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J. L. & W. G. BROWNING v. HAMILTON, use of STEWART
BYRD, J.
1. The authorities are nearly uniform in holding that the legal title to personalty does not pass by • a contract of sale where the identity of the property con
[486] tracted to be sold is not ascertained by the contract, nor capable of identification by parol evidence.
If the property, the subject of the sale, is an undivided part of a species which is capable of separation, its identification is not such as the law requires in order to transfer the legal title by a sale. Until it is separated from the bulk, the title remains with the seller; and if lost, as a general rule, he must bear the loss; but when separated^ the title passes, unless there is some stipulation which prevents ; and if lost, though the possession is with the seller, the loss falls on the buyer, unless the loss is occasioned by some illegal act or omission of the seller.
The doctrine above stated is maintainable upon reason and authority. — (Screws v. Roach, 32 Ala. 575; Wallace v. Breeds, 13 East, 522; Austin v. Craven, 4 Taunt. 644; 1 Par. on Con., § 441, et seq.)
In the case before us the contract and evidence do not so identify the thirty bales of cotton or the fifteen thous- and pounds sold, as to transfer the title to the appellee. And in the absence of such identification, the action of trover can not be sustained, and the purchaser must resort to an action on the contract for redress.
As the other questions raised in the bill of exceptions are not likely to be presented in the same form on another trial, in this or a different suit, if one is brought, it is unnecessary to express any opinion upon them. — Bell’s Adm’r v. Nickols, 38 Ala. 678.
Reversed and remanded.