Thus he put to the jury the whole of defendant's case, and it is manifest that the requested instruction had no place under that theory. Neither was it proper under plaintiff's theory, for no such expenditures could have been made, as it was one of the conditions that defendant might use the dredge for its own purposes at the cost of doing the work, and was to bear the expenses of the boat while idle, so that there could have been no outlay; the other condition being that defendant was to furnish a completed dredge for the sums advanced by plaintiff.

5. Requested instruction No. 25 is akin to No. 11, but as to that the trial court has very fully covered the subject-matter in the general charge. Requested instructions Nos. 19 and 20 were appropriate under defendant's theory of the case, but, as was the case with No. 25, the court has covered the entire subjectmatter in the general charge; tersely, it is true, though not so full as it respects 25, but very aptly, and in language not to be mistaken. By the latter clause of No. 20 the court was asked to charge that, "If it [the plaintiff] failed to make any such bill of sale or transfer of its interest in said dredge to said Portland Dredging Co. then you must also find in this case a verdict for the defendant." In its general charge the court referred to the contention about the bill of sale, and stated that it did not regard the matter of any moment one way or the other. If plaintiff's theory was to prevail, the dredge passed into the hands of the dredging company from defendant, or else it remained with defendant, for plaintiff never received any transfer of title, and it was therefore not necessary that it should execute a bill of sale to the dredging company before plaintiff's right of action could accrue. If, on the other hand, defendant was to prevail, no bill of sale was then necessary, as plaintiff would be the absolute owner of one half of the dredge and the forming of the dredging company and the issuance of its stock would be a matter purely incidental, and a bill of sale by plaintiff to the dredging company could not affect the matter in any way. So that there was no error in the holding complained of. The other requested instructions refused need no special mention, being covered by the foregoing instructions.

6. There was objection to the admission in evidence of the memorandum dictated by Wheelwright in the presence of Williams, which the court overruled, and the defendant assigns error. The memorandum, under the conditions testified to by Wheelwright and corroborated by his stenographer, was admissible, if for no other purpose, as admissions of Williams, who was acting for and in behalf of the defendant as its manager: Carstens v. McDonald, 38 Neb. 858 (57 N. W. 757); Hazer v. Streich, 92 Wis. 505 (66 N. W. 720).

7. Another assignment of error relates to the court's permitting Wheelwright to explain what he meant by the use of the expression, "I bought half the dredge, as I stated." This was proper. The witness was still under examination, and if he gave out an erroneous impression of the facts as he understood them, he had a perfect right to make the correction in the presence of the jury. The same thing would be true if the erroneous impression were contained in a letter he had written relative to the subject, but the whole would be a matter for the jury's consideration as to the weight that should be attached to it.

The question put to the witness H. T. Groves, forming the basis of an assignment of error, was immaterial under the issues, and the one put to Williams, touching whether the dredge was delivered to the Portland Dredging Co. with the intention of carrying title, called for a deduction, which was for the jury. Having considered all the questions presented by the transcript, and finding no error, the judgment of the circuit court will be affirmed, and it is so ordered. AFFIRMED.

Argued 10 January, decided 6 February, 1905.

LA VIE. TOOZE.

SALES-WHEN TITLE PASSES.

79 Pac. 413.

When property is identified by seller and buyer, weighed, marked and paid for, the sale is complete and title passes,* though the property is left with the seller under an agreement as to future delivery.

*NOTE.-See notes as follows: Essentials to a Valid Sale of Goods, 17 L. R. A. 176-181; Necessity for Delivery, 47 Am. St. Rep. 875-876; Delivery-Retention of Possession by Vendor, 60 Am. St. Rep. 237, 238. REPORTER.

From Marion: GEORGE H. BURNETT, Judge.

Action of replevin by George La Vie against Walter L. Tooze, resulting in a judgment for defendant. REVERSED.

For appellant there was an oral argument by Mr. John A. Carson and Mr. A. M. Cannon, with a brief over the name of Carson, Adams & Cannon, urging among others, these points.

This action was commenced to recover possession of a quantity of hops claimed to have been purchased by La Vie from one Kaser, and subsequently taken from him by Tooze, who also claimed to have purchased from Kaser. The case has been once to this court upon appeal: La Vie v. Tooze, 43 Or. 590 (74 Pac. 210). Upon a retrial La Vie, to prove a completed sale, introduced evidence to show a selection, identifying, branding, weighing, and delivery of the hops, and a payment of the whole purchase price at the agreed rate per pound. Payment was made to Kaser by check, which he accepted. There is no material dispute in the evidence as to the facts by which a sale or no sale is to be tested. The defense was that Kaser did not intend to deliver the hops. He admitted he did not communicate this intention to appellant, but on the contrary he set the hops apart, branded them for appellant and accepted his check in payment.

Upon this state of facts La Vie requested a directed verdict upon the theory that a completed sale and delivery is the only deduction, in law, to be had from the admittedly essential facts appearing in the record. This motion the court overruled and submitted the case to the jury for decision, upon the facts, as to whether there had been a completed sale. There was a verdict and judgment for defendant. Plaintiff appeals and insists here that the court erred in not directing a verdict as requested.

