Fiddyment

This is an appeal from a judgment and order denying defendants’ motion for a new trial.

On or about the fifteenth day of January, 1907, plaintiff sold or agreed to sell to defendants all the baled hay belonging to plaintiff situated in two certain barns, at an agreed price per ton. At the time of the agreement $400 was paid on the purchase, and thereafter, from time to time, as appellants sent their schooners for the hay, portions were delivered and subsequently paid for.

On the twenty-third day of March, however, a flood occurred, which ruined and damaged the balance of the hay as it remained in the barns, and the purchasers refusing to pay therefor, this action was brought to recover the' balance as upon a completed sale of hay.

The theory of plaintiff was and is that by the contract entered into the title to the hay passed to the purchasers, and that its subsequent loss before actual delivery and removal, occurring without the fault of the plaintiff, must be borne by the purchasers.

The principal and really only point to be determined upon this appeal is as to whether or not the evidence supports the finding that title to the hay passed from the seller to the buyers at the…