I THE LAW OP SALES OF PERSONAL PROPERTY. THE LAW OF SALES OF PERSONAL PROPERTY AS NOW ESTABLISHED IN THE UNITED STATES AND GREAT BRITAIN. BY NATHAN NEW, OF THE SAN SAN FBANCISCOt BANCROFT-WHITNEY CO. LAW PUBLISHERS AND LAW BOOKSELLERS. 1887. v\ k COPYRIGHT, 1887. BY NATHAN NEWMABK PRE F ACE THIS work is offered to the profession as the result of an attempt to make a concise, complete, and conven- ient presentation of the intricate and expanding law relating to Sales of Personal Property. The aim of the writer is to exhibit, within a small compass, in a sug- gestive manner, which may be serviceable to the active practitioner, as well as to the student and investigator, the sum and substance of the present law of the sub- ject stated, as it is determined by English and American courts and developed in legal dictionaries, phrase- books, or commentaries, in treatises, monographs, or essays dealing wholly or partly with this subject or with cognate topics, in leading and recent cases, and in other decisions incorporated as being of special interest or illustrative force. The arrangement adopted will be seen to deal, first, with the formation, effect, and performance of the con- tract, and with its features as established at common law and under the statute of frauds ; then with direct and collateral stipulations connected with the contract, and with the grounds which render the contract liable to defeat and avoidance ; and finally, with the remedies of the parties for a breach of the contract. Special con- sideration has been given to the particular topics, some- times made the subject of extended investigation, of transactions resembling sales, executory sales in all their Vl PREFACE. phases, transfer of title, bona fide purchasers, mistake, failure of consideration, warranty, and the seller's spe- cial remedies against the goods. It is hoped that the mode of arrangement, the use of various devices of type, and the fullness of the index will render the matter readily accessible, and the work in every way suitable for immediate consultation at court or in the office. NATHAN NEWMARK. SAN FRANCISCO, October, 1887. CONTENTS. CHAPTER I. NATURE. 1. Definitions. 2. Scope of term. 2 3. Elements of contract. 4. Consideration. 5. Transfer of title. \ 6. Classification of sales. CHAPTER II. SIMILAR TRANSACTIONS. 7. Sale or assignment. 8. Sale or preliminary negotiation. g 9. Sale or executory agreement. 10. Sale or gift. g 11. Sale or exchange. 12. Difference in remedies. 13. Sale of liquor by club. \ 14. Sale or bailment. \ 15. Arrangements with millers. 16. Deposits in grain elevators. 17. Delivery for resale. # 18. Delivery to manufacturer. 19. Delivery under conditional sales. g 20. Privilege of purchase. 2 21. Privilege of return. ? 22. Sale or lease. g 23. Sale or pledge. 24. Sale or mortgage. 25. Sale or consignment. 26. Remedies in such transactions. \ 27. Sale or payment. 2 28. Further distinctions. viii CONTENTS. CHAPTER III. CONSENT. ? 29. In general, \ 30. When lacking. \ 31. Parties consenting. ? 32. Offer to sell. g 33. Correspondence of acceptance with offer. \ 34. Applications of requirement. \ 35. Time for accep, ta*ice. 36. Limiting time for acceptance. \ 37. Modes of acceptance. \ 38. Acceptance by acts. Contract by letter. Construction of correspondence. Preliminary negotiation or final agreement. Reduction to writing, etc. Contract by telegraph. Implied sales. CHAPTER IV. PARTIES. In general. Insane and incompetent persons. Intoxicated persons. i Infant's sales and purch^jpes. " Infant's necessaries. Express contract for necessaries. !ng purchases of infants. ;representation of age by infant, itification after majority. \ 54. Disaffirming transaction. 1 55. Married women at common law. 2 56. In equity. 5 57. Under statutes. 'i 5<\ Sole traders by custom. g 59. Separate trading under special enactments. CONTENTS. g 116. Requisites to transfer of title. g 117. Need of delivery. g 118. Need of assent. g 119. Unfinished chattel. g 120. Ship-building contracts. g 121. Payment of instalments of price. g 122. Unattached materials. g 123. Title to chattels not finished. g 124. Title to unfinished vessels. ny JJf ^ vv ^ CHAPTER APPROPRIATION. g 125. Appropriation in generaL g 126. Scope of term. g 127. Acts of appropriation. g 128. Appropriation by seller. g 129. Determining election. g 130. Assent to appropriation. g 131. Acts of assent. g 132. Restricted appropriation, etc. g 133. Conformity to contract. g 134. Excess in quantity of goods. g 135. Substitution of other goods. g 136. Delivery as showing appropriation, etc. g 137. Delivery to carrier. g 138. Delivery " free on board." g 139. Dispatching" goods. g 140. Handing over documents. g 141. Accepting or discounting bill of exchange. CHAPTER XII. RESERVATION OP CONTROL. g 142. In general. g 143. Evidence of intention. g 144. Passing of title to buyer. g 145. Rights of seller's transferee. g 146. Effect of delivery to carrier. g 147. Bill of lading to seller's order. g 148. Delivery on board buyer's vessel. Xii CONTENTS. $ 149. Disposition of bill of exchange. 2 150. Transmission to buyer of indorsed bill of lading. 2 151. Transmission to secure advances. 2 152. Seller's transmission to agent of bill of lading, etc. CHAPTER XIII. TRANSFER OF TITLE. 2 153. In general 5 154. Contract or conveyance. 155. Intention to pass title. \ 156. Intention governs. 2 157. Sufficiency of intention. 2 158. Without payment or delivery 2 159. Right of possession. g 160. Change of risk. 2 161. Title and risk. 2 162. Assumption of risk. 2 163. Stipulations concerning risk, delivery, and payment. 2 164. Title to undelivered chattel. 2 165. Delivery sufficient to pass title. 2 166. Delivery as prerequisite to transfer of title. 2 167. When delivery not such prerequisite. 2 168. Estoppel of seller, 2 169. Estoppel of warehouseman, etc. CHAPTER XIV. BONA FIDE PURCHASERS. 2 170. General doctrines. 2 171. Title only from owner, etc. 1 172. Goods in another's wrongful possession. 2 173. Judicial sales, $ 174. Apparent exceptions. 175. Ostensible ownership or authority. 3 176. Purchase of stolen goods. \ 177. Liability of agent or bailee. 2 178. Markets overt g 179. Extent of exemption. $ 180. Not recognized in this country. $ 181. Lost chattels. CONTENTS. Xlll g 182. Sales by trespassers. g 183. Illegal levy and sale. g 184. Unauthorized sales by bailees. g 185. Transfers of unforf eited pledges. g 186. Sales of forfeited pledges. g 187 Delivery of goods for sale. g 188. Transfer by factor. g 189. Purchase generally from one lacking title g 190. State of title governs. g 191. Demand. g 192. Purchase from one having a voidable or defeasible title. g 193. Sale with condition subsequent. g 194. Sale with condition precedent. g 195. Delivery as waiver of condition. g 196. Seller's possession, g 197. Transfers by fraudulent vendees. g 198. Superior equity of innocent purchaser. g 199. Estoppel of owner g 200. Voidable or defeasible title. g 201. Title of innocent purchaser. g 202. Title of fraudulent vendee. g 203. Statements of doctrine. g 204. Prevalence of exemption. g 205. Limitations upon exemption. g 206. Obtaining goods by false pretenses. CHAPTER XV. s FACTORS' ACTS. g 207. Factors' acts in general. g 208. Occupations covered. g 209. Intrusting goods or documents. g 210. Apparent ownership or authority. CHAPTER XVI. / DOCUMENTS OF TITLE. g 211. Signification, g 212. Bills of lading, g 213. Nature and effect, g 214. Shipping receipts, g 215. Estoppel of ship-owners. NEWMARK SALES. a. CONTENTS. 2 216. Warehouse receipts. 2 217. Documents of title. 2 218. Statutory scope of term. 2 219. Delivery orders. 2 220. Dock warrants, etc. CHAPTER XVH. DELIVERY. 2 221. Scope of term. 2 222. Actual and constructive delivery. 2 223. Seller's custody. 2 224. Transfer of title without delivery. 2 225. Delivery and payment concurrent. 2 226. Credit sale. 2 227. Delivery under expectation of payment. 2 228. Duty to deliver. 2 229. Place of delivery. 2 230. Designation of place of delivery. 2 231. Time of delivery. 232. Reasonable time. 2 233. Divisions of time. 2 234. Computation of time. 2 235. Quantity delivered. 2 236. Contract for indefinite quantity. 2 237. Partial delivery. 2 238. Delivery by instalments. 2 239. Mode of making. 2 240. Symbolical delivers 2 241. Constructive delivery. 2 242. Delivery of bill of sale, etc. 2 243. Delivery of bills of lading. 2 244. Delivery of warehouse receipts. 2 245. Excuses for failure to deliver, etc. 2 246. Relation to third parties. 2 247. Sufficiency of delivery against creditors. 2 248. Delivery to carrier. 2 249. Seller's duties concerning such delivery 2 250. Directions concerning transportation. 2 251. Delivery to warehouseman. 2 252. Inspection and acceptance. 2 253. Delivery to pass title. 2 254. Various points concerning delivery. CONTENTS. XV CHAPTER XVIIL ACCEPTANCE. 255. Buyer's duties in general. 256. retching goods. 2 257. Acceptance in general. \ 258. Distinguished from receipt. \ 259. Receiving or taking possession. I 260. Right of inspection. \ 261. What constitutes acceptance. g 262. Right of rejection. 1 263. Buyer's course on rejection. 264. Seller's waiver of notice, etc. 265. Buyer's waiver of objections. 266. Divergence in quality, etc. \ 267. Where delivery by instalments. 2 268. Article to be satisfactory, etc. CHAPTER XIX. PAYMENT. 2 269. Payment in general. \ 270. Payment In cash. 271. Payment in negotiable paper. 2 272. Credit sales. ? 273. Mode of making. CHAPTER XX. j/ STATUTE OF FRAUDS. 274. In general. \ 275. Contracts covered. I 276. Things attached to the soil. 1 277. Incorporeal personalty. 278. Prescribed amount. 279. Earnest or part payment. 2 280. Delivery. \ 281. Acceptance and receipt. I 282. Acceptance. g 283. What constitutes acceptance. XVi CONTENTS. g 284. Actual receipt. 2S5. Intervention of carriers. 286. Memorandum in general. \ 287. Form of memorandum. \ 288. Contents of memorandum. 289. Parol evidence concerning memorandum. 1 290. Modification of original bargain. 291. Signature to memorandum. \ 292. Compliance by agents. 2 293. Broker's memorandum. CHAPTER XXI. CONDITIONAL SALES. 294. Conditions in general. 295. Conditions in sales. 2 296. Impossibility of performance. 297. Stipulations concerning time and place of performance. \ 298. Notice. \ 299. Payment as condition precedent. g .300. Conditions sustained despite delivery. 301. Bights of creditors and purchasers. 302. Waiver, estoppel, etc. 303. Waiver by delivery. 304. Seller's delay, etc. 305. Resumption of possession. g 306. Sales on instalment plan. 307. Various conditions. 308. Sales " on trial." 309. Right to return goods. 310. Sale or return. 311. Sale of goods " to arrive." $ 312. Sake by sample or description. \ 313. Genuine character of securities. g 314. Failure to furnish stipulated securities. \ 315. In general. \ 316. Kinds. CHAPTER XXII. WARRANTY IN GENERAL. CONTENTS. XVil 2 317. Form and requisites. 2 318. Expressions of opinion, etc. 2 319. Warranties by agents. 2 320. Patent defects. 2 321. Soundness or other qualities of animals 2 322. Qualified or conditional warranty. 2 323. Notice of defects. CHAPTER XXIII. j^ WARRANTY OF TITLE. \ 324. In general. 2 325. Transfer of interest, etc. 2 326. Transfer of incorporeal personalty. 2 327, General doctrines. 2 328. Seller's possession. 2 329 Breach by dispossession, etc. I 330. Existence and removal of encumbrances. CHAPTER XXIY. v WARRANTY OF QUALITY. 2 331. Caveat emptor. \ 332. Opportunity for inspection. & 333. Implied warranty of quality. CHAPTER XXV. SALES BY SAMPLE. 334. Exhibition of sample. 2 335. Opportunity to examine bulk. 336. Scope of warranty or undertaking. 2 337. Conclusiveness of acceptance. 338. Finality of inspection. 2 339. Liability of manufacturer. 340. Buyer's remedies. xviii CONTENTS. CHAPTER XXVI. SALES BY DESCRIPTION. 341. Seller's liability. \ 342. Undertaking as condition or warranty. ? 343. Remedies as affecting construction. \ 844. Liability of manufacturer. \ 345. Words of description. CHAPTER XXVII. ^ WARRANTY OF FITNESS, ETC. \ 346. Fitness for particular purpose. \ 347. Merchantable character. 348. Warranty on sale of provisions. CHAPTER XXVIII. ^^ LATENT DEFECTS. 5 349. Latent defects in general. \ 350. Seller's knowledge or fault lacking. CHAPTER XXIX. ^REMEDIES FOR BREACH OF WARRANTY. 351. In general. 352. Return of goods. g 353. Damages. CHAPTER XXX. 354. Fraud in general. 355. Fraud on buyer and caveat emptor. 356. Reliance upon seller's representations. 357. What constitutes seller's fraud. CONTENTS. xix 358. Buyer's remedies for fraud. 359. Fraud on seller. 360. Buyer's fraudulent devices. 361. Fraud upon creditors. CHAPTER XXXI. ILLEGAL SALES. 362. In general. \ 363. Knowledge of guilty purpose. \ 364. Insufficiency of mere knowledge. \ 365. Participation and aiding. 366. Executory and executed contracts. $ 367. Sales illegal at common law. \ 368. Violation of public policy. \ 369. Wagering contracts. 370. Concerning public offices and officers. 371. Concerning litigation. \ 372. Restraint of trade. 2 373. Transfer of good-will. \ 374. Violation of statutes. 375. Sales of intoxicating liquors. \ 376. Sunday sales. CHAPTER XXXII. MISTAKE. \ 377. Concerning terms of contract. \ 378. Touching essence of contract. \ 379. As to subject-matter. | 380. Concerning identity of article. ? 381. Concerning price. g 382. Concerning quantity. \ 383. Concerning quality. \ 384. Concerning person. \ 385. Remedies of parties. CONTENTS. CHAPTER XXXIII. FAILURE OF CONSIDERATION. 2 386. What constitutes. 2 337. Worthlessness of article. 2 388. Valueless obligation. 2 389. Partial failure of consideration. 2 390. Remedy for such failure. CHAPTER XXXIV. , . SELLER'S REMEDIES. 2 391. In general. I 392. Damages for non-acceptance. I 393. Notice not to manufacture. 1 394. Forms of action. 2 395. Waiting for expiration of credit. 2 396. Remedies against the goods. CHAPTER XXXV. x BUYER'S REMEDIES. 2 397. In general. 2 398. Damages for failure to deliver. 2 399. Restrictions on recovery. 2 400. Suit for failure to deliver. 2 401. Where title in buyer. 2 402. Delay in delivery. \ 403. Divergence of goods from contract. CHAPTER XXXVI. RESALE. g 404. Right of resale. 2 405. Mode of resale. 2 406. Recovery after resale. CONTENTS. CHAPTER XXXVII. ^^ SELLEK'S LIEN. 407. In general. 1 40Q* "^ lthholdi1 ^ or countermanding delivery. 409. Giving credit. 2 410. Sub-sale and estoppel. CHAPTER XXXVIII. > STOPPAGE IN TRANSIT!!. 411. In general. 412. Buyer's insolvency. 2 413. Duration of transit. 2 414. Capacity of middleman. | 415. Delivery terminating transit. 416. By whom right exercised. 2 417. Mode of exercising right 2 418. Mode of defeating right. ' THE CHAPTER I. NATURE. 1. Definitions. 2. Scope of term. 3. Elements of contract. \ 4. Consideration. 5. Transfer of title. \ 6. Classification of sales. 1, Definitions. Of general character. Sale is said to be a word of precise legal import, which means at all times a contract between parties to give and to pass rights of property for money, which the buyer pays or prom- ises to pay for the thing bought and sold. 1 It is also de- scribed as an agreement by which one of the contracting parties, called the seller, gives a thing and passes title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or purchaser, and who, on his part, agrees to pay such price. 2 By text-writers and commentators. The leading text- writers define sale as a transfer of the absolute or general property in a thing for a price in money, 3 and as a transfer of the absolute title to property for a certain agreed price. 4 And the legal commentators define sale as a transmutation of property from one man to another in consideration of some price, 5 or as a contract for the transfer of property from one person to another for a valuable consideration. 6 NEWMABK SALES. -1. 1 XATUKE. 2 Defects of ordinary definitions. But the ordinary defi- nition, of a sale, as a transmutation of property from one person to another for a price, does not fully express all the essential elements of the contract. 7 A more com- plete enumeration of these would be, competent parties to enter into a contract, an agreement to sell, and the mutual assent of the parties to the subject-matter of the sale and the price to be paid therefor. 8 Words constituting sale of a chattel. Independently of the statute of frauds, any words importing a bargain, whereby the owner of a chattel signifies his willingness and consent to sell it, and whereby any other person signifies his willingness and consent to buy it, in prcBsenti, for a specified price, would be a sale and transfer of the right to the chattel. 9 1 Williamson v. Berry, 8 How. 495, 544. And see Hutrnacher r. Harris, 33 Pa. St. 491, 498 ; Bigley v. Risher, 63 Pa. St. 152, 155 ; Maeka- ness v. Long, 85 Pa. St. 158 ; Edwards v. Cottrell, 43 Iowa, U*4, 204. Various interpretations of word collected : 2 Abbott's Law Diet. 442, 443. A disposition of public lands in satisfaction of military land warrants is not a sale entitling a State to percentage under its act of admission : Five Per Cent Cases, 110 U. S. 471, 479. 2 Eldridge v. Kuehl, 27 Iowa, 160, 173 ; 2 Bouvier Law Diet. tit. Sale (15th ed.) 606 ; Winfield's Words, etc. 547. And see Madison Avenue etc. Church v. Baptist Church, 46 N. Y. 131, 139. The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself : La. Civ. Code, art. 2439 ; Stims. Am. Stat. Law, g 4560. 3 Benjamin on Sales, 1 ; Wittowsky r. Wasson, 71 1ST. C. 451. See Landreth Sale, 12. And compare Campb. Sales, 1. 4 Story on Sales, 1 ; Creveling r. Wood, 95 Pa. St. 152, 158. See 2 Schouler on Personal Property, \ 200. But compare 2 Abbott's Law Diet. tit. Sale, p. 441. 5 2 Blackst. Com. 446. Or recompense in value: Parker r. Don- aldson, 2 Watts & S. 19. Accompanied in the case of goods and chattels, whenever it is practicable, with a deliver}' of the article to the purchaser: Patten v. Smith, 5 Conn. 196. Compare Hilliard on Sales, \ 1 ; Long on Sales, 1. 6 2 Kent Com. 468. See Madison Ave. etc. Church v. Baptist Church, 46 N. Y. 131, 139 ; Five Per Cent Cases, 110 U.'S. 471, 478, 4SS. 7 Gardnerv. Lane, 12 Allen, 39,43. See 2 Abbott's Law Diet. 442. 8 Gardner v Lane, 12 Allen, 39, 43. If any of these ingredients be wanting, there is no sale : Atkinson on Sales, 5. See Wlnfleld's Words, etc. 547 ; 2 Abbott's Law Diet. 442. , 9 De Fonclear v. Shottenkirk, 3 Johns. 170, 174 ; Fancher v. Good- man, 29 Barb. 315, 318. 2. Scope of term. Technical limitation to person- alty. The term u sales" is at the present time, as a general rule, technically limited in its application to personal property, while the corresponding transfers of real property are usually treated under the title of " vendors and purchasers." 1 As contract for transfer. But it has been suggested upon a critical survey of the various definitions of sale, that the view which seems to reconcile all the uses of the word "sale," as in the expressions " conditional sales," 'executory sales," etc., most satifactorily, is to regard sale as a contract or agreement for transferring owner- ship, 2 and not as the very transfer itself. 3 It may then be properly applied to lands and rights in action as it daily is, as well as to chattels.* As transfer of interest. In a comprehensive sense, a sale is a parting with one's interest in a thing for a valuable consideration. 5 But such a transfer is more generally termed an assignment. 6 Usual meaning. A very complete definition of sales in their, usual aspects is found in the statement that by the term "sale" is meant the transfer of the property in a thing, whether real or personal, for a price in money, and not in goods or other property. 7 1 Rehouler on Personal Property, 199. And see Pomeroy's Article, 4 Johns. Cycl. 1640. 2 See Oranam -s Blacfeb. Sales, Introd. ix. Consult Landreth Sale, 11. And com oare CaniDb. Sales, 2. 3 Abbotts Law Diet. tit. Sale, p. 442. The term "sales" in its largest sense, may include every agreement for the transferring of ownership, whether immediate or to be completed afterwards : Cun- ningham v. Ashbrook, 20 Mo. 553, 556. 4 1 Abbott's Law Diet. tit. Sale, p. 442. And there may thus be a Justifiable division of sales into those which are executed, either by operation of law upon the contract, or by after acts, and those which are executory, or yet to be carried into effect by conveyance, assign- ment, or delivery: 2 Abbott's Law Diet. tit. Sale, p. 442. By the Roman law, a sale was not an immediate transmutation of property, but a contract of mutual and personal engagements for the trans- ference of the thing on the one hand, and the payment of the price on the other, without regard to the time of performance ou either $$ 3-4 NATURE. 4 part, that being left to be regulated by the agreement of the parties : Bell on Sale, 9 ; Cunningham v. Ashbrook, 20 Mo. ,533, 557. The seller was bound to deliver the thing in property to the buyer at the time agreed on, and the buyer to pay the price in the manner settled between them : Cunningham v. Ashbrook, 20 Mo. 553, 5w. And see Story on Sales, 2, et seq. But compare Benjamin on Sales, 2 405, et seq. ; 2 Schouler on Personal Property, \ 237. 5 Western Mass. Ins. Co. v. Hiker, 10 Mich. 281 ; Winfield's Words etc. 547. It is a contract by which for a pecuniary consideration called a price, one transfers to another an interest in property : Cnl. Civ. Code, 1721 ; Dak. Civ. Code, g 981 ; Stims. Am. Stat. Law, g 4560. 6 See \ 7, on SALK OB ASSIGNMENT. 7 Pomeroy's Article, 4 Johns. Cycl. 1646. 3. Elements of contract. Enumeration of. Three particulars are included in a valid sale, namely, a thing which is the subject of it, a price, and the consent of parties. 1 At common law. And al common law these were the only things essential to a valid sale of personal prop- erty, and their concurrence rendered the sale complete, so that the title passed without anything more. 2 Under civil law. So under the civil law, as followed in this country, throe circumstances concur to the per- fection of the contract, to wit, tho thing sold, the price, and the consent 3 1 Schermerhorn v. Talman, 14 X. Y. 93 117; Long on Sales, 3; Wlnfleld'a Words, etc. 5^3. If the subject of the sale have no exist- ence, actually or potentially, there can be no valid sale: Wlnfleld'a Words, etc. 548. Like effect : 2 Kent Com. 468. And compare Gard, H:T r. Lane, 12 Allen. 39, 43, ascited in g 1 ; Pomeroy's Article, 4 Johns. Cycl. 1646. 2 Cunningham v. Ashbrook, 53 Mo. 553, 556. And see 2 Blackst. Com. 448 : Bloxam v. Sanders, 4 Barn. & C. 941, 948. Delivery of the goods was not a necessary element in a sale, although it often be- comes important f >r other reasons, not concerning the transfer of title : See Pomeroy's Article, 4 Johns. Cycl. 1647. 3 Kleiupeter v. Harrison, 21 La. An. 196, 197 ; La. Civ. Code, art. 2439. And see Ga. Civ. Code, 2629. 4. Consideration. Valuable consideration. A sale is sometimes said to embrace every transfer for a valu- able consideration, 1 whether paid-in cash or other prop- erty. 2 And in a general and popular sense, the sale of an article signifies the transfer of property from one 5 NATURE. g 4 person to another for a consideration of value, without reference to the particular mode in which the consid- eration is paid. 3 Money price. But its technical and narrow sense is that of a transfer paid or agreed to be paid in money. 4 And ordinarily this is the distinction taken between a sale and a barter or exchange of goods for goods. 5 Estimation in money standard. Yet it is perhaps more accurately declared that a sale is a transfer of property for a fixed price in money, or its equivalent, 6 and the feature of estimation in a money standard is sometimes made the criterion to determine whether a transaction is a sale or an exchange. 7 In various aspects. The existence of a valuable con- sideration is also generally deemed to distinguish a sale from a gift, or voluntary transfer, without consid- eration. 8 A sale ex vi termini means a conveyance for a fair consideration. 9 And a power of attorney, under seal, irrevocable, and expressly stated to be for "value received," to transfer a registered bond, is prima facie a sale of the bond, for a present consideration, to the person in whose favor it was made, and relieves the transferrer from proving that he paid value therefor at the time of the transfer. 10 A delivery of articles, in con- sideration of being paid what they are worth, consti- tutes a sale. 11 1 See 2 Kent Com. 468. 2 Madison Ave. etc. Church v. Baptist Church, 46 N. Y. 131, 140 ; S. C. 11 Abb. Pr. N. S. 132, 140. 3 Howard v. Harris, 8 Allen, 297, 299. And it is laid down that where goods are delivered upon a contract for a valuable consider- ation, whether in money or money's worth, then the property passes, and there is a sale and not a bailment: South Aust. Ins. Co. v. Kandell, Law K. 3 P. C. 101. 4 Howard v. Harris, 8 Allen, 297, 299. And see Commonw. v. Davis, 12 Bush, 240, 241. 5 See Commonw. v. Clark, 14 Gray, 367, 372 ; Mitchell v. Gile, 12 N. H. 390, 395 ; 2 Blackst. Com. 446. 6 Five Per Cent Cases, 110 U. S. 471, 478. 7 See Gunter v. Lecky, 30 Ala. 591, 596 ; Picard v. McCormick, 11 Mich. 68, 77. 8 See Gray v. Burton, 55 N. Y. 68,72. 9 Laird v. Scott, 5 Heisk. 348 ; Winfield's Words, etc. 547. 10 Pennsylvania Company's Appeal, 86 Pa. St. 102, 106. 11 Hill v. Hill, Coxe, 261 ; 1 Am. Dec. 206. 5, Transfer of title, As feature of sale. A sale viewed in regard to its effect is a contract between two parties, one of whom acquires thereby a property in the thing sold, and the other parts with it for a valu- able consideration. 1 In the legal import of the word, it implies the transferring of property 2 from the seller to the buyer for a price, 3 and includes not only the idea of divesting the seller of the title, but also of vesting it in the buyer. 4 Immediate or postponed. There must be an immedi- ate transfer of tho title to constitute a present sale or "bargain and sale" at common law, as distinguished from a mere agreement for a future sale or " executory agreement." 5 Thus, it is competent for the parties expressly to agree that the the title to the property shall not pass, except on the performance of a preced- ent or concurrent condition, in which case there will not be a complete sale, but an executory contract. 6 So when anything remains to be done in the way of specific- ally appropriating the goods sold to the contract, the agreement is executory, and the property does not pass. 7 Absolute or general. The fact that there must be a transfer of the absolute title or general property, to con- stitute a sale of personal property, distinguishes that contract from a bailment, in which there is, at most, a transfer of the special property. 8 1 Creveling v. Wood, 95 Pa. St. 152, 158 ; Story on Sales, \ 1 ; Win- field's Words, etc. 547. 2 Se Edwards v. Farmers' Ins. Co. 21 Wend. 404. Effect of sale under Roman, civil, and French law: Benjamin on Sales, \\ 401, 412 ; 2 Schouler on Personal Property, 237. Under Scotch law : McBaiu v. Wallace, 6 App. Cas. 608. 3 See definitions of sale in \ 1. 4 State v. Wentworth, 35 X. TT. 442, 443. In every sale there is a transfer or change of title from the vendor to the vendee, though there may be a transfer or change of title without a sale : Western, Mass. Ins. Co. v. Riker, 10 Mich. 279, 281. 5 See Newcomb v. Cabell, 10 Bush, 460, 468. A common-law sale Is strictly a transaction operating as a present transfer of ownership, and does not include executory contracts for the future sale and de- livery of personal property : Cunningham v. Ashbrook, 20 Mo. 553, 557. 6 See Morse v. Sherman, 106 Mass. 430, 434 ; Reed v. Upton, 10 Pick. 522, 524, 525. 7 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. And see Rid- dle v. Varnum, 20 Pick. 280, 283. 8 See Cobb v. Tufts, 2 Tex. Cond. Rep. (Civ. Gas.) 152. g 6. Classification of sales. Varying with point of view. Sales may be variously classified, according to the aspect from which the transfer is regarded. 1 Voluntary and forced. Thus, a voluntary sale is one made freely without constraint by the owner of the thing sold. 2 A forced or involuntary sale is one made without the consent of the owner of the property, 3 by some officer appointed by law, as by a marshal or heriff, in obedience to the mandate of a competent ribunal. 4 This kind of a sale is sometimes called a udicial sale ; 5 and the term may be extended to sales T executors or administrators, guardians and trustees. 6 Private and public. A private sale is one made volun- rily, and not by auction. 7 A public sale is one made auction to the highest bidder. 8 Executory and executed. There are executed or com- plete sales, whereby the property to the thing sold becomes vested in the buyer ; 9 and there are executory sales, or rather sales resting in executory agreement, in which the property has not yet passed from the seller, because something yet remains to be done to complete the sale. 10 Oral and written. Furthermore, sales may be oral or written (at least in outline), the latter being alone valid 6 NATURE. 8 or enforcible, by reason of the widely adopted statute of frauds, 11 for goods exceeding a prescribed value, in the absence of various acts of compliance deemed equiv- alent to written evidence of the contract. 12 Other divisions. So sales may be absolute, as where they are free from any qualification in their creation and completion, or conditional, 13 because depending foi their validity on the fulfillment of a contingency 01 condition ; u they may be legal, as conforming to the law, or illegal, as in contravention of good morals, public policy, or statutory enactments ; 15 they may be valid, as free from fraud, or impeachable for deception, conceal- ment, or misrepresentation ; 16 and the3 r may be with warranty, where the quality or title of the goods is guaranteed, or t*hey may lack such collateral stipula- tion. 17 Further divisions of contracts of sale, frequently noted, are into express and implied, the consent in the latter case being derived from acts and conduct rather than words ; 18 and into entire or indivisible and sever- able contracts, as in the case of instalment sales. 19 1 2 Schouler on Personal Property, \ 202. 2 2 Ronvi^r Law Diet. tit. Sale (15th ed.) GOfi. This is the common Case of sales, and to this class the general rules of the law of sales apply : 2Bouvier Law Diet, tit. Sale (loth ed.) 606. 3 S^e Peterson r. Hornblower, 33 Cal. 2P6, 276 ; Patterson ?'. Tay- lor, 15 Fla. 336, 341. But compare Lanahaii v. Sears, 102 U. S. 318. 4 2 Bonvier Law Diet. tit. Sale (15th ed.) 606. This sale has the effort to transfer all the rights the owner has in the property, but it dors not, like a voluntary sale, guarantee a title to the thing sold: 2 Bouvier Law Diet. tit. Sale (15th ed.) 606. 5 Definitions of judicial sale: Sturdevant v. Norris, 30 Iowa, 71 ; Williamson r. I>rry, 8 How. 547 ; Winfield's Words, etc. 342. See Lawsoii v. De Bolt, 78 Ind. 563, 564 ; 1 Abbott's Law Diet. 669. 6 2 Schouler on Personal Property, ? 203. As forced sales may cover not only sales on execution, in bankruptcy, etc., but perhaps also sales by creditors in their own behalf, as in the instance of a mortgagee with a power of sale: 2 Schouler on Personal Property, 7 2 BOUT. Law Diet. tit. Sale (15th ed.) 606. 8 2 Bonv. Law Diet. tit. Sale (15th ed.) 606. Auction sales some- times are voluntary, as when the owner chooses to sell his goods ia this way, and then as between the seller and the buyer the usual NATURE. 6 rules relating to sales apply ; or they are Involuntary or forced, when the same rules do not apply : 2 Bouvier Law Diet. tit. Sale (15th ed.) 606. 9 2 Schouler on Personal Property. 202. And see 2 Abbott's Law Diet. 441. A sale is also sometimes said to be executed when the contract is performed by the delivery of the thing and the payment of the price : See Story on Sales. 231. 10 2 Schouler on Personal Property, ? 203. And see 2 Abbott's Law Diet. 441 ; Reed v. Upton, 10 Pick. 522, 524. A sale is also said to be executory on one side when something remains to be done, not in the creation but in the performance of the contract, as delivery or payment: See Story on Sales, 236. 11 29 Car. ii ch. 3. See title in Bouvier Law Diet. (14th ed.) 614. 12 See chapters relating to STATUTE OF FRAUDS. Although at common law consent alone was sufficient to constitute a valid sale, the statute of frauds has now intervened, and other formalities are prescribed to make the transfer valid : Cunningham v. Ashbrook, 20 Mo. 553, 558. 13 See 1 Abbott's Law Diet. ?62. 14 2 Bouvier Law Diet. tit. Sale (15th ed.) 606. See Copland v. Bosquet, 4 Wash. C. C. 588, 592 ; Bigelow v. Huntley, 8 Vt. 151, 154 ; 2 Schouler on Personal Property, # 202 ; Story on Sales, \ 246. 15 See chapter on ILLEGAL SALES. 16 See chapter on FRAUDULENT SALES. 17 See chapter on WARRANTY. 18 See Story on Sales, 229. 19 See Story on Sales, \ 240. So a sale may be for cash or on credit according as pavment of the price is to be immediately made or postponed to a future time : See Anstedt v. Sutter, 30 111. 1(54, 166 ; Turner v. Moore, 58 Vt. 455, 456, 3 Atl. Rep. 407. And there may be sales of specific things where the chattels are at once identified and appropriated to the contract, and sales of things not specific, or a sort of contract for the supply of chattels answering a particular description, but not yet identified and appropriated: 28ch.ouler on ^ersonal Property, g 202. 7 SIMILAR TRANSACTIONS. 10 CHAPTER II. SIMILAR TRANSACTIONS. 7. Sale or assignment. ? 8. Sale or preliminary negotiation. 9. Sale or executory agreement. g 10. Sale or gift 2 11. Sale or exchange. 12. Difference in remedies. \ 13. Sale of liquor by club. \ 14. Sale or bailment. \ 15. Arrangements with millers. 16. Deposits in grain elevators. 2 17. Delivery for resale. g 18. Delivery to manufacturer. ? 19. Delivery under conditional sales. \ 20. Privilege of purchase. 2 21. Privilege of return. \ 22. Sale or lease. \ 23. Sale or pledge. 24. Sale or mortgage. \ 2"). Sale or consignment. 26. Remedies in such transactions. 27. Sale or payment. \ 28. Further distinctions. 7, Sale or assignment. Transfer of any kind of property or interest. The idea of an assignment is essentially that of a transfer by one existing party to another of some species of property or valuable interest. 1 In common parlance this word signifies the transfer of all kinds of property, real, personal, and mixed, and whether the same be in possession or in action, as a general assignment. 2 Transfer of interest in land. In a more technical sense, it is usually applied to the transfer of a term of years, though it is more comprehensively used to signify a transfer of some particular estate or interest in land. 3 11 SIMILAR TRANSACTIONS. 8 Transfer of goods and chattels. And where an article of merchandise or a personal chattel is the subject of assignment, the act is more commonly termed a sale. 4 transfer of chose in action, etc. But in a narrower sense, and in regard particularly to other property than real estate, the term "assignment" is often confined in its application to a transfer of a chose in action or other species of incorporeal personal property. 5 Sale or assignment for benefit of creditors. The general difference between a sale and an assignment for the benefit of creditors is stated to be, that in the former here is a fixed price, while in the latter there is a aere trust, and of course no fixed value given to the property. 6 1 Right ?'. Sackett, 34 N. Y. 451; Winfield's Words, etc. 50; 1 Ab- bott's Law Diet. 96. 2 Ball v. Chadwick, 46 111. 31. Common-law definition : Cowles v. Ricketts, 1 Iowa, 582, 585; 1 Bacon's Abridgment, 329; Chase v. "Walters, 28 Iowa, 460, 464. And see Perrins v. Little, 1 Green, 248 ; 'otter v. Holland, 4 Blatchf. 210. 3 Ball v. Chadwick, 46 111. 31 ; Winfield's Words, etc. 50. 4 Burrill on Assignments, g 1. And see 2 Steph. Com. (9th ed.) 45 ; ,'arter v. Jarvis, 9 Johns. 143. An assignment of goods at sea, and heir proceeds, is sufficient to pass a legal title to the proceeds: lodges v. Harris, 6 Pick. 360. 5 See Schouler on Personal Property, \\ 72-83 ; Burrill on Assign- nents, ? 4. Consult, also, Bump v. Van Orsdale, 11 Barb. 634. An greement to assign an insurance policy has been held not a contract f insurance, but of sale : Dodd v. Jones, 137 Mass. 322. 6 Keiler v. Tutt, 31 Mo. 301, 306. Further points of distinction: 'urrili on Assignments, \ 4. 8. Sale or preliminary negotiation. Distinction made. L sale is to be distinguished from a negotiation prelimi- ary to a contract, 1 as a mere proposition or offer to sell, 2 or a verbal promise to trade when the parties should neet, and then either to sell or buy. 3 Ground of distinction. For there may be propositions vhicli, when accepted or complied with, will ripen into e, or there may be agreements for a sale in the 9 SIMILAR TRANSACTIONS. 12 future ; 4 but these do not confer the rights or impose the obligations which arise from a contract of sale. 5 1 See Whitmore v. Alley, 46 Me. 428, 431. 2 Smith v. Weaver, 90 111. 392, 393. Offer : See chapter on CON- SEXT. 3 Whitmore v. Alley, 46 Me. 428, 431. Such a transaction does not amount to an executory contract : Whitmore v. Alley, 46 Me. 423, 431. 4 Or executory contracts of sale : See g 9, on SALE OR EXECUTORY AGREEMENT. 5 Leigh r. Mobile etc. R. R. Co. 58 Ala. 165, 174. Citing Parsons on Mercantile Law, 41 ; Chamberlin v. Smith, 44 Pa. St. 431. 9. Sale or executory agreement, Agreement to sell and buy, etc. In the phraseology of statutory enact- ments in some of the States, 1 an agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the sum from him, and to pay a price therefor. 2 Present or postponed transfer of title. And in general, the distinction between a present sale, 3 called a " bar- gain and sale," at common law, 4 and a mere engage- ment for a future sale, 5 or executory agreement, 6 is that in the former the title passes, and the sale is absolute and complete, 7 while in the latter the title does not pass, 8 except on the performance of a precedent or concurrent condition, 9 or so long as something remains to be done in the way of specifically appropriating the goods sold to the contract. 10 Difference in buyers remedies. The proposed buyer in the case of an executory agreement has a right to have the ownership of the thing contracted to be sold, but if that be wrongfully denied to him, he has his remedy only in damages. 11 But in an executed sale the buyer, though the goods are not yet delivered to him, takes all the responsibilities of ownership, and in case of destruction by fire or other casualty, the loss falls on him. 12 13 SIMILAR TRANSACTIONS. g 10 1 Stlms. Am. Stat. Law, 4561, p. 541. 2 Cal. Civ. Code, 1729 ; Dak. Civ. Code, ? 986. Agreement to sell defined : Cal. Civ. Code, \ 1727 ; Dak. Civ. Code, 984. Promise to sell In Louisiana: Knox v. Payne, 13 La. An. 361, .'{62. Agreement to buy defined : Cal. Civ. Code, g 1728 ; Dak. Civ. Code, 985. 3 See Martin v. Adams, 104 Mass. 262. 4 See McCrae v. Young, 43 Ala. 622, 625. 5 See Lounsdale v. Hunsaker, 2 Or. 101, 103. 6 See Cunningham v. Ashbrook, 20 Mo. 553, 557. 7 See Newcomb v. Cabell, 10 Bush, 460, 468. 8 The former passes the title in the subject of the sale in the pur- chaser, while the latter gives no title, but simply creates a right : Ponieroy's Article, 4 Johns. Cycl. 1647. See Morse v. Sherman, 106 Mass. 430, 434 ; Shields v. Pettee, 4 N. Y. 122, 124. And compare Knox v. Payne, 13 La. An. 361, 362. 10 See Merchants' Nat. Bank v. Bangs, 102 Mass. 201, 205 ; Cunning- ham v. Ashbrook, 20 Mo. 553, 556 ; also Riddle v. Varnum, 20 Pick. 280, 28:>. Distinction illustrated: Low v. Andrews, 1 Story, 38, 42. The thing sold must be specific or identified, and capable of delivery, otherwise the transaction is not strictly a contract of sale, but a spe- cial or executory agreement : 2 Kent Com. 468. 11 Pomeroy's Article, 4 Johns. Oycl. 1647. The same rule is appli- cable to the proposed seller should the expectant buyer refuse, with- out cause, to take the article at the stipulated time : Pomeroy's Article, 4 Johns. Cycl. 1647. See chapter on EXECUTORY SA.LKS. 12 Pomeroy's Article, 4 Johns. Cycl. 1647. While in the execu- tory contract" an ownership remains in the seller, he must bear all such losses : Pomeroy's Article, 4 Johns. Cycl. 1647. See chapter on EXECUTORY SALKS. \ 10. Sale or gift. General difference. A gift, as generally defined, differs from a sale in being a volun- tary transfer without consideration. 1 Delivery and acceptance of gift. Speaking compre- hensively, it requires for its completion, delivery and acceptance, or legally equivalent acts. 2 Agreement to pay. To make the delivery of goods a sale, however, there must be an agreement to pay, as otherwise it is a mere gratuity. 3 But an onerous gift is, when accepted, in the nature of a sale, if the burden it imposes is the payment of a sum of money. 4 1 See Gray v. Burton, 55 N. Y. 68, 72 ; Cal. Civ. Code, ? 1146 ; Dak. Civ. Code, \ 639. A gift differs from a contract in not being based upon a consideration, which is essential to give a contract validity : Art. Gift, 2 Johns. Cycl. 547. A gift actually conferred is, in effect, an executed contract, while one merely promised is an invalid execu- tory contract : Art. Gift, 2 Johns. Cycl. 547. See 2 Schouler on Per- sonal Property, U 56, 57. NEWMABK SALES. 2. 11 SIMILAR TRANSACTIONS. 14 2 See Stims. Am. Stat. Law, 2 4500 ; Chadsey v. Lewis, 1 Gilm. 153, 155. 3 Commonw. v. Packard, 5 Gray, 101, 103. 4 Bouvier Law Diet. tit. Sale (15th ed.) 606. g 11. Sale or exchange. Exchange and barter defined. Generally speaking, exchange is a contract by which the parties give one thing for another, whatever it be, except money. 1 And barter is said to be that species of contract in which merchandise is exchanged for merchandise. 2 Difference in mode of payment of consideration. A sale is declared to differ from a barter in this, that in the latter the consideration, instead of being paid in money, is paid in goods or merchandise susceptible of a valuation. 3 So the essential difference between a sale and an exchange is said to be this, that in the former the price is paid in money, whilst in the latter it is paid in goods by way of barter. 4 And where goods have been delivered by one party, and the other party agrees to deliver other goods of a similar quality, on demand, the transaction is held not a sale of the goods, but an agreement for an exchange. 5 Fixed price as criterion. A more accurate perception of the distinction between a sale and an exchange is shown, however, by the declaration that an agreed price is essential to a proper bargain and sale, but alto- gether needless in the case of an exchange ; 6 and when one piece of property is given for another without re- gard to value, that is an exchange. 7 But if property is taken at a fixed money price, the transfer amounts to a sale, whether the price is paid in cash or in goods. 8 Estimation by money standard. For it is immaterial whether there be a money payment or not, provided the bargain be made and the value be measured in money terms. 9 15 SIMILAR TRANSACTIONS. g 11 Goods to be paid for in goods at certain price. And where one parly sold and delivered to another dry goods, which the latter agreed to pay for in nails at a certain price, to be delivered on or before a future day specified, this was held a purchase of dry goods on credit, to be thereafter paid for in nails at a fixed price, and not a purchase of nails to be paid for in dry goods, nor even an exchange of dry goods for nails. 10 Money as part of consideration. So, when a thing has been exchanged for another thing and a sum of money, the contract is often regarded as a sale to the extent of the money consideration. 11 Thus, it is declared that when property is transferred at a fixed price agreed upon, and money and other property received in payment, the transaction will, in the absence of express evidence that an exchange only w r as intended, be deemed a sale rather than an exchange. 12 But a transaction is not a sale whereby the owner of a number of objects transfers them to another in consideration of the same number of like objects and a specified sum in money, where no price is attached, and no value measured in money terms. 13 1 See La. Civ. Code, art. 2660. And compare Cal. Civ. Code, ? 1807 ; Dakota Civ. Code, 1029. Mutual grant of equal interests: 2 Blackst. Com. 323 ; Wilcox v. Randall, 7 Barb. C33, 038. Preceded, buying, etc. : Anon, 3 Salk. 157. 2 1 Abbott's Law Diet. 457. 3 Com mon w. v. Davis, 12 Bush, 240, 241. A. barter is said to be always of goods for goods, while a sale is of goods for money, or for money and goods : 1 Bouvier Law Diet. (14th ed.) 191. Sale or barter of liquor for pool-checks: Massey v. The State, 74 Ind. 368. And compare Stevenson v. The State, 65 Ind. 40n. Of intoxicating liquor, election concerning : Ex parte Beaty, 1 S. W. Rep. (Tex.) 451. 4 Commonw. v. Clark, 14 Gray, 367, 372. And see Mitchell v, GUe, 12 X. H. 3S)0. 895 ; 2 Blackst. Com. 446. 5 Mitchell v. Gile, 12 N. H. 390, 395. 6 Loomis v. Wainwright, 21 Vt. 520. 7 Picard v. McCormick, 11 Mich. 68, 70. 8 Picard ?>. McCormick, 11 Mich. 68, 70. In a sale there is a fixed price, while in a barter there is not : 1 Bouvier Law Diet. (Hth ed.) IU1, 9 Gunter v. Lecky, 30 Ala. 591, 596. 12-13 SIMILAR TRANSACTIONS. 16 10 Herrick v. Carter, 56 Barb. 41, 44, 45. 11 See Furniss' Succession, 34 La. An. 1013; Porsyth v. Jervls, 1 Stark. 437, 439 ; Sheldon v. Cox, 3 Barn. & C. 420 ; Hands v. Burton, 9 East, 349, 350. 12 Loomis v. Wainwright, 21 Vt. 520. 13 Gunter v. Lecky, 30 Ala. 591, 597. 12. Difference in remedies. Averment of "sale" for " exchange." Strictly speaking, an averment of a con- tract of "sale" is not supported by proof of an "ex- change." 1 Common counts or special agreement. And there is this difference between the remedies for the breach of a contract of sale and one of exchange, that in the latter case, as generally held, the declaration cannot be framed under the common counts for goods sold and delivered, but must be based on the special agreement. 2 Equivalent other than money. So in general, where goods are sold to be paid for wholly or in part by goods, or by the other party's labor, or otherwise than in money, the action must be for a breach of the agree- ment, and not for goods sold and delivered. 3 1 Vail v. Strong, 10 Vt. 457, 465. 2 See Mitchell v. Gile, 12 X. H. 390, 391 ; Harrison ?. Luke, 14 Meea. & W. 139, Ml ; Reed r. Hutchinson, 3 Camp. 352, 353. But compare contra, Way ?>. Wakefleld. 7 Vt. 223; Wainwright v. Straw, 15 Vt, 215, 219 ; Kent v. Bowker, 38 Vt. 148, 150, 152. 3 Mitchell v. Gile, 12 N. H. 390, 392. And compare Keys r. Har- wood, 2 Com. B. 905, 907. But see Clark v. Fairfield, 22 Wend. 522 ; Kent v. Bowker, 38 Vt. 148, 150. $ 13. Sale of liquor by club, For consumption off the premises, etc. The sale of liquor by a club to its mem- bers 1 through a manager for consumption off the prem- ises, and at a profit turned into the common fund, is a transfer of property, but not a sale within the mean- ing of a statute prohibiting any person from selling intoxicating liquors by retail without a license. 2 Payment in checks, etc. Nor is there necessarily and as a matter of law an indictable sale of intoxicating 17 SIMILAR TRANSACTIONS. 14 liquors by the agent of a club to its members, irre- spective of the consideration whether the arrangement was colorable, and an evasion of the statute, where payment was made in five-cent checks, and the surplus liquor was the agent's recompense. 3 Counter views. But on the other hand, it is declared that since a man even at common law may sell to him- self and another, every element of a sale is present in the transaction, where the members of a club were with others permitted to take beer at its rooms on pre- senting a five-cent check for each glass. 4 1 See Commonw. v. Pomphret, 137 Mass. 504 ; 50 Am. Hep. 340. Subject discussed : 32 Am. Hep. 433 ; 22 Am. Law Keg. 102. 2 Graff v. Evans, L. R. 8 Q. B. D. 373 ; S. C. 22 Am. Law Reg. 99. 3 Commonw. v. Smith, 102 Mass. 144. And see Commonw. v. Pomphret, 137 Mass. 564 ; 50 Am. Rep. 340 ; Seim v. State, 55 Md. 56G ; 39 Am. Rep. 419. 4 U. S. v. Wittig, 2 Low. 466. And see Marmont v. State, 48 Ind. 21 ; Rickart v. People, 79 111. 85 ; State v. Mercer, 32 Iowa, 40.. 14. Sale or bailment. Transfer of special property. A transfer only of the special property and not of the general or absolute title is not a sale of the thing, 1 though it may be a bailment. 2 Restoration of identical or of equivalent thing. A recognized distinction between bailment and sale has been stated to be, that when the identical thing deliv- ered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed. 3 But when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, the title to the property is changed, and the transaction is a sale. 4 Applications of distinction. And this distinction has been applied, so as to make out a sale, to a warehouse- man's receipt for grain in store, with an agreement at a 15 SIMILAR TRANSACTIONS. 18 stipulated price, 5 and to a delivery of animals to be re- turned at a specified date " as good and in as good con- dition and age as when taken." 6 Delivery to agents, etc., and where title reserved. But the principle that a delivery of goods to one to be re- turned, or something else in their stead, at the option of the receiver, constitutes a sale, does not apply to an entrustment to agents and factors. 7 And the party receiving the property is a mere bailee, when by a writing given by him at the time, he admits that the title is in the party delivering it, and agrees that it shall so continue till the price is fully paid, and meanwhile to use the property in a particular way. 8 1 Cobb ?