse to accept goods, the title to which has been passed to him in the mode already stated, the vendor is under no obligation to allow them to perish in his hands, or to become reduced in value. The proper course for him to pursue is, upon the neglect or refusal of the vendee to come and take them within reasonable time, after giving due notice, to sell them at auction, and hold the buyer responsible for the difference between the price which he agreed to give, and the actual price which they bring.2
§ 1035. Where goods are ordered to be manufactured, the right of property does not become vested in the vendee ordinarily, nor has the vendor a right to claim the price, until the article is completely finished and ready for delivery, and has been approved of by the vendee. After it is finished and ready for him, and offered to him, and he has approved it, it becomes his property, and is ever afterwards at his risk, provided nothing remain to be done to it by the vendor.3 However, the general rule that the property does not pass to the buyer while any thing remains to be done by the seller does not apply to a sale of unfinished goods which are ascertained and pointed out to the buyer; but in such case the property passes at the time of the sale or on the completion of the goods, if such was the intention of the parties.4 But although a specific article be intended by the manufacturer for the orderer, and have been made in compliance with his order, the orderer has no right thereto, until the maker has appropriated it or offered it specially to him; for although it have been made in consequence of the order, yet, if the maker choose, he may ordinarily appropriate it to any other person, and proceed to make a new article to answer the order.1 Nor does it make any difference as to this rule whether or not the price have been advanced. But after the article has been appropriated to the orderer, or offered to him and approved, the manufacturer has no power to transfer the property to another person. So, also, if it have been specially appropriated to the orderer, the manufacturer cannot dispose of it, although it remain in his hands for the purpose of having some new and additional work done on it.2 Where the contract provides that the work shall be done under the supervision of a certain person appointed by the purchaser, and such person accordingly supervises the work, his superintendence and approval operate to appropriate the specific work, so that the manufacturer cannot dispose of it to another person without the consent of the orderer.3 Where the payment is agreed to be made by certain instalments at fixed times or at distinct stages of the work, the work finished at the payment of each instalment becomes the property of the orderer, and is at his risk, while any additional work done on it before the time of the payment of the next instalment, although it be appropriated to the work, is at the risk of the manufacturer.4 It fol-