made, to whomsoever made, for whatever purpose made, and though it may in no degree have affected the conduct or rights. of others, and even though the persons interested may never have heard of the admission till proved on the trial. The instruction did not tell the jury that they could consider the admissions and recognitions as tending to prove that the notes had been signed by them or by their authority, but that they were bound, though they did not sign nor authorize the signing, though the notes were as to them rank forgeries, yet they might become bound by any sort of admission made at any time, anywhere, to any one, though the proof was clear that they were strangers to the consideration; "that one who never signed the paper, or whose name was signed without authority or claim of authority to do so-whose name was simply forged -can not be bound by a subsequent promise to pay the debt. or ratification of the signing of his name, is, we think, clear upon both principle and authority." (Warren v. Fant's Trustee, 79 Ky., 2.)

The judgment is reversed, with directions to set aside the verdict and judgment in each case and to grant a new trial in each.

Jno. Feland and A. Duvall for appellants.
W. P. D. Bush for appellees.

WELLS v. MALEY.

(Filed April 16, 1884.)

1. Sale of goods-Where anything remains to be done to the goods to put them in a deliverable condition or to determine the price by weighing or measuring, the performance of such things is a condition precedent to passing the title. (2). In such case if after the condition is performed the buyer refuses to accept or pay for the goods, the vendor may keep them and sue for the difference between their market value and the agreed price, or may sell to satisfy his lien for the purchase money, sue for the deficit, or may set the goods aside as the vendee's property and sue for the agreed price.

2. Where A agrees to buy goods of B it is no sufficient defense to a suit for refusal to accept and pay for the goods for A to set up that he bought as agent for another under a mistaken belief that he had authority so to do.

Appeal from Mason Circuit Court.

Opinion of the court by Judge Bowden.

Maley sued Wells, alleging that in April, 1882, "he sold to Wells a certain crop of tobacco, then in a barn on the premises. of said Wells, at the price of 18 cents per pound for the leaf and lugs and 5 cents per pound for the trash, said crop of tobacco to be delivered at the warehouse of Thomas L. Best, in Helena, Ky., in good keeping order;" that in July, 1882, the tobacco was in good keeping order and that he then "proposed and was ready and willing and offered and was able to deliver the same at Best's warehouse at Helena as by contract he agreed to do," but Wells "declined and refused to receive the same, and directed plaintiff not to deliver the tobacco, and told him he would not receive it or pay for it if delivered, and the tobacco remained in plaintiff's possession in the barn on defendant's premises, and there still remains, subject to defendant's order." He alleges that the value of the tobacco, at the agreed price, was $317.50, and concludes by saying that "by reason of defendant's refusing to comply with his contract with plaintiff and receive said tobacco and pay for same, as he agreed to do, plaintiff has been greatly damaged, to wit, in the sum of $317.70;" wherefore, he "prays judgment for $317.70, with interest from July 10, 1882, and for all pr‹ për relief.”

The answer contained three paragraphs. The first denied that Wells bought the tobacco or that he refused to give it or pay for it. The second averred that Wells told Maley that Best had sent him to buy the tobacco for the firm of Best & Bro., and that "in that way he bought the tobacco of plaintiff for Best & Bro., as their agent." The third admits that Wells misunderstood Best, and that he in fact had no authority to buy the tobacco for Best & Bro., and that he so informed Maley a few days after the purchase, and told him he could sell it to any one else—and that this was "before the tobacco was ready for sale or delivery." The second and third paragraphs were traversed by a reply.

It may be inferred from the petition that the tobacco was not in a condition to be delivered at the time of the alleged sale. Maley's testimony is conclusive that it was not. He stated that he was "to prepare it for market and deliver it in good bulking or keeping order at the warehouse of Best & Bro.,"

which was fifteen miles from the barn.. Other testimony shows the tobacco was not stripped at the time. There remained, therefore, these things for Maley to do: First, to prepare the tobacco for market; second, to carry it to Helena; and, it may be third, to have the quantity determined by weighing, so as to ascertain the price.

Whether a given transaction in regard to a specific chattel is a bargain and sale, passing the title to the bargainee, or only an agreement to sell and deliver on the one part, and to buy and accept on the other is a question of intention.