>. Tufts, 2 Tex. Cond. Kep. (Civ. Cas.) ? 152. And see Woods v. Half, 44 Tex. 633, 635. 2 See Boston etc. R. K. Co. v. Warrior Mower Co. 73 Me. 251, 230 ; Belden v. Perkins. 78 111. 449, 454 ; Whitaker v. Sunnier, 20 Pick. 399, 405. 3 Mallory v. Willis, 4 N. Y. 76, 85. And see other cases next cited. 4 Mallory v. Willis, 4 N. Y. 76, 85 ; Foster v. Pettihone. 7 N. Y. 433 ; 57 Am. Dec. 531. And see Lonergan v. Stewart, 55 III. 45, 49 ; 2 Kent Com. 589, 590; South Australian Ins. Co. v. Randall, Law R. 3 P. C. 101, 109, 113 ; Chase v. Washburn, 1 Ohio St. 244, 2-1') ; 53 Am. Dec. 623 ; Grier v. Stout, 2 111. App. G02, 606 ; Moore v. Holland, 33 Me. 307. 5 Grier v. Stout, 2 111. App. 602, 6C8. 6 Reed v. Abbey, 2 Thomp. & C. 380. And compare Bartlett v. Wheeler, 44 Barb. 162, 1G3 ; Grant v. Williams, 6 Jred. 3-11, 342. 7 Blood t. Palmer, 11 Me. 414, 420 ; 26 Am. Dec. 5-17, 550. 8 Crocker v. Gullifer, 44 Me. 491, 492, 404. \ 15. Arrangements with millers. Return of specified proportions of flour, etc. The transaction has usually been held a sale and not a bailment, where wheat is sent to a miller upon a contract not to return the iden- tical wheat or keep it separate from other wheat, but that the sender may have as much flour as it would make, or a specified proportion of flour for each bushel of wheat, or under some similar arrangement. 1 Corn to be used as part of current consumable stock, etc. So the transaction has been considered a sale and 19 SIMILAR TRANSACTIONS. 16 not a bailment, where corn was deposited by farmers with a miller, to be stored and used as part of the current consumable stock or capital of the miller's trade, subject to the right to claim at any time an equal quantity of corn of like quality, or the market price therefor, less charges, on the day of demand. 2 No right reserved to return or recall, etc. And an ar- rangement with a miller to deliver wheat to him, to be paid for on delivery, or at any subsequent time when payment shall be demanded, and with an understand- ing that the miller may use it in his milling business, is a sale absolute, if no right is reserved to recall or return it. 3 When mere bailment. But it has been held that a contract, whether verbal or written, between parties depositing wheat, and a miller and warehouseman agreeing to store it until a certain date, is not a mutuum or exchange, nor a sale of the wheat, but a bailment, pure and simple, when it was stipulated that the wheat might be sold at pleasure before that date, or that wheat would be returned if called for. 4 1 See Carlisle ?;. Wallace, 10 Ind. 252, 253 ; Smith v. Clark, 21 Wend. 83 ; 34 Am. Dec. 213, 214, 215 ; Norton v. Woodruff, 2 N. Y. 153, 156 ; Tilt v. Silverthorne, 11 Up. Can. Q. B. 619, 620. But compare Seymour v. Brown, 19 Johns. 44 ; Slaughter r. Green, 1 Rand. 3 ; 10 Am. Dec. 488 ; Foster v. Pettibone, 7 N. Y. 433 ; 57 Am. Dec. 530, 531 ; Mallory v, Willis, 4 N. Y. 76, 70 ; Inglebright v. Hammond, 19 Ohio, 337 ; 53 Am. Dec. 430 ; Chase v. Washburn. 1 Ohio St. 244, 251 ; 59 Am. Dec. 623 ; Stephenson v. Ranney, 2 Up. Can. C. P. 196. 2 South Australian Ins. Co. v. Randell, Law R. 3 P. C. 101,107; Fully noted : Rahilly v. Wilson, 3 Dill. 420, 427. But compare Isaac v. Andrews, 28 Up. Can. C. P. 40, 43. And see Benedict v. Ker, 29 Up. Can. C. P. 410, 412. 3 Jones v. Kemp, 49 Mich. 9, 10. 4 Schindler v. Westover, 99 Ind. 395, 400. Distinguished, Lyon n Lenon, 7 N. E. Rep. (Ind.) 311. Compare Andrews v. Richmond, 34 Hun, 20. Storage receipts: Ivesr. Hartley, 51 111. 520, 523. And s< Benedict v. Ker, 29 Up. Can. C. P. 410, 412. But compare Dean Lammers, 63 Wis. 331, 336 ; Bailey v. Bensley, 87 111. 556, 560. 16. Deposits in grain elevators. Conflicting lines of es. The rule followed by one line of cases with re- 16 SIMILAR TRANSACTIONS. 20 gard to deposits in warehouses and grain elevators, or similar receptacles, is that the dominion over the prop- erty passes to the depositary, and the transaction is a sale, not a bailment, 1 if the wheat be thrown into the common mass, with the understanding or agreement that the person receiving it may take from it at pleasure, and appropriate the wheat so taken to the use of him- self or others, on the condition of his procuring other wheat to supply its place. 2 On the other hand, the doc- trine of a different line of cases, as lately formulated, is that the contract is one of bailment and not of sale, where a warehouseman receives grain to be stored for the owner, and places it in a common bin with his own and that received from other depositors, and sells from this receptacle, but always reserves enough to answer the demand of each owner. 3 Intermediate view. The intermediate general propo- sition said to be asserted in some of the cases is that where grain is deposited with any person with the understanding that he may use it on his own account, and when the depositor desires to sell, that the other will pay the highest price, or return a like quantity or quality, in such cases the transaction, if not an imme- diate sale, is a sale at the option of the receiver. 4 Latest test suggested. And under the latest test sug- gested, the transaction is a bailment if the depositor, by his contract, can compel a delivery of grain, but is a sale if the dealer has an option to pay either in grain or in money; 5 and the dealer becomes the owner of the grain, and is liable to pay for it whenever called upon, if it is received under a contract, either express or im- plied, to pay the person delivering it the market price whenever he chooses to demand it, and is mixed with other grain of like quality, in bins, from which ship- ments are made daily, where there is no understanding 21 SIMILAR TRANSACTIONS. $ 17 that the owner shall have the right to demand either his own, or a like quantity of other grain in return. 6 1 See citations in next note. 2 Chase r. Washburn, 1 Ohio St. 244, 252 ; 59 Am. Dec. 623, 620. And see Lonergan v. Stewart, 55 111. 44, 47 ; Richardson v. Olmsteacl, 74 111. 213, 216 ; Johnston r>. Browne, '37 Iowa, 200 ; Fishback v. Van Dusen, 33 Minn. Ill ; Andrews v. Richmond, 34 Hun, 20, 24. 3 Rice v. Nixon, 97 Ind. 97 ; 49 Am. Rep. 730 : Battenberg v. Nixon, 97Ind. 106. And see Nelson v. Brown, 53 Iowa, 555 ; Sexton v. Graham, 53 Iowa, 181, 192. Compare Irons v. Kentner, 51 Iowa, 88 ; 33 Am. Rep. 119. Consult further 2 Kent Com. (12th ed.) 365, 396 ; 6 Am. Law Rev. 450 ; 19 Cent. L. J. 269. 4 Ledyard v. Hibbard, 48 Mich. 421, 426 ; 42 Am. Rep. 474. And see Nelson, v. Brown, 44 Iowa, 455. 5 Lyon v, Lenon, 7 N. E. Rep. (Ind.) 311 ; 22 The Reporter, 518. 6 Lyon v. Lenon, 7 N. E. Rep. (Ind.) 312 ; 22 The Reporter, 518. 17. Delivery for resale. Return of money or prop- erty. In a case where property was not taken on com- mission, or in any event to be returned, it was laid down that when property is sold and delivered to be paid for upon a resale, the purchaser must either return the money or the property, whatever may happen in the mean while. 1 And if the property is not returned in a reasonable time, a resale will be presumed. 2 The lapse of time in such cases does not act upon the char- acter of the original transactions, converting a bailment into a sale and transfer of title, 3 but upon the consider- ation, determining its maturity from a presumed resale within a reasonable time.* Action of accredited agent. There can be recovery, as upon an absolute sale of goods, where they were deliv- ered under an agreement to sell them as an accredited agent of a party, and to return those unsold at a certain time, but none were returned at or before that time. 5 Receipt or memorandum indicating sale. And a re- ceipt for fish, to be paid for when sold at a specified price, is evidence of a sale of the fish on the designated terms, and not of a bailment. 6 18 SIMILAR TRANSACTIONS. 22 Recipient becoming factor, etc. But the transaction has been held not a sale passing the title, but a mere bailment, where the arrangement was such that the party receiving the goods did not take them in his own right, but became the factor or agent of the party deliv- ering them. 7 1 Blow v. Spear, 43 Mo. 496, 498. 2 Blow v. Spear, 43 Mo. 496, 498. And see McArthur v. Wilder, 3 Barb. 66. 3 Transfer of title : See subsequent chapter of book. 4 Blow v. Spear, 43 Mo. 4CG, 498. 5 GriHn r. Keith, 1 Hilt. 58. Compare Marsh v. Wickham, 14 Johns. 107, 16J. 6 McArthur v . Wilder, 3 Barb. 66. A memorandum has also been held to import a sale of a number of shares cf s^oc'.:, whore it set forth the receipt thereof for a specified sum paid, upon an under- standing that the signer was to give the other party one half of whatever price the stock was sold for, o\ er and above the sum paid : Jones v. Kent, 45 X. Y. Sup. Ct. 66, 6J. 7 Blood 7\ Palmer, 11 Me. 414, 418 ; 26 Am. Dec. 547. And see Morss v. Stone, 5 Barb. 515, 518. \ 18. Delivery to manufacturer, Obligation to restore identical or equivalent things. Application has been made in a case where materials were delivered to a man- ufacturer, of the distinction between the obligation to restore the specific things, and the obligation to restore things of the like kind and value, 1 which is said to hold good in cases of hiring as well as in cases of deposits and gratuitous loans. 2 Transaction between merchant and tanner. And a transaction between a merchant and a tanner is a sale, so that the property may be seized in execution by the tanner's creditors, where hides are delivered by the merchant to the tanner under a contract that they are to be charged at cost and a certain commission, and interest after a specified period, and when tanned are to be returned to the party delivering them, who is to sell them, and a'ter deducting the cost, commission, and guaranty of solvency, to pay the balance to the tanner, 3 23 SIMILAR TRANSACTIONS. 19 Cloth left ivith tailor. So where one buys cloth at a sheriff's sale, and leaves it with a tailor, to be made up for the latter's own profit, he accounting to the pur- chaser only for the price of the cloth, it is a sale to such tailor at a certain stipulated price, 4 and not a hiring nor a loan, nor any other bailment or contract. 5 Contract with powder company. And a contract with a powder company has been construed to imply title in the manufacturer, where by such contract the company agrees to supply the inventor and patentee of an explo- sive compound called " dualin," with advances of cash and materials to be "charged to him" against manu- factured goods " consigned" to them for sale, and for which they desired to secure the exclusive selling agency, the principal design being expressed to be to control the demand for the "joint interest" of the parties. 6 1 Grier v. Stout, 2 III. App. 602, 606. 2 Grier v. Stout, 2 111. App. 602, 606. And see Chase v. Washburn, 1 Ohio St. 246, 249 ; 59 Am. Dec. 323 ; Story on Bailments, \ 439 ; Lon- ergan v. Stewart, 55 111. 44, 49 ; Holbrook v. Armstrong, 10 Me. 31, 34. 3 Jenkins v. Eichelberger, 4 Watts, 121 ; 28 Am. Dec. 691, 692. And Prichett v. Cook, 62 Pa. St. 193, 197 ; Butterfield v. Lathrop, 71 Pa. 225, 229, 230. Compare Johnson v. Ensign, 4 Atl. Rep. (Pa.) 37. Dick v. Lindsay, 2 Grant Cas. 431, 435, 436. Dick v. Lindsay, 2 Grant Cas. 431, 435, 436. 6 Dittmar v. Norman, 118 Mass. 319, 324. And see Powder Co. v. Burkhardt, 97 U. S. 110, 116, 120. Compare Wood v. Orsen, 25 N. Y. 348, 349 ; Smith v. James, 7 Cowen, 328, 330 ; Schenck v. S'aunders, 13 Gray, 37, 41 ; Mansfield v. Converse, 8 Allen, 182, 184. 3 see: 1 \ 19 . Delivery under conditional sale Pay men t as con- dition precedent. It is the general doctrine that where a sale is made, and possession delivered to the vendee upon the express condition that the title to the thing is to remain in the vendor until the purchase price be paid, such payment is strictly a condition precedent, 1 and until performance thereof, the sale is incomplete, and the right of property is not vested in the vendee. 2 Such 19 SIMILAR TRANSACTIONS. 24 a vendee is deemed only a bailee for a specific purpose, who has merely a bare right of possession, and having no title to the property can pass none to others. 3 Transferable interest, etc., under Pennsylvania doctrine. But in Pennsylvania, a delivery on a conditional sale, the property to remain in the vendor until the goods are paid for, with right to reclaim them, is void as respects the vendee's creditors, or an innocent pur- chaser from the vendee. 4 And it is there held that such an arrangement confers a transferable interest, and is something more than a bailment, since the title would pass the instant of payment. 5 The distinction drawn is between a present sale and delivery of personal prop- erty to the vendee, coupled with an agreement that the title shall not vest in the latter unless he pays the price agreed upon at the time appointed therefor, and that in default of such payment, the vendor may recover pos- session of the property, which transaction is a contract invalid as to creditors, 6 and a bailment for use, or as it is sometimes called, a lease of the property, 7 coupled with an agreement whereby the lessee may subse- quently become owner of the property upon payment of a price, which transaction is valid as against third parties as well as between those immediately concerned. 8 And it is laid down that whenever it appears from the contract between the parties that the owner of personal property has transferred the possession thereof to an- other, reserving to himself the naked title thereof, solely for the purpose of securing payment of the price agreed upon between them, the contract is necessarily a con- ditional sale, and not a bailment. 9 1 Cobb v. Tufts, 2 Tex. App. (Civ. Gas.) ? 152. 2 Cobb i'. Tufts, 2 Tex. App. (Civ. Gas.) 152. See Ridgway v. Kennedy, 5G Mo. -'4, 25 ; Hamvuy r. Wallace, 18 Ind. 377, 370; Hotch- kiss ?\ Hunt, 4!) Me. 213, 2ls ; Coggill v. Hartford etc. R. R. Co. 3 Gray, 5l'i. 54fi : S. C. Langdell's Cases on Sales, 713, 714 ; Ballard v. Burgett, 40 N. Y. 314, 315 ; S. C. Langdeil's Cases on Sales, 730. 25 SIMILAR TRANSACTIONS. g 20 3 Coggill v. Hartford etc. B. B. Co. 3 Gray, 545, 548 ; Langdell's Cases on Sales, 713, 715. 4 Krause v. Commonw. 93 Pa. St. 418, 421. And the vendor's right as against the vendee's creditors, is regarded as a secret and invalid lien for the purchase money : Haak v. Lindejnan, 64 Pa. St. 499, 501 ; 37 Am. Rep. 661. 5 Krause v. Commonw. 93 Pa. St. 418, 421. 6 Forrest v. Nelson, 108 Pa. St. 481, 486 ; S. C. 19 The Reporter, 380, 881 ; S. C. 32 Alb. L. J. 260. 7 See Dando v. Foulds, 105 Pa. St. 74, 76. 8 Forrest v. Nelson, 108 Pa. St. 481, 4^6 ; S. C. 19 The Reporter, 380, 381. Following Haak v Lindeman, 64 Pa. St. 499; 37 Am. Rep. 661 ; Stadtfeldt v. Huntsman, 92 Pa. St. 53 ; Brunswick etc. Co. v. Hoover, 95 Pa. St. 508. 9 Forrest v. Nelson, 108 Pa. St. 481, 488 ; S. C. 19 The Reporter, 380, 382. And while it is good as between the parties themselves, it is worthless as to creditors and bona fide purchasers from the transferee without notice : Forrest v. Nelson, 108 Pa. St. 481, 488. \ 20, Privilege of purchase. Keeping chattel or pay- ing for its use. Where by a contract the ven dee receives a chattel to keep for a certain time, and then to become the owner thereof, if he has paid the stipulated price, but if otherwise, to pay for its use, the vendee receives it as bailee, and the property is not changed until the price 'is paid. 1 And a contract is a bailment for hire, and not a conditional sale, by which a yoke of cattle was delivered to another, to keep and work in a farmer- like manner for one year, and then to be returned, with the privilege to pay a price named and keep the cattle, another animal being delivered at the time for the use of the cattle. 2 At most, there is said to be in such a case an agreement for a future sale, or rather, an oft'er to sell, with time given for its acceptance. 3 Option to purchase or to return. But an option on the part of the buyer to purchase if he likes, is essentially different from an option to return a purchase if he should not like. 4 In the one case, the title will not pass until the option is determined, while in the other the property passes at once, subject to the right to rescind and return. 5 NEWMAKK SALES. 3. 21 SIMILAR TRANSACTIONS. 26 1 Enlow ??. Klein, 79 Pa. St. 488, 490. Quoting and following Rose v. Story, 1 Barr. 190. Citing to same effect, Clark v. Jack, 7 Watts & 8. 37~> ; also McCullough r. Porter, 4 Watts & S. 177 ; Lehigh Co. v. Field, 8 Watts & S. 323 ; Rowe r. Sharpe, 51 Pa. St. 346 ; Seeker ^^ Smith, 9 Pa. St. 469. Distinguishing Martin ?>. Mathiot, 14 Serg. & R. 214. Compare Crist v. Kleber, 79 Pa. St. 290, 292. 2 Chamberlain v. Smith, 44 Pa. St. 431, 433. 3 Chamberlain r>. Smith, 44 Pa, St. 431, 434. 4 Hunt v. Wyman, 100 Mass. 198, 200. 5 Hunt v. Wyman, 100 Mass. 198, 200. \ 21. Privilege of return. Option to return or pay, etc. Where a party to whom an article is delivered has the option to return the article or pay its value in money, the property passes, and the transaction is not a bailment but a sale or exchange. 1 For the rule of law is said to be well established that when a chattel is de- livered by one person to another, who has an election to return it, or to pay for it, or to return some other property as a compensation for it, such chattel becomes the property of the person so receiving it. 2 Dissatisfaction with contemporaneous trade. And a transaction has been held to amount to a sale instead of a technical bailment where there was a delivery of animals to be returned, or their value, unless the party receiving them should be dissatisfied with another contemporaneous trade, in which case they were to remain his property forever. 3 Waiver of right to insist upon return. So there may be a waiver of the right to insist upon the return of an article loaned, by allowing the stipulated option and accepting the value of the article, partly in due bills, thus treating the transaction as a sale and the amount due as a debt. 4 1 Holbrook v Armstrong, 10 Me. 31, 34. And see Buswoll r. Bick- nell, 17 Me. 344, 347 ; Perkins v. Douglass, 20 Me. 317, 31S ; McKinney v. Bradlee, 117 Mass. 321, 322. Bailment for safe-keeping, sale, or return : Middleton v Stone, 111 Pa. St. 589. 2 Walker v. Blake, 37 Me. 373, 375. 3 Holbrook v. Armstrong, 10 Me. 31, 34. Compare Fuller v. Bus- well, 34 Vt. 107, 109, 110. 4 Person v. Civer, 28 How. Pr. 139, 141. 27 SIMILAR TRANSACTIONS. $ 22 g 22, Sale or lease. Conveying whole interest. Where that which purports to be a lease conveys the whole in- terest of the lessor, as on a lease of coal until no coal remains, it differs in no respect from a sale. 1 Sale under guise of renting. And agreements have generally been held to amount to sales, passing the title to the vendee, though purporting to be contracts for renting articles, such as pianos, sewing-machines, etc., usually taken on the instalment plan, where the price and terms of payment show that the real transaction was intended to be a sale, and was such a contract, and that the device of calling it a renting was resorted to in order to secure the payment of a balance of the pur- chase money. 2 Formalities of lease lacking. So an agreement or note for the renting of an organ, with the understand- ing that 011 payment of all the rent a bill of sale of the organ shall be given, which agreement is not in the form of a lease, and does not contain the usual stipu- lations of such an instrument, and is not signed by the apparent lessor, is a conditional sale of the organ, and not a lease thereof. 3 Unrecorded instrument construed as sale. And where, in the instrument of conveyance, the form of a lease is used to cover the real transaction, and the sums stip- ulated to be paid are for rent, but the total instalments would amount to more than was likely to be paid for the use of the property, the arrangement will be re- garded as a sale ; 4 and if unrecorded, is liable in Illi- nois to be defeated as fraudulent by creditors of the mdee in possession. 5 Lease giving privilege of purchase. But in Missouri, a written contract purporting to be a lease of an organ, conditioned for the payment of rent monthly, and giv- ing the privilege of purchasing at any time during the 23 SIMILAR TRANSACTIONS. 28 continuance of the lease, at a price fixed, in which event all previous payments should be deducted, has been held no sale, where the title was expressly re- served, but a lease, with the privilege of purchase within the period for which the organ was let. 6 Distinction in Pennsylvania. And in Pennsylvania, contrary to what has been declared the weight of au- thority, 7 a distinction is made between a present sale and delivery of personal property, coupled with ail agreement that the title shall not vest in the latter, un- less he pays the price agreed upon at the time appointed therefor, and that in default of such payment the vendor may recover possession, which transaction is invalid as to creditors, 8 and a bailment for use, or as it is sometimes called, a lease of the property, coupled with an agreement whereby the lessee may subse- quently become owner of the property upon payment of a price agreed upon, which transaction is good, both between the parties and as against creditors. 9 1 Sanderson v. Scran ton, 105 Pa. St. 469, 473. 2 See Greer v. Church, 13 Bush, 433 ; Knittel r. Gushing, 57 Tex. 354 ; 44 Am. Rep. 598, 600 ; Singer Manuf. Co. ?<. Cole, 4 Lea, 439 ; -^0 Am. Rep. 21 ; Lucas r. Campbell, 88 111. 447, 449; 31 Am. Rep. 81; Pri~e ?\ McCalUster, 3 Grant Cas. 248 ; Singer Manuf. Co. v. Graham, 8 Or. 17 ; 34 Am. Rep. 572. 3 Hine v. Roberts, 48 Conn. 268, 269 ; 40 Am. Rep. 170. 4 Hervey v. Locomotive Works, 93 IT. S. 664. 5 Hervey v. Locomotive Works, 93 U. S. 664. And see Fosdick v. Schall, 99 U.' S. 235, 250 ; Heryford v. Davis, 102 U. S. 235, 244. fi Sumner v. Cotley, 71 Mo. 121. Compare Kohler v. Hays, 41 Cal. 455, 4-5S. 7 See Cole v. Berry, 13 Vroom, 308 ; 36 Am. Rep. 511, 517. 8 See citations in next note. 9 Forrest v, Nelson, 10S Pa. St. 481 ; 19 The Reporter, 380, 381. And s^o Stfidtrteld v. Huntsman, 92 Pa, St. 53 ; 37 Am. Rep. 661, n. 6fi4 ; Brunswick and Balke Co. r. Hoover, 95 Pa. St. 508 ; 49 Am. Rep. 674 ; Edward's Appeal, 105 Pa. St. 103. \ 23. Sale or pledge. Sale and not pledge or mort- gage. A transaction may be a sale and not a pledge or mortgage, although there is an agreement that the ex- 29 SIMILAR TRANSACTIONS. g 23 cess on a resale should be credited to the original seller ; l and an assignment of a mortgage by a bank officer to a person who agrees to resell it to the bank, if the latter afterwards wishes to buy it, has been held a conditional sale of the mortgage, with a reservation of the right of repurchase, and not a pledge or equitable mortgage of it. 2 Pledge and not sale. But there is a pledge and not a sale of chattels, where they are delivered to a party as indemnity for suretyship ; 3 or to secure the payment of a debt for work, with power to sell and satisfy the debt out of the proceeds ; 4 or when a bill of sale of per- sonal property is taken at a price less than the estimated value of the property, with an agreement that the origi- nal owner shall have the same again at any time after a fixed day, upon refunding the price, etc. ; 5 or, accord- ing to a class of cases, where a receipted bill of parcels is given, accompanied with a formal delivery, and de- signed to constitute security for a debt. 6 Parol evidence to show pledge. The weight of author- ity has been declared to be, as regards regular and formal bills of sale, that parol testimony might prop- erly be received, even at law, where it is blended with equity in the practice, to show that the sale evidenced by such instruments was not absolute, but by way of security or pledge. 7 Yet the rule that parol evidence is inadmissible to prove that a sale or conveyance in vriting which is absolute in its terms was not intended > be absolute, but was given as -a pledge or mortgage, is well established in some of the States, 8 in regard to actions at law ; 9 but it does not apply to a mere bill of parcels; 10 nor to a suit in equity ; ]1 nor where the title to the property is not directly in issue. 12 1 Beeves v. Seeburn, 16 Iowa, 237. 2 Commonw. v. Reading Savings Bank, 137 Mass. 431, 443. Sale and riving in payment, and not pledge, in Louisiana: Pomez v. Camors, '6 La. An, 464, 465. 2 24 SIMILAR TRANSACTIONS. 30 3 Morgan v. Dodd, 3 Colo. 553. 4 Houser v. Kemp, 3 Pa. St. 208, 210. 5 Kimball v. Hildreth, 8 Allen, 167. 6 Shaw v. Wilshire, 65 Me. 485, 402. And see Eastman v. A very, 23 Me. 248; Beeman v. Lawton, 37 Me. 543 ; Whitaker v. Stunner, 20 Pick. 399 ; Hazard v. Loring, 10 Gush. 267 ; Walker v. Staples, 5 Allen, 7 Jones v. Rahilly, 16 Minn. 323, and cases cited. 8 Newton v. Fay, 10 Allen, 505, 507. 9 Harper i*. Ross, 10 Allen, 3^2 : Pennock v. McCormick, 120 Mass. 275, 277 ; Philbrook v. Eaton, 134 Mass. 395, 400. 10 Hazard v. Loring, 10 Gush. 207, 268 ; Hildreth. v. O'Brien, 10 Allen, 104. 11 Newton v. Fay, 10 Allen, 505, 508. 12 Reeve ?'. Dennett, 137 Mass. 315, 316. And see Howard v. O'Dell, 1 Allen, 85 ; Blanchard v. Peasing, 4 Allen, 11s, 120. \ 24. Sale or mortgage. Intention as criterion. In determining whether an instrument is a conditional sale or a mortgage, where the language of the instru- ment is equivocal, the true criterion seems to be the intention of the parties, as evinced by the whole trans- action and the attendant circumstances. 1 Conditional sale rather than mortgage. And the trans- action has usually been held a conditional sale rather than a mortgage, when the relation of debtor and cred- itor is not created by the transaction and never existed, and the vendee takes and retains possession of the prop- erty, and its value is not perceptibly in excess of the consideration paid, and there is nothing to indicate an intent to transfer the property as a mere security. 2 Discharge of debt as test. So the test laid down in re- gard to grants of land, said to be found in the question whether the debt was discharged or not by the convey- ance, 3 has been considered to apply as well to sales and assignments of chattels. 4 Right of repurchase or redemption. In considering transactions involving the right of repurchase, 5 a mort- gage and a conditional sale have been said to be nearly allied to each other, 6 the difference between them being 31 SIMILAR TRANSACTIONS. 25 said to consist in this, that the former is a security for a debt, while the latter is a purchase accompanied by an agreement to resell on particular terms. 7 And it has been laid down that whenever a transaction in the form of an instrument which may be regarded as a bill of sale, resolves itself into a security for a debt, it is a mortgage, provided the right of redemption exists. 8 1 Rockwell v. Humphreys, 57 Wis. 410, 414. 2 Rockwell v. Humphreys, 57 Wis. 410. 414, and cases cited. See, also, Cook v. Lion Fire Ins. Co. 7 Pacif. Rep. (Cal.) 784 ; Russell v. Hurkuess, 7 Pacif. Rep. (Utah) 865. 3 See Stephen v. Cushman, 35 111. 186. 4 Glass v. Doane, 15 111. App. 66. 5 Sale with right of repurchase: Cook v. Lion Fire Ins. Co. 7 Pacif. Rep. (Cal.) 784. 6 See citations in next note. 7 Turner r. Kerr, 44 Mo. 429, 431. And see Logwood v. Hussey, 60 Ala. 417. Compare Mahler v. Schloss, 7 Daly, 291. 8 Wilmerding v. Mitchell, 42 N. J. L. 476, 479. And see Cooper v. Brock, 41 Mich. 488, 490 ; Smith v. Beattie, 31 N. Y. 542, 544. But compare Clayton v. Hester, 80 N. C. 275. \ 25. Sale or consignment. Contract importing con- signment and not sale. A consignment of goods for sale, and not a sale of them, is imported if the con- tract is that one party shall take goods from the other, and return periodically the amount of sales, at the prices charged by the consignor, who will furnish the con- signee with all goods in his line. 1 JVb relation of principal and agent. But the relation of the parties is not that of principal and agent, if the consignee is at liberty according to the contract between him and his consignor to sell at any price he likes, and receive payment at any time he likes, though he is to be bound, if he sells the goods, to pay the consignor for them, at a fixed price and a fixed time. 2 Sale and not consignment. And there is a sale where a consignment is made of goods to be paid for at a price agreed upon, but which bears no relation to the prices 25 SIMILAR TRANSACTIONS. 32 at which the consignees might sell, or the amounts they might be able to collect. 3 Agent becoming purchaser. A consignee may also by the terms of his agency be the agent of the consignor until the goods are sold, yet then become, as between himself and the consignor, the purchaser of the goods, and principal debtor therefor. 4 Value in invoice. The fact that a value is stated in the invoice of merchandise accompanying its shipment, does not by itself absolutely indicate that the property was sold and not consigned, but may be designed as a guide and direction as to the amount or sum for which the merchandise might be sold by the consignee. 5 Word "consign." So the word "consign" has been held not to imply a title to the goods in the manufact- urer, when controlled in its common meaning by the other provisions of the contract as applied to the sub- ject-matter. 6 But it is different where the other pro- visions of the contract do not so control it, but show that the word was used in its obvious and common meaning, implying title in the consignor. 7 Consignments to cover advances. The rule upon the subject of consignments to cover advances is stated to be, that if there is a mere agreement to ship goods or produce to pay for advances, without transmission of the bill of lading or notice of the shipment, the prop- erty shipped would not belong to the consignee until actually received and possessed by him. 8 But if the agreement appropriates specific property to the pay- ment of such advances, and such appropriation is evi- denced and authenticated by a bill of lading, then the title to the property passes to the consignee by a deliv- ery thereof to the carrier. 9 1 Walker v. Butterick, 105 Mass. 237, 238. No title in debtor where case resembles shipment of goods to an agent to sell on commission : -Alexander v. Tomlinson, 40 Ark. 216, 218, 219. Sale of agricultural 33 SIMILAR TRANSACTIONS. 26 machines held not contemplated: Williams Brothers v. Davis, 47 Io\va, 3C3, 307. Agency created by agreement to " stock " wharf with coal and wood : Audenried v. Betteley, 8 Allen, 302, 307. 2 Ex parte White, re Nevill, Law R. 6 Ch. 397, 403 ; affirmed as Towle v. White, 21 Week. R. 465. Del credere commission : See, also, Converseville Co. v. Chambersburg Co. 14 Hun, 609, 610, 611. 3 In re Linforth, 4 Sawy. 370, 374. Sale of wagons shipped and not agency to sell them on commission : Jordan v. Easter, 2 III. App. 73. 4 Nutter v. Wheeler, 2 Low. 346, 348, 349. And see Ex parte White, Law li. G Ch. 397. But compare Ayres v. Sleeper, 7 Met. 45, 46. 5 Pam v. Vilmar, 54 How. Pr. 235. 6 Schenck v. Saunders, 13 Gray, 37. Instructions held not to de- fine the word " consign " : Reissner v. Oxley, 80 Ind. 580, 585. 7 Dittinan v. Norman, 118 Mass. 319, 324. 8 First Nat. Bank v. McAndrews, 5 Mont. 325, 332. 9 First Nat. Bank v. McAndrews, 5 Mont. 325, 332. And see HallL day v. Hamilton, 11 Wall. 564 ; Wetzel v. Power, 5 Mont. 214, 225. \ 28 . Remedies in such transactions . Action for goods sold and delivered. A count for goods sold and deliv- ered is not supported by proof that the goods were con- signed to the defendant for sale, and that he sold them and unreasonably refused or neglected, after demand, to account for the proceeds, 1 since such action, however inexcusable, cannot convert the consignment into a sale ; 2 nor is an action for goods sold and delivered maintainable upon an arrangement whereby there is no transfer to a factor of the property in the goods, so that one of the essential elements of a sale is wanting. 3 Action against carrier. But the consignee of mow- ing machines to be sold on commission, though not ac- quiring the title, yet has such a special property that he may maintain an action against a carrier for their detention in transit. 4 Evidence in replevin suit. And in action of replevin brought to recover goods sent by the plaintiff to be pur- chased by the receiver or sold on account of the sender, as the former should elect, it has been held that where the former puts in evidence that he received the goods on consignment merely, the latter is properly allowed $$ 27-28 SIMILAR TRANSACTIONS. 34 to testify that when he received the letter of the former, he decided to purchase the goods. 5 1 Ayres v. Sleeper, 7 Met. 45, 46. 2 Ayres v. Sleeper, 7 Met. 45, 46. Compare Brown v. Holbrook, 4 Gray, 102, 104 ; Hull v. Richardson, 4 Gray, 598, 599. 3 Wadsworth v. Gay, 118 Mass. 44, 53. 4 Boston etc. R. R. Co. ?>. Warrior Mower Co. 76 Me. 251, 259. And recover not only his own damages, but such as accrued to the com- pany as general owners: Boston etc. R. R. Co. v. Warrior Mower Co. 76 Me. 251, 259. 5 Yaeger Milling Co. v. Brown, 128 Mass. 171, 173. Evidence gov- erning finding of jury : Chapman v. Kerr, 80 Mo. 15S. Inference of sale to consignee: Holbrook v. Wight, 24 Wend. 169; 35 Am. Dec. 605, n. 616. \ 27. Sale or payment. Compensation for service. When property or money is transferred or paid as a compensation for service, this does not constitute a sale of the money or property for a price in service. 1 Payment or purchase of note. And the payment of a note by a third person does not constitute a contract of purchase thereof. 2 " Giving in payment" in Louisiana. In Louisiana, a contract such as a giving in payment equally with a sale, transfers the property in full ownership to the purchaser, and differs from a sale mainly in making the delivery of the thing transferred essential to the completeness of the contract. 3 1 See Five Per Cent Cases, 110 TJ. S. 471, 478. 2 Binford v. Adams, 3 N. E. Rep. (Ind.) 753. 3 Herold v. Stockwell. 32 La. An. 949, 952. And compare Miller v. Schneider, 19 La. An. 300, 301 ; Bessan v. Moucheux, 21 La. An. 617. J 28, Further distinctions. Agency, loan, etc. The cases distinguish the contract of sale from one of agency , l loan, 2 trust, 3 and security. 4 Accord and satisfaction. And a contract of sale differs from accord and satisfaction, because in the latter the thing is given for the purpose of quieting a claim, and not for a price. 5 35 SIMILAR TRANSACTIONS. 28 Contract for manufacture. In general, the reasoning of the cases which have arisen under the statute of frauds, is said to imply that where it is a part of the very contract itself that the articles are to be manu- factured, and by particular persons or from specific material, or in a prescribed manner, according to the order and direction of the party for whom the articles are made, the contract is for the manufacture of the articles, 6 and not for their sale. 7 1 See Black v. Webb, 20 Ohio, 304 ; 55 Am. Dec. 446, n. 459 ; Depew v. Keyser, 3 Duer, 335, 340 ; Conable v. Lynch, 45 Iowa, 84. 2 See First Nat. Bank v. McAndrews, 5 Mont. 325 ; Home v. Wal- ton, 7 N. E. Rep. (111.) 100 ; Johnson v. Ensign, 4 Atl. Rep. (Pa.) 37. 3 See Ruthrauff v. Hagenbach, 58 Pa. St. 103 ; Bourg v. Lopez, 36 La. An. 439, 440. 4 First Nat. Bank v. McAndrews, 5 Mont. 325, 335 ; Harold v. Stockwell, 32 La. An. 949, 952. Arrangements between debtor and creditor : Ochs v. Burger, 6 Heisk. 483, 486 ; Gray v. Millay, 61 Me. 327. 5 Bouvier Law Diet. tit. Sale (15th ed.) 606. 6 Cain v. Weston, 26 Wis. 100, 103. 7 See Hight v. Ripley, 19 Me. 137 ; Abbot v. Gilchrist, 38 Me. 260, 261 ; Edwards v. Railway Co. 48 Me. 379, 380, 381 ; Atwater v. Hough, 29 Conn. 508, 513 ; Gardner v. Joy, 9 Met. 177, 179 ; Lamb v. Crafts, 12 Met. 353, 356. 29 CONSENT. 36 CHAPTER III. CONSENT. 29. In general. :. When lacking. \ :n. Turtles consenting. \ 32. Offer to sell. :. Corrt'spoiKlonoo of acceptance with offer. \ :il. Applications of requirement. \ ::.'). Time foi' nrrcphmrr. ? -">(). Limiting time for acceptance. \ :57. Modes of acceptance. \ :w. Acceptance by acts. implied from the language, conduct, or p'si- unis of the purtics. 4 Thus, the fall of the hammer at an auction sale will bind the bargain, 5 and a grmiiMinu; assent may be sudicient. 6 So the sending of goods ordered may consummate the sale. 7 Unqualified and identical acceptance of offer. A mere proposal or offer constitutes no bargain of itself, 8 )>eini;- no more than a treaty or negotiation for a sale ; 9 but it must be accepted by the other party, 10 and the assent must he unconditional and unqualified, 11 and com- pletely correspond with the terms of the offer. 12 37 CONSENT. \ 29 Withdrawal of offer and giving of time. While the offer remains unaccepted, it is optional with the proposer to withdraw it or not; 13 and that which is sometimes spoken of as a contract for the sale of property, but which is what is popularly termed a refusal of the prop- erty given by one of the parties, leaving it optional with the other parly whether he will take the property within a certain time or not, would not be valid in law, for want of consideration, unless upon some other con- sideration, or under seal; 14 but when an unretracted offer giving time for acceptance, though without con- sideration, is once accepted, the contract is complete. 15 Variation from offer as counter-proposition. Mutual assent of the parties, which is vital to the existence of a contract, 16 is as indispensable to the modification of a contract already made as it was to making it originally. 17 And a proposal to accept, or an acceptance of an offer, on terms varying from those proposed, amounts to a re- jection of the oiler, and a substitution in its place of a Counter-proposition, 18 which cannot become a contract until assented to by the first proposer. 19 Nor can a party who has submitted a counter-proposition with- draw or abandon the same, without the assent of the other party, and then accept the original offer which he has once virtually rejected. 20 For an offer once rejected is at end ; 21 but a mere inquiry may not amount to a counter-proposal so as to terminate the offer. 22 Contract by letter. In creating a contract the negotia- tion may be conducted by letter, as i.s very common in mercantile transactions ; 23 and ordinarily the contract is complete when the answer containing the acceptance ?i of a distinct proposition, is dispatched by mail or other- wise, provided it be one with due diligence after the receipt of the Jotter containing the proposal, 98 and before any intimation is received that the offer is withdrawn.^ KJEWMAUK SAJLKS. 4. 29 CONSENT. 38 1 See Gardner v. Lane, 12 Allen, 39,40; 2 Kont Com. 477 ; Sum- mers v. Mills, 21 Tex. 77, 8(5, 87 ; Utley v. Donaldson, 04 U. S. 20, 47. 2 Thurston v. Thornton, 1 Gush. 89, 91. And see Smith v. Gowdy, 8 Allen, 566,567. 3 See citations in next note. 4 See Street v. Chapman, 29 Ind. 142, 152 ; Joyce v. Swann, 17 Com. B. N. S. 84, 101 ; Payne r. Cavo, 3 Term Hep. 148; 1 Lang-loirs Cases on Contracts, 1 ; Gowing v. Knowles, 118 Mass. 232, 233 ; Hoaclley v. McLaine, 10 Bing. 482, 487. 5 Payne v. Cave, 3 Term Rep. 148 ; 1 Langclell's Cas. on Contracts, 1. 6 Joyce ?'. Swann, 17 Com. B. X. S. 84, 101. Loose conversation may not bo enough to make a binding contract : Thurston r. Thorn- ton, 1 Gush. 89, 93. And compare Bruce v. Bishop, 43 Yt. 161, 164. 7 See Taylor v. Jones, Law R. 1 C. P. D. 87, 90. 8 Brnce ?'. Bishop, 43 Vt. 161, 163. See \ 8, on SALE OR PRELIMI- NARY NEGOTIATION. 9 See Carr v. Duval, 14 Peters, 77, 81. 10 See Thruston r. Thornton, 1 Cush. 89, 92 ; Smith ?. Gowdy. 8 Allen. 566, 507; Gowing v. K::o\ylcs, 1!8 Muss. 2:,2, 233. The contract becomes binding when a proposition is made on one side and accepted on the other 2 Kent Corn. 477. 11 See Hutcheson v. Blakeman, 3 Met. (Ky.) 80, 82; Duke v. Andrews, 2 Ex. 290, 296 ; Appleby r. Johnson, Law R. 9 Com. B. 158. 12 Summers v. Mills, 21 Tex. 77, 87 ; Potts r. Whitehead, 23 X. J. Eq. 51J, 514. See 33. 13 See Summers r. Mills, 21 Tex. 77 ; Hebb's Case, Law R. 4 Eq. 9 ; 1 Langdoll's Cases o-i Contracts, 1, 42 ; Payne v. Cave, 3 Term Rep. 143 ; also cases cited in next note. 14 Faulkner r/Hibard, 26 Vt. 452, 457. And see Cooke r. Oxley, 3 Term Rep. 613 ; 1 Langdcll's C-ises on Contracts, 2, 5. 61, 67, 6s ; Routledge v. Grant, 4 Bing. 653 ; Dickinson v. Dodds, Law R. 2 Ch. D. 463. 15 Boston etc. R. R. v. Bartlett, 3 Cush. 224 ; 1 Langdell's Cases on Contracts, 1C3. A: ; d see Stevenson v. McLean, Law R. 5 Q. B. D. 34G ; 29 Eng. Rep. 341, 345. 16 See preceding portion of section. 17 rtley v. Donaldson, 94 U S. 2J, 47. 18 See Jenness r. Mount Hope Iron Co. 53 Mo. 20, 23. 19 Fox v. Turner, 1 111. A pp. 153, 159. 20 Fox v. Turner, 1 111. App. 153, 159, and cases cited. 21 Hyde v. Wrench, 3 Beav. 334 ; 1 Langdell's Cas. on Contracts, 13. 22 Stevenson v. McLean, Law R. 5 Q. B. D. 346 ; 29 Eng. Rep. 341, 344. 23 2 Kent Com. 474. Contract by letter discussed : Xote to Maclay r. Har\vy, 42 Am Rep. 40; rot 3 to Philadelphia Whiting Co. v. Detroit White Lead Works, 24 X. \V. Rep. :?So. 24 Acceptance must be direct and unconditional : See Hutcheson v. Blakeman, 3 Met. (Ky.) SO. 25. See Averill v. Hedge, 12 Conn. 424 ; 1 Langdell's Cases on Con- tracts, 90, 98. 26 2 Kent Com. 477; Abbott r. Shepard, 48 N. H. 14, 16. And see Hutcheson v. Blakeman, 3 Met. (Ky.) 80. 39 CONSENT. $ 30 3D. When laclziirj. Misunderstanding on material matter. Where there is a misunderstanding as to any- thing material, the requisite mutuality of assent as to such thing is wanting, so that the supposed contract does not exist, 1 and neither party is bound. 2 And so long as there is a dispute going on between the parties as to the terms of a sale, there is no meeting of minds. 3 Failure to fully agree on terms. Thus there can be no contract of sale unless the parties have fully agreed on all the terms of the contract, 4 as where the letters relied on do not show that the parties ever agreed on the number of articles, the time or manner of delivery, or the other terms of the alleged bargain; 5 or where the parties differed concerning the length of credit to be given, and reached no conclusion in the matter. 6 Colorable sale. And a mere colorable sale of personal property, made with the intention that the title should not be transferred in reality, but only in appearance, nveys no tide whatever to the apparent purchaser. 7 Bantering conversation. Where the testimony tended show that an offer was intended and understood to be merely jocose, and not in earnest, it has been held that it should have been left to the jury 8 to find whether it was so intended and understood. 9 1 Utley v. Donaldson, 94 U. S. 29, 47. It is no contract if there be an error or mistake of a fact, or in circumstances going to the essence of it : 2 Kent Com. 477. 2 Utley?;. Donaldson, 94 U. S. 29, 47. In tr-e view of the law in such cus ', there has been only a negotiation r jsulti.ig in a Luiure to a-^ree: Utley ?>. Donaldson, !4 U. S. 2i), 47. What h:.s occurred is as if it \yere not, and the rights of the p irtu>s are to be determined ac- cordingly : Utley v. Donaldson, 94 U. S. 2!), 47. >e further u^der MIHTAKK; Lyman v. Robinson, 14 Allen, 2!-', '252 ; CJ:iy r. Rickets, 23 N. W. llt-p. (Iowa) 755 ; Butler v. Moses, 43 Ohio St. 1C6, 171. 3 Schenectady Stove Co. v Holbrook, 4 N. E. Rep. (N. Y.) 4. 4 See citations in succeeding notes. 5 Oakman r. Rogers, 120 Mass. 214, 215. 6 Go\vi::g v. Knowles, 118 Mass. 2C2, 2*3. : ' ABt*t SB, & ; HUWJBKi r. 7 -..-..-.-..i.-.. :: * ;\r.i-.-. :::;. .: .- - .-.;.. 31. Parties consenting. Personality of contracting rfant. When a contract is made in which the personality of the contracting party is or may be of im- portance, 1 as a contract with a man to write a picture, or furnish articles of a particular kind, ot irben be rattn ipon tfw efioiaetarot igualiSesof ra I..-;.' .I..;. -..- ..;.- .--.-:;--..-.< .. ..: 1 ': - '.'. '. ' .-.."; j-:.i with a particular party, or where there a set- off, no other person can interpose and adopt the con- tract; 2 and this principle has been applied so as to without notice of any change in the business by the suc- cessor in business of the party from whom they ,-d,bya custoi: had been in the ha i with such party, with whom he bad a IT. -x bvught frwm. successor. Bat one who a shop which has been occupied by a :i who owes him, under the supposition .5 with his debtor, bat is informed before leav- person has become the owner ' '- ..'-,-.-.. ...--.... ...,:.-:-- :.<> -. . . . .:. ..-.:. -....- .. . cannot afterwards resist an action for the rized a&rv. And if one party sells goods in fact to ano owing that the sale is really party through the & as his agent, and solely in reliance on tl third party, the seller cannot recover therefor from the third party, who had purchased the goods from the 41 CONSENT. \ 82 second party, 5 as the case is not one of mistaken iden- tity. 6 but of unauthorized assumption concerning the capacity m which a person acted. 7 Several acceptors. An offer to sell made in writing to several persons jointly, and signed by all but one of them, cannot be withdrawn by a communication to one of the signers, if signed by the others in ignorance of such withdrawal. 8 1 See citations in next note. 2 Boulton r. Jones, 2 Ex. 564, 566 ; Boston Ice Co. r. Potter, 123 vra. Rep. 9. 11. And see Mitchell r. Lapage, Holt X. P. 253 ; also section on subject under MISTAKE. 3 Boulton r. Jones, 2 Ex. 564, 566, 4 Mudge r. Oliver, 1 Allen, 74. 5 Stoddard v. Ham, 129 Mass. 383 ; 37 Am. Rep. 369. 6 Compare Hardman v. Booth, 1 Hurl. & C. 803. 7 Stoddard r. Ham, 129 Mass. :s-{ ; 37 Am. Rep. 369. 8 Burton r. Shotwell, 13 Bush, 271. Nor ran such signer affect the validity of the contract, or cancel his liability by erasinsrhis name without the consent of the other acceptors: Burton r. Shotwell, 13 Bush. 271. \ 32. Offer to sell. Notice to the trade. A price list is a mere proposition, which may be withdrawn at pleasure, unless accepted on the terms offered before ithdrawal. 1 And in construing the language of a let- Ting that the senders were "authorized to offer" ds at certain terms, and a telegraphic reply thereto, vliich together were claimed to constitute a contract of ile, the language used in the letter was deemed clearly i notice in the nature of an advertisement or business cular, to attract the attention of those in the same ne of business to the fact that good bargains in a speci- . commodity could be obtained by applying to the enders, 2 and not an offer by which they were to be ound, if accepted, for any amount the persons to vhom the letter was addressed might see fit to order. 3 Quotation or statement of price. So a distinction has made between an offer to sell at a price named, 33 CONSENT. 42 such quantity of a commodity as the inquiring party might order, and a dispatch which was rather a quota- tion of the market price of a commodity, or perhaps a statement of the price at which the sender held his own supply thereof. 4 Advantage taken of ambiguity. Where a proposition to sell goods is sent by a writing that by mistake is am- biguous, and the receiver of the goods, knowing of such ambiguity, but claiming an improbable meaning un- reasonably favorable to himself, and not intended by the sender or thought of by him, orders, obtains, and uses the goods, without notice to the sender, or inquiry of him as to his intended meaning, such receiver of the goods is liable for their value, as if no proposition had been sent. 5 1 Schenectady Stove Co. v. Holbrook, 4 X. E. Hep. (X. Y.) 4. 2 Moulton v. Kershaw, 59 Wis. 316 ; 48 Am. Rep. 51fi, 518, 519. 3 Moulton v. Kersliaw, 59 Wis. 316 ; 48 Am. Rep. 516,519. Citing Beaupre v. Pac. ete. Tel. Co. 21 Minn. 155 ; Kinghorne ?. Montreal Tel. Co. 18 Up. Can. Q. B. 60. Distinguishing Keller r. Ybarru, 3 Cal. 147. 4 Beaupre ?'. Pac. etc. Tel. Co. 21 Minn. 155. Stated in note to Moulton ?-. Kershaw, 48 Am. Rep. 519. And a county dispatch was held not an acceptance of au offer, but as itself merely au offer or order for goods : See Moulton v. Kershaw, 59 Wis. 316; 48 Am. Rep. 519. 5 Butler v. Moses, 43 Ohio St. 166, 169, 170. 33. Correspondence of acceptance with offer. Scope of requirement. The parties to a contract of sale must as- sent to the same thing in the same sense. 1 The assent must comprehend the whole of the proposition, 2 and the acceptance must be exactly equal to the extent and provisions of the offer, and must not qualify them by any new matter/ For an acceptance to be good must conclude an agreement or contract between the parties, and to do this it must in every respect meet and cor- respond with the offer. 4 Variation from offer. If the answer, either in words or effect, departs from the proposition, or varies the 43 CONSENT. 33 terms of the offer, or substitutes for the contract ten- dered are more satisfactory to the responding party, there is no assent and no contract. 5 Thus, there is not an acceptance of an offer so as to conclude a contract be- tween the parties, if less goods are sent than are or- dered; 6 or where there is an addition of another term not yet provided for ; 7 or where a condition is inserted in the acceptance, 8 such as the payment of a commis- sion. 9 But the acceptance must be direct, uncondi- tional, arid unqualified, 10 and must not, after agreeing to take the property offered for sale, require that pro- vision be made for the removal of an attachment thereon. 