
14 U.S. 75 (1816)
1 Wheat. 75
THOMPSON
v.
GRAY.
Supreme Court of United States.
February 27, 1816.
*80 Jones, for the plaintiff in error.
Swann, contra.
*81 MARSHALL, Ch. J., delivered the opinion of the court, and, after stating the facts, proceeded as follows:
The question on which the correctness of the opinions given by the circuit court depends, is this: Was the purchase and sale of the twelve books not delivered, so complete, that the tickets had become the property, and were at the risk of Robert Gray?
*82 In pursuing this inquiry it becomes necessary to decide, whether the clause respecting security forms a condition precedent, on which the sale is made to depend, or a condition subsequent, the performance of which may be suspended until it shall be convenient to the vendee, or required by the vendor. It is apparent that a contract for the sale of 5,000 tickets was one of very considerable interest to the managers of the lottery. This is not only self evident from the nature of the transaction, but is also proved by the fact, that they changed the scheme of the lottery for the purpose of securing it. As the time of commencing the drawing must necessarily have depended on the sale of the tickets, it is reasonable to suppose, that, in the calculations made on this subject, they must have considered the books selected and set apart for Mr. Gray, either as sold or unsold. The endorsements on the books selected lead strongly to the opinion, that they were considered as sold. If the proposition which forms the basis of the contract be inspected, it will be perceived that the contract was intended to be entire, not divisible. The scheme of the lottery was changed, not for the purpose of inducing Gray and Milligan to take any number of tickets less than 5,000, but on their engaging to take 5,000 absolutely; and the clause respecting the security is annexed to the delivery of the tickets. The delivery of some of the books was an execution in part of an entire contract. All the circumstances show, that the obligation of the contract was complete: but the examination of these circumstances *83 is dispensed with by the admission on record, that it "became a binding contract between the parties."
What, then, was this binding contract?
That the scheme proposed by Milligan and Gray should be adopted, and certain facilities of payment allowed, on their bond to the company for tickets taken in the first class. That they should, on their part, take 2,500 tickets each in the second class, and that approved security should be given on their delivery. Certainly Milligan and Gray were absolutely bound to take 2,500 tickets each. A refusal to do so would have been a breach of contract, for which they would have been responsible in damages. When the parties proceed one step further; when the vendee, in execution of this contract, selects the number of tickets he has agreed to purchase, and the vendor assents to that selection; when they are separated from the mass of tickets, and those not actually delivered are set apart and marked as the property of the vendee; what, then, is the state of the contract? It certainly stands as if the selection had been previously made and inserted in the contract itself. An article purchased in general terms from many of the same description, if afterwards selected and set apart with the assent of the parties as the thing purchased, is as completely identified, and as completely sold, as if it had been selected previous to the sale, and specified in the contract. After this selection, the parties stood in the same relation to these tickets as if the 25 books, afterwards agreed upon, had been named in the contract as containing the numbers purchased by Gray. The *84 contract, then, amounts to this: The managers agree to sell Gray 2,500 tickets, which are specified, and he agrees to give approved security for the purchase money on the delivery; in the mean time the tickets remain in possession of the vendors, who proceed to draw the lottery, without having received or required security for the whole number of tickets sold. The stipulation respecting security could not in such a case be considered as a condition precedent, on the performance of which the sale depended. Certainly, the managers could have required, and have insisted on this security; but they might waive it, without dissolving the contract. They were, themselves, the judges, whether they would consider the contract of Robert Gray, with the collateral security furnished by the possession of the tickets, as sufficient for their protection; and their conduct shows that they thought it sufficient.
The majority of the court is of opinion, that the property in the tickets changed when the selection was made and assented to; and that they remained in possession of the vendors merely as collateral security. Had the tickets been all blanks, Gray was compellable to take them.
Judgment affirmed with costs.[d]
NOTES
[d]  When commodities are sold by the bulk, for a gross price, the sale is perfect, for it is known with certainty what is sold; but if the price is regulated at the rate of so much for every piece, pound, or measure, the sale is not perfect, except only as to so much as is actually counted, weighed, or measured; for, till then, it is not known with certainty what is sold. 3 Johns. Cas. 254. Coit v. Houston. Domat. l. 1. tit. 2. s. 4. art. 7. Code Napoleon, liv. 3. tit. 6. ch. 1. art. 1585. 2 Erskine's Inst. 480, 481. This distinction is recognized by Pothier, who remarks, that the contract of sale is usually perfected by the agreement as to the price; and, that this rule applies where the sale is of a specific article, for a gross price. Si id quod venierit appareat quid quale quantumve sit, & pretium, & pure venit; perfecta est emptio. l. 8. Dig. de peric. & comm. R. vend. But, if the commodity be of that description of articles, which consist in quantitate, and which are sold by the weight, number, or measure, the sale is imperfect until it is weighed, counted, or measured. In the first case, the goods sold are at the risk of the vendee, from the moment the contract is made: in the last case, they remain at the risk of the vendor, until they are designated by the act of weighing, counting, or measuring. But, in both cases, the contract is so far completed from the time of its being entered into, as to give the vendee a right of action for the delivery of the thing on tendering the price, and the vendor an action for the price, on tendering a delivery of the thing sold. Contrat de Vente, No. 308. See also 6 East, 625.
