Ross v. Welch , 77 Mass. 235 ( 1858 )

By the Court.

The question is whether the facts show a sufficient sale and delivery of the cabbages. Those that were to be taken were designated. It is objected that the cabbages were growing, deriving their nourishment from the soil, and were therefore part of the realty; but that is not the test. The parties went upon the land in August, and agreed that the cabbages there growing should be taken when ready to be severed ; and in November, when the cabbages were ready to be gathered, they agreed on the number. The defendant contended that he could only be liable for those actually delivered; but a constructive delivery is sufficient to complete a sale. No further act was necessary on the part of the vendor. An agreement to sell articles ready to be delivered and taken away, though still standing on the soil, unrevoked, is sufficient delivery to give effect to the sale between the parties.

Exceptions overruled.