11 So under the principle that an acceptance must be in the words of an offer, or must be entirely accordant with the terms and conditions thereof, to bind a party who makes the proposition, 12 there is a variance from an offer to sell malt "delivered" on a boat, by an acceptance agreeing to take the malt " de- liverable " on the boat ; 13 and an offer by letter to buy a mare if warranted " sound and quiet in harness," is not met by a reply stating that the animal is warranted " sound and quiet in double harness " ; u arid an offer of "good barley" is not sufficiently accepted where the reply, in assenting to the proposal, expresses an expec- tation that the sellers will give " fine barley arid full weight." 15 Place to which answer to be sent. Where the place to which the answer is to be sent, as indicated by the mode of conveyance mentioned, constitutes an essential part of an offer to buy goods, an acceptance communicated at a different place is not binding upon the proposers. 16 Immaterial addition. But an immaterial addition to an acceptance does not prevent the taking effect of the contract, 17 as where a hope is expressed that the buyer of hay will pay a greater price for it when hauled; 18 or 33 CONSENT. 44 that possession of premises will be given by a certain clay; 19 or where arrangements are suggested for the drawing up of a more formal contract. 20 1 Rummers r. Mills, 21 Tex. 77, 86, 87. And see 1 Parsons on Con- tracts, 475 ; Hazard r. N. E. Marine Ins. Co. 1 Sum. 218, 225 ; Hutch e- sou r. Blakeman, 3 Met. (Ky.) 80, 81, 84 ; Butler v. Moses, 43 Ohio St. 166, 171. 2 See citations in next note. 3 1 Parsons on Contracts, 476 ; Summers v. Mills, 21 Tex. 77, 87 ; Hutcheson r. Blakeman, 3 Met. 80, 81. 4 Potts r. Whitehead, 23 N. J. Eq. 512, 514. Neither falling within nor going beyond the terms proposed, but exactly meeting them at all points, and closing with them just as they stand : Potts ,-. White- head, 2.J X. J. Eq. 512, 514 ; quoted, Fox v. Turner, 1 111. App. 153, 159. 5 Summers? 1 . Mills, 21 Tex. 77, 87. And see 1 Parsons on Contracts, 477 ; JTutcheso'i r. Blakeman, 3 Met. (Ky.)80.8l ; Wynne's Case, Law R. 8 Ch. Cas. 1C02. 6 Bruce r. Pearson, 3 Johns. 534. 7 Potts v. Whitehead, 23 N. J. Eq. 512, 514. And see Honeyman v. Marryatt, 6 II. L. Cas. 112 ; Holland v. Eyre, 2 Sim. & St. 104, 195 ; Duke r. Andrews, 2 Ex. 290, 2<>6 ; Chaplin v. Clarke, 4 Ex. 403, 409 ; Beck's Case, Law R. 9 Ch. Cas. 3J2. 8 See Wontner r. Shairp, 4 Com. B. 404, 441 ; Crossley v. Muncock, Law. 11. 13 Eq. ISO, 1S1. 9 Harlow ??. Curtis, 120 Mass. 320, 322. Conditions of small import- ance may prevent consummation of contract by correspondence : Merriam v. Lapsley, 2 McCrary, 606, 607. And see Maclay v. Harvey, 90 111. 525 ; 32 Am. Rep. 35, 38. 10 Hutcheson v. Blakeman, 3 Met. (Ky.) 80, 82. And see Eliason t'. Henshaw. 4 Wheat. 225 ; 1 Langdell's Cases on Contracts, 70, 71 ; Tayloe v. Merchants' Fire Ins. Co. 9 How. 3'JO ; 1 Langdell's Cases on Contracts, 106, 109 ; Baker r. Holt, 56 Wis. 100, 103; Clay r. Ricketts, 23 N. W. Rep. (Iowa) 755 ; Corcoran v White, 7 N. E. Rep. (111.) 525. Compare Stanley v. Dowdeswell, Law R. 10 Com. P. 102. 11 Hutcheson r, Blakeman, 3 Met. (Ky.) 80, 83. 12 See preceding portions of section. 13 Myers r. Smith, 48 Barb. 614, 634. 14 Jordan r. Norton, 4 Mees. W. 155, 161. 15 Hutchison r. Bowker, 5 Mees. & W. 535, 540, 541. IMscrepany between letters on the one side mentioning "first quality Jefferson County barley," and then on the other speaking of " two-rowed bar- 1 \v " : ' Vassar v. Camp, 11 N. Y. 441 ; 1 Langdell's Cases on Contracts, 110, 113. IS Eliason r. Henshaw, 4 Wheat. 225 ; 1 Langdell's Cases on Con- tracts, 70, 72. 17 Soe citations in succeeding notes. And compare Proprs. v. Arduin, Law R. 5 Eng. & Ir. App. 64. 18 Phillips r. Moore, 71 Me. 78, 7>. 19 See Clive v. Beaumont, 1 De Gex & S. 397, 403. 20 Branson r. Stannard, 41 L. T. N. S. 434, 435. And see Gibbons v. Board etc. 11 Beav. 1 ; Bomiewel! v. Jenkins, 38 L. T. N. S. 581, 582. 45 CONSENT. 34 g 34. Applications of requirement. Illustrations of want of correspondence, etc. The doctrine that the ac- ceptance must be unconditional and unqualified so as to correspond with the offer, has been applied to allotments of shares, 1 and to goods sent in less quantity and at shorter credit than ordered : 2 to an acceptance qualified both as to the quality of goods and as to the time of their delivery, 3 or which introduces a new term by requiring an article to be of a particular quality ; 4 to an answer involving a wide departure from the terms of a letter making a proposition, 5 and to a letter modifying and re- submitting the original proposition ; 6 to a case where one party offered goods delivered at the city where lie resided, at a specified price per bushel, and the other sent the goods, stating that he would expect the highest market price ; 7 and to a suggested sale of a partnership interest, where there is not an entire agreement between the proposal and acceptance in regard to the subject- matter and the extent of the interest to be transferred. 8 When no agreement. So there is deemed to be 110 agreement if there are any essential matters affecting the rights of the parties left open for further consider- ation ; 9 or where a proviso in the offer, that the security be satisfactory, is not complied with. 10 And in reply to a letter offering to sell two hundred boxes of cheese at a given price, and to deliver them at a place designated, u one hundred now, and one hundred about the middle of October next, " a letter accepting the offer as to amount and price, and place of delivery, but not as to time of delivery, is not an unconditional acceptance of the offer, so as to effect a contract. 11 Charging goods, etc. Where in reply to a proposition, asking parties to guarantee the payment of a bill of lum- ber to be sold to a third party, the firm addressed answers that the lumber, when sold, might be charged to it, 12 35 CONSENT. 46 this is not an acceptance but a counter -proposition, 1 ' and no contract is consummated if there is no express assent thereto, and if the goods are charged to the third party instead of to the firm addressed. 1 * 1 Oriental etc. Co. v. Briggs, 4 De Gex, F. & J. 191, 196. 2 Bruce v. Pearson, 3 Johns. 534, 535. 3 Carter r. Bingham, 32 Up. Can. Q. B. 615, 617, 619. Unmeaning acceptance : KingSorne v. Montreal Tel. Co. 18 Up. Can. Q. B. 60, GJ. 4 Mclntosh v. Brill 20 Up. Can. C. P. 426 But the words, " send directions about shipping," have been held not to qualify a previous unconditional acceptance: Marshall v. Jumieson, 1 Up. Can. Q. 15. 115, 1J2, 1J4. "Order cars" similarly construed : Murphy ?'. Thomp- son, 23 Up. Can. C. P. 23.J, 237. " At owner's risk of delay," as prevent- ing binding contract : Willing v. Caiae, 3,5 Up. Can. Q. B. 46. 5 Snow v. Miles, 3 Cliff. COS, 613. 6 Solomon v. Webster, 4 Cal. 353, 361. 7 Plant Seed Co. v. Hall, 14 Kan. 553, 555. 8 Eggleston v. Wagner, 43 Mich. 610 ; Wagner v. Eggleston, 49 Mich. 218. 9 Sourwine v. Sourwine, 17 Hun, 432. 10 McGrath v. Brown, C6 Barb. 4S1. 11 Johnson r. Stephenson, 20 Mich. 63. 12 Compare Usberrotli v. lliegel, 71 Pa. St. 280, 28L 13 See \ 29, on COXSKXT ix GKXKHAL. 14 Smith v. Wetherell, 4 111. App. 6-35, 659. 35. Time for acceptance. Offer giving* An offer granting time for acceptance, while in force and un re- voked, is a continuing oii'or during the time limited for acceptance ; l but as soon as it is accepted it ceases to be an offer merely, and through the assent of the parties ripens into a binding and complete contract, since the acceptance by the one party constitutes a sufficient legal consideration for the engagement on the part of the other. 2 Reasonable time where none fixed. An offer to make a sale which fixes no time within which it shall be ac- cepted, must be accepted within a reasonable time. 3 Thus, if a proposition is made at a personal interview, and the other party is told that he need not give a decided answer then, but might do so thereafter, he 47 CONSENT. g 35 must notify his acceptance within a reasonable time. 4 So, a proposition or offer made by letter which is not replied to within a reasonable time, cannot be con- sidered as a contract. 5 Retention of chattel. If a chattel be delivered by one person to another on trial with a view to a sale, and the latter retains the chattel for an unreasonable time, the former may regard the transaction as a sale and recover the price. 6 So on an exchange of horses with the privilege to one of the parties to return, within a given time, the horse received by him, the contract becomes absolute if such party fails within the time to return the horse so received. 7 And it is a general principle applicable to all personal property, that where goods are delivered on sale or return, they must be returned in a reasonable time, or the sale becomes absolute. 8 Mailing acceptance. To constitute a valid contract by letter, if no time for acceptance of the offer is fixed, it must be affirmatively shown that the acceptance was mailed within a reasonable time and before any intima- tion of withdrawal was received. 9 And a milliner is under no obligation to regard a contract as closed, where he, by letter sent through the mail, offered to employ a party, stating terms, and asking for a reply by next mail, and the party addressed, on the next day after receiving the letter, gave a postal card, accepting the offer, to a boy to be mailed, but he neglected to mail it until the third day after it was intrusted to him. 10 So, where in a letter offering to sell land it was said: "This is my offer, if you want it now; I would not agree to keep the offer good a great while," it was questioned whether a letter of acceptance was in time, if mailed nine or ten days after the receipt of the offer. 11 Notice of retraction of offer for delay. But though an offer to be binding upon the party making it must be ? 36 CONSENT. 48 accepted within a reasonable time, 12 yet it has been held that if the party to whom it is made makes known his acceptance of it to the party making it, within any period which he could fairly have supposed to be reasonable, good faith requires the maker, if lie intends to retract on account of the delay, to make known that intention promptly. 13 1 Boston etc. R. R. v. Bartlett, 3 Cush. 224 ; 1 Langdell's Cases on Contracts, 103, 105. 2 Boston etc. R. R. v. Bartlett, 3 Cush. 224 ; 1 Langdell's Cases on Contracts, 103, 105. It is precisely as if the parties had met at the time of the acceptance, and the offer had been then made and accepted, and the bargain completed at once : 1 Langdell's Cases on Contracts, 103, 105. 3 See Craig v. Harper, 3 Cush. 158, 160 ; Averill v. Hedge, 12 Conn. 424; 1 Langdell's Cases on Contracts, W. So of rewards: Loring v. City of Boston, 7 Met. 400, 412, 413 ; 1 Langdell's Cases on Contracts, 91). Four months held not a reasonable time: Chicago etc. N. N. Co. v. Dane, 43 N. Y. 240, 243. 4 See Beck with v. Cheever, 21 N. H. 41, 43, 44. 5 See Martin v. Black, 21 Ala. 721, 729. 6 Washington v. Johnson, 7 Humph. 468, 469. 7 Johnson v. McLane, 7 Blackf. 501, 504. 8 Washington r. Jqhns9n, 7 Humph. 468, 469. What is a reason- able or unreasonable time in such cases is a question of fact for the jury, and must depend in a great degree upon the nature of the property : Washington v. Johnson, 7 Humph. 468, 46J. 9 Ferrier v. Storer, 63 Iowa, 484 ; 50 Am. Rep. 752, 755, 756. 10 Maclay v. Harvey, 90 111. 525 ; 32 Am. Rep. 35. Stipulation for answer by' return mail: See argument in Uunlop v. Higgins, 1 H. L. Cas. 381, 387 ; Taylor v. Rennie, 35 Barb. 272, 276. 11 Baker v. Holt, 56 \Vis. 100, 104. 12 Phillips v. Moore, 71 Me. 78, 80. And see Peru v. Turner, 10 Me. 185 ; also preceding portion of section. 13 Phillips v. Moore, 71 Me. 78, 80. 36. Limiting time for acceptance. Illustration. A paper signed by a party, by which he agrees that another, in consideration of one dollar paid, shall have for thirty days the refusal of certain land therein designated, and that he will convey the same in con- sideration of a specified sum per acre, a certain amount to be paid on the execution of the deed, and the balance in a mortgage on the land, with interest at a designated 49 CONSENT. I 37 rate, no time being named for delivering the deed, nor any time for which the mortgage shall run, is not a contract, but only a refusal, 1 or offer of the lands at a certain price, 2 and could not be converted into a con- tract unless accepted within the thirty days. 3 General rule. And in general, when an offer is made for a time limited in the offer itself, no acceptance after- wards 4 will make it binding. 5 1 See 29, on CONSENT IN GENERAL. 2 Potts v. Whitehead, 20 N. J. Eq. 55, 57. 3 Potts v. Whitehead, 20 N. J. Eq. 55, 57. 4 See \ 35, on TIME FOB ACCEPTANCE. 5 Potts v. Whitehead, 20 N. J. Eq. 55, 57. For any offer without consideration may be withdrawn at any time before acceptance : Potts v. Whitehead, 20 N. J. Eq. 55, 57. And an offer which in its terms limits the time of acceptance is withdrawn by the expiration of the time, which cannot be extended without the consent of the person making the offer : Potts v. Whitehead, 20 N. J. Eq. 55, 57. \ 37. Modes of acceptance. Sending letter. Where the offer is by letter, the usual mode of acceptance is by the sending of a letter announcing a consent to accept. 1 Through messenger. And where the offer is made by a messenger, a determination to accept, returned through him or sent by another, would seem to be all the law requires, if the contract may be consummated without writing. 2 Other modes. But there are other modes which are equally conclusive upon the parties ; 3 even keeping silence under certain circumstances is an assent to a proposition ; 4 and anything that shall amount to a mani- festation of a formed determination to accept, communi- cated or put in a proper way to be communicated to the party making the offer, would doubtless complete the contract. 5 Thus, it is said that the overt act may be as various as the form and nature of contracts ; 6 and it may be by fall of the hammer, by words spoken, by letter, by telegraph. 7 If one holds his property out for sale, naming the terms, and another accepts the terms, the NEWMAKK SALES. 6. 37 CONSENT. 50 contract is complete ; or if one bids at an auction, and the hammer falls, the contract is complete ; or if one advertises, offering a reward for something to be done, as soon as the thing is done the contract is complete, and the reward is due. 8 Compliance with proposition. And in general, compli- ance with a proposition, especially where no notice of acceptance is required, is the most significant evidence of its acceptance. 9 Uncommunciated intention. But an intention to accept a proposition is not an acceptance, unless communicated to the party making it. 10 Addressing letter. An acceptance of an offer in writ- ing to convey land within a certain time, in consideration of a price named, may be communicated by mail, but it must be actually placed in the postoffice, directed to the proper place ; n and if directed to a place where the party to be bound by it only sometimes resorts, it must be proved to have been received. 12 1 Mactier v. Frith, 6 Wend. 103 ; 21 Am. Dec. 262, 272 ; Langdell's Cases on Contracts, 77. And see Hallock v. Ins. Co. 2 Dutch. 268, 281, 282 ; affirmed, 3 Dutch. 645 ; 72 Am. Dec. 379. 2 Trevor v. Wood, 3fi N. J. 307, 310 ; quoting Mactier v. Frith, 21 Am. Dec. 262, 272 ; 1 Laugdell's Cases on Contracts, 77. 3 See citations in last note. Contracts by telegraph : See 43. 4 See 1 Parsons on Contracts, 476. Implied agreement to pay value of wares taken up from a tradesman's counter : 2 Blackst. Com. 443 ; Hoadly v. McLaiue, 10 Biug. 4s2, 487. 5 Mactier v. Frith, 6 Wend. 103 ; 21 Am. Dec. 262, 272 ; 1 Langdell's Cases on Contracts, 77 ; as quoted, Trevor v. Wood, SON. Y. 307, 310. And see Abbott v. Shephard, 4 N. H. 14, 17. 6 Hallock v. Ins. Co. 2 Dutch. 268, 281 ; affirmed, 3 Dutch. 645 ; 72 Am. Dec. 379. 7 Hallock v. Ins. Co. 2 Dutch. 268, 281 ; quoted, Ferrier v. Stover, 63 Iowa, 4b4, 488 ; 50 Am. Hep. 752. 754. 8 Crook v. Cowan, 64 N. C. 743, 746. 9 Fatten v. Hassinger, 69 Pa. St. 311, 314. See 38, on ACCEPTANCE BY ACTS. 10 Jenness v. Iron Co. 53 Me. 20. 23. And see McDonald v. Boeing, , 43 Mich. 394, 396; Shupe v. Gal-braith, 32 Pa. St. 10, 11 ; McCulloch v. Eagle Ins. Co. 1 Pick. 278 ; 1 LandgeLTs Cases on Contracts. 72. 11 Potts v. Whitehead, 20 N. J. Eq. 55, 50. 12 Potts v. Whitehead, 20 N. J. Eq. 55, 59, 60. 51 CONSENT. 38 \ 38. Acceptance by acts. Sending goods as proposed. A mere mental assent to the terms stated in a proposed contract would not be binding ; J but acting upon those terms by sending goods in the quantities and at the prices mentioned in it, amounts to sufficient to show the adoption of the writing previously altered and sent, and to constitute a valid contract. 2 Acts of acquiescence, etc. So where a contract be- tween a railroad company and a telegraph company was reduced to writing and signed by the telegraph com- pany, and a copy thereof, sent to the railway company, was accepted by letter of its agent, except as to ono matter which was acceded to by the former company, and under this arrangement the telegraph company made large expenditures, and each of the companies for a long time acted upon the terms of the contract, it was held that by the acts of acquiescence, adoption, and recognition by the railroad company of the terms of the contract, it was binding on the latter, 3 although such company did not formally execute the same. 4 Written proposition and prior veroal offers. Nor can a party accept a part only of a written proposition for a contract, and at the same time rely on a portion of the antecedent verbal offers ; 5 and if such party acts under a written proposal, and avails himself of all the rights and privileges it confers, this will show an acceptance. 6 Compliance with order for goods. If one send by mail an absolute and specific order for certain goods to a merchant who sells such goods, the latter need riot reply by mail engaging to send them, but the contract will be complete upon his at once complying with the order. 7 1 Brogden v. Metrop. By. Co. 2 App. Gas. 666, 688, 691. But any appropriate act of assent of a binding character is as good as a formal letter of acceptance : Lungstrass v. German Ins. Co. 48 Mo. 201, 203. 2 Brogden v. Metrop. Ky. Co. 2 App. Cas. 666. 3 West. Union Tel. Co. v. Chicago etc. B. B. Co, 86 111, 446, ? 39 CONSENT. 52 4 West. Union Tel. Co. v. Chicago etc. K. B. Co. 86 111. 246. 2-51, 252. Facts held sufficient to show an acquiescence by buyers in a change of the contract of sale as to time of delivery, and to bind them to accept the remainder of the goods according to it: Tilt v. La Salle Manuf. Co. 5 Daly, 19. 5 Pickrel v. Rose, 87 111. 263, 265. 6 Pickrel r. Hose, 87 111. 263, ! 7 Crook t\ Cowan, 64 X. C. 743, 747, 74& 33. Contract by lotter. Mailing acceptance binds bargain. Where a proposition of sale is made by letter through the mail, the mailing of the acceptance, accord- ing to the weight of authority, closes the contract, 1 and the party making the proposition cannot retract after the acceptance by his correspondent has been depos- ited in the postoffice. 2 Xor can the party accepting retract his acceptance after posting his letter. 3 Ground of doctrine. The principle said to be estab- lished as governing the subject is that in order to con- stitute a binding acceptance, it is only necessary that there should be a concurrence of the minds of the parties upon a distinct proposition manifested by an overt act ; 4 and that the sending of a letter announcing a consent to the proposal is a sufficient manifestation, and consummates the contract from the time it is sent. 5 Delay or failure in receipt of acceptance. And where the offer is made by letter, the contract is complete, if the acceptance is mailed within a reasonable time, 6 although the acceptance may be delayed, or may not be received at all, owing to the fault of the post. 7 Delay in delivery of offer or acceptance. If the deliv- ery of the letter containing the offer is delayed by the fault of the sender, the period for posting acceptance is extended until the arrival of the proposal; 8 and this was held where the letter making an offer to sell goods was misdirected by the sender's fault, and was conse- quently delayed two days in transmission, and before receipt of the acceptance the sender of the offer sold the 53 CONSENT. 39 goods to a third person. 9 But if undue delay in the de- livery of the letter of acceptance is caused by the fault of the accepting party, there is no contract ; 10 so that where the accepting party put his letter into the hands of an agent, the contract is not concluded so long as the letter remains in the agent's hands, even if the agent is the postmaster. 11 Intervention of friend or agent. A proposition to sell, contained in a letter sent by mail to the writer's agent or friend, with request to communicate it, may, after communication to the person for whom it was intended, be accepted by a written reply from the latter, ad- dressed directly to the maker of the proposition ; u and in such case sending the reply to the postoffice through the same agent or friend, first permitting him to read it, and telling him orally that the proposition is ac- cepted, will not prevent the contract from being one made by letter ; 13 and the contract will be closed, not from the time of leaving the reply to be carried to the postoffice, u but from the time of its delivery into the postoffice. 15 1 See cases next cited. 2 Adams v. Lindsell, 1 Barn. & Aid. 681; 1 Langdell's Cases on Contract, 4 ; Dunlop v. Higgins, 1 H. L. Cas. 381 ; 1 Langdell's Cases on Contracts, 21 ; Wheat v. Cross, 31 Md. 99 ; 1 Am. Hep. 28, 29 ; Mac- tier v. Frith, 6 Wend. 103 ; 21 Am. Dec. 262 ; 1 Langdell's Cases on Contracts, 77 ; Vassar v. Camp, 11 N. Y. 441 ; 1 Langdell's Cases on Contracts, 110 ; Byrne v. Van Tienhoven, Law R. 5 C. P. D. 344 ; 30 Eng. liep. 133. And see Tayloe v. Merchants' Fire Ins. Co. 9 How. 390 ; 1 Langdell's Cases on Contracts, 106 ; Harris' Case, Law R. 7 Ch. App. 537 ; 1 Langdell's Cases on Contracts, 54 ; 3 Eng. Rep. 529 ; Ab- bott v. Shepard,48 N. H. 14, 16; Ferrier v. Stover, 63 Iowa, 484 ; 50 Am. Rep. 752, 7-">4 ; Household Fire Ins. Co. v. Grant, Law R. 4 Ex. D. 210 ; 31 Eng. Rep. 466. And compare Lewis ?'. Browning, 130 Mass. 173, 175 ; Haas v. Myers, 111 111. 421 ; 53 Am. Rep. 634, 635. But see contra, McCulloch v. Eagle Ins. Co. 1 Pick. 278 ; 1 Langdell's Cases on Contract, 72 ; 2 Langdell's Cases on Contracts, 993, 994 ; 7 Am. Law Rev. 433. Consult further, 2 Kent Com. (12th ed.) 652; note to Maclay v. Harvey, 32 Am. Rep. 40. 3 See cases cited in last note. But compare Countess of Dunmore v. Alexander, 9 fehaw & D. 190 ; 1 Langdell's Cases on Contracts, 121. So of other contracts besides those of sale : Coml. Ins. Co. v. Hal- lock, 2 Dutch. 268 ; 3 Dutch. 645 ; 72 Am. Dec. 379, n. 380. 40 CONSENT. 54 4 Vassar i. Camp, 11 N. Y. 441 ; 1 Langdell's Cases on Contracts, 110, 116, 117. And see Mactier v. Frith, 6 Wend. 103 ; 21 Am. Dec. 262 ; 1 Langdell's Cases on Contracts, 77. 5 Trevor v. Wood, 36 N. Y. 307, 309 ; Vassar v. Camp, 11 N. Y. 441 ; 1 Langdell's Cases on Contracts, 110, 116, 117. And see Mactier v. Frith, 6 Wend. 103 ; 21 Am. Dec. 262 ; 1 Langdell's Cases on Contracts, 77. Putting in the mail the answer by letter containing the acceptance, and thus placing it beyond the control of the party, is valid as a con- structive notice of acceptance : 2 Kent Com. 477. 6 See \ 35, on TIME FOB ACCEPTANCE. 7 See Household Fire Ins. Co. v. Grant, Law R. 4 Ex. D. 216 ; 31 Eng. Rep. 466 ; note to Maclay v. Harvey (90 111. 525) ; 32 Am. Rep. 40 ; Dunlop v. Higgins, 1 H. L. Cas. 381 ; 1 Langdell's Cases on Contracts, 21, 30 ; and other cases cited in first paragraph of section. Compare Howard v. Daly, 61 N. Y. 362, 365, 366. 8 Adams v. Lindsell, 1 Barn. & Aid. 681 ; 1 Langdell's Cases on Contracts, 4. 9 Adams v. Lindsell, 1 Barn. & Aid. 681; 1 Langdell's Cases on Con- tracts, 4. See note to Maclay v. Harvey (90 111. 525) ; 32 Am. Rep. 50, 51. 10 See citations in next note. 11 Thayer v. Middlesex etc. Ins. Co. 10 Pick. 326. As stated in note to Maclay v. Harvey (90 111. 525) ; 32 Am. Rep. 51. 12 Bryant v. Boozer, 55 Ga. 438. 13 Bryant v. Boozer, 55 G a. 438, 448. 14 Compare Thayer v. Middlesex etc. Ins. Co. 10 Pick. 326. 15 Bryant v. Boozer, 55 Ga. 438, 448. 40 . Construction of correspondence. Con tract arising from correspondence. A contract need not be embraced in a single writing, but may be contained in letters con- stituting a correspondence between the parties. 1 Thus, it is a very common thing to buy and sell by letter. 2 In such cases the correspondence contains the contract, and it is for the court to construe the contract as it is extracted from the correspondence. 3 Assent to latest proposition. But it is an undoubted rule of law that before an agreement can be gathered from a correspondence, it must appear by the corre- spondence that what has been proposed on the one side has been definitely agreed to upon the other, so that a clear and complete contract can be derived from the letters; 4 and applying this rule, a contract of sale can- not be considered as made until the latest proposition 55 CONSENT. 40 on the part of the one is assented to by the other of the parties. 5 Distinct proposition and unqualified acceptance. So to constitute a contract by correspondence one letter must contain a distinct proposition, and the answer must be an unqualified acceptance. 6 And if the answer mailed in response to a letter, merely offering to sell land, imposes conditions concerning the execution and for- warding of the deed, and the place of payment of the price, it does not amount to an unqualified acceptance so as to preclude the withdrawal of the offer. 7 Nor will a letter, and a telegram sent in reply thereto, constitute a contract, where the former is construed to be in the nature rather of an advertisement or circular suggesting good bargains, than an offer which might be accepted for any amount of goods the persons addressed might see' fit to order. 8 Ambiguous document or letter. Where both parties have acted upon a certain construction of an ambiguous document or letter, that construction, if in itself admis- sible, will be admitted by the court. 9 Meaning of written offer to sell. And in ascertaining the meaning of a written offer to sell, all its parts and words should be examined in the light of the circum- stances, and if possible, effect given to each. 10 Evidence to show sale. In an action for the price of a horse alleged to have been sold by plaintiff to defendant, where the former, admitting that he had sent to the latter a letter containing an offer to sell him the horse for two hundred dollars, offered in evidence a letter, afterwards received from the defendant and signed by him, of the tenor following : "I might purchase your horse at two hundred dollars, the price you asked. I would like to get it at once, if it will do me, which I am quite certain it will. Please reply at once," it was held that the two \ 41 CONSENT. 56 letters do not show a complete written contract for the sale of the horse ; n and that the one offered was compe- tent evidence, in connection with parol evidence offered to show the sale charged. 12 1 Thames Loan etc. Co. v. Beville, 100 Ind. 309, 314. 2 Cheney r. East Transp. Line, 59 Md. 557, 565. 3 Cheney r. East Transp. Line, 59 Md. 557, 5G5. Citing Eliason v. Henshaw, 4" Wheat. 225 ; 1 Langdell's Cases on Contracts, 70 ; Carr v. Duval, 14 Peters, 77 ; Bonnewell v. Jenkins, Law R. 8 Ch. D. 70 ; Propr's etc. v. Arduin, Law R. 5 Eng. & Ir. App. 64 ; Turner v. Yates, 16 How. 23 ; Watts v. Ainsworth, 1 Hurl. & C. 83. 4 Darlington Iron Co. v. Foote, 16 Fed. Rep. 646, 649. 5 Darlington Iron Co. v. Foote, 16 Fed. Rep. 646, 649. 6 Baxter ?. Bishop, 65 Iowa, 582, 583. And see 1 Parsonj on Con- tracts, 4^5 ; Vassar r. Camp, 11 N. Y. 441, 445 ; 1 Langdell's Cases on Contracts, 110, 113 ; \ 33, on CORRESPOXDEXCE OF ACCEPTANCE, etc. 7 Baker v. Holt, 56 Wis. 100, 103. Following Northwestern Iron Co. v. Meade, 21 Wis. 474. Distinguishing Matteson v. Scofield, 27 Wis. 671. 8 Moulton v. Kershaw, 59 Wis. 316 ; 43 Am. Rep. 516, n. 519. 9 Foster v. Goldschmidt, 21 Fed. Rep. 70, 74. 10 Butler ?<. Moses, 43 Ohio St. 166. When such writing may have different meanings, and the receiver thereof, on inquiry of a third person, is given the true intent and meaning of the sender thereof, but acts thereon without further inquiry, and then seeks to hold the sender upon the writing, such receiver is bound by the true intent and meaning of the sender . Butler v. Moses. 43 Ohio St. 166. 11 Stagg v. Compton, 81 Ind. 171, 175. 12 Stagg v. Compton, 81 Ind. 171, 176. \ 41. Preliminary negotiations or final agreement, In contract by correspondence. A valid contract may doubt- less be made by correspondence; l but care should always be taken not to construe as an agreement, letters which the parties intended only as a preliminary negotiation. 2 Test question. The question in such cases always is, did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after all its particulars were adjusted, which was then to be formally drawn up, and by which alone they were to be bound ? 3 Determining circumstance. And the circumstance that the parties do intend a subsequent agreement to be 57 CONSENT. g 41 made, is strong evidence to show that they did not intend the previous negotiations to amount to an agreement. 4 Governing principle. The principle governing cases of this character is said to be that if there is a simple acceptance of an offer to purchase, accompanied by a statement that the acceptor desires that the arrangement should be put into more formal terms, the mere reference to such a proposal will not prevent the court from en- forcing the final agreement so arrived at. 5 But if the agreement is made subject to certain conditions, then specified or to be specified by or for the party making it, then there is no final agreement such as the court will enforce until those conditions are accepted. 6 Written contract to be prepared. The mere fact that a wjitten contract was to be subsequently prepared, does not show that a final agreement between the parties was not made, but it tends to show it. 7 Contract not specifically enforcible. A contract, any material part of which remains to be settled by negoti- ation between the parties, as where there is no designa- tion of the time of payment of the great bulk of the consideration for a conveyance of land, will not be en- forced in equity on a bill for specific performance. 8 So there is a mere proposal of terms, and not a contract capable of enforcement by an accepted offer to sell land where there is uncertainty as to the clauses to be inserted in the contract, and as to the length of title to be shown. 9 Offer to purchase. Where a party wrote to the man- ager of a bank, who was verbally authorized to sell cer- tain property belonging thereto, "I hereby agree to purchase" specified property from the bank, and made a payment on account of the purchase money, but this memorandum was not submitted to the managing offi- cers of the bank, nor signed by any one acting on their behalf, and the solicitor for the bank refused that it 42 CONSENT. 58 should be put into such a shape as to bind the bank, it was held that the memorandum amounted to an offer to purchase only. 10 Acceptance of tender not sufficient, etc. And the accept- ance of a tender to supply a work-house with meat, does not form a binding contract, where the advertisement stated that all contractors would have to sign a written contract after acceptance of the tender. 11 1 See Thames Loan etc. Co. v. Seville, 100 Ind. 309, 314. 2 Lyman v. Robinson, 14 Allen, 244, 252 ; quoted Moulton r. Ker- shaw, 50 Wis. 316, 321 ; 48 Am. Rep. 516, 518. See also Gates v. Nelles, 29 N. W. Rep. (Mich.) 73. 3 Lyman v. Robinson, 14 Allen, 242, 254. 4 Ridgway r. Wharton. 6 H. L. Cas. 268. An agreement to be finally settled must comprise all the terms which the parties intend to introduce into the agreement : Ridgway v. Wharton, 6 H. L. Cas. 268. For an agreement to enter into an agreement upon terms to be afterwards settled, is a contradiction in terms, since until the terms of the agreement are settled the party is perfectly at liberty to retire from the bargain : Ridgway v, Wharton, 6 H. L. Cas. 268. 5 Crossley v. Maycock, Law R. 18 Eq. 180, 181. 6 Crossley v. Maycock, Law R. 18 Eq. 180, 181. 7 Methudy v. Ross, 10 Mo. App. 101, 106. 8 Potts v, Whitehead, 20 N. J. Eq. 55. 58, 60. 9 Rummens v. Robbins, 3 Do Gex, J. & S. 88, 93. 10 Dominion Bank r. Kno\v!ton, 25 Grant U. C. 125, 130. And that before a formal acceptance thereof by the bank authorities, the writer was at liberty to withdraw the same: Dominion Bank r. Knowlton, 2-i Grant U. C. 125, 130. 11 Guardians of the Poor r. Petch, 10 Ex. 610. Acceptance of shares: See New Brunswick etc. Ry. Co. r. Muggridge, 4 Hurl. & N. 160 ; Boglead Manuf. Co. v. Montague, 10 Com. B. N. S. 481. $ 42. Reduction to writing, etc. As requisite to valid contract. It is a general rule, applicable to contracts of sale, 1 that where parties enter into any agreement, and the understanding is that it is to be reduced to writing, or if it is already in written form, that it is to be signed before it is acted on or to take effect, it is not binding until it is so written or signed. 2 And there is no sale where a party assenting to deliver wood to a mining company fails to sign the written agreement embody- 59 CONSENT. 43 ing the terms of the contract, and to furnish the re- quired bond. 3 Estoppel to object to want of. But where parties agree upon the terms of a contract which is to be reduced to writing but never is, and the parties on one side avail themselves of the benefit of the proposition, and go on under this agreement as though it had be^n in writing, they cannot be heard to say that it was understood that the contract was not to be binding unless reduced to writing. 4 1 Mori-ill v. Tehama etc. Co. 10 Nev. 135. 2 See Boyd v. Hind, 36 Eng. L. & Eq. 566 ; Fisk v. Levine, 16 La, An. 29 ; Dodge v. Hopkins, 14 Wis. 630 ; Townsend v. Hubbard, 4 Hill, 351 ; Crane v. Portland, 9 Mich. 493. 8 Morrill v. Tehama etc. Co. 10 Nev. 125, 135, 136. Compare Hortham t>. Gordon, 46 Cal. 582. 4 Miller v. McManis, 57 111. 126, 130. 43 . Contract by telegraph . Permissibility and proof. A contract may be entered into by means of telegraphic dispatches ; * and in cases where such communications are relied upon to establish contracts, they may be proved in the same manner as other writings, such as letters, etc. 2 Answer to letter, etc. So the communication of one of the contracting parties may be by mail, and the reply thereto by telegraph, 3 and thus the contract be com- pleted. 4 Acceptance as closing contract. And where the offer to make a sale, such as a proposal to sell Mexican dol- lars, is sent by telegram, an acceptance signified in the same manner is a sufficient manifestation of con- currence to consummate the contract, irrespective of the time when it conies to the knowledge of the pro- posing party. 5 Qualified or conditional acceptance. An offer by tele- graph is not accepted when the reply, besides mis- $ 43 CONSENT. 60 understanding the unintelligible proposal, contains a qualification, such as a requirement of the reservation of crops in a sale of land. 6 And a telegram referring to a previous letter which contained a conditional accept- ance of an offer to sell property, cannot be construed as an absolute acceptance of the proposition. 7 Construction. Telegrams communicating an offer and acceptance of the same though of doubtful scope, yet when acted on form a contract, governing the acts of the parties under the stipulations of the telegrams. 8 But where the telegrams are merely the preliminary arrangements for a final meeting, at which the busi- ness is to be closed out, they do not constitute a con- tract. 9 And where, in an action for an alleged breach of a written contract of sale made by telegraph, the telegrams fail to show what the property contracted for is, what the price to be paid for it is, and to whom it is sold, they are insufficient to establish a written contract and to take the case out of the statute of frauds. 10 Receipt of acceptance. Regardless of the effect of sending an acceptance in ordinary cases, it has been held that the party making the offer may always, if he chooses, make the formation of the contract dependent upon the actual communication to himself of the ac- ceptance. 11 Thus, if an offer is made by letter, in which the person making the offer requests an answer by telegraph "yes" or "no," and states that unless he receives the answer by a certain date he "shall con- clude 'no,'" the offer is made dependent upon an actual receipt of the telegram on or before the date named, and without such receipt the contract is not completed. 12 And it has been held upon the same ground that there was no complete contract of sale of an interest in cattle to be secured at a distant point, where the proposed buyer thereof telegraphed " yes," 61 CONSENT. g 43 as it had been arranged that he should do if he was willing to take a share of the property, but the dispatch never reached the other party. 13 Speedy acceptance required. In case of a proposition by telegraph for the sale of certain goods, the market for which was subject to sudden and great fluctuations, the understanding will be construed to be that an im- mediate answer should be returned ; u and an accept- ance of such proposition telegraphed after a delay of twenty -four hours from the time of its receipt, has been held not an acceptance within a reasonable time, 15 and not to operate to complete the contract. 16 Evidence of oral acceptance. Where a party who had acted as a broker for another, and had also dealt with him on his own account, telegraphed as follows : " Tele- graph how much corn you will sell, with lowest cash price," to which the reply by telegraph was, "Three housand cases, one dollar five cents, open one week," whereupon a counter-telegram was sent, reading : "Sold corn; will see you to-morrow," it was held in- ompetent in an action for the non-delivery of the corn, for the former broker and dealer to offer to show that at an interview on the next day, he verbally accepted the offer contained in the telegrams, that the other party promised to ship the corn to him, and that the last telegram referred to a resale by himself of the corn to a third party. 17 1 See cases next cited. Contract by telegraph : See note to Phila Whiting Co. v. Detroit White Lead Works, 24 N. W. Kep. 835 ; also, 14 m. Law Reg. N. S. 401. 2 Durkee v. Vt. Cent. R. R. Co. 29 Vt. 127, 140. And see Taylor v. teamboat, 20 Mo. 254, 259, 260. Requiring production: Woods v. Miller, 55 Iowa, 168. Proof of authenticity requisite : Hurt v. Winona etc. R. R. Co. 31 Minn. 472, 473 ; Adams v. Lumber Co. 32 Minn. 210, 217. 3 See Moulton v. Kershaw, 59 Wis. 316 ; 48 Am. Rep. 510, n. 519; Robinson Machine Works v. Chandler, 56 Ind. 575; Rommel v. Wingate, 103 Mass. 327, 330 ; Holton v. McPike, 27 Kan. 286. 4 See Prosser v. Henderson, 20 Up. Can. Q. B. 438, 440 ; Alford v. Wilson, 20 Fed. Rep. 96. And compare Lewis v. Browning, 130 Mass. NEWMARK SALES. 6. 44 CONSENT. 62 173. Or a letter and telegram of acceptance in answer to an offer to sell coin may be sent on the same day : Trevor i\ Wood, 3(> N. Y. 307. Or the acceptance of a telegraphic offer of goods for sale may be made by telegram and later letter: Byrne v. Van Tienhoven, Law B. 5 C. P. D. 344 ; 30 Eng. Bep. 833. 5 Trevor v. Wood, 36 N. Y. 307, 309, 310. And see Stevenson v. McLean, Law B. 5 Q. B. D. 346 ; 29 Eng. Bep. 341 ; Minnesota Oil Co. v. Collier Lead Co. 4 Dill. 431, 434. But compare Haas v. Myers, 111 111. 421 ; 53 Am. Bep. 634, 635. 6 Clay v. Bickets, 23 N. W. Bep. 755 ; Sup. Ct. Iowa, June 6, 1885. 7 Baker v. Holt, 56 Wis. 100, 104. 8 Duble v. Batts, 38 Tex. 312, 313, 314. 9 Martin v. Northwestern Fuel Co. 22 Fed. Bep. 596. Where, however, bought and sold notes were to be exchanged by the parties to a con tract, and in the same letter in which the one party had mailed the notes for signing he asked the other party to " cable confirmation of the contract," it was held that the confirmation was to be signified by the cablegram, and that the bought and sold notes could not be considered as the preliminaries to a contract, but as evidence of a contract already concluded: Darlington Iron Co. v. Foote, 16 Fed. Bep. 646, 649. 10 Watt ?\ Wis. Cranberry Co. 63 Wis. 730. Nor can oral testimony be admitted to supply the defects or omissions therein : Watt v. Wis. Cranberry Co. 63 Wis. 730. See chapter on STATUTE OF FRAUDS. 11 Lewis v. Browning, 130 Mass. 173, 175. And see Household Fire Ins. Co. v. Grant, Law B. 4 Ex. D. 216, 223; 31 Eng. 4Gfi, 472. Note to Maclay v. Harvey, 32 Am. Bep. 44 ; Vassar v. Camp, 11 N. Y. 441, 451 ; 1 Langdell's Cases on Contracts, 110, 117. 12 Lewis v. Browning, 130 Mass. 173, 175, 176. 13 Haas v. Myers, 111 111. 121 ; 53 Am. Bep. 634. 14 Minn. Linseed Oil Co. v. Collier White Lead Co. 4 Dill. 431, 436. 15 See 35, on TIME FOR ACCEPTANCE. 16 Minn. Lead Oil Co. v. Collier White Lead Co. 4 Dill. 431, 435, 436. 17 Lincoln v. Erie Preserving Co. 132 Mass. 129. $ 44. Implied sales. Express contract as excluding implied. An implied contract cannot exist, where there is an existing express contract concerning the same subject-matter, 1 and where the provisions of the express contract were intended to control and supersede those which would otherwise be raised by implication. 2 Appropriation of goods by alleged purchaser. But one who receives goods sent to him, knowing that the sender claims that the receiver has purchased them of him, cannot, in absence of mistake or fraud, ap- propriate them to his own use, and then disclaim the purchase. 3 63 CONSENT. \ 44 Delivery and retention of part. And where there is an entire contract to deliver a large quantity of goods, con- sisting of distinct parcels, within a specified time, and the seller delivers part, he may, after the expiration of that time, recover the value of the part delivered to the purchaser and retained by him. 4 1 Walker v. Brown, 28 111. 378, 383. And see Wood v. Edwards, 19 Johns. 212. 2 See Commercial Bank v. Pfeiffer, 22 Hun, 327, 335. 3 Wellauer v. Fellows, 48 Wis. 105, 109. And see Bartholomae v. Paul, 18 W. Va. 771, 779. 4 Oxendale v. Wetherell, 9 Barn. & C. 586, 587. And see Richard- son ?-. Dunn, 2 Q. B. 218 ; Hart v. Mills, 15 Mees. & W. 85 ; Bowser v. Hoyt, 18 Pick. 355, 557. But see contra, Keiu v. Tupper, 52 N. Y. 550, 555. \ 45 PAETIES. 64 CHAPTER IV. PARTIES. \ 45. In general. g 46. Insane and incompetent persons. \ 47. Intoxicated persons. 2 48. Infant's sales and purchases. \ 49. Infant's necessaries. 2 50. Express contract for necessaries. 5 51. Trading purchases of infants. 2 52. Misrepresentation of age by infant. 53. Ratification after majority. 2 54. Disaffirming transaction. 2 55. Married women at common law. 1 56. In equity. 2 57. Under statutes. 2 58. Sole traders by custom. 2 59. Separate trading under special enactments. 45 In general. As element of sale. Competent parties to enter into the contract are enumerated among the essential elements of a sale. 1 And a sale has been declared to be a contract between two parties, one of whom acquires thereby a property in the thing sold, and the other parts with it for a valuable consideration. 2 Seller and buyer. The seller is the one who parts with and passes the title to the thing ; 3 and this term is more usually applied in the sale of chattels, while that of vendor is commonly employed in the transfer of real property. 4 The buyer is the party to whom the transfer is made, and who thereby gains title to the subject of transfer; 5 but it is convenient and custom- ary to use the terms " vendee " and " purchaser " when referring to real property, and " buyer " when the sale is of personal property. 6 Who may sell. As a general rule, all persons sui juris inay be either buyers or sellers. 7 But only the owner, PARTIES. 46 or one acting in his behalf, can, ordinarily, sell goods and transfer a valid title to them, such as will avail even an innocent purchaser thereof. 8 Who may buy. There is a class of persons who are incapable of purchasing, except sub modo, g as infants and married women, insane persons and drunkards ; 10 and another class, consisting of those who, in conse- quence of their peculiar confidential relation toward the owner of the thing sold, 11 are totally incapable of becoming purchasers while that relation exists. 12 1 See Gardner v. Lane, 12 Allen, 39, 43. 2 Creveling v. Wood, 95 Pa. St. 152, 158. And see Eldridge v. Kuehl, 27 Iowa, 160, 103 ; Winfield's Words, etc. 547. 3 See citations in last note. 4 2 Bouvier Law Diet. (15th ed.)626. And see Coles v. Perry, 7 Tex. 100, 135. 5 See Eldridge v. Kuehl, 27 Iowa, 160, 173 ; Creveling v. Wood, 95 Pa. St. 152, 158. 6 2 Abbott's Law Diet. 628. And see Coles v. Perry, 7 Tex. 109, 55. 7 2 Bouvier Law Diet. (15th ed.) 606. 8 See Klein v. Seibold, 89 111. 540, 542 ; Bearce v. Bowker, 115 Mass. 59, 132 ; Breckenridge v. McAfee, 54 Ind. 141, 149 ; chapter on TKANS- EB OF TITLE. 9 See 2 Blackst. Com. 291 ; Allis v. Billings, 6 Met. 415 ; 39 Am. Dec. 744, 746. 10 2 Bouvier Law Diet. (15th ed.) 607. 11 See Michoud v. Girod, 4 How. 503, 555, fully discussing subject. 12 2 Bouvier Law Diet. (15th ed.) 607. These are trustees, guard- ians, assignees of insolvents, and generally all persons who, b / tacir connections wiLh the owner, or by being employed concerning his affairs, have acquired a knowledge of his property, as attorneys, conveyancers, and the like : 2 Bouvier Law Diet. (15th ed.) 607. At- torney's purchase of litigious rights : Denny v. Anderson, 36 La. An. 762 ; 19 The Beporter, 338. 46. Insane and incompetent persons. Contracts voidable. Persons deranged in intellect stand substan- tially on the same footing as infants with regard to the voidable character l of contracts made by them ; 2 and it may be shown by or for such a party that at the time of a purchase the buyer was not of capacity to contract. 3 47 PARTIES. 66 When sales, etc., sustained. Yet the result of the authorities seems to be that dealings of sale and pur- chase by a person apparently sane, though subse- quently found to be insane, will not be set aside against those who have dealt with him on the faith of his being a person of competent understanding; 4 and this view is particularly favored where no advantage is taken of the person of unsound mind, and the contract has been wholly or partially performed, 5 so that the parties can- not be completely restored 6 to their position. 7 Necessaries. A purchase of necessaries which are used by a lunatic is, however, unquestionably valid where no advantage is taken of his condition. 8 1 See note to Jackson v. King, 15 Am. Dec. 364 : Rusk v. Fenton, 14 Busli, 490 ; 29 Am. Rep. 413, 415; Fitzgerald v. Reed, 9 Smedes & M. ( J4, 102. 2 Hallett v. Oakes, 1 Cush. 296, 298, 299. And see Breckenridge v. Ormsby, 1 Marsh. J. J. 236, 238 ; 19 Am. Dec. 71 ; Lincoln v. Buck- master, 32 Vt. 652, 601. But compare Hall v. Butterfield, 59 N. H. 354 ; 47 Am. Rep. 209, 210; Burke v. Allen, 29 N. H. 106, 117; Ewell's Lead. Cas. 576, 585. 3 Molton v. Camroux, 2 Ex. 487 ; 4 Ex. 17 ; Ewell's Lead. Cas. 014. Presumption of sanity : Titcomb r. Varityle.W 111. 371, 373 ; McCarty v. Kearnan, 86 111. 291, 295 ; Lilly v. Waggoner, 2J 111. 395, 397. 4 Elliott v. Ince, 7 De Gex, M. & G. 475, 488 ; Carr v. Holiday, 5 Ired. Eq. 107 ; McCormick v. Littler, 85 111. 62, 65 ; 28 Am. Rop. 610. But compare Lincoln v. Buckmaster, 32 Vt. 652. Deed of lunatic deemed inoperative : Manning v. Gill, Law R. 13 Eq. 485. 5 See note to Jackson v. King, 15 Am. Dec. 366. 6 See note last cited, at p. 367. 7 Molton v. Camroux, 2 Ex. 487 ; 4 Ex. 17 ; Ewell's Lead. Cas. 614, 626, and cases reviewed. And see Beavan v. M'Donnell, 9 Ex. 303 ; 10 Ex. 184 ; Niell v. Morley, 9 Ves. Jr. 478 ; Ewell's Lead. Cas. 628 ; Mut. Life Ins. Co. v. Hunt, 14 Hun, 109, 172 ; Rusk v. Fenton, 14 Bush, 4i)0 ; 29 Am. Rep. 413, 415; Campbell v. Hill, 23 Up. Can. C. P. 473. But compare Seaver v. Phelps, 11 Pick. 304; 22 Am. Dec. 372 ; Ewell's Lead. Cas. 610. 8 Daner. Kirkwall,8 Car. &P. 697; Baxters. Earl of Portsmouth, 5 Barn. & C. 170; Ewell's Lead. Cas. 632; Nelson ?'. Dunscombo, 9 Beav. 211. And see HalletC r. Oakes, 1 Cush. 290, 298 ; McCrillis ?. Bartlett,8 N. H. 56% 571 ; Kendall v. May, 10 Allen, 59, 67 ; Richardson i'. Strong, 13 Ired. 103 ; Sawyer v. Lufkin, 56 Me. 308 ; note to Jackson v. Kins;, 15 Am. Dec. 363 ; Hall v. Butterfield, 59 N. H. 351 ; 43 Am. Rep. 20J, 211. 47. Intoxicated persons. Extent of intoxication. Contracts to the prejudice of drunken persons, 1 who are 67 PARTIES. 48 so intoxicated that they are incapable of exercising their judgment, 2 and do not know what they are doing, 3 have no validity* against them. 5 Contracts voidable, etc. Such purchases, 6 and other ontracts, however, are not absolutely void, 7 but merely voidable, 8 whether the drunkenness be voluntary, or casioned by the contrivance of the other party. 9 Liability for necessaries. But intoxicated persons are Liable for necessaries supplied to them while in an in- ebriated condition, and retained when sober. 10 1 See generally note to Wadsworth v. Sharpstein, 59 Am. Dec. 501. 2 See Schramm v. O'Connor, 98 111. 539, 543. 3 See Taylor v. Patrick, t Bibb, 168, 1G9 ; Makins v. Lightner, 13 111. 282, 284, 285. 4 Drunkenness of maker of promissory note held no defense : State Bank v, McCoy, 69 Pa. St. 204 ; 8 Am. Rep. 246 ; Miller v. Finley, "6 Mich. 249 ; 12 Am. Rep. 306. 