A sale of a quantity of oats to be weighed out of a bin containing a larger quantity, accompanied by payment of the price, does not, before the quantity sold is separated from the bulk, give the vendee title upon which he can maintain trover against the vendor for a conversion of the quantity sold.
BLODGETT, J.
The plaintiff has mistaken his remedy. To sustain trover he must prove a general or special property in the oats, and a right to their immediate custody. The facts prove neither of these requisites, but disprove both. They show a breach of contract by the defendant, and nothing else. For this breach he is amenable, and for this only. The exception is overruled, and unless the plaintiff elects to amend, there will be.
Judgment for the defendant.
CARPENTER, J., did not sit: the others concurred.