I. A bargain for the sale of personal property becomes a completed sale upon the marking, identifying and setting aside of the property sold as the property of the buyer by the seller, an acceptance of the same by the buyer, and payment of the purchase price: Johnson v. Hibbard, 29 Or. 184 (54 Am. St.

Rep. 787, 44 Pac. 287); La Vie v. Tooze, 43 Or. 590 (74 Pac. 210); Scott v. King, 12 Ind. 203; Martz v. Putnam, 117 Ind. 392 (20 N. E. 270); Fordice v. Gibson, 129 Ind. 7 (28 N. E. 303); Baldwin v. Doubleday, 59 Vt. 7; Colwell v. Keystone Iron Co. 36 Mich. 51; Gravett v. Mugge, 89 Ill. 218; Rothwell v. Alves, 61 Ill. App. 156; Haxell v. Willis, 15 Grat. 434; Roil v. Little Falls Co. 47 Minn. 422; Lancing v. Turner, 2 Johns. 13; Olyphant v. Baker, 5 Denio, 379; Levassure v. Carey, 3 Atl. 461 (with note); Story, Contracts, § 298.

II. Although the contract may specify a particular place for delivery, such provision becomes unimportant and is waived, the transit ended, and the vendor's right over the property is gone, where the buyer pays for the same or does any act equivalent to taking possession: Baldwin v. Doubleday, 59 Vt. 7; Foster v. Frampton, 13 E. C. L. 107; Cooper v. Bill, 3 H. & C.

727.

III. In such case, there being no material dispute over the facts, and the only legal inference deducible from such a transaction being a completed sale, the court should have directed a verdict for appellant: Coffin v. Hutchinson, 22 Or. 554; Anderson v. Adams, 43 Or. 621 (74 Pac. 215); 6 Ency. Pl. & Pr. 686, and cases cited.

IV. Where from the nature of the case it is apparent that only one of the parties to an action can, in law, prevail, on a reversal by the supreme court, as against the party who cannot prevail, a new trial should not be ordered, but the case should be remanded with instructions to render judgment notwithstanding the verdict: Anderson v. Adams, 43 Or. 621 (74 Pac. 215); Bernhard v. Reeves, 6 Wash. 424 (33 Pac. 873); Berning v. Medart, 56 Mo. App. 443; Rosenfeld v. Goldsmith (Ky.), 13 S. W. 3; Hatley v. Pike, 162 Ill. 241 (53 Am. St. Rep. 312); Pennington v. Underwood, 56 Ark. 53; Shotwell v. Dennman, 1 N. J. L. 396; Stein v. Stein, 44 Ill. App. 107.

For respondent there was an oral argument by Mr. Geo. G. Bingham, with a brief over the names of L. J. Adams and G. G. Bingham, to this effect.

1. In this case the sale was executory and no title passed by the hop contract prior to the delivery: Backhaus v: Buells, 43 Or. 558 (73 Pac. 342); La Vie v. Tooze, 43 Or. 590 (74 Pac. 210).

2. If by the terms of the contract the seller is required to send or forward the goods to the buyer, the title and risk remains in the seller until the transportation is at an end, after which time the title is vested in the buyer: Julius Winkelmeyer Brew. Assoc. v. Nipp, 6 Kan. App. 730-736 (50 Pac. 956-958); Gipps Brewing Co. v. DeFrance, 91 Iowa, 108 (58 N. W. 1087, 51 Am. St. Rep. 329, 28 L. R. A. 386); Hamilton v. Gordon, 22 Or. 557-561 (30 Pac. 495); Buckingham v. Dake, 112 Fed. 258-269; Gunn v. Knop, 73 Ga. 510; 1 Benjamin, Sales (Corbin's ed.), S$ 185, 308, 425, 427.

MR. JUSTICE BEAN delivered the opinion of the court.

This is an action to recover possession of 40 bales of hops. The complaint is in the usual form. The answer denies the allegations of the complaint except the possession of the hops by the defendant, and alleges ownership and right of possession in him. A trial before a jury resulted in a verdict and judgment for defendant, and plaintiff appeals.

The facts are these: In January, 1902, the plaintiff and one J. R. Kaser entered into a contract by the terms of which Kaser bargained and sold and agreed to deliver to the plaintiff 8,000 pounds of hops to be grown by him during the season of 1902 on the farms of Henry and Rhoda Allen, at a stipulated price of 10 cents per pound. The plaintiff was to advance $80 on or before April 1 for cultivating, and five cents per pound on or before September 1 for picking and curing purposes; such advances and interest thereon to be liens on the crop. The hops were to be delivered by Kaser to the plaintiff at the Silverton depot or on board the cars at such time between the 1st and 31st of October as plaintiff might direct, and upon the delivery and acceptance the plaintiff was to pay the balance due thereon. The advances were made as agreed upon, and on October 25, after the hops had been harvested, cured and

[14-46 Or.]