The property in controversy originally belonged to Wonson & Brothers. They had several vessels engaged in the mackerel 'fishery, and as these vessels came in with their fares they prepared and assorted the fish, packed them in barrels and half barrels, had them inspected and branded with the inspector’s mark, and. thus prepared them for sale and delivery.

The first of the negotiations respecting the fish in controversy commenced in September 1862. At that time the plaintiffs agreed with W onson & Brothers to purchase of them all the mackerel they should pack that year; the price to be made satisfactory, and payments and advancements to be made from time to time. A contract of this character for the sale of property not yet ready to be delivered is merely executory. If a portion of the property is afterwards prepared and the delivery *510completed, the contract thereby becomes executed as tó that part, but remains executory as to the residue. Mason v. Thompson, 18 Pick. 305. There are some other principles in regard to the sale and delivery of property which may properly be stated here, as the decision of this case will depend upon an application of them to the facts stated in the auditor’s report, and to some other facts not yet ascertained. These principles are fully discussed in Scudder v. Worster, 11 Cush. 573. If the owner of a large quantity of merchandise of this character sells a part of it, the property in that part does not pass to the vendee unless the part which is sold is separated from the part unsold. A designation by some visible mark is a sufficient separation. It is not necessary that an artificial mark should be made for this sole purpose. If the barrels have been inspected and marked as of different qualities, e. g., No. 1, No. 2, No. 3, and the whole of that which is marked No. 1 is sold, a bill of sale given and a formal delivery made, the property will pass without any further separation or designation, and the delivery will have been perfected, though the barrels marked No. 1 are left intermingled with the other barrels which have different marks. So if there are one hundred barrels marked No. 1 and the owner makes a contract to sell one hundred and fifty barrels of that mark, and makes his bill of sale and formal delivery affirming that there are that number of barrels in the lot, the property in the one hundred barrels will pass to the vendee. But if there are one hundred and fifty barrels in the lot, which have that mark, and the owner sells but one hundred barrels, it will then be necessary to separate the one hundred barrels from the rest, and, if they are not taken away, to designate them by some mark that shall distinguish them from the fifty unsold barrels. If there is no mark of designation and no actual separation, a storage receipt will not supply the defect, for there will have been no delivery of the specific property sold. The vendee can not identify any one of the barrels as his own, so as to authorize him to take it away or replevy it. The property in all the barrels will still remain in the vendor, notwithstanding his bill of sale and his storage receipt.

*511These rules will enable us to' determine the rights of the parties under the agreement of sale above stated, and the transactions which took place afterwards, it being necessary however to make some further inquiries into those transactions.

From the time of making this contract to the close of the fishing season, which was about the 25th of November, Ripley Ropes, one of the plaintiffs, attended at the place of business of Wonson 5c Brothers frequently and sometimes daily, watching the business and giving directions in regard to it; but none of these acts was sufficient to complete a sale and delivery of the property. As the different fares were packed, he took bills of sale from time to time. When each several bill was made, the prices of the fish it described were fixed. And during all the time the plaintiffs, as suited their convenience, took and shipped from the wharf such portions of each of said bills as they chose, taking in the course of the season some portion of the packages enumerated in each of said bills. But no particular count of any fare, or the packages billed to the plaintiffs was made, nor was any special examination or designation made in any case, to identify the packages enumerated in any bill. In connection with these facts it appears that on the 1st of December it was found by the parties that there was a quantity of fish not included in any previous bills, and that two new bills were then made for the purpose of including them. On the 19th of December the plaintiffs settled and paid for these mackerel. At the same time another act was done which was intended by the parties to constitute a delivery to the plaintiffs of all the mackerel then in the storehouses and on the wharves. Ripley Ropes went and looked at the mackerel; agreed with Wonson 5c Brothers that they should store them for the plaintiffs at an agreed price, which was paid; gave them directions how to take care of them, and left them in their possession as bailees of the plaintiffs A delivery of this character, which included the whole of the fish un the premises of every quality, was sufficient to pass the whole. But it must be taken in connection with the'bills of sale, which designated what was sold and paid for, If it included any prop erty which was not included in the bills of sale, the sale would *512not extend to such property, for though it had been delivered, it had not been sold. The vendors might still claim it, on the ground that the sale of it had not been completed.

As to all that was included in the bills the property passed to the plaintiffs as against Wonson & Brothers and all subsequent purchasers, and also against the assignees in insolvency who were appointed some weeks afterwards. The title of the plaintiffs appears thus far to be perfect.

But in the mean time Wonson & Brothers had been attempting to sell a part of the fish to Garland, who acted as the agent of. Kittredge & Co. and of Chandler & Trull. It is necessary to analyze the facts in regard to this transaction.

Garland had from time to time bargained with Wonson & Brothers for certain kinds and quantities of mackerel, had paid for the same and had received bills for it; but no delivery had been made up to the 15th of November. About that time he agreed with them that all the mackerel he had bargained for should be stored in their warehouses. Accordingly he took two storage receipts, one of which specified several kinds and quantities received for storage of Chandler & Trull. Among other kinds it specified four hundred and fifty barrels No. 1 bay mackerel. The other receipt specified several kinds and quantities received for storage of Kittredge & Co. among which were four hundred and seventy-five barrels No. 1 bay mackerel. Before taking these receipts Garland went to the wharf and saw the workmen rolling barrels of mackerel into some of the warehouses. He examined one warehouse in which mackerel were stored, and which was full, and saw the number of barrels said to be stored there scored upon the door. He examined the other warehouses with reference to their capacity for storage On the 21st of November he took the storage receipts which are mentioned above.