5 Gore ';. Gibson, 13 Mees. & W. 623 ; Ewell's Lead. Cas. 736 ; 2 Kent Com. 451. And see Molton v. Cumroux, 2 Ex. 487 ; 4 Ex. 17 ; "well's Lead. Cas. 614, 625; Fenton v. Halloway, 1 Stark. 126; Pitt v. nith, 3 Camp. 33 ; Cook v. Clay worth, 18 Ves. Jr. 12. Compare Cal- oway v. Witherspoon, 5 Ired. Eq. 128. 6 See Reynolds v. Waller, 1 Wash. (Va.) 164. 7 But see Clark v. Cadwell, 6 Watts, 139. & See Arnold v. Hickman, 6 Munf. 15 ; Taylor v. Patrick, 1 Bibb, 16S, 16y ; Reinecker v. Smith, 2 liar. & J. 421 ; Broadwater v. Dame, 10 Mo. 277, 286 ; Carpenter v. Rogers, 22 The Reporter, 1*7. 9 Barrett v. Buxton, 2 Aik. 167, 168, 170 ; Ford v. Hitchcock, 8 Ohio, 214. 10 See Gore v. Gibson, 13 Mees. 4, 502, 503 ; Little v. Duncan, 9 Rich. 55 ; 64 Am. Dec. 760. 701, 762 ; Fetrow v. Wiseman, 40 Ind. 119, 150, 152 ; Vent a. Osgood,19 Pick. 572, 573 ; Tucker v. Moreland, 10 Peters, 58, 71. 2 Distinction noted in general : Stevens v. Hyde, 32 Barb. 171, 176 ; Somes v. Brewer, 2 Pick. 184, 191 ; 13 Am. Dec. 406 ; Cummings v. Powell, 8 Tex. 80, 85. 3 See 2 Kent Com. 235 ; N. H. Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345, 348. But compare Ex parte Kibble, Law R. 10 Ch. 373. Knowl- edge of non-liability not necessary to make affirmance binding: Anderson v. Soward, 40 Ohio St. 325 ; 48 Am. Rep. 687, 688. 4 Boyden v. Boyden, 9 Met. 521. And see Green ?>. Wilding, 59 Iowa, 679, 681 ; 44 Am. Dec. 6D6, 697 ; 22 Ain. Law Reg. 271, n. 273. 5 Warwick v. Bruce, 2 Maule & S. 205, 209. 6 Roof ?'. Stafford, 7 Cowen, 179, 1^1, 1S3. But see contra., Towle v Dresser, 73 Me. 252, 256, 257 ; Hall v. Butterfield, 59 N. H. 304 ; 47 Am- Rep. 209, 213. 7 Biedeman v. O'Connor, 7 N. E. Rep. (111.) 463. $49. Infant's necessaries. Common- 1 aw liability. An infant has authority at common law to make binding contracts 1 for necessaries. 2 Support supplied by parents, etc. And it has been held in some of the cases in England that a purchase of necessaries on credit by an infant may be valid, irre- spective of the question whether he has an allowance sufficient to enable him to supply himself with neces- 69 PARTIES. I 49 saries. 3 But the rule seems to be otherwise in this country ; 4 and it has recently been laid down that the question of what constitutes necessaries for an infant must be determined by the actual state of each case, and not by appearances in regard to the support supplied by parents or guardians. 5 Scope of term u necessaries." The term " necessaries " 6 is not restricted to the absolute necessaries of life, 7 as meat, drink, apparel, and lodgings ; 8 but it also em- braces articles suitable to the condition, rank, fortune, and general needs of the infant. 9 Yet in general, articles of mere luxury are always excluded ; 10 though luxurious articles of utility are in some cases allowed. 11 Neces- saries for an infant's wife and children are necessaries for him. 12 But a horse has been held not within the denomination of necessaries for which an infant is liable. 13 Province of court and jury. And it is declared to be the well-settled rule that it is the province of the court to determine whether the articles sued for are within the class of necessaries ; u and if so, it is the proper duty of the jury to pass upon the question of their quantity, quality, and adaptation to the condition and wants of the Infant. 16 1 See Hall v. Butterfield, 59 N. H. 354 ; 47 Am. Rep. 209, 212. Money spent for necessaries : Price v. Sanders, 60 Ind. 310, 314. 2 Hands v. Slaney, 8 Term Rep. 578, 579. And see Fridge v. State, 3 Gill 7 Am. Dec. 25S, 259. 7 See Hall v. Butterfield, 59 N. II. 354 ; 47 Am. Rep. 209, 213. 8 See cases cited in next note. But see contra, Shelton 7'. Pendle- ton. H Conn. -117, 423. And consult N. II. Mut. Fire Ins. Co. v. Noyes, 32 ;x. II. 345, 350, 351. 9 See Cripps v. Hill, 6 Q. "B. 606, 611 ; Chappie v. Cooper, 13 Mees. & \Y. 252, 25.S ; Rundel v. Keeler, 7 Watts, 237, 239 ; Strong r. Foote, 32 Conn. 203, 20 "j ; Tupper n Cadwell, 12 Met. 559. 5fi2 ; Breed v. Judd, 1 Gray, 455, 458. Enumeration of infant's necessaries: Schouler on Domestic Relations (3d ed.) g 411-413. Burden of proof to show that articles are necessaries : Wood v. Losey, 50 Mich. 475, 477 ; 22 Am. Law Reg. 605, n. 607. 10 Chappie ?'. Cooper, 13 Mecs. & W. 252, 258. And see Ryder ?. Wombwell, Law R. 3 Ex. 90; Price v. Sanders, 60 Ind. 310, 314; McKanna v. Merry, 61 111. 177, 179. 11 Chappie v. Cooper, 1 Wombweil, Law R. 3 Ex. 9 12 Chappie r. Cooper, 13 Mees. cfe W. 252, 259. And see Abell v. Warren, 4 Vt. 149, 152 ; Tupper ?-. Cadwell, 12 Met. 559, 562 ; Price v. Banders, 00 Ind. 310,515. Compare Anderson v. Smith, 33 Md. 465; Freeman v. Bridger, 4 Jones, 1 ; 67 Am. Dec. 258, 259. 13 Rainwater v. Durham, 2 Nott & McC. 524, 525 ; 10 Am. Dec. 637. And see Merriam r. Cunningham, 11 Cush. 40, 44; Grace ?. Hale, 2 Humph. 27, 30; 36 Am. Dec. 28 ; 1 1 Am. Rep. 249, 251, 252 ; Bigelow v. Grannis, 2 Hill, 120, 121. But see note to Tobey v. Wood, 123 Mass. 88; 25 Am. Rep. 30; Henry v. Root, 33 !N. Y. 526, 529, and cases reviewed ; Lawson v. Lovejoy, 8 Greenl. 405 ; 23 Am. Dec. 526, 527. 7 Boody v. McKenney, 23 Me. 517, 525. 8 See cases cited in next note. 9 See Boyden v. Boyden, 9 Met. 519, 521 ; Boody v. McKenney, 23 Me. 517, 525; Aldrich v. Grimes, 10 N. H. 194, 197; Schouler on Domestic Relations, 441. And compare Henry i\ Root, 33 N. Y. 526 ; Farr v. Sumner, 12 Vt. 28, 32 ; 3G Am. Dec. 327- 54. Disaffirming transaction. Rescission of sale be- fore majority. A sale and delivery of personal prop- erty by a minor, may be rescinded by the minor before arriving at full age. 1 Restoration of property or consideration. But in gen- eral, if the infant rescinds the contract, and seeks to recover the article sold by him, he must restore the property or consideration received, before he can main- tain his action for the property sold. 2 Tender. Yet a distinction is taken in this respect between executory and executed contracts made by an 75 PARTIES. \ 55 infant, to the effect that in the latter case he must, in equity, tender before suit any of the property or con- sideration still retained by him. 3 Use or consumption. But it is generally otherwise, where the infant has used or consumed the property or consideration during his minority. 4 Allowing for benefit. It is stated to be the established rule in New Hampshire, however, that a person seek- ing to avoid his purchase of articles not necessaries, or other contract, on the ground of infancy, must restore what he has received under it, if it remains in specie and under his control, and otherwise must allow for the benefit derived therefrom. 5 1 Carr v. Clough, 26 N. H. 280 ; 59 Am. Dec. 345, 347, 340. And see Robinson v. Weeks, 53 Me. 102, 106 ; Vent v. Osgood, 19 Pick. 572, 57.5 ; 2 Kent Com. 277, n. ; Bool v. Mix, 17 Wend. 119 ; 31 Am. Dec. 285, 291 ; Price v. Furman, 27 Vt. 508 ; 65 Am. Dec. 194, 195. 2 Carr v. Clough, 26 N. H. 280 ; 59 Am. Dec. 345, 349. And see Badger v. Phinney, 15 Mass. 359 ; 8 Am. Dec. 105, 108 ; Farr v. Sumner, 12 Vt. 28 ; 36 Am. *Dec. 327, 328 ; Taft v. Pike, 14 Vt. 405 ; 39 Am. Dec. 228, 230 ; Kitchen v. Lee, 11 Paige, 107; 42 Am. Dec. 101, 102 ; Manning v. Johnson, 26 Ala. 446; 62 Am. Dec. 732, 733, and exhaustive note, 7*1 ; Price v. Furman, 27 Vt. 268 ; 65 Am. Dec. 194, 196 ; Bingharn v. Barley, 55 Tex. 281 ; 40 Am. Rep. 801, 802. 3 Eureka Co. v. Edwards, 71 Ala. 2 18 ; 46 Am. Rep. 314, 315. 4 Eureka Co. v. Edwnrds, 71 Ala. 248 ; 46 Am. Rep. 314, 316. And see Brantley v. Wolf, 60 Miss. 420, 43?. 5 See Heath v. Stevens, 43 N. H. 251, 252 ; Hall v. Butterfield, 59 N. H. 354 ; 47 Am. Rep. 209, 213, 215 ; Bartlett v. Bailey, 59 N. H. 408, 409. 55. Married women at common law. General rule. At common law., it is the general rule that the contracts of married women are not merely voidable, but abso- lutely void, 1 so that they cannot be ratified even when the coverture has ceased. 2 Hence, a married woman cannot make a valid purchase on her own account; even for necessaries, although she is living apart from her husband, and has a separate maintenance by deed. 3 Exceptions. But there are exceptions to the rule, which are variously stated, but which may be broadly declared to arise when the husband is regarded as 56 PARTIES. 76 civilly dead, 4 as when he has abjured the realm, or has been banished, 5 or transported as a convict ; 6 when he is an alien and resident abroad; 7 and by the custom of London, when the wife is a sole trader. 8 In this country the exception arising when the husband has abjured the realm, etc., has been applied in all cases in which the husband has abandoned and deserted his wife and accepted an abode or residence in another State or jurisdiction. 8 1 Zouch v. Parsons, 3 Burr. 1704, 1805 ; Swell's Lead. Cas. 3, 14. And see Kelso v. Tabor, f.2 Barb. 125, 128. 2 See citations in last note. 3 Marshall v. Button, 8 Term Rep. 545. See, also, 2 Kent Com. ICO ; Hyde r. Price, 3 Vcs. Jr. 4:J1, 445 ; Lewis v. Lee, 3 Barn. . Ludicus, 5 Bich. 326 ; McGrath v. Bobertson, 1 Desaus. 445 ; Newbiggin v. Pillans, 2 Bay, 162 ; McDaniel v. Cornwall, 1 Hill, 428 ; State v. Collins, 1 McCord, 355 ; McDowell v. Wood, 2 Nott & McC. 242 ; City Council v. Van Boven, 2 McCord, 465. 2 See Colby v. Lamson, 39 Me. 119 ; Oxnard v. Swanton, 39 Me. 125. 3 Burke v. Winkle, 2 Serg. & B. 189 ; Jacobs v. Featherstone, 6 Watts & S. 346. 4 Beard v. Webb, 2 Bos. & P. 97. And see 2 Boper on Husband and Wife, 124 ; Schouler on Husband and Wife, 300. 5 See citations in next note. 59 PAKTIES. 80 6 Bacon's Abr. tit. Baron and Feme (M.) ; Beard v. Webb, 2 Bos. & P. 97; Caudell r. Shaw, 4 Term Bep. 361 ; Schouler on Husband and Wife, \ 300. 7 Ewart ?-. Xagel, 1 McMull. 50, 51 ; Bobards v. Hutson, 3 McCord. 475 ; McDaniels v. Cornwell, 1 Hill, 428, 420. 8 McDowell v. Wood, 2 Nott & McC. 242. $ 59. Separate trading under special enactments. Prevalence of separate trading. The separate trading of the wife has been authorized by statutory provisions, and even sometimes by private acts, 1 in New York, New Jersey, Maine, New Hampshire, Massachusetts, Connecticut, Iowa, Wisconsin, Kansas, Illinois, Ar- kansas, California, and other States. 2 Effect of enactments. The effect of these enactments is to enable the wife to act as "free dealer" or "sole trader," 3 and to use her separate property therefor, and even, in some States, to enter into a general part- nership for trade. 4 But the mere fact that a married woman, with the knowledge and consent of the hus- band, enters into a copartnership, does not make the husband liable for debts of the firm contracted during her membership. 5 In general, what the wife acquires under these statutes is declared to be exempt from lia- bility for her husband's debts, and not subject to his control or interference. 6 When acts held inapplicable. Some of the sole traders' acts have been held inapplicable where the ground of the application is merely the insolvency of the hus- band, 7 or his temporary inability, through sickness, to support his wife. 8 So under none of the acts relating to femme sole traders in Pennsylvania can a married woman be sued for debts which were neither contracted for necessaries, nor in the course of her business as a femme sole trader. 9 But where a married woman who has applied for and received the benefits of a statute concerning her separate earnings, and has subse- 81 PARTIES. 59 quently engaged in business under its sanction, does not thereby become a femme sole trader, 10 she is liable, nevertheless, upon her contracts made in the prosecu- tion of such business, such as for the services of a bar- keeper, as if she were afemme sole. 11 1 Halladay v. Jones, 57 Ala. 525. 2 Schoulor on Husband and Wife, 300. But this system has been repudiated in North Carolina: McKinnon v. McDonald, 4 Jones Eq. 1. 3 Newbrick v, Dugan, 61 Ala. 251. 4 Schouler on Husband and Wife, \ 309. 5 Burgan v. Gaboon, noted 14 Cent. L. J. 259 ; Sup. Ct. Pa. Nov. 7, 1881. 6 Schouler on Husband and Wife, \ 309. 7 Moran v. Moran, 12 Bush, 301. 8 King v. Thompson, 87 Pa. St. 365. 9 Bell ?'. Ladd, 14 Phila. 16^, IfiO. And see Cleaver v. Sheets, 70 Pa. St. 496. Compare Hubert v. Seymour, 14 Phila. 1, 2. 10 Bovard v. Kittering, 101 Pa. St. 181, 183. 11 Bovard i. Kittering, 101 Pa. St. 181, 184. And may be sued thereon without joining her husband : Bovard v. Kittering, 101 Pa. St. 181, 134. 60 PRICE. 82 CHAPTER V. PRICE. ? 60. In general. 2 Gl. Determination where not fixed. \ 62. Valuation by third person. \ 63. Reasonable price. \ 64. Payment in chattels. \ Go. Payment in negotiable paper. 60. In general. Essential feature cf sale. The price is an essential ingredient in the contract of sale. 1 In fact, the distinguishing feature of a sale is a price for the goods, or a stipulation by which the price can be fixed. 2 And the price named by the seller must be agreed to by the buyer, 3 though a grumbling assent may be sufficient. 4 Money or other equivalent. Generally speaking, there can be no sale without a price in money. 5 But a sale has been denned as a transfer of property for a valuable consideration ; 6 and it has been pointed out that the price may mean the equivalent or compensation in. whatever form received, for property sold. 7 Mode of payment. And some of the cases declare that if property is taken at a fixed money price, the transfer amounts to a sale, whether the price is paid in cash or in goods. 8 So the negotiable representatives of money, as bills and notes, etc., may be taken as the ^ payment of the price. 9 Real and fixed or ascertainable. The price must be real, ajid not merely nominal ; 10 and it must be fixed, or be susceptible of being ascertained in the mode pre- scribed by the contract, without further negotiation between the parties ; n nor when the price is to be sub- 83 PRICE. I 60 sequently fixed by means agreed upon, is there a per- fect sale or delivery until the price is so fixed. 12 Sufficiency of consideration. The liability of the buyer of a chattel as surety on the seller's note, or the dis- charge of a debt due from the seller to the buyer, is a sufficient consideration for the sale of such chattel. 13 Evidence of value. Evidence is competent which tends to prove that the property is worth the price charged in an open account upon which suit is brought. 14 Inadequacy of price. A sale or other contract will not be disturbed even in equity 15 for mere inadequacy of price, unless the price obtained is so grossly in- adequate as to amount to a fraud or imposition. 16 1 2 Kent Com. 477. And see Kleinpeter v. Harrison, 21 La. An. 196, 197 ; Fuller v. Bean, 34 N. H. 290, 804 ; Flagg v. Mann, 2 Sum. 436, 539. 2 See Schenck v. Saunders, 13 Gray, 37, 41. 3 See Gardner v. Lane, 12 Allen, 39, 43. 4 Joyce v. Swann, 17 Com. B. N. S. 84, 101, 103. 5 See Wolf v. Wolf, 12 La. An. 529 ; and definitions in \ 1. There must be money paid or promised : See Williamson v. Berry, 8 How. 405. 544. Price is the consideration in money given for the purchase of u thing : 2 Bouvier Law Diet. (15th ed.) 457. 6 2 Kent Com. 468. And see Howard v. Harris, 8 Allen, 296, 299. See \ 4, on CONSIDERATION. 7 Hudson Iron Co. v. Alger, 54 N. Y. 173, 177. 8 Picard v. McCormick, 11 Mich. 68, 77. And see 11, on SALE OB EXCHANGE. 9 See Bonnell v. Chamberlain, 26 Conn. 487,492 ; Wallace ?. Agry, 4 Mason, 336, 342. And consult chapter on PAYMENT. 10 2 Kent Com. 477. And see 2 Bouvier Law Diet. (15th ed.) 457. 11 2 Kent Com. 477. And see Brown v. Bellows, 4 Pick. 179, 189 ; Cunningham v. Ashbrook, 20 Mo. 553, 559. 12 Hutton v. Moore, 26 Ark. 382, 304. And see Wittkowsky v. Was- son, 71 N. C. 451, 456. t 13 Fletcher v. Howard, 2 Aiken, 115 ; 16 Am. Dec. 686, 687. 14 TTillebrand r. Wittkempor, 70 Ind. 180, 182. Price and value discussed : Kountz r. Kirkpatrick, 72 Pa. St. 376, 386. And see Norton v. Willis, 73 Me. 580, 581 ; Fry v. Tilton, 11 Neb. 456, 459. 15 See 2 Kent Com. 477, n. 16 See Carman ?'. Page, 6 Jones Eq. 37, 40 ; Duncan r. Saunders, 50 111. 475, 476 ; Waller v. Cralle, 8 Mon. B. 8, 14 ; Follett v. Rose, 3 McLean, 332, 335. I 61 PRICE. 84 \ 61. Determination where not fixed. Need of specifi- cation. By the civil as well as the common law, the specification of a price is necessary to constitute a sale. 1 And it is laid down by some authorities that where a contract is executory and not executed, it is incomplete and not binding on the purchaser, unless the price is fixed distinctly according to some standard, either of amount, or of market, or of reasonableness, or some other method of ascertainment. 2 But there need not be an express assent to the price named by the seller, if it is adopted by the buyer, even under protest. 3 Price ascertainable from contract. And a contract of sale is not invalid, at least under the common law, because it does not in terms fix the price, if it furnishes a criterion for determining the same, leaving nothing in relation thereto for further negotiation between the parties : 4 as where the amount of the price is dependent on the exercise of an option by the buyer, and the time for its exercise is not limited by the contract. 5 Something remaining to be done. But if anything re- mains to be done as between the parties themselves, for the purpose of ascertaining the price, such as weighing or measuring the goods, it is a current doctrine that the title does not pass, 6 although the subject-matter of the con- tract is placed in the possession of the buyer. 7 So where the price is based on an inventory to be corrected, it has been held that the title does not pass until after the in- ventor} 7 " is verified as stipulated. 8 Failure of parties to agree upon. And there cannot be an executed sale, so as to pass the property, where the price is to be fixed by agreement between the parties afterwards, and they do not subsequently agree thereon. 9 Additional act requisite. Yet the price is sufficiently settled where the terms are so fixed that the sum to be paid can be ascertained by weighing, without further 85 PRICE. \ 62 reference to the parties themselves. 10 And there is a perfect ascertainment of the price by measurement of timber trees, despite an omission to add up the contents of the separate trees. 11 1 Scott ?'. WHls. fi Watts & S. 357, 366. And see Flagg v. Mann, 2 Sum. 48(5, o:); KJeinpetor v. Harrison, 21 Lu. An. 196, U7 ; Bigley v. Itisher, 63 Pa. St. 152, 155. 2 See James v. Muir, 33 Mich. 223, 227. 3 Joyce v. Swann, 17 Com. B. N. S. 84, 101. 4 McConnell v. Hughes, 29 Wis. 537, 540. And see Cunningham v. Ashbrook, 20 Mo. 5.73; Valpy v. Gibson, 4 Com. B. 837, 86-1 ; James v. Muir, :tf Mich. 223, 227. 5 McConnell r. Hughes, 29 Wis. 537, 540. Price varying with value of gold : Ames v. Quimby, 96 U. S. 324. 6 -See Fuller v. Bean, 34 N. H. 2!)0, 302. 7 See Andrews v. Dieterich, 14 Wend. 31, 35 ; Ward v. Shaw, 7 WiMid. 404; Kourke v. Bullens, 8 Gray, 549. And compare Davis?'. Hill, 3 N. H. 3S2 ; Simmons v. Swift, 5 Barn. & C. 857, 863 ; Langclell's Cases on Sales, 65!) ; Devane v. Fennell, 2 Ired. 36, 37. 8 Sherwin r. Mudge, 127 Mass. 547. 9 Wittkowsky v. Wasson, 71 N. C. 451, 456. 10 Cunningham v. Ashbrook, 20 Mo. 553, 559. 11 Tansley v. Turner, 2 Scott, 238, 241. $ 62, Valuation by third person. Decision effective. The price may be left to the decision of some third person, as an arbitrator, referee, or other appraiser; 1 since under the rule that the price must be certain, it is sufficient if the price can be made certain ; 2 and if such third person fix the price, the sale should be carried ito effect. 3 No sale until valuation made. But until the price is so fixed by the means agreed upon, there is no such contract as amounts to a perfect sale or delivery. 4 And if one of the parties obstructs the valuation, as by re- tusing to allow the valuer appointed by him to proceed with the valuation, there is no contract which can be specifically enforced ; 5 though when the valuers named by the parties have not agreed upon the value, but the subject of the negotiation has been consumed by the prospective purchaser, so that a valuation is impossible, NEWMARK SALES. 8. 63 PRICE. 86 he is liable for the reasonable worth of the things so consumed. 6 Estimate binding. On a sale and delivery of lumber, where it is a part of the agreement between the parties that the quantity and quality shall be estimated by a third person named, his estimate is binding, unless im- peached for fraud or mistake. 7 And when a party sold a quantity of hay to another, to be paid for at an agreed price per ton, in a particular mode, when the quantity should be ascertained by persons they might choose, and persons were selected and the amount determined and reported by them, it was held that at law a mistake in their estimate could not be shown, though their determination might be questioned for fraud. 8 1 See Brown v. Bellows, 4 Pick. 179, 189 ; Fuller v. Bean, 34 N. H. 290 ; Hutton v. Moore, 26 Ark. 382. 2 See Fuller v. Bean, 34 N. H. 290, 304 ; Brown r. Bellows, 4 Pick. 179, 189 ; 2 Bouvier Law Diet. (15th ed.)457; Wittkowsky v. Wasson, 71 N. C. 451, 456. 3 Brown v. Bellows, 4 Pick. 179, 189. 4 Hutton v. Moore, 26 Ark. 382, 394. And see Fuller v. Bean, 34 N. H. 290, 304. 5 Vickers v. Vickers, Law B. 4 Eq. 529, 535, 536. But compare, contra, Hnmaston v. Telegraph Co. 20 Wall. 20, 28 ; Smyth v. Craig, 3 Watts & S. 14, 20. 6 Clarke v. Westrope, 18 Com. B. 765, 785. See Wittkowsky v. Wasson.71 N. C. 451,456. 7 Scott v. Whitney, 41 Wis. 504, 506. And see Easterlie v. Ry- lander, 5 ( J Ga. 202. 8 Newlan v. Dunham, 60 111. 233, 235. I 63. Reasonable price. Where no price fixed. A con- tract for the sale of a commodity, in which the price is left uncertain, as from the silence of the parties, is, in law, a contract for what the goods shall be found to be reasonably worth. 1 Hence, when goods are accepted, and nothing has been said about the price, a reasonable price has been recognized as correct. 2 Market price. And where one party requested an- other, when he got ready to shell his corn, to haul it 87 PRICE. I 63 to his warehouse, and the former would make it satis- factory as to price, and the corn was hauled and de- livered at the warehouse, it was held that the law implies a contract to pay the market price at the time and place of delivery, for which a recovery may be had. 3 But it has been substantially laid down that where a contract is implied at a reasonable price, this means such a price as the jury, upon the trial of the cause, shall, under all the circumstances, decide to be reasonable, 4 and not in all cases the current price of the commodity at the time and place of delivery. 5 By agreement. By the common law, the price is fixed within the meaning of the rule requiring it to be settled before there is a sale, even when it appears that the parties have agreed that it should be the reason- able worth of the thing sold. 6 And on a delivery of articles in consideration of being paid what they are worth, which constitutes a sale, the amount recover- able is what the articles were worth at the time of the sale, without regard to their subsequent value. 7 Not where special contract. It has been held that where an article is sold and delivered under a special contract, in which the price is fixed by the parties, that price must govern, and the existence of a conflict in the evidence as to what the price was, does not authorize the jury to allow what the article was reasonably worth. 8 1 Hoadley v. M'Laine, 10 Bing. 482, 487. And see 2 Blackst. Com, 443, 445 ; Joyce ?>. Swarm, 7 Com. B. N. 8. 84, 104. But compare Acebal v. Levey, 10 Bing. 376, 384 ; James v. Muir, 33 Mich. 223, 227. 2 James v. Muir, 33 Mich. 223, 227, 3 McEwen v. Morey, GO 111. 32, 35, And compare Fenton v, Braden, 2 Crouch C. C. 550, 551. 4 Acebal v. Levy, 10 Bing. 376, 383. 5 Acebal r. Levy, 10 Bing. 376, 3S3. And see James v. Muir, 33 Mich. 223, 227 ; Kountz v. Kirkpatrick, 72 Pa. St. 376, 386. 6 Cunningham v. Ashbrook, 20 Mo. 553, 559. Leaving it to the courts to ascertain the amount, if the parties cannot agree upon it themselves: Cunningham v. Ashbrook, 20 Mo, 553, 550. And see Wittkowsky v, Wasson, 71 N. C, 451, 456. I 64 PRICE. 88 7 Hill ?;. Hill, Coxe. 261 ; 1 Am. Dec. 206. And see 2 Bouvier Law Diet. (15th ed.) 457. 8 Illinois Linen Co. v. Hough, 91 111. 63, 65. But the jury must find what the contract price really was from the evidence, accord- ing to its weight and credibility : Illinois Linen Co. v. Hough, 91 111. 64. Payment in chattels, Covenant or debt as rem- edy. In general, when the obligation is to pay money in a fixed quantity of some other article, the authorities all seem to agree that the meaning and effect of the obligation is the same as if it had been in the simple form of an obligation to deliver the article, 1 and that covenant is the proper remedy. 2 Debt as remedy. But when the obligation is to pay a sum of money in Rome other article, of which the quantity is not fixed, the weight of authority is that debt is the proper remedy, 3 though in some of the States covenant is held maintainable. 4 Optional or otherwise. And where a party to a negoti- able instrument, or other alleged contract, has neglected to exercise an option to pay in specific chattels, an action is maintainable for the money agreed to be paid. 5 But where the unfulfilled promise is to deliver the specific property at all events, the correct rule is that the party so failing to carry out the contract is liable in damages for the value of the property. 6 1 Butcher v. Carlisle, 12 Gratt. 520, 522. 2 Beirne r. Dunlap, 8 Leigh, 514 ; Butcher ?. Carlisle, 12 Gratt. 520, 522. And see Weiss v. Manch Chunk etc. Co. 58 Pa. St. 295, 301. 3 See Bellinger r. Thurston, 2 Const. S. C. 447 ; Bloomfield v. Hancock, 1 Yerg. 101 ; Young ?'. Hawkins, 4 Yerg. 171 ; Henry v. Gamble, Minor, 15 ; Bradford v. Stewart, Minor, 44 ; Beirne v. Dun- lap, 8 Leigh, 514. 4 See Watson v. McNairy, 1 Bibb, 35R ; Bruner t>. Kelsoe, 1 Bibb, 4*7 : Mattox v. Craig, 2 Bibb, 584 ; Noe ?'. Preston, 5 Marsh. J. J. 57 ; Jeffrey ?. Underwood, 1 Pike, 508. Consult Butcher v. Carlisle, 12 Gratt. 520, 522. 5 Cummings v. Dudley, 60 Cal. 383, 385. And see Koberts v. Beatty, 2 Pa. 63 ; 21 Am. Dec. 424, n. 6 Cummings v. Dudley. 60 Cal. 383, 386. And see 3 Parsons on Con- tracts, 315; Pinney ?. Gleason, 5 Wend. 303 ; 21 Am. Dec. 223. Com* pare White v. Tompkins, 52 Pa. St. 3fi3, 365, 367. 89 PRICE. \ 65 I 65. Payment in negotiable paper. Prima facie con- ditional. It is the rule of the common law, adopted in many of the States, that a promissory note or bill of exchange is prima facie a conditional payment only. 1 Prima facie absolute. But in several of the States, the contrary doctrine obtains, 2 and the taking a negoti- able promissory note or bill of exchange is prima facie to be deemed an absolute payment, 3 though this pre- sumption majr be rebutted by proof of a different in- tention ; 4 and it is said to be a question of fact, on the evidence, whether the promissory note given on the one hand and accepted on the other, was in satisfaction and discharge of the original debt or not. 5 1 Wallace?'. Agry, 4 Mason, 336, 343. And see Bonn ell v. Chamber- lin, 26 Conn. 487, 4J2 ; Van Ostrand v. Heed, 1 Wend. 424, 431. 2 See Wallace v. Agry, 4 Mason, 336, 342 ; 2 Daniel on Negotiable Instruments, g 12GO. 3 Reed ?. Upton, 10 Pick. 522, 525 ; Ward v. Bourne, 56 Me. 1R1, 165. And see Wait v. Brewster, 31 Vt. 516, 527 ; Chapman v. Durant, 10 Mass. 47, 51, 11. ; Costar v. Davies, 8 Ark. 213, 217. 4 Reed v. Upton, 10 Pick. 522, 525. And see Wallace v. Agry, 4 Mason, 336, 342 ; Melledge v. Boston Iron Company, 5 Cush. 158, 169. 5 Melledge v. Boston Iron Co. 5 Cush. 158, 170. Subject further discussed : 2 Daniel on Negotiable Instruments, U 1261-1J7L 66 THING SOLD. 90 CHAPTER VI. THING SOLD. 2 66. In general. 2 67. Privilege. 2 GS. Existence. ? 69. After acquired property. 2 66. In general. As requisite of sale. One of the essential elements of that species of contract called a sale is a thing sold, or subject of transfer. 1 Capability of severance from realty. And property may be sold as personalty, though it is part of the real estate, if it is capable of severance therefrom. 2 What may not be sold. But no property belonging to the United States can be disposed of, 3 except by the authority of an act of Congress. 4 So no one can sell a fund in court as such, as he can make no delivery thereof, but he can sell only his interest when it may be adjusted. 5 And a sale or transfer by one corpora- tion of all its property to another corporation organized out of it, without paying all the debts of the former corporation, will not be permitted in equity, but will be treated as fraudulent and void as to all creditors of the former corporation not assenting thereto. 6 Property included in sale. A contract to deliver the entire crop of cotton which a party might make during a designated year, estimated at a specified number of bales, is properly construed as covering whatever quantity may be produced, and not the number of bales mentioned in the contract. 7 So a contract to pur- chase hotel furniture has been held to include a piano kept in the parlor for the use of guests. 8 And a de- scription of walnut trees in an agreement to sell them 91 THING SOLD. 67 has been held sufficiently definite to admit parol proof, fixing the identity of the property to be transferred. 9 1 See 2 Kent Com. 468 ; \ 3, on ELEMENTS OF CONTRACT. 2 Folsom v. Moore, 10 Mo. 252, 254. And see Upson ?>. Holmes, 51 Conn. 500, 503 ; Dunkart v. Itineheart, 89 N. C. 354, 358. But compare Dudley v. Foote, 18 The Reporter, 631 ; Sup. Ct. X. H. Aug. 28, 18b4 ; Cudy v. Sanford, 53 Vt. 632, 636. 3 Under U. S. Const, art. iv. \ 3. 4 U. S. v. Xicoll, 1 Paine, 64G. 5 McCain v. Portis, 42 Ark. 402, 405. And In the adjustment all parties must contemplate that it will be subject to all claims prop- erly brought to the notice of the court, as an attorney's lieu for his fee for services rendered in reference to the fund: McCain v. Portis, 42 Ark. 402,405. 6 Hibernia Ins. Co. v. St. Louis etc. Transf. Co. 4 McCrary, 432, 435, 436 ; 13 Fed. Kep. 516 ; 14 The Reporter, 610. 7 See Bell v. Real Estate Banking Co. 3 Ala. 77, 81. 8 Grossman v. Baldwin, 49 Conn. 490 ; 16 The Exporter, 107. 9 Dunkart v. Rinehart, 89 N. C. 354, 357 ; 18 The Reporter, 56. 67. Privilege. As subject of sale or assignment. A mere privilege may be the subject of sale or assign- ment, if the purchaser is willing to run the risk of fail- ing to enjoy it. 1 Illustrations. Thus, there may be a sale or similar transfer of the route of a newspaper carrier, 2 of the good will of a business, 3 of a ferry franchise, 4 of a lease of premises, 5 of a seat in a commercial board or exchange, 6 of a license to manufacture patented machines, 7 of a secret process of manufacture, 8 of a copyright to print and sell a manuscript, 9 and of a trade-mark to be used in connection with the business in which it has become established. 10 Newspaper property. But it has been held that a newspaper subscription list is not the subject of sepa- rate ownership, but is a mere accessory, which passes on a sale of the types, presses, etc. 11 1 Hathaway t>. Bennett, 10 N. Y. 108, 112 ; 61 Am. Dec. 739, 742. And see Barber v. Conn. Mut. Life Ins. Co. 15 Fed. Rep. 312, 313, and other cases next cited. Grant of mining privilege: Johnston v. Cowan, 5 f > Pa. St. 275, 280. Knowledge of locality of oil spring : Reed v. Gorden, 28 Kan. 632 ; 42 Am. Rep. 160. 68 THING SOLD. 92 2 Hathaway v. Bennett, 10 N. Y. 108 ; 61 Am. Doc. 739. But the sale of such route by one carrier to another, gives the purchaser no right to maintain an action against the proprietor for refusing to furnish him with papers for the purchased route, despite various acts of recognition of the carrier by the proprietor: Hathaway r. Bennett, 10 N. Y. 108. See, also, Senter v. Davis, 38 Cal. 450 ; Fallen v. Chronicle Pub. Co. 1 McAr. 485. 3 Barber r. Conn. Mut. Life Ins. Co. 15 Fed. Rep. 312, n. 315; Herefort r. Cramer, 7 Colo. 483 ; 15 The Reporter, fisi,582: Walling- ford v. Burr, 17 Neb. 1*7, 138, 139. And see Bergamini r. Bastian, 35 La, An. 60; 48 Am. Rep. 21(5, n. 223. Good will also discussed: 19 Cent. L. J. 362 ; 14 Am. Law Reg. N. S. 1, 329, 64J, 713. 4 See Montgomery v. Multnomah County, 11 Or. 344, &52 ; 3 Pac. Rep. 4:>5, 440. 5 See Tweed v. Mills, Law R. 1 Com. P. 39 ; McGuire v. Wright, 18 W. Va. 507. 6 Clute v. Loveland, 9 Pacif. Rep. 133, n. 138 ; Sup. Ct. Cal. Dec. 23, 1835. And see Allen r. Wotherspuii, 50 N. Y. Super. Ct. 417. Subject discussed : 20 Cent. L. J. 444. 7 Compare Brooks r. Bvnm. 2 Story, 525 ; Tabor v. Peters, 74 Ala. 96, J)7 ; 49 Am. Rep. 804, 80G ; Buss v. Putney, 38 N. H. 74. 8 Vi^kery r. Welch, 19 Pick. 523, 525. And see Peabody v. Nor- folk, 1)8 Mass. 452, 457, 460. 9 See 2 Blackst. Com. 405 ; Drone Copyright, 301, 342. 10 Warren ?'. Warren Thread Co. 134 Ma^s. 247, 248; Burton v. Stratton, 12 Fed. Rep. 096, n. 704. And see Pepper t>. Labrot, 8 Fed. Rep. 2i) ; 12 The Reporter, 321. 11 MoFarland v. Stewart, 2 Watts, lit ; 26 Am. Dec. 109, 110. And see Holden v. McMakin, 1 Pars. Hel. Cas. 280,301. Compare Porter r. Gorman, 65 Ga. 11, 14. Newspaper establishment held subject of property, to be protected by law : Snowden v. Noah, 1 Hopk. Cli. 347 ; 14 Am. Dec. 547, 548. \ 68, Existence. Thing no longer in existence, etc. A contract of sale contemplates an existing thing as the subject of transfer. 1 And there can be no sale if the thing intended to be sold turn out not to have been in existence at the time the contract was made ; 2 as Avhere it had previously perished or been destroyed without the knowledge of the parties. 3 So there can be no sale if the thing sold had been transferred to a third party. 4 Thing not yet in existence. A hope or expectation of means, founded on a right in being, may be the subject of a sale, because in such cases there is a potential ex- istence ; 5 and this principle applies to the product or increase of that which is in existence. 6 Thus, a man 93 THING SOLD. g 68 may sell the wool to grow upon his own sheep, 7 or the crops to grow upon his own land, 8 or the milk that a cow may yield during the coming year, 9 or the unborn progeny of an animal. 10 So he may assign his future earnings arising out of a contract of service. 11 And in general, he may make a transfer of anything which amounts to a possibility coupled with an interest, as his right therein is vested, though contingent and liable to be defeated. 12 Mere possibility. But a mere possibility or contin- gency, not founded upon a right or coupled with an interest, cannot be the subject of a sale, 13 or rather, can- not be the subject of a present sale, though it may be of an executory agreement to sell. 14 And this princi- ple applies to a transfer of accounts to be created, 15 or of fish hereafter to be caught in the sea, 16 and to an assign- ment of future wages to be earned under a contract not existing at the time. 17 For there can be no immediate transfer of the title to a thing which has neither an act- ual nor a potential existence. 18 And hence an expecta- tion dependent on a chance like a hope of succession cannot be sold. 19 1 See Couturier v. Hastie, 5 H. L. Gas. 673, 681 ; 2 Kent Com. 463 ; 1 Parsons on Contracts, 522. 2 See Hastie v. Couturier, 9 Ex. 102 ; S. C. as Couturier v. Hastie, 5 H. L. Cas. 673 ; Allen v. Hammond, 11 Peters, 63, 70 ; Gibson v. Pelkie, 37 Mich. 380, 381. 3 2 Kent Com. 468, 469. And see Franklin v. Long, 7 Gill A J. 407, 420; Thompson v. Gould, 20 Pick. 134, 13!) ; Gardner v. Lane, 9 Allen, 4!)2. 4<)<) ; Howell v. Coupland, Law R. 9 Q. B. 462, 465 ; Dexter v. Nor- ton, 47 N. Y. 62 ; Kelly v. Bliss, 54 Wis. 187. 4 Couturier v. Hastie, 5 H. L. Cas. 673. 5 Wheelers. Wheeler, 2 Met. (Ky.) 474. And see 2 Kent Com. 468. 6 Van Hoozer v. Cory, 34 Barb. 9, 12. 7 See Low v. Pew, 108 Mass. 347, 350 ; 11 Am. Rep. 357, 359 ; Jones v. Richardson, 10 Met. 481, 488. 8 Andrew v. Newcomb, 32 N. Y. 417, 421. And see Bellows ?>. Wells, 36 Vt. 599 ; Sanborn v. Benedict, 78 111. 309 ; Lewis v, Lyman, 22 Pick. 437, 442, 443. 9 Van Hoozer v, Cory, 34 Barb. 9, 13. 69 THING SOLD. 94 10 Hull v. Hull, 48 Conn. 250, 256 ; 40 Am. Rep. 165, 166 ; Fonville v. Casey, 1 Murph. 389 ; M'Carty v. Blevins, 5 Yerg. l5. See 1 Parsons on Contracts, 523, n. ; Allen v. Delano, 55 Me. 113, 114 ; Sawyer v. Ger- rish, 70 Me. 254, 255 ; 35 Am. Hep. 323, 324. 11 Hartley v. Tapley, 2 Gray, 565. See Low v. Pew, 108 Mass. 347, 350 ; 11 Am. Rep. 357, 359 ; distinguishing Mulhall v. Quinn, 1 Gray, 1U5. 12 See Low v. Pew, 108 Mass. 347, 350 ; 11 Am. Rep. 357,359; Van Hoozer v. Cory, 34 Barb. 9, 12 ; Heald v. Builders' Ins. Co. Ill Mass. 38, 40. 13 Wheeler v. Wheeler, 2 Met. (Ky.) 474. And see Low ?. Pew. 108 Mass. 347,850; 11 Am. Rep. 357. 35:); Skipper v. Stokes, 42 Ala. 255, 258 ; Thrall v. Hill, HO Mass. 328, 3:30. 14 See Purcell v. Mather, 35 Ala. 570, 573 ; 2 Kent Com. 468. Execu- tory agreement : See 9. 15 Skipper v. Stokes, 42 Ala. 255, 258. And see Purcell r. Mather, 35 Ala. 570. 18 Low v. Pew, 107 Mass. 347; 11 Am. Rep. 367; distinguishing Gardner v. Hoeg, 18 Pick. 1G8, and Tripp v. Bunnell, 12 Cush. 376. 17 Herbert v. Bronson, 125 Mass. 475, 473. And see Mulhall r. Qnin n, 1 Gray, 105 ; Hartley v. Tapley, 2 Gray, 565 ; Twiss v. Cheever, 2 Allen, 40. 13 See Rice v. Stone, 1 Allen, 566, 561 ; 2 Kent Com. 468 ; Hutchin- son r. Ford. 9 Bush, 318 ; 15 Am. Rep. 711, 712 ; Hamilton r. Rogers, 6 MJ. 301, 315.' And compare Clemens . Duvis, 7 Pa. St. 2!VJ, 264 ; Payne r. Lassiter, 10 Yerg. 507, 512; Cooper v. Bumpass, I Tex. Ct. A pp. (Civ. Cos.) g 499. 19 2 Kent Com. 468. And see Hitchcock v. Giddings, 4 Price. 135, 140; Low ?'. Pew, 108 Mass. 347, 350 ; 11 Am. Rep. 3.57, 35 ; Wheeler r. Wheeler, 2 Met. (Ky.) 474. Compare Hanks r. Pulling, 6 El. & B. 65'), 66'). Otherwise in equity ; Stover v. Eycleshimer, 4 Abb. X. Y. App. 309, 312 ; Powers' Appeal, 63 Pa. St. 443, 444, 445. And see Mas- ti i r. Marlow, 65 X. C. olio, 703. Evidence as to alleged chance of gjtting machinery : Stafford v. Henry, 51 Pa. St. 514, 517. g 69. After acquired property. A grecment to sell property not then owned. There may be an agreement to sell all and every species of personal property not prohibited by law, whether the vendor owns it at the time or not. 1 And although the subject-matter of the agreement has neither an actual nor potential existence, 2 such an agreement is usually denominated an executory contract,* and for its violation the remedy of the party is by an action to recover damages. 4 Sale of vested interest. Furthermore, where a party has a vested interest in chattels, which will ripen into a perfect title by lapse of time, a valid sale of his in- terest may be made by such party. 5 95 THING SOLD. g 69 Vesting of title subsequently acquired. And some of the cases declare that if one sells goods in which he has no property at the time of sale, and subsequently acquire a title, the property in the goods will vest in the buyer as soon as a title is acquired by the seller. 6 Confirmatory act. But other cases dealing with these and like transfers, lay down the law as well settled, that a grant of goods which at the time thereof do not belong to the grantor is void; 7 though after the grantee has acquired a title to the goods, the grant may be made effectual to pass the property by a new act, 8 done by the grantor for the avowed object and with the view of carrying the former disposition into effect. 9 Present transfer of future acquisitions. In general, however, and under the common-law doctrine, the sale or other transfer of chattels or other property to be thereafter acquired, is deemed invalid as a conveyance of present operation. 10 Rule in equity. But the rule in equity 11 is that if a party agrees to transfer either absolutely or by way of security, personal or real property of which he is not possessed at the time, and receives the consideration for the contract, and afterwards becomes possessed of prop- erty answering the description in the contract, the court will compel him to perform the contract ; 12 and the beneficial interest would pass to the purchaser or mort- gagee immediately on the property being acquired, 13 provided the property is so definitely described that it can be identified. 14 1 Hutehinson v. Ford, 9 Bush, 318 ; 15 Am. Rep. 711, 713. And see Hibblewhlte v. M'Morine, 5 Mees. , McDaniel, 32 Ark. 598 ; Abraham v. Carter, 53 Ala. 8, 10 ; Stephens v. Tucker, 55 Ga. 543, 544. 11 See generally, Abraham v. Carter, 53 Ala. 8, 10. 12 Holroyd v. Marshall, 10 H. L. Cas. 191, 211. Assuming that the contract is one of that class of which the court woull decree the specific performance : Holroyd v, Marshall, 10 H. L. Cas 191, 211. 13 Holroyd v. Marshall, 10 H. L. Cas. 191, 211. And see generally Apperson v. Moore, 30 Ark. 56 ; 21 Am. Rep. 170. 14 See Belding r. Read, 3 Hurl. & C. 955 ; Brett v. Carter, 2 Low. 453, 461 ; Lazarus r. Andrade, Law R. 5 C. P. D. 318. Compare Beall v, White, 94 U. S. 382, 387. 97 EXECUTORY SALES. g 70 CHAPTER VII. EXECUTORY SALES. 8 70. In general. 5 71. Intention to transfer title. I 72. Difficulty in determining intention. ? 73. Passing of title and risk. \ 74. Something to be done. I 70. In general. Present transfer of title in bargain and sale. At common law, the mutual assent of the parties binds the^contract, which is deemed a bargain and sale, if the property by the terms of the agreement passes immediately to the buyer ; ! and in such a transac- tion the transfer of title is effected the moment the con- tract is concluded, regardless of delivery or retention of possession. 2 Executory agreement, where postponement of trans- fer of title. But the contract is regarded as an execu- tory agreement if the property in the thing sold temporarily remains in the seller, and is only to pass to the buyer at a future time, or on certain conditions inconsistent with its immediate transfer; 3 and such buyer cannot hold the goods, although he has advanced money upon them, 4 against a subsequent purchaser from the same vendor, who has obtained a complete title through an executed or absolute sale. 5 Contract with right of inspection, etc. A contract which confers on the party proposing to buy cotton a right to inspect, examine, and reweigh the cotton within a specified time, and on paying or tendering the price within a specified time, to demand a transfer of the ownership and possession, and also confers on the seller a corresponding right to demand such inspection, etc., K SALF.S. 9. 70 EXECUTORY SALES. 98 within the prescribed time, is not a sale, but an execu- tory agreement for a sale, and does not pass the title to the cotton. 6 Conveyance and contract. The transaction is, in the technical language of the English law, called a bargain and sale, and the contract is said to be executed when the transfer of property is completed uno ictu with the con- tract itself. 7 But the sale or contract is said to be execu- tory when the transfer is not so completed, and it is meant that there has been no conveyance but only a contract. 8 Distinctions in scope and remedies. In the latter case there is not strictly a sale, but rather a mere promise to sell, or agreement for a future sale, 9 and the party con- tracting to buy does not, as in the case of a present sale, become the owner of the goods and liable for their loss or destruction ; 10 nor can he claim the identical goods or sue for their conversion, but his remedy at common law for a breach of the contract is limited to an action for damages. 11 In the former case the seller parts with his title, but may retain the possession, and even the right of possession, 12 so as to enforce his lien on the goods, 13 and stop them while in transit to the buyer. 14 Two senses of executed sale. An executed or absolute sale should be further distinguished from an executed contract of sale, 15 as the former relates to the formation of the contract, and means a sale, where nothing remains to be done by either party to effect the transfer of title, while the latter relates to the fulfillment of the contract, and signifies that it has been fully performed on both sides by the delivery of the thing sold, and the payment of the price therefor. 16 1 Hatch v. Oil Co. 100 U. S. 124, 131. 2 See Meyerstein v. Barber, Law R. 2 Com. P. 38, 51 ; Law R. 4 H. L. .317, 326 ; Webber v. Davis, 44 Me. 147 ; Bailey r. Smith, 43 N. 143 ; Dexter r v Norton, 55 Barb. 272 ; Crill v. Doyle, 53 Cal. 713 ; Tome 99 EXECUTORY SALES. 71 3 Hatch v. Oil Co. 100 U. S. 124, 131. And see The Elgee Cotton Cases, 22 Wall. 180, 187 ; Leigh v. Mobile etc. R. B. Co. 58 Ala. 165, 174 ; Strauss v. Ross, 25 Ind. 300 ; Lester v. East, 49 Ind. 538, 592 ; Olriey v. Howe, 89 111. 556 ; Cardinell v. Bennett, 52 Cal. 476. 4 Dittmar v. Norman, 118 Mass. 319 ; Powder Co. v. Burkhardt, 97 TJ. S. 110. 5 Elliott v. Stocldard, 08 Mass 145. Basis of foregoing statements and authorities : Bennett's Benjamin on Sales, 308, and notes ; 1 Corbia's Benjamin on Sales, 308, and notes ; Lester v. East, 4s) Ind. 533, 592 ; Hatch v. Oil Co. 100 U. S. 124, 131 ; Elgee Cotton Cases. 22 Wall. ISO, 187 ; Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 174. Compare Blackburn on Sales, 147, 149 ; Story on Sales, $g 231, 232 ; Heilbutt v. Hick son, Law R. 7 Com. P. 438 ; 3 Eng. Rep. 328 ; 2 Schouler on Per- sonal Property, \ 237. See \ 9, on SALE OR EXECUTORY AGREEMENT. 6 Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 174. And a written order by the seller to the purchaser, directing delivery to a railroad company of the cotton by a warehouseman with whom it was stored, did not convert the executory bargain into a sale : Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 174, 175. 7 See citations in next note. 8 Campbell on Sales, 2. And see Graham's Blackburn on Sales, 243. 9 See 9, on SALE OR EXECUTORY AGREEMENT ; Cunningham v. Ashbrook, 20 Mo. 553, 556 ; Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 174 ; 2 Bouvier Law Diet. (15th ed.) 607. 10 See section on PASSING OF TITLE AND RISK. 11 See 2 Schouler on Personal Property, 238 ; Benjamin on Sales, (Am. eels.) 308; Graham's Blackburn on Sales, Introd. ix. ; Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 175 ; Lester v. East, 4J Ind. 588, 592, 12 See section on RIGHT OF POSSESSION, under ehapter on TRANS- FER OF TITLE. 13 See chapter on SELLER'S LIEN. 14 See chapter on STOPPAGE IN TRANSITU. 15 2 Schouler on Personal Property, 237. 16 See Story on Sales, 231 ; citing, Fletcher v. Peek, 6 Cranch, 136. Compare Smith v. Supervisors, 44 Wis. 65)1. 71. Intention to transfer title. Passing or retention of title. In a bargain and sale, as before stated, 1 the thing sold becomes the property of the buyer the moment the contract is concluded, 2 regardless of deliv- ery or retention of possession, 3 while in an executory agreement the goods remain the property of the vendor till the contract is executed. 4 Intention governs. Whether a contract is of the one kind or the other, and whether the title to the property passes or not, depends upon the intention 5 of the par- 71 EXECUTORY SALES. 100 ties to the agreement, 6 and this design may be so clearly shown, as by expressly reserving the title, that no question can arise concerning it ; 7 while the mere fact that something remains to be done to the property will not control as against the unequivocal acts of the parties. 8 Manifestation and ascertainment. Such intention must be manifested at the time the bargain is made, and can be ascertained only from the terms of the agreement as expressed in the language and conduct of the parties, and as applied to known usage and the subject-matter of the contract. 9 Province of court and jury. This intent must be determined by the jury, 10 unless the evidence will legally justify no other finding; 11 but when the facts arc ascertained, either by the written agreement of the parties or by the findings of a court, questions of law are alone presented. 12 Further act to be done to goods. An intention that the title shall not vest in the purchaser is generally shown in the case of specific and ascertained existing chattels, by the fact of some further act being first required to be done, such as delivery or payment of the price, or weighing or measuring in order to ascertain the price, or marking, packing, finishing, etc. 13 In the case of goods not ascertained or existing at the time of the con- tract, like tests apply as to those goods which have been afterwards selected and appropriated by the seller, and approved and assented to by the buyer. 14 Goods ready for delivery, etc. But in the case of sales, where the property to be sold is in a state ready for de- livery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties that the sale is perfected, and the interest passes immediately to 101 EXECUTORY SALES. 71 the vendee, although the weight or measure of the arti- cles sold remains yet to be ascertained. 15 And such a case presents a question of the intention of the parties to the contract. 16 Meeting of minds. In general, the owner must intend to part with his property, and the purchaser to become the immediate owner. 17 Their two minds must meet on this point, and if anything remains to be done before either assents, it may be an inchoate contract, but it is not a perfect sale. 18 1 See preceding section. 2 Lester v. East, 40 Ind. 588, 592. 3 See Meyerstein v. Barber, Law R. 2 Com. P. 38 ; Law R. 4 H. L. 317 ; Tome v. Dubois,6 Wall. 548 ; Webber v. Davis, 44 Mo. 147 ; Bailey v. Smith, 43 N. II. 143 ; Dexter v. Norton, 55 Barb. 272 ; Crill v. Doyle, 53 Gal. 713. 4 The Elgee Cotton Cases, 22 Wall. 180, 187 ; Leigh v. Mobile & Ohio R. B. Co. 53 Ala. 165, 174 ; Olney v. Howe, 8!) 