(1857) 7 E & B 885, 26 LJQB 296, 3 Jur NS 913, 5 WR 703
Plaintiff agreed to purchase from K 100 quarters of barley, being part of a large quantity which plaintiff saw and approved of, and of which he took away a sample. It was also agreed that plaintiff should send his own sacks to K; that K should fill the sacks with barley, take them to the railway, and place them on trucks, to be conveyed to plaintiff. Plaintiff sent 200 sacks, and K filled 155 of them with barley from the larger quantity. The barley was not delivered, though repeatedly demanded by plaintiff and promised by K. K becoming embarrassed, took the barley out of the sacks, and mixed it with the bulk, without the privity of plaintiff. K was soon after adjudicated a bankrupt. The assignees thereupon removed the barley, and claimed the whole as the bankrupt's property.
Held (1) the property in the barley in the 155 sacks passed to plaintiff by the appropriation made by K, with the assent of plaintiff, à priori as well as subsequently;
(2) notwithstanding the prior conversion by K, the removal of the barley by the assignees was a conversion by them;
(3) Sometimes the right of ascertainment rests with the vendee, sometimes solely with the vendor. Here it is vested in the vendor only . . . When he had done the outward act which showed which part was to be the vendee's property, his election was made and the property passed (Erle J).