If the quantity of No. 1 mackerel which was stored in the warehouses was not greater than that which is stated in these receipts, the delivery of the bills of sale, the acts done by Garland in examining the barrels and the warehouses, the contract for storage, and the taking of the storage receipts were sufficient *513to pass the property as between him and Wonson & Brothers, Of course they were sufficient as against all subsequent purchasers and assignees, the price having been paid, and there being no fraud. No question arises in respect to any other kinds than the No. 1, because no other kinds have been found which correspond with the receipts. But if thé quantity of No. 1 in the storehouses was greater than that mentioned in the receipts, then there was no sufficient separation of that which was purchased from that which was not, to constitute a delivery; and so the property did not pass even as against the vendor, but the whole contract remained executory. It becomes important therefore to ascertain what quantity of No. 1 mackerel was on hand in the storehouses on the 21st of November.

The auditor’s report does not state the quantity directly, but states facts from which the quantity can be ascertained by inference. On the 4th of the next February, when the writ of replevin was served, the officer found in one of the warehouses three hundred and seventy-six barrels of No. 1 mackerel. He found another lot in the other warehouses, the amount of which is not stated, but it is stated that the whole number was less than that specified in the storage receipts. It also appears that on the 25th of November, four days after the storage receipts were given, the packing was finished, the warehouses were closed, • filled with mackerel and other property stored therein, and so remained until the service of the writ. From these facts it is clear that on the 25th of November the quantity in the storehouses was less than the quantity sold to Garland. The only other fact that may be thought material to this point is, that from the 1st of September to the 1st of December Wonson & Brothers sold to other parties than the plaintiffs or Garland, large quantities of mackerel; but as the report states that they were delivered from the wharves, it does not appear that ány of the No. 1 mackerel which were stored in the warehouses on the 21st of November was included in these sales and removed from the warehouses. On the contrary, a large quantity of mackerel had remained upon the wharves, worn which these sales could be supplied. It must therefore be taken as a fact that when *514Garland took his receipts there was in the storehouses a less qnan tity of No. 1 mackerel than was sold to him and stored for him by Wonson & Brothers; that it had the inspector’s mark, which visibly designated it as No. 1, and that it was thereby so plainly designated and distinguished from the other mackerel in the warehouses that no further separation or marking was necessary to complete the delivery of these specific barrels to Garland; so that as between him and his principals on the one hand, and Wonson & Brothers on the other hand, the sale and delivery were perfected. It was also sufficient as against all the acts of the plaintiffs which took place on the 1st and 19th of December as before mentioned.

In order to determine whether the plaintiffs have any claim to these specific barrels of mackerel, or any of them, it ,s necessary to know whether any of them had been included in any sale which had been completed prior to Garland’s purchase by a specific delivery or separation of the property in the manner stated above. On this point the report is defective. It does not appear from it whether any sale to the plaintiffs had been perfected by a delivery except as to such barrels as had been actually taken away. As to those not taken, it may be that there was such a separation and designation of a part of them that they would pass though they were left on the premises. The report does not show that it was so, nor does it clearly show the contrary. The burden is on the plaintiffs to show that there was a delivery of some of these specific barrels, in order to entitle them to hold them.

It is true that the auditor finds that the plaintiffs had a sufficient delivery of all the mackerel on the wharf and in the storehouses on the 18th day of December. He may possibly mean November. But this statement is to be regarded as a conclusion of law, and if it refers to any time prior to the purchase by Garland, the facts found do not warrant the conclusion. The facts found do not make it apparent that the barrels in question or any of tiiem were specifically referred to in any of the bills of sale which had been previously made, or are so described in those bills that they could then have been separated by means *515of the mark of designation. It is not even stated when the brands were put upon any of these barrels, nor whether, if described in any bill of sale to the plaintiffs, they were in such a condition that they would pass. The attention of the auditor does not appear to have been called to this point. If there is evidence by which this can be made more certain, the plaintiffs are entitled to have the report recommitted in order that the facts may be fully reported. If it shall not appear that the plaintiffs were entitled to any of the barrels of No. 1 mackerel which were in the storehouse on the 21st of November, by virtue of a sale and a completed delivery, then this action cannot be maintained as to those barrels.

The evidence of the sale to Garland was properly introduced, and also the evidence that the vendees had made a demand on the defendant for the property before the service of the writ of replevin. This demand made it the duty of the defendant to hold the property for them, if their title to it is established, and enables him to set up their title in defence of this suit.

The plaintiffs object that even if the property was sold and delivered to Garland as their agent, yet there was no separation of any specific part as the property of Kittredge & Co. and of the other part as the property of Chandler & Trull. But this is not an objection that would have been open to Wonson & Brothers. The agent of the vendees would have a right to separate the barrels for each, in proportion to their purchases. But if there would be any technical difficulty in bringing a writ of replevin by either of them, it does not arise in the present case. If their right is established, the plaintiffs had no right to replevy the property in the hands of the officer, and must return it to him. They cannot avail themselves of any technical questions that may arise between the owners as to the distribution of the property between themselves after it is returned.

There is still another fact to be ascertained, and for that reason also the report should be recommitted. It appears that there is a small quantity of property which was not included ,n any of the bills of sale. It appears that an essential part of the sale consisted in fixing the price of what was sold, and *516stating that price in the bill of sale. Until that was done the property remained in the vendors, though the whole might be together when a formal delivery was made. The parties might have dispensed with a bill of sale, and an establishment of the price as to any specific part if they agreed to do so. But no such fact appears. A small quantity was overlooked by both parties. As this remained the property of Wonson & Brothers, it would pass to the assignee, and should be returned to the defendant to be delivered to the assignee after it shall have been found specifically what the property is. The remainder of the property replevied belongs to the plaintiffs.

There is yet another fact which should be stated in the auditor’s report, namely, the number of barrels of No. 1 mackerel which were sold to Garland. •

Exceptions sustained; report recommitted.