111. 55(5 ; Strauss v. Ross, 25 Ind. 300 ; Lester v. East. 49 Ind. 588, 592 ; Cardinell v. Ben- nett, 52 Cal. 476. 5 See State v. Four Jugs etc. 2 Atl. Rep. (Vt.) 586, 581). 6 Me. Stone v. Peacock, 35 Me. 383 ; Bethel Steam Mill Co. v. Brown, 57 Me. 18 ; Dyer v. Libby, 61 Me. 43. Vt. Bellows v. Wells, 36 Vt. 599 ; Fitch v. Burk, 38 Vt. 689. JV. JL Fuller v. Bean, 34 N. II. 290 ; Ockinton v. Bickey, 41 N. H. 279 ; Kelsea v. Haines, 41 N. H. 246 ; Prescott v. Locke, 51 N. H. 101. Mass. Sumner v. Hamlet, 12 Pick. 76; Macomber v. Parker, 13 Pick. 12 ; Riddle v. Varnum, 20 Pick. 283 ; Jenny v. Williams, 5 Allen, 3 ; Morse v. Sherman, 106 Mass. 433 ; Dugan v. Nichols, 125 Mass. 33. Conn. Chapman v. Shepard, 39 Conn. 413. _ZV. Y. Terry v. Wheeler, 25 N. Y. 520 ; Lang- dell's Cases on Sales, 706 ; Russell v. Carrington, 42 N. Y. 118 ; 1 Am. Rep. 418; Kurd v. Cook, 75 N. Y. 454. Mo. Cunningham v. Ash- brook, 20 Mo. 553. Mich. Wilkinson v. Holiday, 33 Mich. 386. Ind. Lester v. East, 49 Ind. 588. Fed. Ct. Barrett v. Goddard, 3 Mason, 113; Elgee Cotton Cases, 22 Wall. 180; Hatch v. Oil Co. 100 IT. S. 124. Eng. Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 6)2 ; Logan v. Le Mesurier, 11 Moore P. C. C. 116 ; Langdell's Cases on Sales, 681; Ogg v. Shuter, Law R. 10 Com. P. 159. Can. Gleason v. Knapp,26Up. Can. C.P. 553; Rossv. Ety,28ITp. Can. C. P. 316. N.B. Gibson v. McKean, 3 Pugs. 299 ; Sprague v. King, 1 Pugs. -'i9 ; Wallace v. Breeds, 13 East, 522 ; Langdell's Cases on Sales, 73!) ; Shepley v. Davis, 2 Maule . God- dard, 3 Mason, 107. And see Hatch v. Oil Co. 100 U. S. 124, 134. Contra, see Lehman v. Warren, 53 Ala. 535. 4 Taylor v. Lapham, 13 Allen, 26; Joyce v. Adams, 4 Seld. 206; Terry v. Wheeler, 23 X. Y. 520 ; Langdell's Cases on Sales, 70,5 ; Whit- comb v. Whitney, 24 Mich. 486 ; Smith v. Balls, 35 Ind. 255 ; Willis v. Willis, 6 Dana, 49. 5 Simmons v. Swift, 5 Barn. & C. 862 ; Langdell's Cases on Sales, 630. Ami see Willis v. Willis, 6 Dana, 48 ; Arnold v. Delano, 4 Cnsh. Z"> ; 50 Am. Dec. 75-1 ; Hall v. Richardson, 16 Mel. 383. But see Currie r. White, 1 Sweeny, 176. 6 Ropes v. Lane, 9 Allen, 502 ; Arnold v. Delano, 4 Gush. 40 ; 50 Am. Doc. 754, 758. And see Levasseur v. Gary, 3 Atl. Rep. (Me.) 4r,l ; 22 The Reporter, 304. 7 Marble v. Moore, 102 Mass. 443 (alteration of hog); Terry v. Wheeler, 25 N. Y. 5JO ; Langdell's Cases on Sales, 70S (delivery at rail- road station) ; Thorndike v. Bath, 114 Mass. 116 (finishing piano) ; Bethel Steam Mill Co. v. Brown, 57 Me. 9. And see Filkins r. Why- land, 24 N. Y. 341 ; Russel v. Carrlngton, 42 N. Y. 118 ; 1 Am. Rep. 418 ; Bates v. Coster, 3 Thomp. & C. 580 ; Dyer v. Libby, 61 Mo. 45 ; Wul- d?n ?'. Murdock, 23 Gal. 540 ; Cummings v. Gri~~s, 2 Duval, 87. Basis of foregoing statements and authorities : Bennett's Benjamin on Bales, \\ 315, 317, notes ; 1 C'orbin's Benjamin on Sales, \\ 315, 317, rotes ; Hatch v. Oil Co. 100 U. S. 124 ; Arnold v. Delano, 4 Cush. 33 ; 50 Am. Dec. 754 ; Levasseur v. Gary, 3 Atl. Rep. 431 ; 22 The Reporter, SCI ; and decisions reported in Langdell's Gases on Sales as given. $ 74. Something to ba done. Presumption in favor cf postponing transfer of title. Where under a contract for the purchase of personal property, something re- mains to be done to identify the property, or to put it in a condition for delivery, or to determine the sum that shall be paid for it, the presumption is always very strong, though by no means conclusive, that by the 105 EXECUTORY SALES. 74 understanding of the parties the title was not to pass until such act had been fully done and accomplished. 1 Statement of general doctrine. And the general doc- trine on this subject is said undoubtedly to be, that when some act remains to be done in relation to the articles which are the subject of the sale, 2 as that of weighing or measuring, 3 and there is no evidence tend- ing to show the intention of the parties to make an abso- lute and complete salo, the performance of such act is a prerequisite to the consummation of the contract, 4 and until it is performed the property does not pass to the vendee. 5 Unperformed operation. More broadly it is laid down as a general principle that where any operation, such as weighing, measuring, counting, or the like, remains to be performed in order to ascertain the price, the quantity, or the particular commodity to be delivered, and to put ifc in a deliverable state, the contract is incomplete until such operation is performed; 6 and the performance thereof is a condition precedent to the passing of the title to the goods. 7 Limitations of general doctrine. But this doctrine ap- plies only where such is the agreement or intention of the parties, 8 and it has been limited to cases where the acts named are necessary to identify the goods, 9 or fit them for delivery, 10 and where such acts are to be done by or for the seller, 11 although it sometimes has been declared that it is indifferent whether the acts remain- ing to be done to render the sale complete are to be per- formed by the buyer, or by the seller, or by a third person, and are designed to identify the goods or to de- termine the price, or to enable the property to pass in conformity to the agreement, as the payment of duties on imported goods, or their transportation to a different place. 12 74 EXECUTORY SALES. 106 1 Wilkinson v. Holiday, 33 Mich. 386. And see Hubler v. Gaston, 9 Or. 66 ; 42 Am. Hep. 794, 795 ; Hatch v. Oil Co. 100 U. S. 124, 133. 2 Material act before delivery : See Darden v. Lovelace, 52 Ala. 289, 200. 3 See Stevens v. Eno, 10 Barb. 95, C6. 4 Riddle v. Varnum, 20 Pick. 2SO. The general rule in relation to the sale of personal property is also declared to be, that if anything remains to be done by the seller before delivery, no property pass* s to the vendee, even as between the parties : Hale v. Huntley, 21 Vt. 1-17. And see Warren v. Buckminster, 24 N. H. 336, 342 ; Gibbs v. Benjamin, 45 Vt. 124. Compare Stevens v. Eno, 10 Barb. 95, 96. 5 Riddle v. Varnum, 20 Pick. 280. To effect a complete sale the contract must be executed, and nothing further to be done to ascer- tain the quantity, quality, or value of the property : Gibbs v. Benja- min, 45 Vt. 124. And see Hatchings v. Gil Christ, 23 Vt. 88. Where any act remains to be done before the sale is complete, the title romains in tlie seller, and he must sustain the loss caused by injury to the property : Bertelson v. Bower, 81 Ind. 512, 513. 6 Macomber v. Parker, 13 Pick. 175, 183. And see Barrett v. God- dard, 3 Mason, 107. Compare Dixon v. Myers, 7 Gratt. 240, 243. 7 See Foster v. Ropes, 11 Mass. 10 ; Gilbert v. N. Y. Cent. R. R. 4 Hun, 378; Bailey v. Smith, 43 N. H. 141 ; McClurg v. Kelley, 21 Iowa, 505; Strauss v. Ross, 25 Ind. 300; Barrett v. Goddard, 3 Mason, 107; Patou v. Currie, 19 Up. Can. Q. B. 388. 8 Sumner v. Hamlet, 12 Pick. 82 ; Dennis v. Alexander, 3 Barr. 50. And see Hyde v. Lathrop, 2 Abb. N. Y. App. 438 ; Adams Mg. Co. v. Senter, 26 Mich. 73. 9 Arnold v. Delano, 4 Gush. 40 ; 50 Am. Dec. 754 ; Crofoot v. Ben- nett, 2 Comst. 260 ; Langdoll's Cases on Sales. 772. And see Lockhart v. Paunell, 22 Up. Can. C. P. 537. 10 See section on PUTTIXG IXTO DELIVERABLE STATE. 11 See section on SELLEK'S ACTS. 12 Fuller i. Bean, 34 N. II. 290, 300. Basis of foregoing statements and authorities: Bennett's Benjamin on Sales, 319, n. c', Macom- bor v. Parker, 13 Pick. 175, 183 ; Hubler v. Gaston, 9 Or. 60; 42 Am. Rep. 704,795; Dixon v. Myers, 7 Gratt. 240, 243; Stevens v. Kno, 10 Barb. 95, 96. And see Brown on Sales, 44 ; Long on Sales (ed. 1839), 2G7. Compare Laugdell's Cases on Sales, 1026. 107 SALES OF SPECIFIED CHATTELS. \ 75 CHAPTER VIII. SALES OF SPECIFIED CHATTELS. 2 75. Goods subject to disposition by sale. 2 76. Goods mingled with others. 2 77. Bargain for specific quantity of grain. 2 78. Identification of goods. 2 79. Intention to retain title. 2 80. Indications of such intention. 2 81. Act remaining to be done. 2 82. Unperformed acts not affecting title. 2 83. By whom act to be done. 2 84. Seller's acts. 2 85. Buyer's acts. \ 86. Putting into deliverable state, \ 87. Ascertaining price. 2 88. Price left unadjusted. 1 89. Distinction where sale complete and executed. 2 90. Rule of presumption merely. 2 91. Weighing, measuring, etc. 2 92. Intention to pass title. 2 93. Special circumstances. 2 94. Acts to be done after delivery. 2 95. Duty and agreement to deliver. 2 96. Effect of delivery. 2 97. Assumption of risk by acceptance. I 75. Goods subject to disposition by sale. In largest sense of term "sale." The term " sale," in its largest sense, 1 may include every agreement for the transfer- ring of ownership, 2 whether of immediate effect or to be completed afterwards; 3 and goods, in reference to the disposition of them by sale, may be considered as existing separately and ready for immediate delivery, or as a part of a larger mass from which they must be separated by counting, weighing, or measuring, or as goods to be hereafter procured and supplied to the buyer, or to be manufactured for his use. 4 I 76 SALES OF SPECIFIED CHATTELS. 108 Under common-law sale. But goods of the first sort are the only proper subjects of a common-law sale, which is strictly a transaction operating as a present transfer of property, 5 and does not include executory contracts for the future sale and delivery of personal property. 6 1 Definitions of sale, 1. 2 Transfer of title : See subsequent chapter on that subject. 3 Cunningham v. Ashbrook, 20 Mo. 553, 55G. 4 Cunningham v. Ashbrook, 20 Mo. 553, 556. 5 See \ 9, on SALE OK EXECUTORY AGREEMENT. 6 Cunningham v. Ashbrook, 20 Mo. 553, 556. At least such is the general rule, although there are some apparently anomalous cases iu which transactions in reference to goods to be separated from a mass seem to be treated, where there has been a constructive deliv- ery, as valid sales, producing a present change of property : Cun- ningham v. Ashbrook, 20 Mo. 553, 556. See section on UNIFORM: MASS. ? 76. Goods mingled with others. Need of separation, identification, etc. In general, the goods sold must be ascertained, designated, and separated from the mass "before the property can pass. 1 And it is said to be a fundamental principle pervading everywhere the law of sales of chattels, that if goods be sold, while mingled wkh others, by number, weight, or measure, the sale is incomplete, and the title continues with the seller 2 until the bargained property be separated and identified. 3 Passing of title to goods clearly identified. But if the goods sold are clearly identified, then the title will pass, at least according to some of the cases, although it may be necessary to number, weigh, or measure the goods in order to ascertain what would be the price of the whole at a rate agreed upon between the parties. 4 Nor, as it has been declared, does it alter the principle that pay- ment has been made in whole or in part, nor that they are unfit for delivery at the time of sale. 5 Commodity of uniform character. Upon a sale of a specific quantity of grain or other commodity of uni- 109 SALES OF SPECIFIED CHATTELS. \ 77 form character, however, its separation from a mass undistinguishable in quality or value, in which it is included, is not necessary, according to some of the American cases, to pass the title when the intention to do so is otherwise clearly manifested. 6 Agreement to buy all the spring lambs of another. And a contract whereby one party agrees to buy all the spring lambs of another, is entirely unlike the sale of certain articles out of a large number, as there is no setting apart to be done, or act of separation to be performed before the title and risk pass to the purchaser. 7 1 Crofoot v. Bennett, 2 N. Y. 258, 259 ; Langdell's Cases on Sales, 772, 773. And see 2 Kent Com. 496. 2 2 Kent Com. 496. And see Hutchinson v. Grand Trunk Bail- way, 59 N. H. 487, 489. 3 Crofoot v. Bennett, 2 N. Y. 258, 259 ; Langdell's Cases on Sales, 772, 773. And see Hubler v. Gaston, 9 Or. 66 ; 42 Am. Rep. 794^795. 4 Crofoot v. Bennett, 2 1ST. Y. 258, 260 ; Langdell's Cases on Sales, 772, 773. And see Russell v. Carrington, 42 N. Y. 118 ; 1 Am. Rep. 498; Macomber v. Parker, 13 Pick. 175 ; Riddle v. Varnum, 20 Pick. 282 ; Tyler v. Strange, 21 Barb. 198 ; Dexter v. Bevins, 42 Barb. 573 ; Bur- roVvs v. Whitaker, 71 N. Y. 291 ; 27 Am. Rep. 42, 45, 46 ; Brewer v. Salisbury, 9 Barb. 511, 515. 5 Hubler v. Gaston, 9 Or. 66 ; 42 Am. Rep. 794, 795. G See Kimberly v. Patchin, 19 N. Y. 330 ; Langdell's Cases on Sales, 775 ; Russell v. Carrington, 42 N. Y. 118, 122; 1 Am. Rep. 4^8, 500 ; McNamara v. Edmister, 11 Hun, 597, 601 ; Hurff v. Hires, 40 N. J. L. 5S1 ; 29 Am. Rep. 282. But see contra, Ferguson v. Northern Bank of Kentucky, 14 Bush, 555 ; 29 Am. Rep. 418 ; Commercial Nat. Bank v. Gillette, 90 Ind. 2P,3 ; 43 Am. Rep. 222. 7 Bertelson v. Bower, 81 Ind. 512, 513, 514. 77. Bargain for specific quantity of grain. Separated from other grain. Where the terms of sale of specific personal property, as wheat in a store and apart by it- self, are agreed on, and everything the seller has to do about them is complete, and the buyer is authorized to take them, the contract of sale becomes absolute with- out actual payment or delivery, so that the property is in the vendee, and the risk of loss by accident devolves upon him. 1 NEWMARK SALES. 1O. g 78 SALES OF SPECIFIED CHATTELS. 110 Specified quantity of unseparated grain. And the same is true where the owner of a large quantity of grain in bulk sells a certain number of bushels therefrom, and receives his pay, though none so sold is separated from the general mass. 2 No specification of quantity or location. But where no specific quantity is bargained for, and from no specific lot, but only enough to nil whatever bags the vendee might send, the property does not pass, and the grain is still at the risk of the seller. 3 1 See Phillips v. Moor, 71 Me. 78 ; Levasseur v. Gary, 3 Atl. Rep. 461 ; Sup. Ct. Me. March 22, 1883. 2 See Waldron v. Chase, 37 Me. 414 ; Levasseur v. Gary, 3 Atl. Rep. 461. 3 Levasseur v. Gary, 3 Atl. Rep. 461 ; S. C. 22 The Reporter, 304. 78. Identification of goods. Sufficiency of. If the goods are capable of being identified, and by the con- tract of sale are identified, that is sufficient, and the property passes. 1 Thus, if there are one hundred bales of cotton, numbered from one to one hundred, and the contract is for the fifty odd numbers, or the fifty even numbers, or any other specified fifty numbers, the bales sold are identified, though not separated. 2 Designation by marking. A designation by some visible mark is a sufficient separation, and it is not necessary that an artificial mark should be made for this sole purpose. 3 And if barrels have been inspected and marked as of different qualities, such as 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 per- fected, although the barrels No. 1 are left intermingled with other barrels which have different marks. 4 1 Arnold v. Delano, 4 Gush. 40 ; 50 Am. Dec. 754, 758. 2 Arnold v. Delano, 4 Gush. 40 ; 50 Am. Dec. 754, 758. Ill SALES OF SPECIFIED CHATTELS. 79 3 Hopes v. Lane, 9 Allen, 502, 510. 4 Ropes v. Lane, 9 Allen, 502, 510. 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 barrel? in the lot, the property in the one hundred barrels will pass to the vendee : Ropes v. Lane, 9 Allen, 502, 510. $ 79, Intention to retain title. Intend ment in favor of transfer of title. Where specific and ascertained chat- tels are the subject of a contract of immediate and present sale, and whether there be a warranty of qual- ity or not, the property generally passes to the purchaser upon the completion of the bargain, 1 and the vendor thereupon has a right to recover the price, unless from other circumstances it can be collected that the intention was that the property should not at once vest in the purchaser. 2 Unperformed acts indicating contrary intention. Such an intention is generally shown by the fact of some further act being first required to be done ; such as, for instance, in most cases, delivery ; in some cases, actual payment of the price ; and in other cases, weighing or measuring in order to ascertain the price, or marking, packing, coopering, filling up cask ;, or the like. 3 And it is said that if the terms of the cor. ract do not show an intention of immediately passing [he property until something is done by the seller befc -9 delivery of pos- session, then the sale cannot be deei- ed perfected, and the property does not pass until that thing is done. 4 1 Transfer of title : See subsequent chapter on that subject. 2 Heilbutt r. Hickson, Law R. 7 Com. P. 438, 449 ; 3 Eng. Rep. 328, 337. And see Calcutta Co. v. De Mattos, 32 Law .1. Q. B. 322, 32j ; Gil- mour v. Supple, 11 Moore P. C. C. 551, 533 ; Langdell's Cases on Sales, 624, 632 ; Morse v. Sherman, 106 Mass. 430, 433 ; Jenkins v. Jarrett, 70 N. C. 255, 256. 3 Heilbutt v. Hickson, Law R. 7 Com. P. 438, 449 ; 3 Eng. Rep. 328, 337. But see Riddle v. Varnum, 20 Pick. 283,284. See section on INTENTION TO TKANSFER TITLE. 4 Logan v. Le Mesurier. G Moore P. C. C. 116 ; Langdell's Cases On Sales, 681, 690, 80-81 SALES OF SPECIFIED CHATTELS. 112 \ 80. Indications of such intention. By various cir- cumstances. Various circumstances are said to have been treated by the courts as sufficiently indicating the intention of the parties that the property shall not vest in the buyer, and a right to the price in the seller, under a contract for the sale of specific ascertained goods. 1 Acts by seller on his own behalf. Thus, if it appears that the seller is to do something to the goods on his own behalf, such as weighing them,' 2 the property will not be changed until he has done it, or waived his right to do it. 3 Sellers acts for buyer's benefit, etc. And another rule which may be extracted from a case where casks were not filled up as agreed, 4 is declared to be that where the seller is to do some act for the benefit of the buyer, to place the goods sold in a state to be delivered, until he has done it the property does not pass. 5 1 Gilmour t>. Supple, 11 Moore P. C. C. 551 ; Langd ell's Cases on Sal os, (iJ4, 032. See \ 83, on BY WHOM ACT TO BE DONE. - > v >e Hanson v. Meyer, 6 East, 014; Langdell's Cases on Sales, 639 ; Ross's Leading Cases, 20. 3 Gilmour v. Supple, 11 Moore P. C. C. 551 ; Langdell's Cases on Sales, 024, 033. 4 Rugg ?'. Minett, 11 East, 210 ; Langdell's Cases on Sales, 647 ; Ross's Luudi.ig Cases, 30. 5 Gilmour r. Supple, 11 Moore P. C. C. 551 ; Langdell's Cases on sal 'S, c.J4, O.Jo. So, also, if un act remains to be done by or on behalf of I* >th parties before the goods are delivered, the property is not changed : Gilmour r. Supple, 11 Moore P. C. C. 551 ; citing as illustra- tion, Wallace v. Breeds, 13 East, 522 ; Langdell's Cases on Sales, 739 ; Ross's Leading Cases, 43. I 81. Act remaining to be done. By seller before deliv- ery. It is said to be a settled principle that where any- thing remains to be done by the vendor before the article is to be delivered, 1 the right of property has not passed. 2 Purposes of seller's acts. But though the authorities are numerous where the expression is used, that if anything remains to be done by the seller the title 113 SALES OF SPECIFIED CHATTELS. 82 does not pass, 3 yet the cases which are referred to in order to sustain that position are asserted to only go the length of showing that the tide does not pass where something is to be done by the seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the terms of the contract require. 4 Quantity, quality, etc., to be determined by vendee. And if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to be paid are still to be determined by the vendee. 5 Seller's act under buyer's direction. So the property may pass by the contract of sale, even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as for instance, loading the goods upon a vessel for transportation. 6 1 See \ 86, on PUTTING INTO DELIVERABLE STATE. 2 Ward v. Shaw, 7 Wend. 404 ; Langdell's Cases on Gales, 703, 704. And see Hale v. lluntley, 21 Vt. 1'J, 150. If anything remains to b3 done on the part of the seller, as between him and the buyer beforo the commodity purchased is to be delivered, a complete) present right of property has not attached in tho buyer : Hanson v. Meyer, 6 East, 614 ; Langdell's Cases on Sales, G3D, 646. 3 Terry v. Wheeler, 25 X. Y. 520 ; Langdell's Cases on Sales, 706, 709. And see Gibbs v. Benjamin, 45 Vt. 124, 128 ; Hale v. Huntley, 21 Vt. 147, 150. 4 Terry v. Wheeler, 25 N. Y. 520 ; Langdell's Cases on Sales, 70", 703 ; citing, 2 Kent Com. 496; Hanson v.^Meyer, G East, G14 ; Lang- doll's Cases oil Sales, 639 ; Simmons v. Swift, 5 Barn. & C. 8o7 ; Lane:- dill's Cases on Sales, 659 ; Joyce v. Adams, 4 Seld. 291 ; Field ?. Moore, Lalor's Supp. 418. See section on SOMETHING TO UK DOSTE. 5 Lingham v. Eggleston, 27 Mich. 324, 329; citing, Tnrley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 6J2 ; Kohl v. Li:ulley,39lil. 195. 6 Lingham v. EiTgleston, 27 Mich. 324, 329, and following cases therein cited ; V/lritcomb v. Whitney, 21 Mich. 486 ; Terry v. Wheeler, 25 N. Y. 520 ; Langdell's Cases on Sales, 706. I 82. Unperformed acts not affecting title. Where goods sufficiently designated. If tho goods sold are suf- ficiently designated so that no question can arise as to 83 SALES OF SPECIFIED CHATTELS. 114 the thing intended, it is not absolutely essential that there should be a delivery, or that the goods should be in a deliverable condition, or that the quantity or qual- ity, where the price depends upon either or both, should be determined. 1 For all these are circum- stances having an important bearing when we are seeking to arrive at the intention of the parties, but no one of them 13 conclusive, nor are all combined. 2 Quantity 'may remain to be ascertained. Thus it is said that it is not the law that the right of property in a chattel cannot pass by a sale, so long as the quantity of the thing sold remains to be ascertained. 3 But it is only when something is to be done for the ascertain- ment of the quantity by the very terms of the contract that it is incomplete. 4 Various things lacking. And even without express words to that effect, a contract has often been held to be a completed sale, where many circumstances were wanting, and many things to be done by one or both the parties to fix conclusively the sum to be paid, or to determine some other fact material to their respective rights. 5 1 Lingham v. Eggleston, 27 Mich. 324, 327. 2 Lingham v. Eggleston, 27 Mich. 324,327. Intention to transfer title : See section on that subject. 3 Dennis v. Alexander, 3 Burr. 50, 51 ; citing, Scott v. Wells, 6 Watts & S. 368. 4 Dennis v. Alexander, 3 Burr. 50, 51. And see Adams Mining Co. r. Senter, 26 Mich. 73, 80. 5 Lingham v. Eggleston, 27 Mich. 324, 328. \ 83. By whom act to be done. Sometimes deemed im- material. It is sometimes declared that it is indifferent whether the act to be done to render the sale complete is to be done by the buyer, or by the seller, or by a third person ; l and the principle is said to be well set- tled that the title does not pass when anything remains 115 SALES OF SPECIFIED CHATTELS. \ 83 to be done "by either 2 or both of the parties, precedent to the delivery. 3 By seller, under general view. But the principle de- rived from the earlier leading cases upon the subject, and involved in the rule that where anything remains to be done to the goods for ascertaining the price, as weighing, etc., the performance is a condition precedent to the transfer of the property,* has been considered to be that something remains to be done by the seller ; 5 and it has been doubted whether the statement of such rule 6 was meant to include a case where all that re- mains to be done was to be done by the buyer, with full authority from the seller to do the act. 7 So many of the cases speak of the act to be done as that of the seller; 8 and in some of the cases at common law the language is said to be capable of being understood as importing that if an act remains to be done between the parties, it must, in order to render the sale imperfect, and prevent the property from passing, be an act to be done by the seller, and one necessary to designate and identify the goods to be sold, 9 and not an act to be done by the buyer, or merely to ascertain the price 10 to be paid. 11 Furthermore, in a summary of the law upon the subject, as developed in select cases, it is laid down that so long as something remains to be done to the goods by the seller, before the buyer is entitled to pos- session of them, or before he is bound to receive them in performance of the contract, the presumption is that the title remains in the seller. 12 Inconsistent statements. But even in the same case where it was declared that if anything remains to be done "on the part of the seller,'* until that is done the property is not changed, it was said that " the concur- rence of the seller " in the particular act to be done was necessary. 13 So in stating the rule as to presumptive $ 83 SALES OF SPECIFIED CHATTELS. 116 conditions precedent to the transfer of the property, consisting of acts to ascertain the price, mention is made of anything which is to be done "by the vendor or by the mutual concurrence of both parties." 14 And in a restatement of the result of the authorities bearing upon the rules of presumption governing the transfer of title to undelivered specific chattels, 15 it i.3 said that the presumption is against a change of ownership, in the absence of circumstances indicating a contrary in- tention, if something still remains to be done to the chattels "by the seller alone, or by some other person, as an act demanding at least the seller's concurrence under the contract for his own benefit." 16 More comprehensive declaration. Yet in considering the various circumstances indicative of an intention that the title to specific chattels shall not pass to the buyer, it is regarded as sufficient to prevent the change of prop- erty that the vendor is to do something to the goods on his own behalf, or for the benefit of the buyer, to put the goods in a deliverable state, or that an act remains to be done by or on behalf of both parties before delivery. 17 1 Fuller v. Bean, 34 N. H. 290, 301. And also whether it is to be done to ascertain the goods to be sold by their designation, or meas- urement, or their quality, by the buyer or the public inspector, or merely to ascertain the price to be paid by the appraisal of a third person, or by counting, weighing, or the liko, or whether there is a:i omission to do any other act necessary to enable the property to p.iss in conformity to the agreement, such as might be the paymert of duties on goods imported, or the transportation to a distant place : Fuller v. Bean, 34 N. H. 290, 301. 2 " If a sale is not complete, if anything remains to be done con- cerning tli o property by either party, a present right of property does not vest in the buyer " : Prescott v. Locke, 51 ;x. II. 94, 102. 3 Gibbs v. Benjamin, 45 Vt. 124, 128. And see Prescott v. Locke, 51 N. H. 04, 102. Quantity depend nt on act or will of third party: Brock v. O'Donuell, 45 N. J. L. 441, 444. 4 See section on ASCERTATXTN-G PRICE. 5 Turley v. Bates, 2 Hurl. . Turner, 2 Scott, 238, 241. \ 85. Buyer's acts, To goods in his possession, etc. Though it is a general principle of the law regulating I 85 SALES OF SPECIFIED CHATTELS. 120 sales of personal property, subject to many qualifica- tions, and varying with the intention of the parties, that the sale is not completed when anything remains to be done to the thing sold to identify it or discrimin- ate it from other things, 1 yet it seems that where pos- session is given to the buyer, and the act necessary for the designation of the articles sold is to be performed by him and not by the seller, title would pass abso- lutely to the purchaser.' 2 Quantity to be settled. Thus, where a quantity of goods was constructively delivered to the buyer, with the understanding that if they were not more than he had bargained for he might keep them, but if they were mor, the seller was to have the balance, and a creditor of the vendor attached the goods after a small portion of those purchased had been set apart by the buyer, the court held that the contract was executed, and not executory, and that the portion of the goods which had been included in the bargain was not liable to attachment for the debts of the seller. 3 Reason of general rule. The reason of the general rule seems to be that it is for the benefit of the vendor that the property should pass, because the risk of loss is thereby transferred to the purchaser, whilst the vendor retains possession to secure payment of the price.* Hence, where the agreement is that he is to do something before he can compel the purchaser to accept the goods, the intention of the parties should be taken to be, that the vendor was to do this before he obtained the benefit of the transfer of the property. 5 When inapplicable. But the presumption would be unreasonable when the acts were to be done by the buyer, as the latter would thus be rewarded for his own default. 6 And in general it is the intention of the parties that the law endeavors to arrive at, and when 121 SALES OF SPECIFIED CHATTELS. 85 that is ascertained It will usually determine the nature of the contract. 7 Exact price to be ascertained. So it has been laid down that where the minds of the parties have assented to the present purchase and sale of a specific chattel, which may be clearly identified and separated from other property, and the sale is dependent on no condi- tions or contingencies, and such possession is given as tLc nature of the subject, and the situation of the par- ties with regard thereto will permit of, and the vendor has done all that is required of him with respect to the property, the title will pass, notwithstanding something may still be necessary on the part of the vendee to ascertain the exact price. 8 Casks to be gauged. In regard to the effect of acts to be clone by the buyer, upon the passing of title to spe- cific chattels, it has been held that there was no change of ownership and risk where gauging by a custom- house officer before removal of casks of turpentine which had been filled up and left with tho bungs out, remained to be done, as the performance of this act was the buyer's business, and the sellers had done all to the goods that was required of them. 9 Weighing of goods transferred on books. So where the identity of the goods and the quantity are known, so that weighing can only be for the satisfaction of the buyer, a transfer in the wharfinger's books without weighing has been held sufficient to pass the property as between the buyer and seller. 10 Specification and 'measurement of logs. And where' the evidence showed it to be usual for purchasers of rafts, sometimes before, sometimes after, they were placed within booms, to check over the logs received with the specification previously delivered, to see that they corresponded with it, but there was no evidence NEWMAIIK SALKS. 11. 85 SALES OF SPECIFIED CHATTELS. 122 of its being usual to measure the contents of each log to ascertain the number of feet contained in it, it was held that the property passed, where from the speciil- cation the buyer knew what quantity of timber the seller would charge him with, notwithstanding the form of the written contract, which left it unascertained. 11 Weighing of carted clay. Furthermore, where the buyer was, at his own expense, to load and cart away a heap of fire-clay, bought as a whole stack, and have it weighed at a machine which the carts would pass, it was held that the parties had made their intention suf- ficiently clear that the property should pass, notwith- standing the clay was to be subsequently weighed; 12 and it was doubted whether the ordinary rule against the transfer of the property, while acts to ascertain the price, amounting to conditions precedent, were unper- formed, 12 was meant to include a case where all that to be done was to be done by the buyer with full author- ity from the seller to do the act. 14 1 Wells v. Littlefield, 59 Tex. 556, 560 ; citing, 1 Parsons on Con- tracts. 527 ; Blackburn on Sales. 152 ; Benjamin on Sales, n 311, 311 a, 319. 2 Wells v. Littlefield, 59 Tex, 556, 560 ; citing, 1 Parsons on Con- tracts, 527 ; Tarling v. Baxter, 6 Barn. & C. 360 ; Langclell's Cases o.'i Sales, 621 ; Russell v Carrington, 42 N. Y. 124 ; 1 Am. Hep. 498 ; Blackburn on Sales, 152 ; Benjamin on Sales, \ 353 ; Page v. Carpen- ter, 10 N. II. 77. 3 Page v. Carpenter, 16 N. H. 77. 4 Wells v. Littlefield, 59 Tex. 566, 560. 5 See Blackburn on Sales, 152. 6 See Blackburn on Sales, 153. 7 Wells v. Littlefield, 59 Tex. 556, 560. Hence, where cattle have been actually delivered into the possession of the purchaser, and the purchase money has been virtually paid, the seller, who has done all that he agreed to do, is not liable for any loss that might accrue to the property because of any delay or neglect on the part of the buyer to make the stipulated appropriation of his share of it : Wells v. Littlefield, 59 Tex. 556, 560. 8 King v. Jarman, 35 Ark. 190, 197. 9 Bugg v. Minett, 11 East, 210 ; Langdell's Cases on Sales, 647, 651 ; Ross's Leading Cases, 30, 35, 36 ; followed, McNail v. Kelleher, 15 Up. Can. C. P. 470, 474. 123 SALES OF SPECIFIED CHATTELS. g 86 10 Swan wick v. Sothern, 9 Ad. & E. 895 ; Langdell's Cases on Sales, 673, 676 ; citing, Hammond v. Anderson, 1 Bos. & P. N. 11. 69 ; lloss's Leading Cases, 218 ; cited, Gilniour v. Supple, 11 Moore P. C. C. 551 ; Langdell's Cases on Sales, 624, 634. 11 Gilmour v. Supple, 11 Moore P. C. C. 551 ; Langdell's Cases on Sales, 6-4. As there was nothing to be done by the seller for himself or for the buyer, or by the concurrence of both parties either to ascertain the price by further measurement, or for any other pur- pose : Gilmour v. Supple, 11 Moore P. C. C. 551. 12 Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692, 699. 13 See section on ASCERTAINING PBICK. 14 Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 602, 698. 83. Putting into deliverable stats. Need of, assies- pending transfer of title. In the sale of personal prop- erty, the general rule of law is stated to be that where, by the terms of the contract, the seller agrees to do any- thing for the purpose of putting the property into a state in which the buyer is bound to accept it, or into a condition to be delivered, the title will remain in him until he has performed the agreement in this respect. 1 Blackburn's first rule. This doctrine substantially follows the familiar first rule of Lord Blackburn, 2 that where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, 3 the performance of those things shall, in the ab- sence of circumstances indicating a contrary intention, 4 be taken to be a condition precedent 5 to the vesting of the property, 6 By other acts than weighing and measuring. And other acts besides weighing and measuring which are made requisite on the part of the seller to put the goods in a deliverable state, in compliance with the mutual contract, have been generally held to postpone the vest- ing of the seller's property, 7 such as baling and pressing a lot of hops, 8 scaling logs, 9 drying and weighing fish, 10 g 86 SALES OF SPECIFIED CHATTELS. 124 marking steins, and otherwise preparing tobacco, 11 and taking out and comparing samples of cotton. 1 - Intention of parties controls. But it lias been laid down in England, that if it appear from the agreement that the intention of the parties is that the property shall pass presently, the property does pass, though there remain acts to be done by the vendor before the goods are deliverable. 13 And the American decisions are said to unmistakably hold that any presumption of a suspension of the transfer of title may be overcome by proof of mutual intention that the property should pass before the thing was put into a deliverable condition. 14 1 Foster v. Hopes, 111 Mass. 10, 15. And see Macomber ?>. Parker, 13 Pick. 175, 183 ; Terry v. Wheeler, 25 N. Y. 520 ; Langdell's cases on Sales, 706, 709 ; Cooke v. Millard, 65 N. Y. 352 ; 22 Am. Hep. 619, G28. 2 See Elgee Cotton Cases, 22 Wall. 180, 193 ; Foster v. Hopes, 111 Mass. 10, 15. 3 See Barrett v. Goddard, 3 Mason, 107, 111; Rugg v. Minett, 11 East, 210 ; Langdell's Cases on Sales, 647, 651 ; Gilmour v. Supple, 11 Moore P. C. C. 51 ; Langdell's Cases on Sales, 624, 635. 4 Intention to transfer title : See section on that subject. 5 Condition precedent : See chapter on CONDITIONAL SALES. 6 Blackburn on Sales, 151, 152 ; quoted, Langton ?-. Higgins, 4 Hurl. & X. 402; Langdell's Cases on Sales, 8(57, 87J ; Elgee Cotton Cases, 22 Wall. 180, 183: Prescott v. Locke, 51 N. H. M, 101; Bennett's Ben- jamin on Sales, # 318; citing following further cases: Bailey ?'. Smith, 43 N. H. 141; Gilbert v. N. Y. Cent. R. R. Co. 4 Hun, 378 ; Strauss r. Ross, 25 Ind. 300 ; McClung v. Kelley, 21 Iowa, 508 ; Paton i. Currie, 1J Up. Can. Q. B. 288. Consult, also, 1 Corbin's Benjamin on Sales, \ 3G4 ; Campbell on Sales, 229; 2 Sohouler on Personal Prop- erty, g 249. And compare Langdell's Cases on Sales, 1026. 7 2 Schouler on Personal Property, 250. 8 Iveeler v. Vandemere, 5 Lans. 313, 9 Begole v. McKenzie, 23 Mich. 470 ; Wilkinson v. Holiday, 33 Mich. 336. But see Morrow v. Heed, 30 Wis. 8L 10 Foster v. Ropes, lit Mass. 10. 11 Dixon v. Myers, 7 Gratt. 240. 12 Kein v. Tupper, 52 N. Y. 550. 13 Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 696 ; quoting Blackburn on Sales, 153, as citing Woods ?>. Russell, 5 Barn, 4 ; and Clarke v. Spence, 4 Ad. . Eggleston, 27 Mich. 324, 326. And the parties may settle tiiis by the express words of their contract, but if they fail to do so, we must determine from their acts whether the sale is com- plete : Linghain v. Eggleston, 27 Mich. 324, 326, 327. 2 Lingham v. Eggleston, 27 Mich. 324, 327. All these are circum- stances having an important bearing when we are seeking to arrive at tiie intention of the parties, but no one of them, nor all combined, are conclusive : Lingham v. Eggleston, 27 Mich. 324, 327. 3 Lingham v. Eggleston, 27 Mich. 324, 329. See 87. 91. Weighing, measuring, etc. Course of decisions in England. At one time it was held in England, ac- cording to a statement of the course of decisions in that country, 1 that under an agreement to purchase an entiro bulk at a specified price, the property did not pass if the whole amount of the purchase-money depended noon an ascertainment by weight or measurement sub- sequently to be made. 2 This decision was made in favor of an unpaid vendor, and was afterward distinguished, on the ground that the weighing was to be done by the seller; 3 and it was held that the property would pass if such was the intention of the parties, though some- thing was to be done, such as weighing, measuring, or testing the goods to ascertain the contract price, if what remained to be done was to be done by the buyer. 4 Still later, 5 the English courts entirely repudiated this distinction, and held in cases where the weighing was to be done by the seller, the property would pass, if the parties so intended, though the ultimate contract price was to be ascertained by a subsequent weighing, 6 it being said that it is equally clear, in point of principle 131 SALES OF SPECIFIED CHATTELS. 91 and in point of common sense, that there is nothing to prevent a man from passing the property to the thing he proposes to sell and the buyer proposes to buy, although the price remains to be ascertained afterwards. 7 And it is declared 8 that it may now be considered to be the law of the English courts 9 that where the contract price has been paid or advances made on it, the prop- erty will pass to the buyer according to the intention of the parties, although something remains to be done by the seller to complete the goods, in conformity with the contract, before they are delivered. 10 American view of sufficiency of identification. In this country the English rules are stated and applied w r ith some diversity. 11 Thus it is sometimes said that the reason why marking, measuring, weighing, etc., are necessary, is that the particular goods may be identi- fied ; 12 but that the property passes if the goods are capable of being identified, and by the contract of sale are identified. 13 Accordingly a subsequent weighing or measuring merely to determine the full price at a fixed rate is considered u to constitute no obstacle to the passing of property. 15 American views of intention and presumption. So while many of the decisions leave each case to stand on its own special circumstances, with intention of the parties as the criterion to determine whether the title has passed arid no strong presumption governing the mat- ter, 16 certain cases allow any presumption on the subject to be readily overcome on the ground of a mutual intent to the contrary, express or implied, where the goods, though not yet weighed or measured, were otherwise ready for delivery, 17 especially if payment of the price had already been made or arranged between the parties. 18 Unpaid price as factor. And many of the cases turn on the unfulfilled condition precedent 19 of paying the 91 SALES OF SPECIFIED CHATTELS. 132 price before a title shall vest in the buyer, 20 rather than the want of weighing, measuring, or putting the goods into a deliverable state. 21 Presumptive postponement of change of ownership. But < ther cases are decided on the principle that weighing and measuring with the seller's concurrence postpones presumptively the change of ownership, 22 as where wood was sold at so much per cord, and a subsequent measurement was part of the bargain, but while the parties were disputing as between " running measure " or u solid cords," the wood floated away and was lost. 23 1 Hurff ?. Hires, 40 N. J. L. 581 ; 29 Am. Hep. 282, 285. 2 Hanson r. Meyer, 6 East, 614 ; Langdell's Cases on Sales, 639. 3 Turley r. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692. 4 Turley r. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692. This distinction was adopted in Bos well v. Green, 1 Dutch, 390. 5 According to Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Hep. 282, 286. 6 See citations in next note. 7 Martin eau v. Kitching, Law B. 7 Q. B. 436 ; Castle v. Playford, Law R. 7 Ex. 98. 8 Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Hep. 282, 286. 9 See citations in next note. 10 Young v. Matthews, Law R. 2 Com. P. 127 ; Langdell's Cases on Sales, S75 ; Langton v. Waring, 13 Com. B. N. S. 315. 11 2 Schouler on Personal Property. ? 250. 12 Arnold v. Delano, 4 Gush. 40 ; 50 Am. Dec, 754, 758. For if ten barrels of oil are sold, lying in a tank of thirty barrels, the buyer can identify no part of it until it is measured : Arnold v. Delano, 4 Cush. 40. And so if fifty bales of cotton are sold out of one hundred, no particular bales are identified until separation : Arnold v. Delano, 4 Cush. 40. 13 Arnold v. Delano, 4 Cush. 40 ; 50 Am. Dec. 754, 758. 14 2 Schouler on Personal Property, \ 250, citing cases in next note. 15 Crofoot r. Bennett, 2 Comst. 25S ; Langdell's Cases on Sales, 772 ; Riddle v. Varnum, 20 Pick. 2SO ; Southwestern Freight Co. v. Stanard, 44 Mo. 71 ; Adams Mining Co. v. Seiner, 26 Mich. 73. 16 See section on SPECIAL CIRCUMSTANCES. 17 See citations in next note. 18 See Riddle v. Varnum, 20 Pick. 280; Fitch v. Burk, 38 Vt. 683 ; Groat v. Gile, 51 N. Y. 431 ; Boswell v. Green, 1 Dutch. 3JJO: Cummins v. Griggs, 2 Duval, 87 ; Brown v. Child, 2 Duval, 314 ; all so cited, 2 Schouler on Personal Property, \ 25. 19 Conditions precedent : See under chapter on CONDITIONAL SALES. 20 2 Schouler on Personal Property, \ 250. 133 SALES OF SPECIFIED CHATTELS. g 92 21 Putting into deliverable state : See previous section on that subject. 22 Gibbs v. Benjamin, 45 Vt. 124; Fuller v. Bean, 34 N. H. 290; Wittowsky v. Wasson, 71 N. C. 451 ; Bailey ?'. Long, 24 Kan. 90 ; Jones v. Pearce, 25 Ark. 545 ; Frost v. Woodruff, 54 111. 155 ; J ,ingtmm v. Eggleston, 27 Mich. 324. 23 Gibbs v. Benjamin. 45 Vt. 124 ; 2 Schouler on Personal Property* 250. And see Nesbitt v. Burry, 25 Pa. St. 208. \ 92. Intention to pass title, To unweighsd fire-clay. The intention of the parties must be looked at in every case; 1 and effect will be given thereto on a sale of a heap of fire-clay, where the parties have made it suffi- ciently clear that it was their intention that the property in the whole heap should pass, notwithstanding the clay was to be weighed at the machine of a third party. 2 To unfinished bricks. So the well-known general rule that the property does not pass to the buyer while any- thing remains to be done by the seller, either to com- plete the goods or to ascertain the price, has been held inapplicable where the intention of the parties was con- sidered to be that the property in bricks should pass, whether finished or not. 3 To cotton-waste not fully weighed. And w r here cotton spinners agreed to purchase four stacks of cotton- waste in the warehouse of another spinner, and subsequently had the waste packed into eighty-one sacks, and twenty-one sacks were afterwards weighed and taken to the buyers' premises, but were returned the same day by the buyers on account of objection to the qual- ity, and left loaded on a cart outside the seller's ware- house, to which they were removed by the seller to prevent them from spoiling, it seemed to be considered that the property had passed, though a portion of the sacks had not been weighed, in view of the finding of the jury that the contract was to buy four stacks of cotton-waste specifically agreed on, more or less, for better or for worse. 4 NEWMAKK &ALF.S. 12. Hi g 93-94 SALES OF SPECIFIED CHATTELS. 134 1 Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692, 699. In determining whether the parties have agreed that the sale should not be complete, and the title should not pass before some- thing was done to ascertain the price, the question must always be, what was the intention of the parties in this respect, which is, of course, to be collected from the terms of the contract : Logan v. Le Mesurier, 6 Moore, P. C. C. 116 ; Langdell's Cases on Sales, 681, 690. 2 Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692, 699 ; citing, also, Hinde v. Whitehouse, 7 East, 558 ; Langdell's Cases on Sales, 102, 109. 3 Young v. Matthews, Law R. 2 Com. P. 127 ; Langdell's Cases on Sales, 875, 876. 4 Kershaw v. Ogden, 3 Hurl. & C. 717 ; Langdell's Cases on Sales, 700, 702 ; following, Turley v. Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692, 699. g 93. Special circumstances. Govern while intention criterion. It has been declared that so long as courts permit intention to enter into the determination of questions such as those concerning the transfer of title to specific chattels, so long will cases be left to be deter- mined by their own peculiar facts and circumstances. 1 Absence of strong presumption. And it has been pointed out that the tendency of many of the American cases is to let each case go upon its own special basis, upon consideration of the proof and upon the criterion of the intention of the parties, 2 without any very strong presumption for or against the transfer of title. 3 1 Halterline v. Bice, 62 Barb. 597, 598. 2 See 2 Schouler Personal Property, 250, citing cases next given. 3 See Hyde v. Lathrop, 3 Keyes, 497 ; Groat v. Gile, 51 N. Y. 431 ; Hutchinson v. Hunter, 7 Pa. St. 140 ; Marble v. Moore, 102 Mass. 443 ; Southwestern Freight Co. v. Stanard, 44 Mo. 71. g 94. Acts to be done after delivery. Delivery as indic- ative of intent to vest title. The most important fact in- dicative of an intent that the title shall pass is generally that of delivery. 1 And if the goods are completely de- livered to the purchaser, it is usually very strong if not conclusive evidence of intent that the property shall vest in him and be at his risk, notwithstanding weighing, measuring, inspection, or some other act is to be done afterwards. 2 135 SALES OF SPECIFIED CHATTELS. \ 95 Acts regarded as for adjustment of price. Thus it is declared that where the goods are actually delivered, that shows the intent of the parties to complete the sale by the delivery, and the weighing, or measuring, or counting afterwards would not be considered as any part of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price. 3 Broader statement of rule. More broadly, in some respects, it is stated that the general rule against trans- fer of title until performance of an act stipulated to be done by the seller will not prevail where, by the terms of the agreement, the title is to vest immediately in the buyer, notwithstanding something remains to be done to the goods by the seller after delivery. 4 Constructive and actual delivery. So the rule that the property does not pass when anything remains to be done has been said to apply only to cases of construct- ive delivery and constructive possession, and not to cases where there is an actual delivery, 5 1 Lingham v. Eggleston, 27 Mich. 324, 328. And see Shealy v. Edwards, 73 Ala. 175, 181 ; 49 Am. Rep. 453. 2 Lingham v. Eggleston, 27 Mich. 324, 328 3 Macomber v. Parker, 13 Pick. 175, 183. So that the sale would be as complete as a sale upon credit, before the actual payment of the price : Macomber v, Parker, 13 Pick. 175, 183 ; quoted, Messer v. Woodman, 22 N. H. 172, 180 ; 53 Am. Dec. 416. 4 See Foster v. Ropes, 111 Mass. 10, 15. 