Golder v. Ogden , 1851 Pa. LEXIS 51 ( 1851 )

The opinion of the court was delivered by

Gibson, C. J.

Had the paper been sold in a separate lot, the ownership would have passed, though it contained a few pieces more than the number. The buyer would have taken the whole as a lot sold to him in gross. Or had the pieces been separated from the rest, and pointed out to him as his two thousand, a small excess would not have vitiated the sale. So if the bargain had been that they were to be counted before they were taken away. Such is the principle of Dennis v. Alexander, Scott' v. Wells, and Hutchinson v. Hunter, which are less stringent than the English cases. But there was no evidence that the bargain had regard to a lot in gross, or any particular pieces.' The only thing at all like it, is the testimony of the salesman, who swore it was considered that the buyer was to have his paper out of the lot in the cellar, and that the paper there was intended for him ; but the witness did not know that the buyer had selected it, or that the identical pieces had been set apart for him. Without separation, however, intention is nothing. The vendors might have changed it before delivery, and have taken other pieces of the proper sort from any other part of the store. Whether there were such, or from what part they took the pieces previously delivered, did not appear; but even had there been no other pieces on hand than those in the cellar, and no more than the exact number, they would not have passed without a specific act of appropriation, equivalent to a delivery in contemplation of law.

Judgment affirmed.