"First. Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of these things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property; second, where anything remains to be done to the goods, for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained and they are in the state in which they ought to be accepted." These rules are given by Benjamin in his treatise on Sales as the settled law in England. They are recognized in this State. (Jennings v. Flanagan, 5 Dana, 217; Crawford v. Smith, 7 Dana, 60; Brown v. Childs, 2 Duvall, 314; Newcomb v. Cabell, 10 Bush, 460.)

The title to the tobacco, therefore, did not pass from Maley to Wells by the contract alleged and proved.

As the result of the English cases Benjamin lays down the rule that "where the vendor has not transferred to the buyer the property in the goods which are the subject of the contract, as where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery, the breach by the buyer of his promise to accept and pay can only affect the vendor by way of damages. The goods are still his. He may resell or not at his pleasure. But his only action against the

buyer is for damages for nonacceptance; he can in general only recover the damage that he has sustained, not the full price of the goods."

This is to be understood as meaning that he can not recover the price eo nomine, but can recover only such damages as results from the buyer's breach of his contract, which, as he proceeds to state, is in general "the difference between the contract price and the market price of such goods at the time when the contract is broken." Obviously, however, it is not impossible that such goods may then have no market price, and may have no value, so that the measure of damages should be the price agreed to be paid; not, however, because it was agreed to be paid, but because the failure to accept the thing at the agreed price has, under the peculiar circumstances of the case, damaged the seller to that extent. The price, as such and because agreed on, can be recovered only when the title to the thing has vested in the buyer.

If by the terms of the contract the title passed, the vendor, where no credit is to be given, has a lien for the price, and the right to possession remains in him until the vendee pays the price or tenders payment; the payment or tender being, therefore, a condition precedent to the vendee's right to recover the thing sold. Nor can the vendor, maintain an action for the price until he has surrendered the possession, or until he is ready and willing to surrender it at the proper place on payment of the price.

A contract deemed executory when made, because something remains to be done by the vendor is regarded as executed when the vendor has done all he was bound to do. In such case it is presumed, when the contrary does not appear, that the parties intended that the title should not pass from the vendor until he performed the thing to be done, but that, immediately upon the doing of it. it should pass and vest in the vendee (Crawford v. Smith, 7 Dana, 59). In that case it was said that “a sale of tobacco, at a fixed price per hundred weight, to be ascertained by weighing, will not constructively vest the rights of property in the vendee until after the tobacco shall have been weighed, and the entire quantity and price of it thus rendered certain according to the intention of the parties; but as soon

as the weight of the tobacco shall have been ascertained the property will, eo instanti, vest in the purchaser, even though he may not yet be entitled to the possession of it, without paying the price or assuring the payment of it according to the terms of the sale." In Jennings v. Flanagan, 5 Dana, 217, the case was that Murphy had agreed that Jennings & Co., who had let him have some money, should have his unprized crop of tobacco at $6 per hundred weight, to be paid on the delivery of the tobacco. Murphy sold the tobacco to Flanagan, and Jennings & Co. sued Flanagan for it in trover. It was held they could not recover, not only because they had not paid or tendered the price, but because "the quantity of tobacco had not been ascertained, and it was necessary the vendor should prepare it for delivery and have it weighed before there could have been a delivery or payment of the stipulated price." It is obvious that the word delivery is used here with reference to the passing of the property in the tobacco.

In Cook v. Brandeis & Crawford, 3 Met., 556, the case was that Cook contracted with Brandeis & Crawford to sell them his crop of wheat at $1 per bushel, to be delivered at Cook's landing as soon as it could be threshed out. Cook delivered part of the wheat and offered to deliver the balance, which B. & C. refused to take, whereupon Cook sold it for 72 cents a bushel and sued to recover the deficit of 28 cents per bushel. The court said: "In such cases-that is, where the vendee refuses to receive the thing bargained for-the vendor may consider it as his own, as if there had been no delivery, and recover the difference between the value at the time and place of delivery and the contract price; or he may sell it, with due precaution and diligence, to satisfy his lien for the price, and then he may sue and recover only the unpaid balance of the contract price; or he may consider it as the property of the vendee, subject to his call and order, and then he recovers the full price which the vendee was to pay."

It is clear that the contract for the sale of the wheat was executory, and that the title did not pass until Cook had done all he was bound by its terms to do; but after he threshed the wheat nothing remains for him to do but to deliver it at the