5 See Sumner v. Hamlet, 12 Pick. 76, 83 ; "Kelsea v. Halnes, 41 N. H. 246, 254. Compare Orcutt v. Nelson, 1 Gray, 536, 54 95. Duty and agreement to deliver. Duty of seller or of buyer as affecting state of goods. It is sometimes the duty of the seller, under a contract of sale, to de- liver the goods, and sometimes the duty of the buyer to come and take them; 1 so that in one transaction the seller might have to put his goods in a deliverable state and then deliver, while in another he needs only to 2 96 SALES OF SPECIFIED CHATTELS. 136 have the goods in condition for delivery, and then give the buyer notice to come and take them. 2 Special undertaking to deliver. And a special under- taking, on the seller's part, to convey the purchased goods to a certain point for the buyer's convenience, is not inconsistent with the previous transfer of owner- ship 3 by mutual consent. 4 Illustrations. Thus, where on a sale of lumber then in the vendor's yard, the pieces sold were selected and designated, and the price paid, but the vendor agreed to deliver the lumber at a railroad station, it was held that this act to be done by the vendor did not prevent the passing of the title, and the risk of loss by fire to the purchaser by a sale otherwise complete. 5 And a sur- vey of a large quantity of logs landed on a stream preparatory to driving by a person mutually agreed upon by the parties to a sale, and the vendor's putting the purchaser's mark on such logs as they were landed, has been held to constitute a sufficient delivery to pass the title, even as against subsequent purchasers, although by the terms of the contract of sale the vendor was bound to deliver the logs at a specified place many miles below the landing. 6 1 2 Schouler on Personal Property, 2 254, whence next paragraph also derived. 2 Compare Logan v. Le Mesurler, 6 Moore P. C. C. 116 ; Lang- dell's Cases on Sales, 681, with following cases : Waldron r. Chase, 37 Me. 414 ; Whitcomb v. Whitney, 24 Mich. 486 ; Bond v. Greenwald, 4 Heisk. 453 ; Martineau v. Kitching, Law R. 7 Q. B. 436 ; 2 Eng. Rep. 50J. 8 2 Schouler on Personal Property, \ 251 ; citing cases in nexfc note. 4 See Dyer v. Libby, 01 Ma.45. Weighing and marking the goods with the purchaser's name are always regarded as very significant facts bearing on a delivery : Beiley v. Long, 24 Kan. 00. 5 Terry v. Wheeler, 25 X. Y. 520 ; Langdell's Cases on Sales, 706, 709. 6 Bethel Steam Mill Co. v. Brown, 57 Me. 9. 96, Effect of delivery. Presumption of finality of transfer. Wherever the goods are actually delivered. 137 SALES OF SPECIFIED CHATTELS. 96 it is regarded as reasonable to presume that the parties intended this as the final act of transfer, 1 save so far as the question of payment as a condition precedent may arise, 2 and that any subsequent acts of weighing or measuring must have had reference to the buyer's con- venience, or to an adjustment of the total price which was by mutual agreement deferred to the vesting of property in the buyer. 3 By whom act to be done after delivery. And it has oeen distinctly held, though upon proof, not presump- tion, that the property in the goods may pass, even though something remains to be done to them by the seller after their delivery, 4 while it is considered that the presumption of a completed transfer of property must be far stronger where miscellaneous acts subse- quent to delivery are to be performed solely by the buyer, or on his behalf, and not on the sellers. 5 Delivery not conclusive to show vesting of title. Yet while delivery is usually the most significant fact to prove the transfer of title, 6 it is not conclusive, 7 for there may be either an express or an implied contract of the parties to the contrary. 8 1 2 Schouler on Personal Property, \ 254, citing cases given in note after next. 2 See section under CONDITIONAL SALES. 3 See Riddle v. Varnum, 20 Pick. 2SO ; Odell v. Boston & Marine B. R. 103 Mass. 50 ; Kelsea v. Haines, 41 N. H. 247, 254 ; Gush man v. Holyoke, 34 Me. 289 ; Cunningham y. Ashbrook, 20 Mo. 55-i ; Burr v. Williams, 23 Ark. 244 ; King v. Jarman, 35 Ark. 190. Delivery and acceptance of an absolute bill of sale of the goods favors the pre- sumption that the title has passed, though something may remain to be done to the goods, such as weighing to fix the exact price at a rate already agreed upon : Shepard v. .Lynch, 20 Kan. 377. 4 Greaves v. Hepke, 2 Barn. & Aid. 131 ; Hammond v. Anderson, 1 Bos. & P. N. R. 6J ; Ross's Leading Cases, 218. 5 2 Schouler on Personal Property, 254, whence cases in last note derived. 6 See Shealy v. Edwards, 73 Ala. 175, 181 : 49 Am. Rep. 453 : Ling- ham v. Eggleston, 27 Mich. 324, 328. 7 2 Schouler on Personal Property, \ 254, 8 Wilkinson v. Holiday, 33 Mich. 386. 97 SALES OF SPECIFIED CHATTELS. 138 $ 97. Assumption of risk "by acceptance, In general. By accepting the specific chattel as his own, under a delivery, the buyer might well be supposed to have waived all claim to a delayed transfer of property aris- ing out of further acts which remain to be performed, 1 and a like reasoning might apply for shifting the pre- sumptions, in case the risks of delivery had been specially assumed by the buyer. 2 Express undertaking. Whether it be conceived that the property had passed or not, in the latter instance it is clearly decided that the buyer is liable for destruc- tion of the goods caused through no fault of the seller, and is bound to the payment of the agreed price, wher- ever he has specially contracted to bear the risk of deliver}^, 3 for this would be but enforcing a fulfillment of his own express undertaking.* 1 See Burr v. Williams, 23 Ark. 244. 2 2 Schouler on Personal Property, 254. 3 See section on ASSUMPTION OF BISK, in chapter on TRAXSFKR OF TITLE. 4 2 Schouler on Personal Property, ?254; citing, Martineau v. Kitching, Law R. 7 Q. B. 4:36; 2 Eng. Rep. 539; Castle v. Playford, Law R. 5 Ex. 105 ; Law R. 7 Ex. 98 ; 1 Eng. Rep. 204. 139 SALES OF UNSPECIFIED CHATTELS. 98 CHAPTER IX. SALES OF UNSPECIFIED CHATTELS, 2 98. Need of specification. 99. Object to be effected. 2 100. Identification. | 101. Warehouse receipt for undesignated goods. g 102. Delivery of unidentified goods. 103. Selection and separation. 104. When trover not maintainable. 1 105. Quasi cotenancy. 5 1C6. Estoppel of custodian. 2 107. Intention and indications thereof. I 108. Weighing or separation. I 109. Distinguishing from mass. g 110. No selection necessary where mass uniform. \ 111. Intention as criterion. 112. Separation from uniform mass. 113. Illustrative cases. 98. Need of specification. For present sale of chat- tels not specific. Goods existing as a part of a larger mass, from which they must be separated by counting, weighing, or measuring, or which are hereafter to be procured and supplied to the buyer, or which are to be manufactured for his use, are not ordinarily considered the proper subjects of a common-law sale, presently passing the title, but only of an executory contract for the future sale and delivery of personal property, 1 And under a contract of sale of chattels not specific, it is generally indispensable, before there can be an act- ual transfer of property, to make the subject-matter specific, or in other words, to appropriate particular chattels to the contract. 2 Illustrative case. Thus, it has been held that a suit is not maintainable for the price of eight thousand bushels $ 98 SALES OF UNSPECIFIED CHATTELS. 140 of corn sold under a written contract which did not specify what corn was meant, as no title had passed for want of specification. 3 Statement of fundamental rule. The fundamental rule applicable is said to be that the parties must be agreed as to the specific goods on which the contract is to attach before there can be a bargain and sale. 4 The goods must be ascertained, designated, and as gener- ally held, separated from the stock or quantity with which they are mixed, before the property can pass. 5 Presumption as to goods not separated, etc. Until this is done, the presumption is asserted to remain that the agreement, still executory, contemplates a postpone- ment in the mean while of the transfer of property ; and it is declared evident that trover or replevin can- not be maintained for goods which are not as yet identified, but exist only as part of a mass awaiting separation. 7 Reason of rule. The reason of the rule requiring separation and identification of goods mingled with others is stated to be that the sale cannot apply to any article until it is clearly designated, and its identity ' thus ascertained. 8 For the law is declared to know no such thing as a floating right of property, which may attach itself either to one parcel or the other, as may be found convenient afterwards. 9 Until the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answer- ing a particular description; 10 and since the vendor would fulfill his part of the contract by furnishing any parcel of goods answering that description, it is laid down as clear that there can be no intention to transfer the property in any particular lot of goods more than another, until it is ascertained which are the very goods sold. 11 141 SALES OF UNSPECIFIED CHATTELS. $ 99 1 See Cunningham v. Ashbrook , 20 Mo. 653, 556. 2 2 Schouler on Personal Property, 256. Like effect : Blackburn on Sales, 122, 128 ; Bennett's Benjamin on Sales, 352, citing following American cases : Warren v. Buckminster, 24 N. H. 336 ; Browning v. Hamilton, 42 Ala. 484 ; Indianapolis R. W. Co. v. Maguire, 62 Ind. 140 ; Smyth v. Exec'rsof Ward, 46 Iowa, 33'J; Dunning v. Gordon, 4 Up. Can. Q. B. 399; Middlebrook v. Thompson, 19 Up. Can. Q. B. 307; McDougall 7'. Elliott, 20 Up. Can Q. B. 2.)9 ; Cox v. Jones, 24 Up. Can. Q. B. 81 ; Robertson v. Strickland, 28 Up. Can. Q. B. 221 ; Pew r. Lawrence, 27 Up. Can. C. P. 402 ; Levey v. Loundes, 2 Low. Can. 257. 3 Ormsby v. Machin, 20 Ohio St. 295, 306. And that it was error to permit the seller to prove that the corn meant was a lot stored in his bins : Ormsby v. Machin, 20 Ohio St. 295, 306. 4 Hutchinson r. Hunter, 7 Pa. St. 140, 141. The property cannot pass until there be a specific identification, in some way, of the par- ticular goods which the party bargains for : See Golder ?'. Ogden, 15 Pa. St. 5J8, 5J3 ; Scudder v. Worster. 11 Cush. 573 ; Langdell's Cases on Sales, 783, 786, 787. 5 Hutchinson v. Hunter, 7 Pa. St. 140, 145. And see Scudder v. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 786 ; Crofoottf. Bennett, 2 Cornst. 258 ; Langdell's Cases on Sales, 772, 773 ; 2 Kent Com. 496 ; Warren v. Buckminster, 24 N. H. 336, 342 ; Brewer v. Sal- bury, 9 Barb. 511, 514. 6 2 Schouler on Personal Property, 256. If goods are sold by number, weight, or measure, the sale is prima facie, not complete until their quantity is ascertained, and if they are mixed with others, not until they are separated and designated : Fuller v. Bean, 34 N. H. 290, 300. 7 2 Schouler on Personal Property, 256 ; citing, Austen v. Craven, 4 Taunt. 644 ; Langdell's Cases on Sales, 741, 744 ; Gillett v. Hill, 2 Cromp. & M. 530; Langdell's Cases on Sales, 7-55, 758 ; Mor- rison v. Dingley, 63 Me. 553 ; Scudder v. Worster, 11 Cush. 573 ; Lang- dell's Cases on Sales, 783 ; Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Rep. 282. So it is said that on a sale of merchandise or chattels, if any- thing is necessary to individualize the thing sold, such as weighing, measuring, counting, or separating from a bulk, the title does not pass until this is done, and the purchaser cannot maintain detinue or trover : Mobile Sav. Bank v. Fry, 69 Ala. 348, 350 ; citing, Magee ?>. Billingsly, 3 Ala. 679 ; Tucker v. Henderson, 63 Ala. 280 ; sustained, Fry v. Mobile Sav. Bank, 75 Ala. 473, 474. 8 Crofoot v. Bennett, 2 Comst. 258 ; Langdell's Cases on Sales, 772, 773. 9 Golder v. Ogden, 15 Pa. St. 528. See Scudder v. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 787. 10 See citations in next note. 11 Scudder ?'. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 787 ; quoting, Blackburn on Sales, 122. Compare Campbell on Sales, 227 ; Hubler v. Gaston, 9 Or. 66, 70 ; 42 Am. Rep. 794. I 99. Object to be effected. Identified goods with price ascertained. If the goods sold are clearly identified, then it is declared the title will pass, although it maybe necessary to number, weigh, or measure the goods in 100 SALES OF UNSPECIFIED CHATTELS. 142 order to ascertain what would be the price of the whole at a price agreed upon between the parties. 1 Specification or computation of value. The distinction in all such cases is said to depend not so much upon what is done, as upon the object to be effected by it ; and if that is specification, the property is not changed, but if it is merely to ascertain the total value at desig- nated rates, the change of title is effected. 7 1 Crofoot v. Bennett, 2 N. Y. 258, 259 ; Langdell's Cases on Sales, 772. Thus the sale is valid and complete if a tlock of sheep is sold at so much per head, and it is agreed that they shall be counted after the sale in order to determine the price of the whole : Crofoot v. Bennett, 2 N. Y. 258, 259. But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated and their identity thus ascertained and determined : Crofoot v. Ben- nett, 2 N. Y. 253, 259 ; quoted, Brewer v. Salisbury, 9 Barb. 511, 515 ; Hyde v. Lathrop,2 Abb. N. Y. App. 436,439,440. 2 Crofoot v. Bennett, 2 N. Y. 258, 260 ; Langdell's Cases on Sales, 772 ; quoted, Brewer v. Salisbury, 9 Barb. 511. 515. See Groat v. Gile, 51 N. Y. 431, 437. g 100. Identification. Need and requisites. The au- thorities are said to be nearly uniform in holding that the legal title to personalty does not pass by a contract of sale where the identity of the property contracted to be sold is not ascertained by the contract, nor capable of identification by parol evidence. 1 And if the prop- erty which is the subject of sale is an unidentified part of a species which is capable of separation, its identifica- tion is not such as the law requires in order to transfer the legal title by a sale. 2 Without separation, etc. But goods sold may be suf- ficiently identified to pass the title though they are not separated, as where there are one hundred bales of cotton, numbered from one to one hundred, and the contract is for the fifty odd numbers, or the fifty even numbers, or any other specified fifty numbers. 3 So, according to some of the cases, upon a sale of a specified quantity of grain, its separation from a mass, undistin- guishable in quality or value, in which it is included, 143 SALES OF UNSPECIFIED CHATTELS. g 101 is not necessary to pass the title, 4 when the intention to do so is otherwise clearly manifested. 5 Pointing out or marking. Pointing out animals to remain in the pasture with others, has been held suf- ficient to transfer the title thereto. 6 There has been h eld , however, to be no sufficient identification of a portion of iron not inspected by the buyer, where all that ordered was manufactured and piled for the buyer but not marked. 7 1 Browning v. Hamilton, 42 Ala. 484, 485. And see First Nat. Bank v. Crowley, 24 Mich. 496, 497 ; distinguishing Whitcomb v. Whit- ney, 24 Mich. 486, 492. 2 Browning v. Hamilton, 42 Ala. 484, 485. But until it is separated from the bulk the title remains with the seller, and if the property is lost, he must, as a general rule, bear the loss : Browning v. Hamilton, 486. When separated, however, the title passes unless there is some stipulation which prevents ; and if lost, though possession is with the seller, the loss falls on the buyer, unless it is occasioned by some illegal act or omission of the seller : Browning v. Hamilton, 42 Ala. 486. 3 Arnold v. Delano, 4 Cush. 33, 40 ; 50 Am. Dec. 754, 758. And see Bopes v. Lane, 9 Allen, 502. 4 Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Rep. 282. 5 Kimberly v. Patchin, 19 N. Y. 330 ; Langdell's Cases on Sales, 775 ; Busseli v. Carrington. 42 N. Y. 118, 122 ; 1 Am. Rep. 498. But see contra. Commercial Nat. Bank v. Gillette, 90 Ind. 268 ; 46 Am. Rep. 222. 6 Webster v. Anderson, 42 Mich. 554. 7 First Nat. Bank ?>. Crowley, 24 Mich. 492, 496. And see Hahn v. Fredericks, 30 Mich. 224, 226. Measurement deemed necessary to complete identification : Crapo v. Seybold, 35 Mich. 169. g 101. Warehouse receipt for undesignated goods. At common law. The indorsement of a warehouse receipt, and its delivery, operated to vest the purchaser with the title and possession at common law ; l but if not for a specific chattel, and the property it represented was a part of a large bulk or mass of articles that required separation, no title passed until the separation was had. 2 Under statute. And the doctrine of the common law as to the identification of the property is held not to be changed by a statute rendering warehouse receipts negotiable, and constituting them the symbolic repre- sentative of the property, etc., 3 but on the contrary it is $ 102 SALES OF UNSPECIFIED CHATTELS. 144 said to be maintained by a provision in such statute that such receipt shall set forth the quality, quantity, kind, and description of the property which shall be designated by some mark. 4 But in Massachusetts the statute provides that the warehouseman's receipt for any portion of grain or other property stored in a pub- lic warehouse in such a manner that different lots or parcels are mixed together so that the identity of the same cannot be preserved, shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification. 5 1 Ferguson v. Northern Bank of Kentucky, 14 Bush, 555 ; 29 Am. Rep. 418, 422. And see Newcomb v. Cabell, 10 Bush, 460, 469, 470. 2 Ferguson v. Northern Bank of Kentucky, 14 Bush, 555 ; 29 Am. Rep. 418, 422. 3 See Newcomb v. Cabell, 10 Bush, 460, 470. 4 Ferguson ?>. Northern Bank of Kentucky, 14 Bush, 555 ; 29 Am. Rep. 418, 422. Nor is the fact that hams are branded with the usual or known trade-mark of a firm, found on all the hams in the ware- house, a sufficient mark or distinguishing feature to enable the party to identify tbe property: Ferguson v. Northern Bank of Ken- tucky, 14 Bush, 555. Compare on latter point, Scudder v. Worster, 11 Cush. 573; Langdell's Cases on Sales, 783. And see generally as to need of specification, May v. Hoaglan,9 Bush, 171, 173. (Contract construed as covenant to furnish eight barrels of whiskey in the future.) Insurable interest in unseparated wheat held to pass under Canadian statute : Box v. Provincial Ins. Co. 18 Grant COnt.) 280. 5 Mass. Pub. Stats, ch. 72, ? 7. Warehouse receipts for grain gen- erally : See Rev. Stats. 111. 18SO, ch. 114, # 120, et seq.: Bailey v. Bens- ley, 87 111. 556 ; Broadwell v. Howard, 77 111. 305; Young r. Miles, 20 AVis. 615 ; S. C. 23 Wis. 643. Analysis of enactments relating to ware- housemen and their receipts: Stims Am. Stat. Law, pp. 517-519, \\ 4370-4372. 102. Delivery of unidentified goods, Does not deter- mine intention. Where goods are sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller, as already stated, 1 until the specific property is separated and identified. 2 And though the question of the transfer of title and risk is one of intention, 3 yet the intention is to be ascertained, not from the single fact of delivery, but from all the language and conduct of the parties. 4 145 SALES OF UNSPECIFIED CHATTELS. \ 103 Liability for loss. Hence, where under a contract to sell one hundred and fifty railroad ties, two hundred and fifty-two were delivered, but it never was ascer- tained which of these were for the purchaser receiving them, and which for another party, and some of them were burned, it has been held that the liability for the loss of those destroyed cannot fall upon such purchaser. 5 1 See ? 76, on GOODS MINGLED WITH OTHERS. 2 Hutchinson r. Grand Trunk Railway, 59 N. H. 487, 489; citing, 2 Kent Com. 4i-B ; Davis v. Hill, 3 N. H. 382 ; Messer v. Woodman, 22 N. H. 172 ; Warren v. Buckminister, 24 N. H. 337 ; Fuller v. Bean, 34 N. H. 2CO; Ockington v. Rickey. 41 N. H. 275; Bailey v. Smith, 43 N. H. 141 ; rrcscott ?. Locke, 51 N. H. 94, 99 ; Jenness v. Wendell, 51 N. H. 63, 69 ; Smart v. Batchelder, 57 N. H. 140 ; Macomber?\ Parker, 13 Pick. 175 ; Riddle v. Varnum, 20 Pick. 280 ; Foster v. Ropes, 111 Mass. 10. 3 See ? 71, on INTENTION" TO TRANSFER TITLE ; also under chap- ter on TRANSFER OF TITLE. 4 Hutchinson v. Grand Trunk Railway, 59 N. H. 487, 489 ; citing, Fuller v. Bean, 34 N. H. 303 ; Foster v. Ropes, 111 Mass. 10, 16. 5 Hutchinson v. Grand Trunk Railway, 59 N. H. 487, 489. 103. Selection and separation. For identification, prerequisite to transfer of title. The general rule is that where the identity of the chattels contracted for is not immediately ascertainable from the contract, but re- quires further specific acts, the property does not pass to the buyer, but remains in the seller until identifica- tion has taken place through suitable acts of selection and separation. 1 Applications of doctrine. And this doctrine as to un- specified goods has been applied to a contract with re- finers for a certain quantity of a specified quality of sugars, so that trover was held not maintainable because any sugars of the required quality would have satisfied the contract ; 2 and to a purchase of a number of tons of linseed oil from one who at the time was possessed of large quantities of oil, lying in several different cisterns, in different warehouses. 3 The same rule has been con- S-^ered applicable to a sale of ten tons of Riga flax, NEWMARK SALES. 13. 103 SALES OF UNSPECIFIED CHATTELS. 146 which required to be separated, by weight, from a larger mass of eighteen tons, while it might have been neces- sary to break open some of the mats in which the article is usually imported in order to make up the stipulated quantity if the weight fell short. 4 So there can be no recovery where replevin is brought for a certain num- ber of barrels of pork, bargained and sold, and still re- maining in the vendor's cellar, and parcel of a larger quantity of similar brand. 5 Further illustrations. And the general principle has been deemed applicable where a bargain is for the whole of a lot, with a reservation to be made by the seller ; 6 or for so many bushels out of a larger mass kept in store, 7 or for ungathered vegetables or fruit ; 8 or for two thousand telegraph poles, which must be selected from a lot containing some twenty-one hundred ; 9 or for ores to be hereafter delivered from a mine or a heap ; 10 or for lumber to be cut and sawed or piled. 11 Animals not selected from flock. So where there was a bargain for fifteen of the best sheep of a flock, but they were not selected, it was held that the sale was incom- plete, and the property did not pass until the sheep were selected and designated by marking or otherwise, or separated from the flock. 12 Possession taken for pui~pose of separation. But in the case of a sale of part of an entire mass of goods, such as coal, brick, flour, and grain, if the purchaser is allowed to take possession of the whole for the purpose of enabling him to separate the part sold, the title to the part passes to the purchaser, and he may retain that whole until he has had a sufficient time and opportunity to separate and take the part belonging to him. 13 1 2 Schouler on Personal Property, \ 257, stating succeeding illustrations in paragraph. If a, party agrees to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part 147 SALES OF UNSPECIFIED CHATTELS. $ 104 of the whole quantity such party has agreed to deliver until a selec- tion is made, for there is no individuality until it is divided : Gillett 7\ Hill, 2 Cromp. & M. 5CO; Langdell's Cases on Sales, 755, 758. See Ferguson v. Northern Bank, 14 Bush, 555 ; 29 Am. Rep. 418, 423. 2 Austen v. Craven, 4 Taunt. 644 ; Langdell's Cases on Sales, 741, 744; noted, Kimbcrly v. Po-tchin, 19 N. Y. 3.JO; Langdell's Cases on Sales, 775, 780 ; Hurff v. Hires, 40 N. J. L. 581 ; 2!) Am. Rep. 282, 284 ; citing, also, Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942. 3 White v. Wilks, 5 Taunt. 176 ; Langdell's Cases on Sales, 744, 745. But compare contra, Whitehouse v. Frost, 12 East, 614 ; Langdell's Cases on Sales, 7o4, 737. And see Wallace v. Breeds, 13 East, 522 ; Larsgdell's Cases on Sales, 739, 741 ; Foot v. Marsh, 51 N. Y. 28S ; Halde- man v. Duncan, 51 Pa. St. 63; Kimberly v. Patchin, 19 N. Y. 330; Langdell's Cases on Sales, 775, 780. 4 Bush v. Davis, 2 Maule , 758. 2 See "Wallace v. Breeds, 13 East. 522 ; Langdell's Cases on Sales, 73'J ; Hurff v. Hires, 40 N. J. L. 531 ; 29 Am. Hop. 232, 23.) ; Ferguson r. Northern Bank of Kentucky, 14 Bush, 555 ; 2 J Ara. Itep. 418, 423. 3 Gillett v. Hill, 2 Cromp. & M. 530 ; Langdell's Cases on Sales, 755, 758. Point raised but overruled that trover would not lie for the con- version of 1969 Spanish dollars, because not distinguished or sepa- rated from remaining contents of a parcel of $4918, transmitted to a consignee for the use of plaintiff: Jackson v. Anderson, 4 Taunt. 24 ; as stated, Scudder v. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 785. \ lOo. Quasi cotenancy. Apparent exception to gen- eral rule. There is an apparent exception to the gen- eral rule if an undivided part of a specified bulk be the subject of the sale. 1 JVb separation necessary. For in that case the buyer may become quasi tenant in common with the seller of the entire bulk, 2 if such be the intention of the parties, 3 and of course no separation is necessary to vest the title in the buyer. 4 1 Langdell's Cases o" Sales, 1027. 2 See Kimberly v. 1 atchin, 19 N. Y. 330; Langdell's Cases on Sales, 775, 78J. 3 Intention and indications thereof : % 107. 4 Kimberly v. Pa: am. 19 N. Y. 330 ; Langdell's Cases on Sales, 775 ; Gushing v. Breed, 14 Allen, 376 ; Langdell's Cases on Sales, 788, 3028. And see Chapman v. Shepard, 39 Conn. 413 ; Hoyt v. Hartford Fire Ins. Co. 26 Hun, 416,418. But compare Ferguson v. Northern Bank, 14 Bush, 55o ; 29 Ara. Hep. 418, 424. Deposits in warehouses : See Keeler v. Goodwin, 111 Mass. 490, 491 ; Dale v. Olmsted, 36 111. 150, 154 ; 41 111. 344. \ 106. Estoppel of custodian. Warehouseman accept- ing order for goods. The principle of estoppel, 1 which had been applied to the case of specified goods, 2 has been extended to the case of goods not specified ; 3 and it has been held that when a warehouseman has ac- 149 SALES OF UNSPECIFIED CHATTELS. \ 107 cepted an order calling for goods of a given quantity and quality, he will be estopped from saying that lie has no such goods in his custody belonging to the holder of the order, and will be liable to an action of trover at the suit of the latter if he refuses to comply with the terms of the order. 4 Difficulty in supporting authorities. But it has been suggested that there seems to be difficulty in support- ing upon principle the cases which take this position, because there was no assertion of facts in the orders, and the warehousemen merely promised to comply with the terms of the orders. 5 1 See generally Barnard v. Campbell, 55 N. Y. 456, 463. 2 See Stonard v. Dunkin, 2 Camp. 344 ; Langdell's Cases on Sales, 653, 6~>4 ; Hawes v. Watson, 2 Barn. & C. 540; Langdell's Cases on Sales, 656, 658 ; Gillett v. Hill, 2 Cronip. & M. 530 ; Langdell's Cases on Sales, 755, 758, 759. 3 See Hurif v. Hires, 40 N. J. L. 581 ; 29 Am. Rep. 282, 289 ; and citations in next note. 4 Woodley v. Coventry, 2 Hurl. & C. 164 ; Langdell's Cases on Sales, 760 ; Knights v. Wiffen, Law R. 5 Q. B. 660 ; Langdell's Cases on Sales, 766, 771. 5 See Langdell's Cases on Sales, 1028. Estoppel held inapplicable as doctrine to support action of replevin : Scudder v. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 788. 107. Intention and indications thereof. Intention overcoming presumption against transfer of title. It has been stated that there seems to be good authority for asserting that if the parties so intend it, and their mutual intention is made sufficiently manifest, the usual presumption against a change of property may be overcome, even in the case of goods not specific, 1 though it is not always clear whether the ground be that the property has passed, or that the buyer has specially contracted to assume the risks. 2 Selection and separation, or separation only. So there are cases which make a distinction between the sale of goods which require both selection and separation, and 108 SALES OF UNSPECIFIED CHATTELS. 150 the sale of goods requiring separation only, 3 and con- sider that in the former class of cases, as an act of special discrimination is requisite, the property should less readily be presumed to have passed than in the latter class. 4 Purchaser to make separation after delivery. And in determining, upon the basis of mutual intention, whose should be the risks, a circumstance not without force is 5 that the purchaser is invested with the right and duty to take the goods, separating for himself. 6 1 2 Schouler on Personal Property, $ 258, whence paragraph derived. 2 See Watts v. Hardy, 13 Fla. 523 ; Chapman v. Shepard, 39 Conn. 413 ; Waldron v. Chase, 37 Me. 414 ; distinguished, Morrison v. Ding- ley, 63 Me. 553 ; Carpenter v. Graham, 42 Mich. 191. 3 Compare Haldeman v. Duncan, 51 Pa. St. 66, and Chapman v. Shepard, 3J Conn. 413 ; Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Hep. 282. 4 2 Schouler on Personal Property, ? 258. And the con 5 2 Schouler on Personal Property, ? 258, whence paragraph derived. 6 See Foot v. Marsh, 51 N. Y. 288; explaining, Kimberly v. Patchin, 19 X. Y. 330 ; LangdelPs Cases on Sales, 775 ; Waldron v. Chase, 37 Me. 414 ; Weld v. Cutler, 2 Gray, 195; Lamprey v. Sargent, 58 N. H. 241 ; Washburn Iron Co. v. Bussell, 130 Mass. 543. But compare Haldeman v. Duncan, 51 Pa. St. 66. $ 108. Weighing or separation. For identification, etc. Where there is an immediate sale of a specific and ascertained chattel, and nothing remains to be done by the vendor, as between him and the vendee, the prop- erty in the thing vests in the vendee. 1 But where only a part of the bulk is sold, so that weighing or separa- tion is necessary to determine the identity of the part so sold, or, if the whole of a commodity be sold, but weighing or measuring be necessary to ascertain or compute the price, unless the intention to pass the property be manifest without further act 011 the part of 151 SALES OF UNSPECIFIED CHATTELS. 108 the vendor, the act of weighing or measuring is essen- tial to vest the property in the vendee. 2 Trover not maintainable without. And where a sale was made of a large pile of slate, at a certain price per ton, to be paid for as parcels of it should from time to time be taken away, and the purchaser had paid the price of fourteen tons, it was held that he was entitled to have that quantity weighed off and separated for him, but that until such separation he had 110 property in any specific fourteen tons, and could not maintain trover thereof. 3 So trover has been held not main- tainable by a purchaser where a cargo of coal was dis- charged in an undistinguishable mass upon a wharf, and the removal of the full quantity bought was pre- vented by the interposition of another purchaser while a portion of the cdal remained unweighed upon the wharf. 4 And where the buyer paid for three mows of hay, to be weighed out of a certain mow when he should see fit to move the same, and the hay was taken by a third person, such buyer has been held unable, for want of property, to maintain trover against the third person, as there had been no separation from the general mass. 5 1 Tleeder v. Machem, 57 Md. 56 ; citing, Dixon v. Yates, 5 Barn. . Frost, 12 East, 614 ; Langdeli's Cases on Sales, 734 ; followed, Merrill v. Hunnewell, 13 Pick. 213, 216; Stone v. Peacock, 35 Me. 385, 388. 4 Morrison v. Dingley, 63 Me. 553, 556. But delivery held suffi- cient, according to intention of parties, though whole quantity sold not weighed and severed from the bulk : Phillips v. Ocmulgee Mills, 55 Ga. 638, 638. And compare Cumberland Bone Co. v. Andes Ins. Co. 64 Me. 466, 469. 109 SALES OF UNSPECIFIED CHATTELS. 152 5 Davis v. Hill, 3 N. H. 382; 14 Am. Dec. 373, 374; followed, Messer v. Woodman, 22 IS". H. 172, 180 ; 53 Am. Dec. 241, 247. I 109. Distinguishing from mass. Rule requiring separation. The long-established rule of the common law, 1 as adopted in England and in many States in this country, 2 is that a sale of personal property consti- tuting a part of a large mass of like property passes no title to the purchaser until it is separated from the mass, or in some other manner designated. 3 This doc- trine holds that specific individual goods must be agreed on by the parties, 4 and that it is not enough that they are to be taken from some specified larger stock, because there still remains something to be done to designate the portion sold, which portion must be separated from the mass before the sale can be completed. 5 Applications of doctrine. And the doctrine has been applied to a sale of car-wheels in a common mass with others, without separation or designation, which after the execution of the contract were seized as the prop- erty of the purchaser. 6 So the title does not presently pass on a purchase of a certain number of bushels of bright, merchantable, white oats, for which payment is then made, when the seller agrees to deliver that quantity and quality of oats, in good sacks, on board the cars when called for. 7 Wlien no designation necessary. Where, however, barrels were alike in size and quality, it has been held that no designation was intended or necessary to dis- tinguish the particular lot sold from those in store. 8 But in order to substitute an arrangement between the parties for a manual delivery of a parcel of property mixed with an ascertained and defined larger quantity, it must be so clearly defined that the purchaser can take it, or maintain replevin for it. 9 153 SALES OF UNSPECIFIED CHATTELS. 110 Mass of uniform character. And it has been said that the cases in which the title to goods sold, a part of a larger mass, has been held to pass before sever- ance, are confined to those in which the mass itself is ascertained, and of a uniform quality and value, 10 though even in regard to such cases there is a conflict of authority. 11 1 According to Com. Nat. Bank v. Gillette, 90 Ind. 268, 269 ; 46 Am. Rep. 222. 2 See Hutchinson v. Hunter, 7 Pa. St. 140 ; Haldeman v. Duncan, 51 Pa. St. 66 ; Fuller v. Bean, 34 N. H. 290 ; Ockington v. Richey, 41 N. H. 275 ; Ropes v. Lane, 9 Allen. 502 ; Woods v. McGee, 7 Ohio, 467 ; Morrison v. Woodley, 84 111. 182 ; Bricker v. Hughes, 4 Ind. 146 ; Courtwright v. Leonard, 11 Iowa. 32 ; Ferguson ?;. Northern Bank, 14 Bush, 555 ; 29 Am. Rep. 418; McLaughlin v. Piatti, 27 Gal. 463. And consult Merchants' etc. Bank v. Hibbard, 48 Mich. 118 ; 42 Am. Rep. 465. Contra, see Kimberly v. Patchin, 19 N. Y. 330 ; Langdell's Oases on Sales, 775; distinguished, Foot v. Marsh, 51 N. Y. 70; Higgi'is v. Del. etc. R. R. 51 N. Y. 288 ; 60 N. Y. 553. See, also, Pleasants v. Pendleton, 6 Rand. 473 ; 18 Am. Dec. 726. 3 Com. Nat. Bank v. Gillette, 90 Ind. 268, 269 ; 46 Am. Rep. 222. And see Hubler v. Gaston, 9 Or. 66, 70 ; 42 Am. Rep. 794. 4 Murphy v. State, 1 Ind. 366. 5 Murphy v. State, 1 Ind. 366 ; Scott v. King, 12 Tnd. 203. And see Moffatt v. Green, 9 Ind. 19b ; Lester v. Bast, 4. In i. 588, 594 ; Indian- apolis etc. Ry. Co. v. Maguire, 62 Ind. 140 ; Bertelson v. Bower, 81 Ind. 512. 6 Com. Nat. Bank v. Gillette, 90 Ind. 268 ; 46 Am. Rep. 222. 7 Hubler v. Gaston, 9 Or. 68. 69 ; 42 Am. Rep. 794. For such con- tract is for the sale of a certain quantity of goods in general, and cannot be regarded as any more than a contract to supply, on demand, any other oats of like quality or quantity, which construc- tion is inconsistent with an intention to transfer some particular identified oats, and no other, when the oats were sold and the price paid : Hubler v. Gaston, 9 Or. 66, 69. 8 Carpenter v. Graham, 42 Mich. 191, 193. 9 Foot v. Marsh, 51 N. Y. 288, 293. 10 See Morrison v. Dingley, 63 Me. 553, 556. 11 See \ 112, on SEPARATION FROM UNIFORM MASS. $ 110. No selection necessary where mass uniform, Need of selection as basis of requirement of separation. The rule of law that upon the sale of a portion of a larger bulk, the contract remains executory until the portion sold is severed and separated for the purchaser from the mass, is sometimes said to prevail only wherever 111 SALES OF UNSPECIFIED CHATTELS. 154 the nature of the article is such that a selection is re- quired, whether expressly provided for or not by the terms of the contract. 1 JVb selection or separation of uniform mass. But where the subject-matter of the sale is part of an ascer- tained mass of uniform quality and value, no selection is required, and in this class of cases it is said to be affirmed by many authorities that severance is not, as matter of law, necessary in order to vest in the vendee the legal title to the part sold. 2 1 Chapman v. Shepard, 39 Conn. 413, 420. And if the articles differ from each other in quantity, or quality, or value, the necessity of a selection is clearly implied : Chapman v. Shepard, 39 Conn. 41o, 420. In all such cases the subject-matter of the sale cannot he identified until severance, which is necessary in order that such subject-matter m a v be made certain and definite: Chapman ?;. Shepard, 39 Conn. 413,*420, 421. 2 Chapman v. Shepard, 39 Conn. 413, 421. And that the title may and will pass if such is the clear intention of tLe contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title: Chapman r. Shepard, 3' Conn. 413, 421 ; approv- ing, Whitehouse v. Frost, 12 East, 614 ; Langdell's Cases on Sales, 734 ; Ross's Leading Cases, 6 ; and reviewing principal American cases, more fully cited in 2 112, on SEPARATION FROM UNIFORM MASS. 111. Intention as criterion. Slight circumstances utilized. There is great difficulty in determining under what circumstances the parties shall be considered as having evinced an intention that property in the subject- matter of sale should pass from the vendor to the pur- chaser. 1 And where the rights of unpaid vendors are concerned, courts have laid hold of slight circumstances to retain the property in such vendors until the pur- chase-money be paid. 2 Supplying goods of particular description. Another class of cases where the title is held not to pass, com- prises those in which the contract is to supply goods of a particular description, and would be fulfilled by furnishing any goods of the stipulated quality and quantity. 3 155 SALES OP UNSPECIFIED CHATTELS. 111 Advantage derived from selection. So there is still another class of cases where the sale is completed in all respects, except that the bulk from which the property purchased is to be separated is not identical in kind or uniform in value, and some advantage may be derived from the privilege of selection. 4 Presumption against intention to pass title. In cases like these it is considered that the title does riot pass immediately upon the terms of the contract being agreed upon, as the circumstances are such, and of such weight, that it is presumed that it was not the intention of the parties that the sale should be completed. 5 When separation mere ministerial act. But a different case is deemed to be presented where nothing remained to be ascertained or adjusted to determine what the rights of the parties were : where the property had been inspected and approved, and was left with the vendor for the purchaser's convenience ; where the mass from which the quantity alone was to be separated was iden- tical in kind, and uniform in value, so that the privilege of selection would not confer any advantage upon either party ; and when nothing was left undone by the parties, except measuring out the quantity purchased from any part of the whole bulk. 6 1 Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Hep. 282, 284. 2 See case just cited, relying upon Hanson ?;. Meyer, 6 East, 614 ; Langdell's Oases on Sales, 6-".!) ; Wallace v. Breeds, 13 East, 522 ; Langdell's Cases on Sales, 73$ ; Shepley v. Davis, 5 Taunt. 616 ; Lang- dell's Cases on Sales, 752 ; Bush v. Davis, 2 Maule & S. 397 ; Langdell's Cases on Sales, 747 ; Swanwick ?>. Sothern,9 Ad. & E. 805 ; Langdell's Cases on Sales, 673 ; Godts v. Rose, 17 Com. B. 229 ; Langdeli's Cases on Sales, 970. 3 See Austen v. Craven, 4 Taunt. 644 ; Langdell's Cases on Sales, 741 ; Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942. 4 See case next cited, relying upon Foot v. Marsh, 51 N. Y. 288. 5 Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Rep. 282, 285. 6 Hurff v. Hires, 40 N. J. L. 5S1 ; 29 Am. Rep. 282, 285. As this was a mere ministerial act, which might be done by either party, or by any stranger, as well as by the parties themselves : Hurff v. Hires. 40 JST.J. L. 581. 112 SALES OF UNSPECIFIED CHATTELS. 156 112, Separation from uniform mass. Selection from variable bulk. It is said to be undoubtedly the doctrine of the English courts 1 that where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit, then the right to them does not pass to the vendee until the vendor has made his selection. 2 This doctrine has been said to be founded on correct princi- ples, where the gross bulk is variable in kind or quality, and this selection from it of that part which shall be delivered is of benefit to the vendor. 3 Extension in England to uniform mass. And it has been applied to a sale of a specified quantity from a larger bulk of a uniform kind and value, where the purchaser had seen the goods in bulk, and approved of it. 4 Distinctions made. A distinction is made, however, by the English courts between actions directly between the vendor and purchaser, and those brought against parties who are treated as mere custodians of the prop- erty, and against whom trover is held maintainable on the ground of estoppel. 5 And it has been declared that while these courts adhere to the rule that as between vendor and purchaser, separation of the quantity sold from a larger bulk, identical in kind and quality, is unnecessary, yet slight and unimportant circum- stances 6 will take the transaction out of the operation of the rule. 7 Conflict in American decisions. In the American courts the cases on this subject are conflicting. 8 But in Virginia, New York, Connecticut, and Maine, the courts have held the broad doctrine, without qualifica- tion, 9 that on a contract of sale of a certain quantity from a larger bulk, uniform in kind and quality, the property will pass, though there be no separation of SALES OF UNSPECIFIED CHATTELS. $ 112 the property sold, if such be the intention of the parties, 10 and that no rule of law will overrule such intention if it be otherwise clearly expressed. 11 This view has been declared to be an innovation upon the rule of the common law, 12 and the prior doctrine is said to be uniformly sus- tained by the text -writers and the English cases, though the weight of American authority is perhaps with the later view. 13 The older doctrine prevails, however, in In- diana, where it is held that on sale of part of a quantity of goods of the same kind, no title passes without separation or particular designation ; 14 and the rule so adopted is said to be upheld by various American cases. 15 1 Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Kep. 282, 286. 2 Gillett v. Hill, 2 Cromp. & M. 530 ; Langdell's Cases on Sales, 755,758. But compare statement in Ferguson v. Northern Bank of Kentucky. 14 Bush, 555 ; 29 Am. Hep. 418, 423. 3 Hurff v. Hires, 40 N. J. L. 581 ; 29 Am. Rep. 282, 286. 4 Aldridge v. Johnson, 7 El. &B. 885; Langdell's Casesjon Sales, 859. 5 See Whitehouse v. Frost, 12 East, 614 ; Langdell's Cases on Sales, 734; Woodley v. Coventry, 2 Hurl. & C. 164 ; Langdell's Cases on Sales, 760 ; Gillett v. Hill, 2 Cromp. & M. 530 ; Langdell's Cases on Sales, 755 ; Knights v. WifFen, Law R. 5 Q. B. 660; Langdell's Cases on Sales, 766 ; Farmeloe v. JBain, 1 C. P. Div. 445 ; 17 Eng. Hep. 349. 6 As in Aldridge v. Johnson, 7 El. 7 ; McLaughlln v. Piatti, 27 Cal. 463; Courtright v. Leonard, 11 Iowa, 32 ; Ropes v. Lane, 9 Allen, 502 ; Ferguson v. Northern Bank, 14 Bush, 555 ; 29 Am. Rep. 418. In Michigan it is declared the rule seems not to be definitely settled, but in a late case assent was given to the argument that there can be neither a sale nor a pledge of property without in some manner specially distinguishing it: Mer- chants' etc. Bank v. Hibbard, 48 Mich. 118 : 42 Am. Rep. 465 ; as noted, Com. Nat. Bank v. Gillette, 90 Ind. 263 ; 46 Am. Rep. '222. $ 113. Illustrative cases. Holding separation neces- sary. The doctrine that separation from a larger mass of the same commodity, or of uniform character, is necessary to pass the title, has been applied to a sale of a number of barrels of pork, parcel of a larger quantity of similar brand in the vendor's cellar ; l to an action of assumpsit to recover payment for one hundred barrels of molasses sold as parcel of one hundred and twenty- five barrels afterwards destroyed by fire, while on storage, and before separation or designation of any particular barrels; 2 to a contract for the sale of two thousand pieces of wall paper, where the purchaser gave his notes for the whole, but took away only one thousand pieces, and it was agreed that the rest of the pieces should remain until the purchaser called for them ; 3 to a sale of two thousand eight hundred bush- els of corn by a vendor who had three thousand one hundred bushels in his store, where the portion sold was never separated from the rest, and after the sale the whole was destroyed by fire ; 4 and to a sale of nine arches of brick in a kiln containing a larger number, but not separated from the residue, or specifically designated, where a question of property arose between the vendee and an attaching creditor of the vendor, after such vendor had, by other sales, reduced the quantity on hand to less than nine arches. 5 Holding separation not necessary. The doctrine that separation from a mass of uniform kind and quality is 159 SALES OF UNSPECIFIED CHATTELS. g 113 not necessary to pass the title has been applied to a re- sale of a speciiied number of uncounted bags of meal, out of a mass of such bags, of uncertain numbers, on board a vessel, and only in part removed ; 6 to a salo of one hundred and nineteen barrels of flour out of a par- cel of one hundred and twenty-three barrels, all of similar kind, in the same warehouse, and all having certain brands or marks, where the flour was destroyed by fire while on storage, and the vendee refused to pay upon the claim that the sale was not perfected for want of separation of the barrels disposed of ; 7 and to a re- plevin suit against an officer who had attached goods as belonging to a firm, including seventy-six bags of coffee delivered by the plaintiff to the firm, and held subject to his order, where such bags were in no way distinguished by marks, or separated from the other coffee of the firm. 8 So, where the owner of a large quantity of corn in bulk sells a certain number of bushels therefrom, and receives his pay, and the pur- chaser takes away a part, it has been held that the property in the part sold vests in the purchaser, al- though it is not measured or separated from the heap. 9 Destruction of flour before removal. And where it was the usage of the business with reference to which the parties contracted that flour received by rails and stored was not removed by the consignee to his possession, but remained in the custody of the railroad company until sold, and that the owners sold in lots to various purchasers, and gave to each purchaser an order upon the company for the amount purchased, upon presen- tation whereof the agent would point out the lot from which the order was to be filled, and the purchaser would remove and receipt for the same, but nothing remained to be done by the seller, it has been hold that by such usage flour called for by an order out of a 113 SALES OF UNSPECIFIED CHATTELS. 160 larger lot of the same brand and quality, some of which was entirely delivered as well as sold to other purchas- ers, was, after the acceptance of the order by the rail- road company, the property of the purchaser ; 10 and that he was liable for the price, though part of the flour was destroyed by fire before being removed to his actual possession. 11 1 Scudder v. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 786, 787, stating cases next noted. 2 Hutchinson v. Hunter, 7 Pa. St. 140 ; disapproving Pleasants v. Pendleton, 6 Rand. 475 ; 18 Ana. Dec. 726. 3 Golder v. Ogden, 15 Pa. St. 528. 4 Waldo v. Belcher, 11 Ired. 609. 5 Merrill v. Hunnewell, 13 Pick. 213. 6 Chapman v. Shepard, 39 Conn. 413. 7 Pleasants v. Pendleton, 6 Rand. 473 ; 18 Am. Dec. 726 ; explained, Woods?'. McGee, 7 Ohio, 127, 129. And see Hutchinson v. Hunter, 7 Pa. St. 140, 145 ; noted and quoted, Chapman v. Shepard, 39 Conn. 413, 422. 8 Gardner v. Dutch, 9 Mass. 427. See Scudder ?'. Worster, 11 Cush. 573 ; Langdell's Cases on Sales, 783, 784, 785, stating this and preceding case. 9 Waldron v. Chase, 37 Me. 414 ; as noted, Chapman v. Shepard, 39 Conn. 413, 423. Com inspected ant' approved, and price agreed on invt paid, hut grain left in crib-house and levied upon : Hurff v. Hires, 40 X. J. L. 581 ; 2.4 Am. Rep. 582. 10 Newhall v. Lang-Ion, 39 Ohio St. 87, 92 ; 48 Am. Rep. 426 ; dis- tinguishing, Woods v. McGee, 7 Ohio, 467. 11 Newhall v. Langdon, 39 Ohio St. 87, 92 ; citing, Steel Works v. Dewev, 37 Ohio fet. 242 ; Young v. Miles, 23 Wis. Ml ; Cloud v. Morr- nian, 18 Ind. 40; Horr v. Barker, 8 Cal. 489; Gushing v. Breed, 14 Allen, 37G; Langdell's Cases on Sales, 78-> rKimberly v. Patchin. 19 K. Y. 3:10 ; Langdell's Cases on Sales, 775 ; Waldron v. Chase, 37 Me. 414 ; Chapman v. Shepard, 39 Conn. 413 ; Whitehouse v. Frost. 12 East, 614 ; Langdell's Cases on Sales, 734 ; Hurff v. Hires, 17 Am. Law Reg. 17 ; 18 Am. Law lleg. 161, and notes : S. C. 40 IS T . J. L. 581 ; 20 Am. Rep. 161 SALES OF MANUFACTURED CHATTELS. \ 114 CHAPTER X. SALES OF MANUFACTURED CHATTELS. 2 114. In general. \ 115. Need of completion, etc. 2 116. Requisites to transfer of title. 2 117. Need of delivery. \ 118. Need of assent. 2 119. Unfinished chattel. 2 120. Ship-building contracts. \ 121. Payment of instalments of price. 2 122. Unattached materials. 2 123. Title to chattels not finished. 2 124. Title to unfinished vessels. \ 114, In general. Presumption against immediate transfer of title. Where an article is to bo made to order, the same general presumption against an immediate transfer of property holds as in the case of existing chattels; 1 for on the mere agreement to supply, no specific thing can be identified as the property actually bargained for, but anything answering to the description might be afterwards furnished and appropriated to the contract. 2 Disposition of unsatisfactory chattel. Thus a carriage- maker ordered to build a carriage after a certain pattern, might, if dissatisfied with his work, throw aside any number of carriages begun upon, or might turn them over to meet his more pressing orders from other quar- ters, before transferring his labors to that which finally turns out the specific property of a particular contract of sale. 3 Contract generally executory until chattel finished and appropriated. Hence a contract of sale for a chattel not 115 SALES OF MANUFACTURED CHATTELS. 162 at the time in existence, but to be made and finished by the seller, is executory only ; 4 and as a rule, no property in the chattel vests in the buyer until it is completely finished, and in some manner set aside and appro- priated 5 to the contract. 6 1 See Halterline v. Bice, 62 Barb. 593, 598. 2 2 Schouler on Personal Property, \ 259. And see Story on Sales, \\ 233, 315 ; Clarke v. Spence, 4 Ad. & E. 448 ; Langdell's Cases on (Sales, 816, 825. 3 2 Schouler on Personal Property, \ 259. 4 See Story on Sales, \ 232. 5 See Halterline v. Kice, 62 Barb. 593, 600 ; Williams v. Jackman, 16 Gray, 514 ; Langdell's Cases on Sales, 906, 908. 6 2 Schouler on Personal Property, 259 ; citing, Story on Sales, 232, 315; Blackburn on Sales, 122, 128; Mucklow v. Mangles, 1 Taunt. 318 ; Langdell's Cases on Sales, 792; Atkinson ?;. Bell, 8 Barn, cfe C. '-71 ; Langdell's Cases on Sales, 801 ; Anglo-Egyptian Nav. Co. v. Ronnie, Law B. 10 Com. P. 271 ; Briggs r. Lightboat, 7 Allen, 287; Fairfleld Bridge Co. v. Nye, 60 Me. 372 ; Shaw r. Smith, 48 Conn. 306 ; 40 Am. Bep. 170; Halterline v. Bice, 62 Barb. 5'>3 ; Mclntvre v. Kline, 30 Miss. 361 ; First Nat. Bank v. Crowley, 24 Mich. 492 ; Gammage v. Alexander, 14 Tex. 414 ; Kider v. Kelly, 32 Vt. 261. I 115. Need of completion, etc. Act remaining to be performed. The rule that the title to property does not pass while anything remains to be done to ascertain either the quantity or price, applies as well to property thereafter to be manufactured as to that already in esse. 1 Chattel must be finished, etc. Thus it is the general rule of law that under a contract for supplying labor and materials and making a chattel, no property passes to the vendee till the chattel is complete and delivered, or ready to be delivered. 2 Counter intent. And this rule must prevail in all cases, unless a contrary intent is expressed, or clearly implied from the terms of the contract. 3 1 Halterline v. Kice, 62 Barb. 593, 598. 2 Williams v. Jackman, 16 Gray, 514 ; Langdell's Cases on Sales, 906, 908. And see Briggs v. Lightboat, 7 Allen, 287, 2J ; Elliott v. Edwards, 35 N. J. L. 265, 268 : Wright v. O'Brien, 5 Daly, 54, 56. 3 Williams v. Jackman, 16 Gray, 514 ; Langdell's Cases on Sales, 906,908. 163 SALES OF MANUFACTURED CHATTELS. \ 116 116. Requisites to transfer of title. Completion, de- livery, appropriation, etc. In the case of a contract to manufacture goods, and to sell them, it is said to be a general rule that no property in the material passes to the purchaser until the article has been finished and delivered, or is ready for delivery, 1 and appropriated to the benefit of the purchaser, or set apart for him, with his assent, and accepted by him.' 2 Procuring full payment for unfinished set of tools. Thus where one contracted for a set of sewing-machine tools to be manufactured, and to pay the price as the work progressed, and the manufacturer, representing that the work was substantially completed, obtained payment of the balance of the purchase price, and then made an assignment for the benefit of creditors, it was held that title had not passed as against creditors, or even between the parties. 3 Rule concerning vessels, etc., in progress of completion. For it has been declared to be the rule, according to decided cases and known principles of law, that in gen- eral under a contract for the building of a vessel, or making any other thing not existing at the time of the contract, no property vests in the party, whom for dis- tinction one may call the purchaser, during the pro- gress of the work, nor until the vessel or other thing is finished and delivered, or at least ready for delivery and approved by the purchaser. 4 And the builder or maker is not bound to deliver to the purchaser the iden- tical vessel or thing which is in progress, but may, if he please, dispose of that to some other person, and deliver to the purchaser another vessel or thing, provided it answers to the specifications contained in the contract. 5 1 See Williams v. .Tackman, Ifi Gray, 514 ; Langdell's Cases on Sales, 906, 908. 2 Halterlinc v. Rice, 62 Barb. 503, 600 ; citing, Chitty on Contracts* 378. Aucl sue First lN T ut. Bunk v. Crowley, 24 Mich, 4J2 ; Mucklow v. 117 SALES OF MANUFACTURED CHATTELS. 164 Mangles, 1 Taunt. 318, 319 ; Langdell's Cases on Sales, 792 ; Wilkins v. Bromhead,6 Man. & G. 963 ; Langdell's Cases on Sales, 838; Moody v. Brown, 34 Me. 107, 109; Langdell's Cases on Sales, 909; Fairfield Bridge Co. v. Nye, 60 Md. 372; Hider v. Kelly, 32 Vt. 268; Cooke r. Millard, 65 N. Y. 352 ; 22 Am. Hep. 619, 628, 629 ; Andrews v. Durant, 11 N. Y. 35, 40 ; Langdell's Cases on Sales, 894. Compare Mclntyre v. Kline, 30 Miss. 361, 364. 3 Shaw v. Smith, 48 Conn. 306 ; 40 Am. Rep. 170. 4 Clarke v. Spence, 4 Ad. & E. 448. And that this is the case even where the contract contains a specification of the dimension and other particulars of the vessel or thing, and fixes the precise mode and time of payment by months and days: Clarke v. Spence, 4 Ad. . Bath, 114 Mass. 110. 5 See Laidler v. Burlinson, 2 Mees. & W. 602 ; Langdell's Cases on Sales, 6G4, 671. 6 2 Schouler on Personal Property, \ 250 ; citing, Woods v. Rus- sell, 5 Barn. & Aid. 942 ; Langdell's Cases OTI Sales, 7!)4 ; Young v. Matthews, Law R. 2 Com. P. 127 ; Langdell's Cases on Sales, 875 ; McConihie ?>. New York etc. R. R. Co. 20 X. Y. 41)5 ; Brown v. Bate- man, Law H. 2 Com. P. 272 ; Thorndike v. Bath, 114 Mass. 116. XEWMAKK SALES. 15. 120 SALES OF MANUFACTUBED CHATTELS. 170 7 See Laidler v. Burlinson, 2 Mees. & W. 664 ; Langdell's Cases on Sales, 664, 672. 8 See Story on Sales, \\ 232, 233. 9 2 Schouler on Personal Property, ? 268 ; stating, Young v. Matthews, Law R. 2 Com. P. 127 ; Langdell's Cases on Sales, 875 ; and noting for comparison, Crofoot v. Bennett, 2 Comst. 258 : Lang- dell's Cases on Sales, 772. JO Bill of sale in general : See 1 Bouvier Law Diet. (14th ed.) 207. 11 2 Schouler on Personal Property, 268, whence paragraph derived. 12 See Thorndike r. Bath, 114 Mass. 116. Yet while this transfer holds good as between tiie parties, it might be regarded as a fraud upon creditors, by leaving the seller in visible possession. Compare Shaw v. Smith, 48 Conn. 306 ; 40 Am. Hep. 170. \ 120. Ship-building contracts. Title to uncompleted vessel. In ship-building contracts, where the price is payable in instalments at specified stages in the pro- gress of the work, it is held in England that the pay- ment of the first instalment vests in the buyer the title in so much of the vessel as is then constructed ; 1 and that as soon as new materials are subsequently added, they immediately become the property of the buyer 2 But this view has not been adopted in this country; 3 and on the contrary it has been generally and almost uniformly held that no title vests in the buyer until the vessel is completed. 4 Superintendent for intended buyer. It is said to !be agreed that the additional circumstance that the vessel was to be built under the direction and subject to the approval of a superintendent appointed by the intended buyer, has the effect of appropriating the vessel to the contract as fast as it is constructed ; 5 but it is the Ameri- can doctrine that this circumstance, even combined with the payment of the price in instalments, at suc- cessive stages of the work, does not operate to transfer the title. 6 Express agreement and burden of proof. And it has even been held, that where by the express undertaking of the parties it is agreed that when an instalment is 171 SALES OF MANUFACTURED CHATTELS. 123 paid, the vessel, so far as then constructed, and the materials therein inserted, are to be and become the property of the persons making such payments, yet the burden is on the intended purchaser to show that the title of the builders was divested before the furnish- ing of materials upon which a lien was claimed to have attached against the builders. 7 Question of intent and interpretation. The view taken by the Supreme Court of the United States does not favor any such arbitrary rule of construction as that adopted in England, 8 but seeks to carry into effect the intent of the parties as gathered from the terms of the contract and all the attendant circumstances. 9 And neither in. England nor in America is the question treated as other than one concerning the interpretation of a contract to ascertain the true intent of the parties ; 10 and the point of difference between the cases is not regarded as vital, but as going only to construction and the burden of proof. 11 Stipulations as instalments, superintendence, etc., not de- cisive. Thus in Massachusetts it has been declared to be erroneous to say, as is sometimes stated by text-writers, that an agreement to pay the purchase-money in instal- ments, as certain stages of the work are completed, or a stipulation for the employment of a superintendent by the purchaser to overlook the work and see that it is done according to the tenor of the contract, will of itself operate to vest the title in the person for whom the chattel is intended. 12 And it is said that such stipula- tions may be very significant, as indicating the intention of the parties, but they are not in all cases decisive, as both of them may coexist in a particular case, and yet the property may remain in the builder or manufacturer. 13 1 See citations in next note. 2 Woods t>. Russell, 5 Barn. & Aid. 942 ; Langdell's Cases on Sales, 794. And see Clarke r. Spence, 4 Ad. 4 ; Williams v. Jackman, 16 Gray, 514 ; Langdell's Cases on Sales, 906, and index note 1030 ; Green v. Hall, 1 Houst. 506, 514. And consult Johnson v. Hunt, 11 Wend. 135, 130 ; Langdell's Cases on Sales, 8>5; Briggs v. Lightboat,7 Allen, 287; Tompkins v. Dudley, 25 N. Y. 272, 273; Elliott v. Edwards, 35 N. J. L. 265, 267, 268; Derbyshire's Estate, 81 Pa. St. 18. Compare, also, Gregory v. Stryker,2Demo,623; Mixerv. Howarth,21 Pick. 205; Langdell's Cases on Sales, 25 ; Spencer v. Cone, 1 Met. 283; Langdell's Cases on Sales, 28 ; Shaw v. Smith, 43 Conn. 306 ; 40 Am. Rep. 170 ; McConihie v. N. Y. etc. R. R. Co. 20 N. Y. 4 1 ; West Jersey R. R. Co. v. Trenton Car Works Co. 3S N. J. L. 517. But see contra, Saudford v. Wiggins, 27 Ind. 52.!. 5 See Clarke v. Spence, 4 Ad. & E. 448 ; Langdell's Cases on Sales, 816, and index note 1030. So that as soon as the construction of the vessel is begun, there is a contract for that specific vessel : Clarke v. Speuce, 4 Ad. & E. 448. 6 Andrews v. Durant, 1 IN. Y. 35; Langdell's Cases on Sales, 894, 899. 7 Elliott v. Edwards, 35 N. J. L. 265, 268. 8 See preceding portion of section. 9 Clarksou v. Stevens, 106 U. S. 505, 515. 10 See citations in next note. 11 2 Schouler on Personal Property, 267 ; citing, Briggs v. Light- boat, 7 Allen, 287; Elliott v. Edwards, 35 N. J. L. 265; Clarkson v. Slovens, 106 U. S. 506. 12 Briggs v. Lightboat, 7 Allen, 287, 203. n Briggg v. Lightboat, 7 Allen, 287, 293. The question Is considered tob;?o:ieci intent, arising on the interpretation of the entire con- t.acti'i eaeh case: Briggs r. Lightboat, 7 Allen, 287. & And it is asserted that even in England where the cases go the farthest in holding that property in a chattel in the course of construction p isses to and vests in the purchaser, these stipulations are not always i"d to be conclusive of title in him: Briggs v. Lightboat, 7 Alien, 287, 293. \ 121. Payment of instalments of price. English rule of construction. The English rule of construction is that where in a ship-building contract the price was to be paid in portions, according to the progress of the work, on payment of the first instalment the general property in so much of the vessel as is then constructed shall vest in the purchaser. 1 American views. This rule has been fo? 1 .owed in In- diana, 2 but a similar doctrine to that of Massachusetts, 173 SALES OF MANUFACTURED CHATTELS. \ 122 which leaves the question to be settled by the intention of the parties, 3 appears to be adopted 4 in New York, 5 Pennsylvania, 6 and New Jersey, 7 as well as by the Supreme Court of the United States. 8 1 Clarke v. Spence, 4 Ad. & E. 448 ; Langdell's Cases on Sales, 816, 828 ; following, Woods v. Bussell, 5 Barn. & Aid. 942 ; Langdell's Cases Oil Sales, 794. And see Laidler v. Burlinson, 2 Mees. & W. 602 ; Lang- dell's Cases on Sales, 664, 671 : Wood v. Bell, 5 El. & B. 772 ; 6 El. & B. 355 ; Langdell's Cases on Sales 847, 854 ; Campbell on Sales, 27*. Con- sult Andrews v. Durant, 1 Kern. 35 ; Langdell's Cases on Sales, 594, 900, W4 ; citing, Story on Sales, $? 315, 316 ; Long on Sales, 288 ; Chltty cm Contracts, 378, 379 ; Abb. Shipp. 4, 5. 2 Sandford v. Wiggins' Ferry Co. 27 Ind. 522, 527. 3 See Briggs v. Lightboat, 7 Allen, 287, 292 ; Williams v. Jackman, 16 Gray, 514 ; Langdell's Cases on Sales, 906, 909 ; Wright v. TetJow, 99 Mass. 397, 404. 4 According to Bennett's Benjamin on Sales, \ 351, n. in. 5 See Andrews v. Durant, 1 Kern. 35 ; Langdell's Cases on Sales, 894, 900 ; Merritt v. Johnson, 7 Johns. 473; Langdell's Cases on Sales, 883, 884. 6 Derbyshire's Estate, 81 Pa. St. 18, 22 ; citing, Scull v. Shakspear, 75 Pa. St. 297. 303. And see Coursin's Appeal, 79 Pa. St. 220; Long's' Appeal, 8t Pa. St. 18. New contract by taking chattel in unfinished state : See Clemens v. Davis, 7 Pa. St. 263, 264. 7 Elliott v. Edwards, 35 N. J. L. 265, 268; relying upon West Jersey B. B. Co. v. Trenton Car Works. 32 N. J. L. 517, 5-4. 8 Clarkson v. Stevens, lOfi IT. S. 505, 515. But see Calais Steamboat Co. 1 Cliff. 370, 378, 379 ; reversed on other grounds, 2 Black, 372 ; U. S. Bevenue Cutter, 4 Am. L. T. Bep. N. S. 39. 122. Unattached materials. Presumption against transfer of title. The property in materials designed for an unfinished chattel, and not affixed thereto, such as a rudder and cordage, bought for some particular ship by the seller of the ship, 1 will still be presumed, not- withstanding a constructive change of ownership in the unfinished chattel, to remain in such seller, if the mate- rials have not been so incorporated 2 with the principal thing as to become part of it, 3 though this rule may be affected by the mutual agreement of the parties clearly expressed. 4 Effect of acceptance. And while the approval of the buyer's own agent, if it goes directly to the point of ac- cepting the product, will conclude the buyer himself 122 SALES OF MANUFACTURED CHATTELS. 174 as to acceptance of work made to order, 5 yet accept- ance merely with the intent of pronouncing materials suitable for the structure constitutes no acceptance of the structure into which those materials are worked. 6 Applications of principles. These principles have been applied to contracts concerning parts of steam-engines, unrivetecl iron plates, other iron materials, and un- fastened planking for a screw steamer ; 7 concerning sash-frames for hotel windows, approved by the sur- veyor, but removed from the premises to affix puller's to them; 8 concerning plank worked into columns for piazzas and other carved work contained in a barn on the lot on which the house for which the products were designed was to be erected; 9 and concerning boilers and other new machinery completed and ready to be fixed on board a vessel which was lost at sea after one instalment of the price of the work had been paid. 10 1 Compare Woods v. Russell, 5 Barn. ; Langdell's Casi-s Oil Sales, 847, 868 ; Tripp v. Armituge, 4 Mees. & W. 687 ; Lang- deli's Caseson Sales, 821,829,835; Johnson r. Hunt, 11 Wend. 135; contra, Woods v. Russell, 5 Barn. fe Aid. 94'-'; Langdell's Cases on Sales, 7:4, 797 ; Goss v. Quiutou, 3 Man. 5 ; approving, Groves v.JBuck, 3 Maule & S. 178 ; Langdell's Casos on Sales, 9: and Mucklow v. Atangles, 1 Taunt. 318 ; Langdell's Cases on Sales, 792; also, Andrews v. Durant. 1 Kern. 35; Lang- doll's Cases on Sales, 894 ; and Mixer v. Ilowarth 21 Pick. 205 ; Lar.g- dell's Cases on Sales, 25. And regarding as not easily reconciliable with established principles : Woods v. Russell, 5 Barn. . O'Donncll, 127 Mass. 311 ; W.uH<>ll ?\ McBride, 7 Up. Can. C. P. 382 ; Coffey v. Quebec Bank, 20 Up. Can. C. P. 110, 555. 5 Blackburn on Sales, 128. 6 S^e Aldridge v. Johnson. 7 El. & B. 885 ; Langdell's Cases on Sales, 855, 8G3. 7 Hayward's Case, 2 Coke, 36. 8 Aldridge v. Johnson, 7 El. & B. 885 ; Langdell's Cases on Sales, 850, 8G5, 8fi6. 9 Blackburn on Sales, 128. See Bennett's Benjamin on Sales, ? C60, quoting this statement of the law, and declaring its accuracy to have been attested in Aldridge r. Johnson, 7 El. & B. 885, 901, 2fi Law J. Q. B. 2%, and in Coffey v. Quebec Bank, 20 Up. Can. C. P. 110, 555. # 130. Assent to appropriation. Adoption of acts of selection, separation, etc. Where it is incumbent upon the seller, by the terms of the agreement, to select and separate, and then notify the buyer, and these acts are done by the seller, the property passes when the buyer accepts the situation, if not before. 1 Thus, the property has been held to pass by reason of an appropriation and assent thereto where the sellers appropriated for the 187 APPROPRIATION. 130 benefit of the buyer sixteen hogsheads of sugar out of twenty hogsheads, to be prepared or filled up by the sellers, and communicated the fact of such appropria- tion to the buyer, desiring him to take the goods, and he adopted that act of the sellers, and said he would send for the goods as soon as he could. 2 Dispatching goods. Bat it is questionable whether this assent on the buyer's part is necessary to complete the appropriation, since in many cases dispatching the separated goods, under circumstances favoring the sup- position that the seller meant to shift the property, has been held to make the appropriation complete, without waiting for the buyer's distinct assent. 3 Putting into buyer's receptacles. So it has been held that the seller, by putting barley into sacks which the buyer had sent to be filled, completed the selection on his part, and that there had been full appropriation as to those sacks, which the seller could not afterwards disturb. 4 And where the contract was for pepper- mint oil, to be put into bottles furnished by the buyer, the filling of the bottles by the seller was held a com- plete appropriation of specific goods to the contract. 5 Inquiry concerning nature of conveyance. Yet in a case which has been found difficult to reconcile with others, and whose authority has been doubted, the doctrine ap- pears to be laid down that although the seller has sepa- rated the goods and placed them aside, and then has written to the buyer to ask by what conveyance the goods shall be sent, but before receiving an answer goes into bankruptcy, the property does not pass, because the buyer has riot assented to the appropriation. 6 Need of. And it was subsequently declared in hold- ing that the ear-marking of cotton sent to a warehouse for the buyer was insufficient to pass the property where the buyer afterwards repudiated the contract on the g 130 APPROPRIATION. 188 ground that the cotton did not correspond with the sample, that there must not only be an appropriation, but an appropriation assented to by the vendee. 7 Anticipative, implied, etc. It was admitted, however, that the assent of the vendee may be given prior to the appropriation by the vendor; 8 that it may be either express or implied; and that it may be given by an agent of the party, 9 as by a warehouseman or wharf- inger. 10 Seller's agency for. And the inference to be drawn from the language used in later English cases is said to be that the purchaser may, by his conduct, make the seller his agent both to appropriate and give in advance whatever assent may be necessary on his own part ; u and the same view would seem to prevail in America, 12 though in most parts of this country, in cases involving the right of property under such circumstances, mutual intent as a question of fact would be taken as the mate- rial issue. 13 Statement of necessity of. It has been declared in England to be established that the purchaser of an un- ascertained portion of a larger bulk acquires no property in any part until there has been a separation and an ap- propriation assented to by both vendor and vendee, and that nothing passes until there has been an assent, ex- press or implied, on the part of the vendee. 14 1 See Rohde v. Thwaites, 6 Barn. & C. 388 ; Langdell's Cns^s on Sales, 133, 140 ; 2 Schouler on Personal Property, \ 2f 1 ; referring also to Wilkins v. Bromhead, 6 Man. & G. 963 ; Langdell's Cases on Sales, 8,,S. 2 Rohde v. Thwaites, 6 Barn. & C. 388 ; Langdell's Cases on Sales. 138. 3 See Fragano v. Long, 4 Barn. & C. 219 ; Langdell's Cases on Sales, 7iS ; Sparki s r. Marshall, 2 Bing. N. C. 671 ; so cited, 2 Schouler on Personal Property, \ 261. 4 Aldridge v. Johnson, 7 El. & B. 885 ; Langdell's Cases on Sales, 859. 5 Langton v. Higgins,4 Hurl. & N. 402 ; Langdell's Cases on Sales, 867. 189 APPROPKIATION. \ 131 6 Atkinson v . Bell, 8 Barn. & C. 277 ; Langdell's Cases on Sales, 801, 804, 8U5; discussed, Bennett's Benjamin oa Sales,? :-?7.); 2 Schouler o.i Personal Property, 261 ; Wilkins v. Bromhead, 6 Man. & G. 963 ; Langdell's Cases oil Sales, 838, 842. 7 Campbell v. Mersey Docks, 14 Com. B. N. S. 412 ; Langdell's Cases o i Sales, 873, 875 ; citing, Godts v. Hose, 17 Com. B. 229 ; Lung- dell's Cases on Sales, 970. 8 See suggestion that there may be an antlcipative assent, in Aldridge v. Johnson, 7 El. & B. 885 ; Langdell's Cases on Sales, 85.), 8(i4. 9 Soe Jonner v. Smith, Law B. 4 Com. P. 270 ; Langdell's Cases on Sales, 877, 832. 10 Campbell v. Mersey Docks, 14 Com. B. N. S. 412 ; Langdell's Cases oa Sales, 873, 875. 11 See Browne v. Hare, 3 Hurl. & N. 484 ; 4 Hurl. & N. 822 ; Lang- dell's Cases o;i Sales, 976, W.) ; Tregelles v. Sewell, 7 Hurl. & N. f-7l ; Calcutta Company r. Do Mattos, 32 Law J. Q. B. 322 ; Jenuer v . Smith, Law B. 4 Com. P. 270 ; Langdell's Cases on Sales, 877, 882. 12 2 Schouler on Personal Property, \ 262, whence paragraph derived. 13 See Bnswell v. Green, 1 Dutch. 390 ; Merchants' Nat. Ba'ik ?'. Bangs, 102 Mass. 195 ; Hyde v. Lathrop, 2 Abb. N. Y. App. 436 ; Birge V. Edgerton, 28 Vt. 291. 14 Campbell v. Mersey Docks, 14 Com. B. N. S. 412 ; Langdell's Cases on Sales, 873, 874, 875. Referring as among the authorities to Hanson v. Meyer, 6 East, 614 ; Langdell's Cases on Sales, 6:5') ; Kugg v. Minett, 11 East, 210; Langdell's Cases on Sales, 647; liohde v. Thwaites, 6 Barn. & C. 388 ; 9 Dowl. & R. 293 ; Langdell's Cases on Sales, 138. \ 131. Acts of assent. Acceptance of bill of lading. The subsequent appropriation of a parcel of butter has been held to have been completed by mutual assent, where the quantity, quality, and price of the goods were all specified in the invoice, and the bill of lading was regularly indorsed to the buyers and accepted by them. 1 Hence, the greatest part of the goods having been lost by shipwreck, it was held that the proper' y had passed, and that an action for goods bargained and sold was maintainable, although the goods were not in the possession <>f the sellers at the time of the contract, and there had been a delay in shipment, which was, however, found to have been waived, and although the payment was to be by bill at two months after landing. 2 Ordering agent to insure goods. So there has been considered to be an unequivocal appropriation of black 131 APPROPRIATION. 190 oats to the purchaser by a letter informing him that room on a schooner had been engaged for the oats, and an assent to this appropriation and adoption thereof, by the action of the agent on the next day in ordering his agent to effect insurance on such oats. 3 oVb authority to seller or warehouseman, etc. Where besides a sale and delivery of two packets of hops of one variety, a further sale was made by sample of two packets of another variety out of three lying in a ware- house, and the vendor's son instructed the warehouse- man to set apart two of the three packets for the purchaser, whereupon the warehouseman placed on them a "wait order card," that is, a card upon which was written, "to wait orders," and the name of the vendee, but no alteration was made in the warehouse books, while the vendor still remained liable for the rent, and the vendor afterwards sent the buyer an in- voice speaking of "the last two packets of hops,'* therein described as " lying at your order," and also a draft for acceptance, but the buyer returned the bill unsigned, it was held that there was no previous authority to the seller to select the goods given, or to the warehouseman to accept them, and hence there was no assent to the appropriation thereof, 4 and that the buyer had not waived the right to object to the want of correspondence of the hops with the sample, or to insist on the weight being ascertained before the property passed. 5 1 Alexander v. Gardner, 1 Bing. X. C. fi71 ; Langdcll's Cases on S'Ues, 810, 813. And compare Wilkins v. Bromhead, 6 Man. & G. 963 ; Lungdell's Cases on Sales, 838, 841 2 Alexander v. Gardner, 1 Bing. X. C. 6fil ; Langri ell's Cases on Snles, 810, 813 ; following, Rohde r. Thwaites, 6 Barn. & C. 3S3 ; Lang- doll's Cases on Sales, 1*8 ; Fragano v. Long, 4 Barn* & G. 210; La::g- dell's Cases on Sales, 798. 3 Sparkes v. Marshall, 2 Bing. X. C. 761. 4 Jenner v. Smith, Law K. 4 Com, P. 270 ; Langdell's Cases on Sales, S77, 882, 883. 191 APPROPRIATION. 132 5 Termer v. Smith, Law R. 4 Com. P. 270 ; Langdell's Cases on Sales, 877, 83'2. 883 ; distinguishing, case next cited, on the ground that there the bulk of the b.irley had been inspected and approved, and all that remained to be done was to sever and measure the portion to be appropriated to the vendee, and that the vendor had done so by filling a number of sacks sent by the vendee, so that ex- tensive authority was conferred on the vendor, and the property passed, with the assent of both parties : See Aldridge v. Johnson, 4 El. & B. 8S5 ; Langdell's Cases on Sales, 859. \ 132. Restricted appropriation, etc. Appropriation of part. Where the seller of barley, to whom bullocks had been delivered in part exchange therefor, tilled a portion, amounting to about half, of the sacks sent by the buyer, but was at first delayed in means of trans- portation, and afterwards telegraphed orders to allow no more barley to go, and turned it all out of the sacks, so as to be undistinguishable from the rest of the heap, 1 it was held, in an action of detinue and trover by the buyer against the assignees of the bankrupt seller, that there had been appropriation sufficient to pass the property in the sacks which were filled, but not in re- gard to the rest of the barley. 2 Conditional appropriation. Where on a sale of five tons of oil, "to be free delivered and paid for in four- teen days," it was by the seller's direction transferred to the buyer's order by the seller's wharfinger, who thought the property had passed, and delivered the whole to the buyer, although after a part delivery had been procured by the buyer, a countermand had come from the seller because the buyer had refused to give his check for the price, and had retained the wharfin- ger's notice of transfer, it was held that the delivery was not made which would complete the appropriation of the goods to the contract and pass the property, as it was conditional on the giving of a check. 3 Erroneous appropriation. Where a broker for a newly arrived cargo of five hundred bales of cotton had himself purchased two hundred and fifty bales, 132 APPROPRIATION. 192 which had been landed and continuously numbered by the company at whose docks the vessel had arrived, and on paying for the cotton had received from the company an indorsed warrant or certificate of ware- housing for two hundred and fifty bales of cotton de- scribed as being numbered from one to two hundred and fifty, together with a delivery order for the same goods, but the buyer to whom the broker had resold the cotton, to whom the documents mentioned had been sent, repudiated the contract on the ground that the cotton did not correspond with the samples, and there- upon the seller learnt that the company had inadvert- ently delivered two hundred of the bales in controversy to other parties, and sued the company for conversion of the cotton bought by him, it was held that a verdict for the company, substantially on the ground of an ap- propriation by mistake, was sustainable, 4 and declared that the finding of the jury was proper upon the ques- tion whether any evidence of appropriation did not arise from a mistake of one of the company's clerks, which mistake had been permitted to be shown. 5 1 Aldridge v. Johnson, 7 El. & B. 885 ; Langdell's Cases on Sales, 859. 2 Aldridge v. Johnson, 7 El. & B. 85 ; Langdell's Cases on Sales, 5.1, 864, 865. Distinguished on ground of authority conferred to com- ;l.-te appropriation : Jenrier v. Smith, Law R. 4 Com. P. 270 ; Lang- ell's Cases on Sales, 877, 881, 882. See, also, Bennett's Benjamin on Smiles, 370, notes, t, u; referring to Ropes r. Lane, 9 Allen, 509, 510; Mason v. Thompson, 18 Pick. 305; Bond r. Greenwald, 4 Heisk. 453 ; R ippleye r. Adee, 1 Thomp. & C. 1-7; Gibb v. Belche, 62 Mo. 400; Butler v. Stanley, 21 Up. Can. C. P. 402. 3 Godts v. Rose, 17 Com. B. 22') ; 25 Law J. Com. P. 61 ; Langdell's Cases o:i Sales, 970, 973, 1*74. Cited to show that there must not only bo un appropriation, but an appropriation assented to by the vendee, i i C impbell r. Mersey Docks, 14 Com. B. N. S. 412 ; LangdelPs Cases on Sales, 873, 875. 4 CampbPlt v. Mersey Docks Co. 14 Com. B. N. S. 412 ; Langdell's Cases on Sales, 873, 875. 5 Campbell v. Mersey Docks Co. 14 Com. B. X. S. 412 ; Lang- doll's Cases on Sales, 873, 875. But assuming that there was an appro- priation, it seemed to be considered that a:i assent to such an i pjtronnation wr.s r^o x uisite : Campbell -. Mersey Docks Co. 14 Com. B. i;. S. 412 ; Langdell's Cases on Sales, 873, 875. S! 193 APPROPRIATION. \ 133 \ 1C3. Conformity to contract. Variance from order. Where one thing is ordered and another sent, there can bo in the setting apart by the seller no perfect sale, and consequently no binding appropriation of specific goods to the contract ; l and any subsequent acceptance by the buyer of goods sent in fundamental variance from his original order, or of goods sent to replace what has once been appropriated to the contract, 2 evince really a sub- stituted bargain 3 between the parties. 4 Late delivery, excess in quantity, different description. And hence if goods are delivered unreasonably later than the time set, 5 or in excess of the quantity named, 6 or of an altogether different description from those ordered, 7 the party ordering the goods may refuse to receive them, 8 for it cannot be maintained that the seller, whose duty it was to select and separate has any right to throw the selection from a larger quantity upon the buyer, 9 or stand upon his own misappropriation of goods to the contract. 10 Sale by sample. So where a sale is made by sample, 11 and the buyer has not abandoned his right of compar- ing the bulk 12 with the sample, or of verifying the weight, 13 the seller cannot sue him for goods bargained and sold, merely by setting aside the specific portion to await orders, and then sending an invoice to the buyer, with a draft for the price, which the latter refuses to accept. 14 Conditional appropriation. And where the appro- priation is upon condition, as of payment by check, the title does not pass so as to enable the buyer to sue as owner, unless full delivery to that purport is made by or under the authority of the seller. 15 1 2 Schouler on Personal Property, \ 263. 2 See Smith v. Myers, Law B. 5 Q. B. 429 ; Law R. 7 Q. B. 139. 3 See Cunliffe v. Harrison, 6 Ex. 903 ; Langdell's Cases on Sales, 844, 846. N.EWMARK SALES. 17. g 134 APPROPRIATION. 194 4 2 Schouler on Personal Property, ? 263. 5 See Gath v. Lees, 3 Hurl. & C. 558 ; Kommell v. Wingate, 103 Mass. 327. 8 See Rommell v. Wingate, 103 Mass. 327 ; Cunliffe v. Harrison, 6 Ex. 903 ; Langclell's Cases on Sales, 844 ; Levy r. Green, 1 El. & E. 96J ; 27 Law J. Q. B. 111. 7 See Levy v. Green, 1 El. & E. 996 ; 28 Law J. Q. B. 399. 8 2 Schouler on Personal Property, \ 263. 9 See Bennett's Benjamin on Sales, \ 376, referring to Cronir.ger v. Crocker, 62 N. Y. 151, and stating Eaton v. Gay, 44 Mich. 431. 10 2 Schouler on Personal Property, ? 263 ; citing, Cunliffe v. Har- rison, 6 Ex. 903; Langdell's Cases on Sales, 844 ; Levy v. Green, 1 El. & E. 969 ; 27 Law J. Q. B. Ill ; Downer v. Thompson, 2 Hiil, 1:^7 ; Langdell's Cases on Sales, 893 ; Rommell v. Wingate, 103 Mass. li_7. 11 Sale by sample : See 2 Bouvier Law Diet. tit. Sample (14th ed.) 497. 12 See Heilbutt v. Hickson, Law R. 7 Com. P. 438 ; Couston ?. Chapman, Law R. 2 Sc. App. 250; Grimoldby v. Wells, Law R. 10 Com. P. 391. 13 Compare Aldridge v. Johnson, 7 El. & B. 885 ; Langdell's Cases on Sales, 859 ; as distinguished, Tenner v. Smith, Law R. 4 Com. P. 270 ; Langdell's Cases on Sales, 877, 881. 14 Jenner v. Smith, Law R. 4 Com. P. 270 ; Langdell's Cases on Sales, 877, 882 ; as noted, 2 Schouler on Personal Property, 263 ; also stated, Campbell on Sales, 238. 15 Godts v. Rose, 17 Com. B. 229 ; Langdell's Cases on Sales, 970, 974 ; as stated, 2 Schouler on Personal Property, $ 263. 134. Excess in quantity of goods. No binding appro- priation. Since the goods sent must conform to the terms of the contract or order, 1 there is no binding ap- propriation where ten hogsheads of claret were ordered, and fifteen hogsheads were sent; 2 or where two hun- dred and fifty barrels of cement were ordered, and two hundred and sixty barrels were sent. 3 Further instances. The same result arises where three hundred and ninety-two tons of coal were shipped, in- stead of a cargo of three hundred and seventy-five tons offered and ordered, and the shipper did not begin to load until nine days after the receipt of a telegram re- quiring immediate loading, 4 or where the goods sent in excess of those ordered were articles entirely different though packed in the same crate, and a rejection of the whole was sustained. 5 195 APPROPRIATION. g 135-136 1 See Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942, 945. 2 Cunliffe v. Harrison, 6 Ex. 008 ; Langdell's Cases on Sales, 844. 3 Downer v. Thompson, 2 Hill, 137 ; Langdell's Cases on Sales, 893. 4 Rommell v. Wingate, 103 Mass. 327. 5 Levy v. Green, 1 El. & E. 996 ; 23 Law J. Q. B. 319. See state- ments of cases in Bennett's Benjamin on Sales, 376 ; citing, also* Tarling v. O'Riordan, 2 Law Bee. 82 ; Shannon v. Barlow, 9 Irish Jur. N. S. 229. \ 135. Substitution of other goods. Destroyed goods. Where goods appropriated to the contract were destroyed by an earthquake while at the port of lading, it was held that a contract covering this specific lot was not supplied by a similar cargo afterwards shipped by the same vessel. 1 Rejected goods. But an appropriation and tender of goods, not in accordance with the contract, and in con- sequence rejected by the purchaser, does not prevent the vendor from afterwards, within the time limited for so doing, appropriating and tendering other goods which are in accordance with the contract. 2 Thus where the vendors being bound by contract to tender a cargo of maize to the vendees, tendered a cargo which was re- jected as not being in accordance with the contract, and afterwards, and within the time limited for so doing, the vendors tendered a cargo which was in accordance with the contract, it was held that this second tender was good, and that the vendees were bound to accept it. 3 1 Smith v. Myers, Law R. 5 Q. B. 429 ; Law R. 7 Q. B. 139 ; as noted, 2 Schouler on Personal Property, \ 263, p. 246. 2 Bennett's Benjamin on Sales, \ 376 a, stating case next noted. 3 Borrowman v. Free, Law R. 4 Q. B. D. 500 ; distinguishing, Gath v. Lees, 3 Hurl. & C. 558. Compare Campbell on Sales, 237. J 136. Delivery as showing appropriation, etc, Signifi- cance of. Among circumstances highly significant in establishing full appropriation and a transfer of title be- sides are delivery of possession on the seller's part, or carrying the goods to the place where the buyer had to 137 APPROPRIATION. 196 call for them. 1 Thus a delivery to the buyer or his agent, or to a common carrier consigned to him, may be a sufficient appropriation of the goods. 2 Possession given for purpose of separation. And where part of an entire mass of goods, such as coal, brick, or grain, is sold, and the purchaser is allowed to take possession of the whole for the purpose of enabling him to separate the part sold, the title to that part passes to the purchaser, 3 arid he may retain the whole till he has had sufficient time to separate and take the part which belongs to him. 4 Bill of sale. Delivery of an absolute bill of sale of the goods 5 is often tantamount in this connection to a trans- fer of title. 6 Dispatching goods. So it has been held that there was a change of risk, and that the property to goods, ordered to be dispatched on insurance being effected, terms to be three months' credit from the time of arrival, passed to the buyers when the goods left the vendor's warehouse, marked with the buyer's initials, and were sent by canal to the vendor's shipping agents in another city, with directions to forward to the foreign buyer. 7 1 2 Schouler on Personal Property, 264. And in fact doing all thdt was incumbent on the seller, yet reserving no right on his part : 2 Schouler on Personal Property, 264. 2 See Merchants' Nat. Bank r. Bangs, 103 Mass. 291, 295. See next section on DELIVERY TO CARBIER. 3 See citations in next note. 4 Lamprey r. Sargent, 58 N. H. 241 ; Weld r. Cutler, 2 Gray, 195 ; 2 Schouler on Personal Property, 264 ; referring also to Washburn Iron Co. v. Russell, 130 Mass. 543. 5 Bill of sale : See that title ; Bouvier Law Diet. (14th ed.) 207. 6 Paine ?. Young, 56 Md. 314 ; so cited, 2 Schouler on Personal Property, g 264. 7 Fragano v. Long, 4 Barn. & C. 219 ; Langdell's Cases on Sales, 798, 799, 800. \ 1?7. Delivery to carrier. Where contract silent. Should the contract be silent as to the person or mode 197 APPROPRIATION. 137 by which the goods are to be sent, a delivery by the vendor to a common carrier in the usual and ordinary course of business transfers the property to the vendee. 1 Sufficiency of appropriation. And in general a deliv- ery to the buyer, 2 or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, if there is nothing in the circumstances to control the effect of the transaction, will be a sufficient appro- priation of the goods. 3 Form of bill of lading. If the bill of lading, 4 or other written evidence of the delivery to the carrier, be taken in the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to transfer an absolute title to the vendee. 5 But the vendor may retain his hold upon the goods to secure payment of the price, although he puts them in course of transportation to the place of destination by delivery to a carrier, and the appropriation which he then makes 6 is said to be provisional or conditional. 7 Reservation of control. Thus, he may take the bill of lading or carrier's receipt in his own or some agent's name, to be transferred, on payment of the price, by his own or his agent's indorsement to the purchaser, and in all cases when he manifests an intention to re- tain this jus disponendi, 8 the property will not pass to the vendee. 9 1 Magruder v. Gage, 33 Md. 344 ; 3 Am. Rep. 177, 180. And see Button v. Solomonson, 3 Bos. & P. 582, 584; Krulder v. Ellison, 47 N. Y. 36 ; 7 Am. Rep. 402. 2 See Washburn Iron Co. v. Russell, 130 Mass. 543, 544. 3 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. And see Wigtoii v. Bowley, 130 Mass. 252, 254. 4 Bill of lading : See that title ; Bouvier's Law Diet. (14th ed.) 204. 5 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. And see Griffith v. Ingledew, 6 Serg. . Hare, 3 Hurl. & N. 484 ; 4 Hurl. & X. 822 ; LangdelPs Cases on Sales, 976, 989. And see Aldridge ^>. Johnson, 7 El. & B. 885 ; Langdell's Cases on Sales, 859, 861. 3 Change of title and risk : See under chapter on TRANSFER OF TITLE. 4 Reservation of jus disponendi : See subsequent chapter of book. 5 Browne v. Hare, 3 Hurl. & N. 484 ; 4 Hurl. & N. 822 ; Langdell's Cases on Sales, 976, 989. So that the buyer was held liable for the loss of the oil by the running down of the vessel, though the seller's agent, a merchandise broker, delivered the bills of lading, etc., after he knew that the vessel was lost: Browne v. Hare, 3 Hurl. & N. 484. 139 APPROPRIATION. 200 6 Compare Ogg v. Shuter, Law R. 1 C. P. D. 47 ; reversing, S. C. Law R. 10 Com. P. 159. 7 Gabarron v. Kreeft, Law R. 10 Ex. 274. 8 Compare Hobart v. Littlefield, 13 R. I. 341. 9 Condition precedent: See under chapter on CONDITIONAL SALES. 10 Coleman v. McDermot, 5 Up. Can. C. P. 303. And see Howland v. Brown, 13 Up. Can. Q. B. 199. 11 Hobart v. Littlefield, 13 R. I. 341. But compare Sneathen v. Grubbs, 88 Pa. St. 147. 12 Howland v. Brown, 13 Up. Can. Q. B. 199. 13 Sneathen ?. Grubbs, 88 Pa. St. 147. Statements of foregoing cases : Bennett's Benjamin on Sales, 363, n. /, 372, n., 398, n. a. See also following cases therein cited, discussing delivery "free on board " in various phases: Wilmot r. Wadsworth, 10 Up. Can. Q. B. 594, 5;)!) ; George v. Glass. 14 Up. Can. Q. B. 514,519 ; Clark v. Rose, 29 Up. Can. Q. B. Ifts, 178. (Buyer's duty to pay or tender price.) Marshall v. Jamieson, 42 Up. Can. Q. B. 115, 125. (Buyer's duty to provide cars.) 14 See previous citations in section. 15 Seller's lien : See subsequent chapter of book. 10 Craven v. Ryder, 6 Taunt. 433 ; Ruck v. Hatfield, 5 Barn. & Aid. 632. 17 Cowasjee v. Thompson, 5 Moore P. C. C. 165. Effect of delivery " free on board," etc., on right of stoppage in transitu : See Berndtson r. Strang. Law R. 4 Eq. 481 : 3 Ch. 588 ; 36 Law J. Ch. 874 ; Ex parte Rosevear China Clay Co. Law R. 11 Ch. D. 560. 139. Dispatching goods. As passing title. It has been said in England that when goods are to be de- livered at a distance from the vendor, and no charge is made by him for the carriage, they become the prop- erty of the buyer as soon as they are sent off. 1 This is stated to be the case, because a seller who charges for the carriage of goods is presumed to have intended keeping control of them during the transit, and so pre- vented the property from passing, 2 while the presump- tion would be to the contrary if the carrier's charges were to be adjusted between himself and the buyer. 3 Delivery to carrier. So it has treated as settled law in that country that where a vendor delivers goods to a carrier, by order of the purchaser, the appropriation is determined ; the delivery to a carrier is a delivery to the vendee, and the property vests immediately ; 4 and in the United States the law is established to the same effect. 5 201 APPROPRIATION. 140 Bullion billed, shipped, etc. But in the absence of a bill of lading or a letter, or notice from the consignor to the consignee, informing him of the shipment of bullion, the mere fact that bullion is " billed, shipped, marked, and consigned " to a party, is not such an appropriation of the property to the contract as completes a bargain and sale, and delivers the possession of the property to the purchaser. 6 Goods sent on trial or under conditions. And when- ever the goods are sent on trial 01 under contract of "sale or return," or with special conditions imposed, the property in the goods remains still in the seller during their transit. 7 1 Fragano v. Long, 4 Barn. II. L. 116 ; Langdell's Cases on Sales, 9% ; Ogg v. Shuter, Law R. 1 C. P. D. 47. Consult, also, Dows v. Nat. Exchange Bank, 01 T'. . 618 ; Security Bank v. Lutgen, 29 Minn. 363 ; Marine Bank v. Wright, 48 1ST. Y. L 7 Mi rabitav. The Imperial Ottoman Bank, Law R. 3 Ex. D. 164, 172 ; 31 Eng. Rep. 201, 209. For there is then a performance of the condition subject to which the appropriation is made, and everything is done which according to the intention of the parties is necessary to trans- fer the property : Mirabita v. The Imperial Ottoman Bank, Law R. 3 Ex. D. 1G4, 172. Consult, also, Halliday v. Hamilton, 11 Wall. 560 ; Treaclwell v. Anglo-American Packing Co. 13 Fed. Rep. 22. \ 143. Evidence of intention. Provisional or condi- tional appropriation allowed. The doctrine upon the subject of the reservation of dominion has been de- clared to be that the vendor may make a provisional or conditional appropriation of the goods, and retain his hold upon them to secure payment of the price, al- 207 RESERVATION OP CONTROL. 143 though he puts them in course of transportation to the place of destination by delivery to a carrier. 1 And in all cases where he manifests an intention to retain this jus disponendi the property will not pass to the vendee. 2 Difficulty in ascertaining intention. But practically the difficulty is to ascertain, when, the evidence is meager or equivocal, what the real intention of the parties was at the time. 3 Generally question of fact for jury. And this is prop- erly a question of fact for the jury, under proper in- structions, 4 and must be submitted to them, unless it is plain as a matter of law that the evidence will justify a finding but one way. 5 Effect of making bill of lading deliverable to seller's order. The fact of making the bill of lading deliver- able to the order of the vendor is said to be, when not rebutted by evidence to the contrary, almost decisive to show his intention to preserve the jus disponendi^ and to prevent the property from passing to the vendee. 6 1 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. Thus, he may take the bill of lading or carrier's receipt in his own or in some agent's name, to be transferred on payment of the price, by his own or his agent's indorsement to the purchaser: Merchants' Nat. Bank v. Bangs, 102 Mass. 201, 205. And see Mirabita v. The Imperial Otto- man Bank, Lciw R. 3 Ex. D. 1G4, 172; 31 Eng. Rep. 201, 2D3. S?e ' preceding section on RESERVATION OF CONTROL IN GKXERAL. 2 Merchants' Nat. Bank v. Baners, 102 Mass. 201, 25. And see "W Igt on v. Bowley, 130 Mass. 252, 231. Transfer of title: See next chapter. 3 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. See Hobart v. Littlefield, lo R. I. 1, SiG. 4 See citations in next note. 5 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295 ; quoted, I^r- cheimer v. Stewart. C-3 Iowa, 5J4, 596 ; 54 Am. Rep. 30, 32. And see Wig- ton v. Bowley, 1U) Mass. 252, 254; I>ows v. Nat. Exchange Bank, 91 U. S. 618, 634. Consult generally, Bennett's Benjamin on Sales, $ 332, n. a, quoting foregoing statements, and citing following cases: Allen v. Williams, 12 Pick. '237 ; Stanton v. Eager, 16 Pick. 473 ; Coggill v. Hartford etc. R. R. Co. 3 Grry, 545; Lanafdell's Cases on Sales, 713; Stevens v. Boston etc. R. R. Co. 8 Gray, 262 ; Hobart v. Littlefield, 13 R. I. :m, nifi ; Farmers' & Mechanics' Bank v. Logan, 71 N. Y. 5G3; Emory's Po^s v. Irving Nat. Bank, 25 Ohio St. S0 ; Sprfigue v. King, 1 Puss & B, 241 ; New Brunswick Ry. Co, v. McLeod, 1 Pugs & B. 257, I 14* RESERVATION OF CONTROL. 208 6 See First Nat. Bank v. Crocker, 111 Mass. 163, 167 ; Reynolds v. Scott, 4 Pac. Rep. (Cal.) 346 ; 18 The Reporter, 452 ; Dows v. Nat. Exchange Bank, 91 U. 8. 618, 631. And compare Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360, 365. 144. Passing of title to buyer, Ship owned or hired by buyer. The fact that the ship on which the goods are delivered belongs to the vendee, or is hired by him, does not necessarily cause the property to pass where the bill of lading is made out to the vendor's order. 1 Bill of lading indorsed as security for draft. So where goods are sent by a bill of lading indorsed to a third person as security for a draft, the property does not pass at law until the draft has been accepted or paid, or there has been a waiver of acceptance or payment. 2 And until one of these things is done, the goods cannot be attached as the property of the buyer; so that if he should obtain possession of them, he cannot give a good title even to a bonafide purchaser. 8 Procurement of blank bill of lading. But the title passes where the procurement from the captain of the buyer's ship of bills of lading with a blank for the name of the consignee, afterwards filled out with the name of the seller, is effected by an assurance that the matter was of no consequence. 4 Unindorsed bill of lading in seller's name. So where from all the facts it may fairly be inferred that it was the intention of the seller to pass the property, the mere circumstance of the bill of lading being taken in tlie name of the seller, and remaining unindorsed, will not prevent the property from passing. 5 Hill \of lading specially indorsed to buyer, etc. And whero goods were to be delivered " free on board a ves- sel, and the bill of lading was made out to shipper's order," but on the same day was specially indorsed to the buyers, and sent to the broker who negotiated the sale, it was held that the intention was not to prevent 209 RESERVATION OF CONTROL. 145 the passing of the property, and hence that the title and risk were in the buyer. 6 Seller's right of possession and lien. Yet even where it was considered that the title and even the risk did pass, it has been suggested that the seller might retain the possession and a lien for the price. 7 1 See Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942 ; Turner v. Trustees of Liverpool Docks, 6 Ex. 543 ; Langdell's Cases oa Sales, 952. And consult Falke v. Fletcher, 18. Com. B. N. S. 403 ; 34 Law J. Com. P. 146 ; Langdell's Cases on Sales, 990 ; Dows v. Nat. Exchange Bank, 91 U. S. 618, 631. 2 Forty Sacks of Wool, 14 Fed. Rep. 643, 645. And see Dows v. Nat. Exchange Bank, 91 U. S. 618 ; Newcomb v. Boston etc. R. R. Corp. 115 Mass. 230, 233; Jenkyns v. Brown, 14 Q. B. 496 ; Langdell's Cases on Sales, 948 ; Shepherd v. Harrison, Law R. 4 Q. B. l'J6, 493 ; Law R. 5 II. L. 116 ; Langdell's Cases on Sales, 996. 3 Forty Sacks of Wool, 14 Fed. Rep. 643, 645. 4 Ogle v. Atkinson, 5 Taunt. 759 ; Langdell's Cases on Sales, 922. Or where a railroad receipt and way-bill making goods deliverable to the seller's order were taken after the delivery was complete enough to vest title in the buyer: Phila. etc. R. R. Co. v. Wireman, 88 Pa. St. 264. 5 Joyce v. Swan, 17 Com. B. N. S. 84, 101. And see Ogg v. Shuter, Law R. 10 Com. P. 159, 162 ; City Bank v. Rome etc. R. R. Co. 44 N. Y. 136. 6 Browne v. Hare, 3 Hurl. & N. 484 ; 4 Hurl. & N. 822 ; Langdell's Cases on Sales, 976. And see Van Casteel v. Booker, 2 Ex. 691 ; Hobart v. Littlefield, 13 R. I. 34. 7 See Shepherd v. Harrison, Law R. 4 Q. B. 196, 493 ; Law R. 5 H. L. 116 ; Langdell's Cases on Sales, 996, 1003 ; Hobart v. Littlefleld. 13 R. I. 341, 346. g 145. Rights of seller's transferee. Delivery of bill of lading to purchaser or pledgee. A consignor who has re- served the jus disponendij may effectuate a sale or pledge of the property consigned, by delivery of the bill of lading to the purchaser or pledgee, as completely as if the property were in fact delivered. 1 If such transfer of the bill of lading be made after the property has passed into the actual possession of the consignee, the trans- feree of the bill 2 takes it subject to any right or lien which the consignee may.have acquired by reason of his possession. 3 Transfer before consignee's possession of goods. But if the bill of lading be transferred by way of sale or 146 RESERVATION OF CONTROL. 210 pledge to a third person, before the property comes into the possession of the consignee, the consignee takes the property subject to any right which the transferee of the bill may have acquired by the symbolic delivery 4 of the property to him. 5 Buyer's objections to the sale, etc. Where the buyer, when the bill of lading made out to the seller's order was presented to him unindorsed, made various objec- tions to the sale, but finally offered the price, and said that he accepted the cargo, whereupon the seller refused to take his money and indorse the bill of lading over to him, but took the bill from the counter and procured an advance thereon from another customer, it was held that there was no such appropriation as would pass the property. 6 1 Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360, 366. 2 Bill of lading in general : See under chapter on DOCUMEXTS OP TIT LE. 3 Emery's Sons ?-. Irving Nat. Bank, 25 Ohio St. 360, 366. 4 See under chapter on DELIVERY. 5 Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 300, 366. But the principle on which the title togqods may be transfer re- 1 by atrui sfer of the bill of lading is wholij^ distinct from that on which the right of stoppage in transitu rests : Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 3GO, 066. For the right to stop goods in transit, exists only where the vendor has consigned them to the buyer under circum- stances which vest the title in the latter, while the transfer of goods by delivering the bill of lading can be made only in cases wherr* the vendor hns not parted with the title: Emery's Sons r. Irving Nat. Bank, 25 Ohio St. 3fiO, 366. Stoppage in transitu in general : See sub- sequent chapter of book. 6 Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942. And that the second customer could, as owner of the cargo, sue in trover the original purchaser who had taken part of the cargo after the arrival of the vessel in port : Wait v. Baker, 2 Ex. 1. I 146, Effect of delivery to carrier. As parsing title. Where goods are delivered by the vendor in pursuance of an order to a common -carrier for delivery to the buyer, the delivery to the carrier passes the property. 1 as he is the agent of the vendee to receive it, and the deliv- ery to him is equivalent to a delivery to the vendee. 2 211 RESERVATION OF CONTROL. g 146 Immaterial circumstances. To produce this effect it is not necessary that any particular carrier should be designated by the buyer, 3 nor does it make any differ- ence 4 which party is to pay the freight for the goods. 5 Where bill of lading taken. But where goods are de- livered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a de- livery to the buyer, 6 but to the captain as bailee for de- livery to the person indicated by the bill of lading, as the one for whom they are to be carried. 7 1 See citations in next note. 2 Shepherd v. Harrison, Law R. 5 H. L. 116 ; (S. C. below, Law R. 4 Q. 35. U7, 4jJ); Langdell's Cases on Sales, 996, 1015; quoting a:.d approving, Benjamin on Sales (Eng. ed.) Inc. ii. ch. 6, p. 2.S8, as rely- ing upon Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 1/42, j;-i5. See I Corbin's Benjamin on Sales, \\ 5(55, 573. 576 ; Bennett's Benjamin on Sales, 3;)9, n. a., referring also to following English cases : Dawes v. Peck, 8 Term Rep. 330 ; Button v. Solomonson, 3 Los. & P. 582 ; London etc. Ry. Co. v. Bartlett, 7 Hurl. & N. 500, and 31 Law J. Ex. 92 ; Dunlop v. Lambert, 6 Clark & F. 600 ; Cork Distilleries Co. v. Great So. Ry. Co. Law R. 7 H. L. 269. And to following American cases: Stan ton v. Eager, 16 Pick. 467 ; Putnam v. Tillotson, 13 Met. 517; Orcutt v. Nelson, 1 Gray, 5:!6; Merchant v. Chapman, 4 Allen, 362 ; Hunter v. Wright, 12 Alien, 548 ; Johnson v. Stodrtard, 100 Muss. 306 ; First Nat. Bank of Cairo v. Crocke.r, 111 Mass. 166; Woolscy v Bailey, 27 N. H. 217 ; Garland v. Lane, 46 N. H. 245 ; Arnold v. Front, 51 N. H. 587, 589 ; Hobart v. Littlefield, 13 R. I. 341 ; Ludlow v. Bowne, 1 Johns. 15; Waldron v. Romaine, 22 N. Y. 368 ; Rodgers v. Phillips, 40 N. Y. 519 ; Summeril v. Elder, 1 Binn. 106 ; Griffith v. Ingledew, 6 Serg. 6, 1015; quoting K.id approving, Benjamin on Sales (Eng. ed.) bk. ii. ch. 6, p. 288, as relying upon Wait v. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942, 915, and Moakes v. Nicolson, Ii) Com. B. N. S. 290 ; Law J. :A Corn. P. 273; Langdell's Cases on Sales, 992, 995. And see Rey- nolds v. Scott, 4 Pac. Rep. (CaU 346, 347. To same effect, according to Bennett's Benjamin on Sales, \ 3'):*, are Gabarron r. Kreeft, Law R. 10 Ex. 274, 281, 285, and Mirabita v. Imperial Ottoman Bank, Law g 147 [RESERVATION OF CONTROL. 212 R. 3 Ex. D. 164, 172 ; 31 Eng. Rep. 201, 203. Consult, also, 1 Corbin's Benjamin on Sales, \ 566 ; Campbell on Sales, 266. Doctrine stated as rule of presumption : 2 Schouler on Personal Property, $ 273, which also cites, Key v. Cotesworth, 7 Ex. 5u5 ; Langdell's Cases on Sales, 963; Brandt r. Bowlby, 2 Barn. & Adol. 932; Langdell's Cases on Sales, 025 ; Wilmshurst v. Bowker, 2 Man. & G. 792 ; 7 Man. & G. 882 ; Langdell's Cases on Sales, 930; Ellershaw v. Magniac, 6 Ex. 570; Langdell's Crises on Sales, 835; Wait v. Baker, 2 Ex. 1; Langdell's Cases on Sales, 942 ; Blanchard v. Page, 8 Gray, 281 ; Merchants' X at. Bank r. Bangs, 102 Mass. 295 ; Griffith v. IngJedew, 6 Serg. & R. 42') ; Marine Bank v. Wright, 48 N. Y. 1; Ward v. Taylor, 56 111. 494; Halliday v. Hamilton, 11 Wall. 560. $ 147, Bill of lading to seller's order. As indication of intention to reserve control. The fact of making the bill of lading deliverable to the order of the vendor is, when not rebutted by evidence to the contrary, almost decisive to show his intention * to reserve the jus dis- ponendi, 2 and to prevent the property from passing to the vendee. 3 And where an unpaid vendor, shipping goods under a contract of sale, takes a bill of lading making the goods deliverable to his order, and retains such bill of lading in his own or his agent's hands for his own protection, he does not reserve the seller's lien only, 4 in case of the purchaser's making default in the payment of the price, 5 but reserves a right of dispos- ing of the goods, so long, at least, as the purchaser continues in default. 6 Proof in rebuttal. But the prima facie conclusion that the vendor reserves the jus disponendi may be re- butted by proof that in so doing he acted as agent for the vendee, and did not intend to retain control of the property; 7 and it is for the jury to determine, as a question of fact, 8 what the real intention was. 9 Illustrative cases. And where the bill of lading was taken to shipper's order, and sent to a member of the selling firm, as according to the tenor of a letter re- ceived from the buyer, it was feared that he would not accept the goods at the price named, a verdict of the jury was sustained which found in favor of the passing of 213 RESERVATION OF CONTROL. \ 147 the property, under a charge that would require a dif- ferent result if the sellers intended to keep the goods in their own hands and under their own control till a final arrangement took place as to the terms of the bargain. 10 But it has been held that the property did not pass to the buyer, even though the goods were delivered on board a vessel chartered by him, if, as the jury found, it was the seller's intention to retain the property until his agent in the city, which was the destination of the goods, should receive the cash against the bill of lading, as indicated by the seller's retention of one of the bills of lading, which was alone stamped, and which he sent to his agent, while sending another to the buyer, with invoice and letter of advice. 11 Statement of governing doctrine. The doctrine gov- ! erning in this regard has been laid down in this coun- try to be that where a bill of lading has been taken, i containing a stipulation that the goods shipped shall be delivered to the order of the shipper, or to some person | designated by him other than the one on whose account I they have been shipped, the inference that it was not intended that the property in the goods should pass, except by subsequent order of the person holding the I bill, may be rebutted, though it is held to be almost I conclusive ; 12 and where there are circumstances point- ing both ways, some indicating an intent to pass the ownership immediately, notwithstanding the bill of lading, or in other words, where there is anything to rebut the effect of the bill, it becomes a question for the jury whether the property has passed. 13 1 Determination of intention : See Merchants' Nat. Bank v. I Bangs, 102 Mass. 291, 295. See section oil EVIDENCE OF INTENTION. 2 See citations in next note. Restrictive receipt for the purpose of giving the shipper command of the goods: Craven v. Ryder, 6 Taunt. 433. And see Ruck v. Hatfield, 5 Barn. & Aid. 632. 3 See First Nat. Bank v. Crocker, 111 Mass. 163, 167 ; Dows v. Nat. Exchange Bank, 91 U. S. 618, 631 ; Reynolds v. Scott, 4 Pac. Rep. # 148 RESERVATION OF CONTROL. 214 (Cal.) 346, 347 ; quoting, Bennett's Benjamin on Sales, ? 399, which cites following cases: Wilmshurst v. Bowker, 2 Man. & G. 792 ; 7 Man. 7. And compare Emery's Sons v. Irving Nat. Bank, 25 Ohio St. S60, 3G5. 4 Seller's lien : See subsequent chapter of book. 5 Payment : See subsequent chapter of book. 6 Ogg v. Shuter, Law R. 1 C. P. D. 47 ; reversing same case, Law 7 See citations in succeeding notes. And consult, 2 Schouler on Personal Property, \ 273, p. 260 ; 1 Corbin's Benjamin on Sales, 579. 8 See Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 2D5. 9 Bennett's Benjamin on Sales, 399, n. if I Corbin's Benjamin on Sales, ? 568 ; citing, Van Casteel v. Booker, 2 Ex. 691 ; Browne v. Hare, 4 Hurl. & N. 822 ; 2:) Law J. Ex. 6; Langdell's Cases on Sales, 976; Joyce v. Swan, 17 Com. B. N. S. 84; Moakes v. Nicholson, 19 Com. B. N. S. 290 ; 34 Law J. Com. P. 273 ; Langdell's Cases on Sales, 992. 10 Joyce v. Swan, 17 Com. B. N. S. 84. 11 Moakes v. Nicholson, 19 Com. B. N. S. 290 ; 34 Law J. Com. P. 273 ; Langdell's Cases on Sales, 9^)2, 905. 12 Dows v. Nat. Exchange Bank, 91 U. S. 633. 13 Dows v. Nat. Exchange Bank, 91 U. S. 633 ; quoted, Bennett's Benjamin on Sales, $ 399, n. I, p. 431. \ 148. Delivery on board buyer's vessel. Restraining effect of. Although as a general rule the delivery of goods by the vendor on board the purchaser's own vessel is a delivery to the purchaser, and passes the property, 1 yet the vendor may by special terms re- strain the effect of such delivery, and reserve the jus disponendi, 2 even in cases where the bills of lading show that the goods are free of freight 3 because owner's property. 4 Goods not appropriated before shipment. And on a sale of goods not specific, although the goods have been delivered on board a ship of the purchaser, or one chartered for him, yet in the absence of any appropria- 215 RESERVATION OP CONTROL. 149 tion of the goods in fulfillment of the contract previous to shipment, the fact that the vendor has taken a bill of lading, making the goods deliverable to his own order, or that of a third person, will prevent the prop- erty in them from passing to the purchaser. 5 1 See Mirabita v. The Imperial Ottoman Bank, Law R. 3 Ex. D. 164, 172 ; 30 Eng. Rep. 201, 208. S^e section on RESERVATION OF CON- TROL IN GENERAL. Transfer of title generally : See next chapter. 2 Retention of jus dteponendi: See Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. 3 See Van Casteel v. Booker, 2 Ex. 691 ; Turner v. Liverpool Dock Trustees, 16 Ex. 513 ; Langdell's Cases on Sales, 952. 4 Bennett's Benjamin on Sales, 399, n. &; 1 Corbin's Benjamin on Sales, \ 56i), n. cj ; citing, Turner v. Liverpool Dock Trustees, 6 Ex. 543 ; Langdell's Cases on Sales, 952 ; Ellershaw v. Magniac, 6 Ex. 570 ; Langdell's Cases on Sales, 835 ; Brandt v. Bowlby, 2 Barn. & Adol. 932; Langdell's Cases on Sales, 925; Van Casteel v. Booker, 2 Ex. 691 ; Moakes v. Nicholson, 19 Com. B. N. S. 2:M) ; Law J. 34 Com. P 146 ; Langdell's Cases on Sales, 990, 905 ; Schotsman ?;. Lancashire etc. Ry. Co. Law R. 2 Ch. 332 ; Gumm v. Tyrie, Law J. 33 Q. B. 97 ; Law J. 34 Q. B. 124. Compare Campbell on Sales, 266 ; 2 Schouler on Per- sonal Property, 273, p. 260. 5 Gabarron v. Kreeft, Law R. 10 Ex. 274, $ 149, Disposition, of bill of exchange. Refusing ac- ceptance. Where a bill of exchange for the price of goods is enclosed to the buyer for acceptance, together with the bill of lading, the buyer cannot retain the bill of lading, unless he accepts the bill of exchange, 1 and if he refuse acceptance he acquires no right to the bill of lading, or the goods of which it is the symbol/ while the vendor may exercise his jus disponendi by selling or otherwise disposing of the goods, so long, at least, as the buyer remains in default. 3 Mailing to purchaser of bill of lading to buyer's order. But although the vendor may intend the transfer of the property to be conditional upon the buyer's accept- ance of the bill of exchange, yet if he puts into the post, addressed to the buyer, a bill of lading making the goods deliverable to the buyer's order, he thereby abandons all control over the goods, 4 and the property thereupon vests unconditionally in the buyer, and does $ 150 RESERVATION OF CONTROL. 216 not revest in the vendor on the buyer's failure or re- fusal to accept the bill of exchange. 5 Depositing bill of lading with discounting bankers. And when the vendor deals with the bill of lading only to secure the contract price, as by depositing it with bankers who have discounted the bill of exchange, then the property vests in the buyer upon the payment or tender by him of the contract price. 6 General and special property. The shipper of goods may, however, convey a special property in a cargo by indorsing the bill of lading, deliverable to his own order, to the banker who buys the bills of exchange, while the general property may pass to the buyers of the cargo by sending them invoices and letters of advice, showing that the cargo was bought and shipped on their account. 7 1 See citations in next note. 2 See Shepherd v. Harrison, 4 Q. B. 196, 493 ; Law K. 5 H. L. 116 : Langdell's Cases on Sales, 996; Ogg v. Shuter, Law R. 1 C. P. I). 47 ; reversing same case, Law R. 10 Com. P. 159 ; Bennett's Benjamin on Sales, 399, whence paragraph derived, and n. l t citing these Eng- lish and following American cases: Clark v. Bank of Montreal, 13 Grant (Ont.) 211 ; First Nat. Bank v. Dearborn, 115 Mass. 222 ; Fifth National Bank v. Bayley, 115 Mass. 228, 230 ; Alderman v. Eastern R. R. Co. 115 Mass. 233 ; Bank of Rochester v. Jones, 4 Comst. -497, 502 ; Winter v. Coit, 3 Seld. 288 ; Marine Bank v. Wright, 48 N. Y. 1 ; Millar v. Sav. Assoc. 3 Week. N. Cas. 4SO ; Taylor v. Turner, 87 111. 2% ; C'obb v. 111. Cent. R. R. Co. 88 111. 394. Consult, also, 2 Schouler on Personal Property, 274. 3 See O?g v. Shuter, Law R. 1 C. P. D. 47 ; reversing same case, Law R. 10 Com. P. 159. See Campbell on Sales, 265. 4 See citations in next note. 5 See Ex parte Banner, Law R. 2 Ch. D. 78; as cited, Bennett's Benjamin on Sales, 309, n. n; 1 Corbin's Benjamin on Sales, 571, n. e ; distinguishing, Shepherd v. Harrison, Law R. 4 Q,. B. 196,493 ; Law R. 5 H. L. 116 ; Langdell's Cases on Sales, 996. 6 Mirabita v. The Imperial Ottoman Bank, Law B. 3 Ex. D. 6-1 ; 31 Eng. Rep. 201 ; determining a point left undecided in Ogg v. Shuter, Law R. 1 C. P. D. 47, 51. See Bennett's Benjamin on Sales, 399, n. o; and 1 Corbin's Benjamin on Sales, 572, so stating this case. And consult Campbell on Sales, 265. 7 Jenkyns v. Brown, 14 Q. B. 496 ; Langdell's Cases on Sales, 948, 951. g 150. Transmission to buyer of indorsed bill of lading. Question of seller's intention. If the shipper of goods 217 RESERVATION OF CONTROL. 150 from abroad takes the bill of lading to his own order, or to blank order, which is practically the same thing, and immediatety indorses it and sends it to the con- signee, it is presumed, if consistent with the contract and other circumstances, that he intended the same thing as if he had taken the bill of lading in the name of the consignee at once. 1 In such cases it has been left to the jury to finally decide, as a question of fact, what was the intention of the vendor under all the cir- cumstances of the case. 2 Goods deliverable to consignor's order. And this course has been sustained where the bill of lading made the goods "to be delivered to the order of the consignor," and he indorsed it to the order of the con- signee and sent it to his agent for the consignee, as this mode of taking the bill of lading did not necessarily prevent the property from passing. 3 The question was regarded as one of fact, and the jury was considered to have disposed of it and to have determined that it w r as the intention of the consignor to ship the goods in per- formance of his contract to place them " free on board," and not to have had the bill of lading taken in this form for the purpose of retaining a control over the goods and continuing to be owner, contrary to the contract. 4 Remittance of draft requested. Nor does the fact that the bill of lading, deliverable to shipper's order and in- dorsed in blank, is sent to the buyer in a letter request- ing a remittance of a draft for the price, necessarily render such remittance a condition precedent to the vesting of the property in the buyer, against whom the right of stoppage in transitu is sought to be asserted. 5 Undelivered bill of lading in buyer's name. But the fact that the bill of lading is taken in the buyer's name, if it is not delivered, creates no presumption of an in- tention to transfer the property unconditionally. 6 NEWMABK SALES. 19. 151-152 RESERVATION OF CONTROL. 218 1 Campbell on Sales, 266 ; citing, Wai ley r. Montgomery, 3 East, 585 ; LangdelPs Cases on Sales, 911 ; Van Casteel v. Booker, 2 Ex. 61 ; Browne v. Hare, 4 Hurl. & N. 822 ; 29 Law J. Ex. 6 ; Langdell's Cases on Sales, 976. 2 See Van Casteel v. Booker, 2 Ex. 691 : Browne v. Hare, 4 Hurl. & N. 822 ; 2:) Law J. Ex. 6 ; Langdell's Cases on Sales, 976 ; Bennett's Benjamin on Sales, 395 ; 1 Corbin's Benjamin on Sales, \ 556. 3 Browne v. Hare, 3 Hurl. & N. 484 ; 4 Hurl. & N. 822 : Langdell's Cases on Sales, 976, 989. 4 Browne v. Hare, 3 Hurl. & N. 484 ; 4 Hurl. * N. 822 ; Langdell's Cases on Sales, 976, 989. As in the case of Wait r. Baker, 2 Ex. 1 ; Langdell's Cases on Sales, 942. And as is explained in Turner ?'. Liverpool Dock Trustees, 6 Ex. 54:5; Langdell's Cases on Sales, 952. And in Van Casteel v. Booker, 2 Ex. 691. 5 Wilmshurst ?'. Bowker, 2 Man. & G. 792 ; 7 Man. & G. 882 ; Lang- dell's Cases on Sales, 930, 941. 6 Sheridan ?>. New Quay Co. 4 Com. B. N. S. 618 ; as noted, Camp- bell on Sales, 267. \ 151. Transmission to secure advances. As evidence of appropriation, etc. It has been laid down that when bills of lading to shipper's order, or to order, in- dorsed, or by which goods are made deliverable to a consignee by name, are transmitted to him as security for antecedent advances, they are evidence of such a destination and appropriation to him of the specific goods as will vest in him a property, absolute or special in them, at the time of their delivery on board ; l and this statement seems to be supported 2 by the American cases. 3 General indebtedness of consignor. But there is a recognized distinction if the consignor be simply gen- erally indebted to the consignee. 4 1 Abb. Shipp. (5th Am. ed.) p. 410. 2 According to Bennett's Benjamin on Sales, \ 399, n. 1. 3 See Grosvenor v. Phillips, 2 Hill, 147 ; Bailey r. Hudson R. R. Co. 49 N. Y. 70 ; Schumacher v. Eby, 24 Pa. St. 521 ; Straus v. VVessel, 30 Ohio St. 211 ; Nelson v. Chicago etc. R. R. Co. 2 111. App. 180. 4 See Elliot r. Bradley, 23 Vt. 217; Grosvenor r. Phillips, 2 Hill, 147 ; Bank of Rochester v. Jones, 4 N. Y. 497; Redd v. Bunus, 58 Ga. 574 ; Nelson v. Chicago etc. R. R. Co. 2 111. App. 180 ; Hodges v. Kim- ball, 49 Iowa, 579 ; Saunders v. Bartlett, 12 Heisk. 316 ; Oliver ?'. Moore, 12 Heisk. 482 : Bennett's Benjamin on Sales, 399, n. l, so citing these cases; quoting, Frechette v. Corbet, 5 Low. Can. 211, and referring to Marine Bank of Chicago v. Wright, 48 N. Y. 1. $ 152, Seller's transmission to agent of bill of lading, etc. Resumption of condition cf acceptance of bill of ex- 219 RESERVATION OF CONTROL. 152 change. If the shipper from abroad takes the bill of lading to shipper's order, and sends it indorsed to his own distant agent, and the latter sends it to the buyer in the same country in a letter enclosing a bill of ex- change, and requesting that the same be returned ac- cepted, the presumption, founded on mercantile usage, is that the acceptance of the bill of exchange is a condi- tion precedent to the vesting in the buyer of the right of property and possession under the bill of lading. 1 Effect of different course. For it has been declared to be perfectly well settled that if a consignor in such a case wishes to prevent the property in the goods, and the right to deal with the goods while at sea, from passing to the consignee, he must by the bill of lading make the goods deliverable to his own order, and for- ward the bill of lading to an agent of his own. 2 And if he does not do that, though he still retains the right of stopping the goods in transitu? yet subject to that right the property in the goods and the right to the posses- sion of the goods is in the consignee. 4 When title passes. But the property passes if the bill of lading is taken deliverable to the buyer or his agent, and sent directly to either of them, in a letter advising of the drawing of drafts on the buyer, 5 or even, as it has been held, if the bill of lading, deliverable to the seller's order, is sent unindorsed to the buyers, and another bill of lading of the same set is sent by the sellers to a third party indorsed, for the purpose of se- curing the amount of their bill upon the buyers: 6 though it is otherwise if the letter enclosing an unin- dorsed bill of lading to the buyer refers to an indorsed bill sent by the seller to his agent. 7 1 Campbell on Sales. 267. See Shepherd ?-. Harrison, Law R. 4 Q. B. 1%, 4i3; Law R. s H. L. 116; Lansdell's Cases on Sales, 996. And compare Ogg v. Shuter, Law R. 1 C. P. I). 47. 152 RESERVATION OF CONTROL. 220 x pare anner, Law . . . , ; sngusng, ep- herd v. Harrison, Law R. 4 Q. B. 196, 493 ; Law R. 5 H. L. 116 ; Lang- dell's Cases on Sales, 996. And see Key r. Cotesworth. 7 Ex. 595; Langdell's Cases on Sales, 963, 960. 3 Stoppage intransitu: See subsequent chapter on subject. 4 Ex parte Banner, Law R. 2 Ch. D. 278, 288. 5 See Key v. Cotesworth, 7 Ex. 505 ; Langdell's Cases on Sales, 963 ; Ex parte Banner, Law R. 2 Ch. D. 278. 6 Coxe v. Harden, 4 East, 211 ; Langdell's Cases on Sales, 916. 7 Brandt v. Bowlby, 2 Barn. 221 TRANSFEK OF TITLE. 153 CHAPTER XIII. TRANSFER OF TITLE. 2 153. In general 2 154. Contract or conveyance. 2 155. Intention to pass title. \ 156. Intention governs. g 157. Sufficiency of intention. 1 158. Without payment or delivery. 2 159. Right of possession. \ 160. Change of risk. 2 161. Title and risk. \ 162. Assumption of risk. 2 163. Stipulations concerning risk, delivery, and payment \ 164. Title to undelivered chattel. 2 165. Delivery sufficient to pass title. 2 166. Delivery as prerequisite to transfer of title. 2 167. When delivery not such prerequisite. 2 163. Estoppel of seller. 2 169. Estoppehof warehouseman, etc. 153. In general. Importance of determining -. The transfer of the property in the thing sold is the primary object of a sale, and it is often necessary to inquire whether the property has been actually transferred, or is only intended to be transferred at some future period. 1 Cash sale at store counter. In considering the point in a transaction amounting to a contract of sale, at which a transfer of title takes place from seller to buyer, with a change of the rights and responsibilities of ownership, no difficulty is met in the simple case of a cash sale made at a store counter, where the customer enters, selects his goods, and carries them away. 2 Circumstances complicating point of transition. But the determination of the point of transition becomes more complicated under the various circumstances 154 TRANSFER OF TITLE. 222 which may attend a sale, for there may be a sale on credit, the customer receiving his goods under an un- derstanding to defer payment, 3 or the customer may have paid on the spot, with the understanding that the goods should be sent to his address ; or a bargain may have been struck and nothing said concerning payment of price and delivery. 4 Uncertainty concerning thing sold. So the terms of the purchase may have contemplated some further act on the part of buyer or seller, or a third person, such as weighing, counting, or measuring the goods ; 5 or, to make the question still more intricate, a contract might relate to goods which have as yet no existence, but must be manufactured to order ; 6 or which, being al- ready in being as part of a lump or mass, must be sep- arated and set apart 7 before there can be identical and specific property for the sale to operate upon. 8 1 Campbell on Sales, 225. This inquiry becomes important in questions arising out of the accidental destruction of the subject- matter of the sale, and in questions arising out of the insolvency of one of the parties, and was formerly of consequence in regard to the form of pleading: Campbell on Sales, 225. And see Graham's Blackburn on Sales, Introd. VII. 2 See 2 Schouler on Personal Property, ? 235. In such a case the buyer, as owner of the goods, becomes liable for their loss in any manner as soon as he has set foot in the street, and has then the right to resell them at discretion : 2 Schouler on Personal Property, | 235. 3 See Anstedt r. Sutter, 30 111. 164, 166. 4 ,2 Schouler on Personal Property, 2 235. 5 See chapter on SALES OF SPECIFIED CHATTELS. 6 See Cunningham v. Ashbrook, 20 Mo. 553, 557 ; also see chapter on SALES OF MANUFACTURED CHATTELS. 7 See Cunningham v. Ashbrook, 20 Mo. 553, 557 ; also see chapter on SALES OF UXSPECIFIED CHATTELS. 8 2 Schouler on Personal Property, \ 235. See chapter on EXECU- TORY SALES. 154, Contract or conveyance. Bargain and sale, or executory agreement. In a bargain and sale the thing which is the subject of the contract becomes the prop- perty of the buyer the moment the contract is con- 223 TRANSFER OF TITLE. 155 eluded, and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the vendor; 1 but in an executory agreement the goods remain the property of the vendor till the con- tract is executed. 2 And the distinction between the two transactions in this respect has been developed by considering the latter as a contract, and the former as also a conveyance. 3 Privilege of repurchase. Where the party purchasing expressiy declared that he would not take a mortgage, but must have a sale of the property to himself, and a bill of sale was written and signed, and the property was delivered to the vendee, and taken possession of by him, and no acts of ownership afterwards exercised by the vendor over it, but the latter had the privilege conceded to him that if he would pay at a cer- tain time a certain price for the property he might purchase it, it has been held that that was the full extent of his rights, 4 and that the title vested in the purchaser. 5 1 See 158, on TRANSFER OF TITLE WITHOUT PAYMENT OB DELIVERY. 2 Bennett's Benjamin on Sales, \ .308, n. b, citing 1 following cases : Ohiey v. Howe, 89 Til. 556 ; Straus v. Ross, 25 Ind. 300 ; Lester v. East. 49 Ind. 588, 592 ; Leigh v. Mobile etc. R. R. Co. 58 Ala. 165 ; Cardinell v. Bonnett, 52 Cal. 476 ; The Elgee Cotton Cases, 22 Wall. 180. 3 See Campbell on Sales, 2 ; Graham's Blackburn on Sales, 243. 4 Cook v. Lion Fire Ins. Co. 7 Pac. Rep. 784 ; Sup. Ct. Cal. August 26, 1885. 5 Cook v. Lion Firo Ins. Co. 7 Pac. Rep. 784. See Jones on Mort- gages. 326 ; Hoopes v. Bailey, 28 Miss. 328. 155, Intention to pass title. Express or presumed intention. The inquiry as to the point of time when the property is transferred depends on the intention, expressed or presumed, of the parties to the sale. 1 And it has been suggested that there is a certain bias against the presumed intention of complete transfer, traceable in various reported decisions, 2 wherever the natural 156 TRANSFER OF TITLE. 224: result of litigation would be to give the buyer the benefit of goods for which he can never pay. 3 Distinct manifestation of intention. But there can be no question when the intention is clearly and unequivo- cally manifested, 4 as where a seller expressly reserves title until the whole price shall be paid. 5 1 Campbell on Sales, 225. The question is rather one of intention than of strict law, the general rule being that the agreement is just what the parties intended to make it, if the intent can be collected from the language employed, the subject-matter, and the attendant circumstances: Hatch r. Oil Co. 100 U. S. 124, 131. And see Terry v. Wheeler, 25 N. Y. 520, 525 ; Langdell's Cases on Sales, 706 ; Catlaghan v. Meyers, 89 111. 5Gfi, 570 ; Sewell v. Eaton, 6 Wis. 490. 2 See Simmons v. Swift, 5 Barn. & C. 857 ; Langdell's Cases on Sales, G5D ; referring to Hanson v. Meyer, 6 East, 614; Langdell's Cases on Sales, 639 ; Haldeman v. Duncan, 51 Pa. St. 66. 3 2 Schouler on Personal Property, ? 236. Or leave the seller to enjoy the purchase money advanced for goods which he has never delivered : 2 Schouler on Personal Property, 236. 4 1 Corbin's Benjamin on Sales, \ 309, n. 2. 5 Weed v. Boston etc. Ice Co. 12 Allen, 377. 158. Intention governs, In general. Whether the title to the property, upon an agreement for a sale thereof, passes or not, depends 1 upon the intention of the parties to the agreement ; 2 nor does the rule in re- gard to something remaining to be done 3 apply if the parties have made it sufficiently clear whether or not they intend that the property shall pass at once, 4 as their intention must be looked at in every case. 5 Province of court and jury. And this intent is to be determined by the jury, 6 unless it is plain as matter of law that the evidence will justify a finding but one way. 7 Thus, where the owner of wheat stacked upon his premises at three different places made a contract with one who saw the wheat at two of such places, whereby the former, at some subsequent time, was to thresh the wheat, and retain from seventy-five to one hundred bushels thereof, and transport the remainder to a town where it was to be weighed, and then to an- 225 TRANSFER OF TITLE. 156 other town, where it was to be delivered and paid for at a specified rate per bushel, a portion of the purchase money being paid at the time the original contract was made, it was held that it cannot be said, as a matter of law, that the title to the wheat, or to any portion thereof, was immediately transferred from the one party to the other, but the question was for the jury. 8 Ascertainment and manifestation. But this intention as to the time when the title is to pass can be ascer- tained only from the terms of the agreement as ex- pressed in the language and conduct of the parties, and as applied to known usage and the subject-matter ; 9 and it must be manifested at the time the bargain is made ; 10 while the point to be ascertained is whether the negotiations and acts of the parties are evincive of an intention on the part of the seller to relinquish all further claim or contract as owner, and on the part of the buyer to assume such control with its consequent liabilities. 11 1 According to Bennett's Benjamin on Sales, \ 311, n. <7, source of statements and citations in succeeding paragraphs, except Caywood v. Timmons, 31 Kan. 394. 2 See following cases : Me. Stone v. Peacock, 35 Mo. 383 ; Dyer v. Libby, 61 Me. 45. Vt. Bellows v. Wells, 36 Vt. 5j:> ; Fitch v. Burk, 38 Vt. 689. N. H. Fuller v. Bean, 34 N. H. 290 ; Ockinton v. Rickey, 41 N. H. 279, 280 ; Kelsea v. Haines, 41 N. H. 346, 35'5 ; Prescott v. Locke, 51 N. H. 101, 102, 103. Mags. Sumner v. Hamlet, 12 Pick. 76, 82 ; Macomber v. Parker, 13 Pick. 182, 183 ; Morse v. Sherman, 106 Mass. 433 ; Dugan v. Nichols, 125 Mass. 73. Conn. Chapman v. Shepherd, 25 Conn. 413. N. F. Russell v. Carrington, 42 N. Y. 118; 1 Am. Rep. 498; Kurd v. Cook, 75 N. Y. 45-1. Mo. Cunning- ham v. Ashbrook, 20 Mo. 553. Mich. Wilkinson r. Holliday, 33 Mich. 386. Ind. Lester ?>. East, 49 Ind. 589, and cases cited. Ertft. Ogg v. Shuter, Law R. 10 Com. P. 450. Can. Gleason i\ Knapp, 26 Up. Can. C. P. 553 ; Ross v. Eby, 28 Tip. Can. C. P. 3ifi. New Brims. Sprague v. King, 1 Pugs. & B. 299 ; Gibson v. McKean, 3 Pugs. 299. 3 See section on subject under chapter on EXECUTORY SALES. , 4 See citations in next note. 5 Turley v. Bates, 2 Hurl. & C. 200, 211 ; Langdell's Cases on Sales, 692 ; Logan v. Le Mesurier, 11 Moore P. C. C. 116 ; Langdell's Cases on Sales, 681 ; Wilkinson v. Holiday, 33 Mich. 386. g 157 TRANSFER OF TITLE. 228 6 Me. George v. Stubbs, 26 Me. 250; Dyer v. Libby, 61 Me. 45. 2T. H. Fuller v. Bean, 34 N. II. 290 ; Kelsea v. Halnos, 41 N. H. 253. Mass Kiddle v. Varnum, 20 Pick. 283; Merchants' Nat. Bank v. Bangs, 103 Mass. 2 )1 ; Marble v. Moore, 102 Mass. 443. JV. Y. Kidder v. McKnight, 13 Johns. 204. Iowa McClurg v. Kelly, 21 Iowa, 508. 7 Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 296 ; Wigton v. Bowley, 130 Mass. 254. 8 Caywood v. Tiraraons, 31 Kan. 394. And hence it was erroneous for the court to give instructions upon the theory that the original contract between the parties constituted a fully completed sale of the wheat whereby the property immediately passed to the purchasers, and that the latter took all the risk of loss or damage which might result from rains or storms or other casualties : Caywood v . Tim- mons, 31 Kan. 394. 9 See citations in next note. 10 Foster v. Ropes, 111 Mass. 10 ; Lingham v. Eggleston, 27 Mich. 11 Bethel Steam Mill Co. v. Brown, 57 Me. 18. And see Denny v. Williams, 5 Allen, 3, 4 ; Barretts. Goddard, 3 Mason, 113. $ 157. Sufficiency of intention. Meeting of minds, etc. Whether or not, and when the legal tillo in property sold passes from the vendor to the vendee is 1 always a question of the intention of the parties,- which is to be gathered from their acts, and all the facts and circum- stances of the case taken together. 3 In order that the title may pass, the owner must intend to part with his property, and the purchaser to become the immediate owner. 4 Their two minds must meet on this point, and if anything remains to be done before either assents, it may be an inchoate contract, but it is not a perfect sale. 5 Performance or waiver of condition. Hence when there is a condition precedent attached to the contract, 6 the title to the property does not pass to the vendee until performance or waiver of the condition, 7 even though there be an actual delivery of the possession. 8 1 As stated in preceding section. 2 See Levasseur v. Gary, 3 Atl. Hep. 461 ; Sup. Ct. Me. March 22, 1886. 3 State v. Four Jugs of Intoxicating Liquor, 2 Atl. Rep. 586 ; Sup. Ct. Vt. February 5, 1886; State v. O'Xeil. 22 The Reporter, 58; Sup. Ct. Vt. March, 1886. 4 Mason v. Thompson, 18 Pick. 305. 227 TRANSFER OF TITLE. 158 5 Mason v. Thompson, IS Pick. 305, as quoted in cases cited in notebel'oro last, which declare that the authorities seem to be uniform on this point, and that and the acts of the parties are regarded as evi- dence by which the court or jury may ascertain and determine their intent. 6 Condition precedent: See under chapter on CONDITIONAL SALES. 7 According to first of cases cited in third note of section. 8 Benjamin on Sales, 320, n. . S.vift, 5 Barn. & C. 857 ; Boss's Leading Cases, 7 ; Langdell's Cases on tealus, 650. 13 See title STOPPAGE IN TRANSITU, 2 Bouvier Law Diet. (14th ed.) 54} ; 2 Kent Com. 493. For the buyer s insolvency, without payment of the price, defeats his right to tho possession, as \y^ll after t'vj transitns has begun, as before the seller has parted with tho actual possession of the goods: 2 Kent Com. 403. And see Bloxam v. Sanders, 4 Barn. & C. 941 ; Boss's Leading Cases, 48. \ ISO. Change of risk. On transfer of title. It is said that the common law fixes the risk where the title re- sides ; 1 and so soon as a bargain of sale of specific per- sonal property is struck, the contract becomes absolute, $ 100 TRANSFER OF TITLE. 232 without actual payment or delivery, and the property and risk of accident to it is in the buyer. 2 Without delivery. The rule that the risk may fall on the buyer though delivery of the goods has not been made to him, has been applied to an action for the price of cattle, where part payment had been made, but the cattle were left in the seller's pasture, to be taken by the buyer within three months, and were swept away by a flood ; 2 and to a suit for the price of a mule colt which died before weaning time, being left with the mare until then, under the agreement, where there was a part pay- ment at the time of the sale, and nothing was said as to tlio payment of the balance ; 4 and to an action upon a note for the price of a machine, for which the buyer was to send, where a messenger bringing such note left the machine, contrary to orders, with the seller, and it was soon after destroyed by fire ; 5 and to authorize a recov- ery for the price of wool orally sold by sample, where most of the wool was burnt in the warehouse in which i* lay, though several bales were sent to the buyer , 6 and to the acceptance of an offer for cotton stored in a warehouse, which was destroyed by fire before tho buyer could obtain the actual possession thereof under an order given to him, where the buyer was to weigh the cotton, and give the seller proper credit on the buyer's books ; 7 and to place the loss upon the buyer in a suit for the price of tobacco carried away by a flood while stored in sheds on the buyer's farm, where it had been raised as a tenant by the seller, who was to pay therefor an amount determined by the sum he might realize on its further salo , 8 and to a suit by the buyer to recover back a part payment on the sale of a lot of butter in the seller's store where the buyer took, away part, and the residue was destroyed by the Chicago fire ; 9 and to a defense that there had been no delivery under an agree- 233 TRANSFER OF TITLE. $ 160 ment to exchange slaves, where each of them, being a child, was left with its mother, and upon the death of one, detinue was brought for the other. 10 Specification of goods not complete. But though the title and risk may pass without payment or delivery on the sale of specific grain, even though unseparated from a larger mass, yet it is otherwise where 110 specific quantity or lot is bargained for. 11 And where the prop- erty had actually passed to the purchaser in goods that were to be taken by him to another place, and there measured to fix the price, it was held that the vendor and not the purchaser must bear the loss and deprecia- tion in measurement incident to the removal, according to the common course of conveyance. 12 1 Joyce v. Adams, 8 N. Y. 291, 296. And see Terry v. Wheeler, 25 N. Y. 520 ; Langdell's Cases on Sales, 700, 708. See 161, on TITLE AXD RISK. 2 Sweeney v. Owsley, 14 Mon. B. 413. And see 2 Kent Com. 412; Leonard v. Davis, 1 Black, 476, 48: ; also 15;), on RIGHT OK Pos- SKSSIOX. The goods under a binding contract of sale are at the risc of the vendee till paid for and taken away, and if destroyed by acci- dent in the mean time, the vendor may recover the price: Wing v. Clark, 24 Me. 360, 372. And see 2 Blackst. Com. 448. 3 Bissoll r. Balcom, 30 N. Y. 275, 279. And see Hayclen v. Demets, 53 N. Y. 426, 431 ; Morey v. Medbury, 10 Hun, 540. 4 Sweeney v. Owsley, 14 Mon. B. 413. And see Henline v. Hall, 4 Ind. 18J. 5 Wing v. Clark, 24 Me. 366, 372 ; followed, Phillips v. Moor, 71 Me. 78, 81. 6 Townsend i>. Hargraves, 118 Mass. 325, 332. 7 King ?'. Jarman, 35 Ark. 190, 197. And see Thayer v. Lapham, 13 Allen, 26 ; Terry v. Wheeler, 25 X. Y. 520 ; Williams v. Corbey, 5 Ont. App. 626. 8 Ruthrauff v. Hagenbuch, 58 Pa. St. 103. Aud see Scott v. Mills, 6 Serg. & H. J-A8. 9 Seckel v. Scott, 66 111. 106. It was held that the title and risk of . loss were in the buyer, though the firkins had not been weig.ivd : Seckel v. Scott, 66 111. 1U6. Compare Barrow v. Window, 71 111. 214. 10 Willis v. Willis, 6 Dana, 48. See 1 Corbin's Benjamin on Sales, \\ 319, 323, stating foregoing cases. 11 Levasseur v. Cary, 3 Atl. Rep. (Me.) 461 ; S. C. 22 The Reporter, 304 ; citing, Phillips v. Moor, 71 Me. 76 ; Waldron v. Chase, 37 Me. 414. 12 Cushman v. Holyoke, 34 Me. 289. 161 TRANSFER OF TITLE. 234 161. Title and risk. Risk as attending title. The risk of property, which is the subject of sale, attends the title, 1 and hence the buyers of turpentine have been held bound to suffer the loss of such casks thereof, which were destroyed before delivery, as had been filled up. 2 So where the amount of the purchase money to be paid for unweighed barley had been ad- justed by the assent of the buyer, and nothing there- fore remained to be done by the seller before delivery was made, it was held that although the seller still had possession and a lien for the purchase money, yet the right of property was in the buyer, and with it the risk of all accidents devolved on him. 3 Transfer of title. And it has been laid down that where there is an agreement for the sale and purchase of goods and chattels, and after the agreement, and before the sale is completed, the property is destroyed by casualty, the loss must be borne by the vendor, as the property remained vested in him at the time of the destruction.* Assumption of risk. But in cases where property is to be paid for on delivery, and where the risk of deliv- ery is assumed by the purchaser, the payment is still due if the destruction of the property prevents the delivery; 5 though as the presumption is that the risk and property go together, the intention that the pur- chaser shall assume the risk before the property has vested in him must be either expressed in the written contract between the parties, 6 or clearly to be inferred from the circumstances of the case. 1 1 See Taylor v. Lapham, 1 3 Allen, 2'J ; Joyce ?. Adams, 4 Selrl. 206 ; Terry r. Wheeler, 25 N. Y. 5JO; Langdell's Cases on Sales, 70 Iiul. 2o"\ The risk attends upon the title, not upon the possession, where there is no special agreement upon the subject: Terry r. Wheeler, 23 N. V. 529 ; Langdell's Cases on Sales, 706, 70S. The civil-law rule is also res peril domino suo: 2 Bouvior Law J)ict. tit. Maxims (14th ed.), 156. And see Story on Bailments, 426 ; 2 Kent Com. 531. 235 TRANSFER OF TITLE. 162 2 Rugg v. Minett, 11 East, 210 ; Langdell's Cases on Sales, 647, 651. Because everything had been done by the sellers which was neces- sary to put the goods in a deliverable state at the warehouse whence they were to be taken by the buyers, so that the property passed to the latter and the goods remained there at their risk : Rugg v. Minett, 11 East, 210. So by the civil law the risk of loss before deliv- ery was placed on the buyer, though on condition that the vendor should be guilty of no default in taking care of the thing until he transferred it into the buyer's possession : Ortolan Explic. Hist, tome 3, p. 232 ; Dig. 47, 2 de Furtis, 14 Ulp. 3 Olyphant v. Baker, 5 Denio, 379 ; Langdell's Cases on Sales, 635, 633. 4 Thompson v. Gould, 20 Pick. 139. See Phillips ?>. Moor, 71 Me. 73, 80; citing, Tarling v. Baxter, 9 Dowl. & 11. 276 ; Ilinde v. White- house, 7 East, 553 ; Rugg v. Minett, 11 East, 210. 5 Castle v. Playford, Law R. 5 Ex. 165 ; Law R. 7 Ex. 98 ; 1 Eng. Rep. 204. And see Alexander v. Gardner, 1 Bing. N. C. 671 ; Lang- dell's Cases OM Sales, 810 ; Fragano v. Long, 4 Barn. & C. 219 ; Lang- dell's Cases on Sales, 798. 6 As in Castle v. Playford, Law R. 5 Ex. 165 ; Law R. 7 Ex. 98 ; 1 Eng. Rep. 201 ; Martineau v. Kitchiag, Law R. 7 Q. B. 436 ; 2 Eng. Rep. 5oi). 7 See Anderson v. Morrice, 1 Abb. Gas. 713 ; Law R. 10 Com. P. 58, 609. Source of points and authorities in this and next section : Bennett's Benjamin on Sales, ?g 315. 328, 329 a, 410, 411, and notes; 2 Bouvier Law Diet. (14th ed.) 156 ; Rugg v. Minett, 11 East, 210; Lang- dell's Cases on Sales, 647, 651 ; Olyphant v. Baker, 5 Denio, 379 ; Lang- dell's Cas^s on Sales, 635. And see Campbell on Sales, 231-233, 268-273 ; Blackburn on Sales, 1, 2. 162. Assumption of risk. Instances of. The pur- chaser has been held to be liable for the price as assum- ing the risk of delivery, irrespective of whether there had been a change of property, where the contract pro- vided that he should take upon himself "all risks and dangers of the seas, rivers, arid navigation, of whatever nature or kind soever" j 1 and similar views have been maintained where the goods paid for in advance and destroyed by fire before they were weighed, were to be " at seller's risk for two months " ; 2 but in a case where goods were lost with a vessel which sank while loading, no sufficient intention has been deemed manifested by the fact of the buyer's insurance of the goods, and the terms of the policy, that the purchaser should assume the risk of loss before the property has vested in him. 3 $ 163 TRANSFER OF TITLE. 236 Recovery of price of destroyed goods. Where the pay- ment for specific goods sold on credit is to be made at so much by the pound, or bushel, or the like, and the price is not ascertained and cannot be ascertained with precision, 4 in consequence of the goods being lost or de- stroyed, the seller may, nevertheless, recover the price, 5 if the risk is clearly thrown on the purchaser, by ascer- taining the price, as nearly as may be, by evidence competent for the purpose. 6 1 Castle v. Playford, Law R. 5 Ex. 165 ; Law R. 7 Ex. 98 ; 1 Eng. Bep. 204. 2 Martineau v. Kitching, Law R. 7 Q. B. 436 ; 2 Eng. Rep. 539. 3 Anderson v. Morrice, 1 App. Cas. 713 ; Law R. 10 Com. P. 58, 609. 4 Price generally : See previous chapter on subject. 5 See citations in next note. 6 See Martineau ?. Kitching, Law R. 7 Q. B. 4o5, 456 ; 2 Eng. Rep. 531; Alexander v. Gardner, 1 Bing. N. C. <>7t ; Lungdell's Cases on Sales, 810; Turley r. Bates, 2 Hurl )J ; Chitty on Contracts (8th Am. ed.), p. 332. See section on T.HAXSFER OF TITLE WITHOUT PAYMENT on DEUVKRY. For source of points and authorities in this and next section, see Fergu- RTI ?. Northern Bank of Kentucky, 14 Bush. 4-35; 2J Am. Rep. 418; First Nat. Bank v. Me Andre ws. 5 Mont 325 ; 51 Am. Rep. 51 ; wetzet r. Power, 5 Mont. 217; Bennett's Benjamin on Sales, 315, n./, hero citi:>g following cases: Jnd.~ Lester v. East, 49 Ind. 5?S. JTv. Sweeney v. Ousley, H Mon. B. 413; BufFington v. Ulen, 7 Bush, S3 ; Willis v. Willis, 6 Dann, M ; Crawford v. Smith,? Dana, 59,60. Ohio Hoobun v. Biclwell, 16 Ohio, 509. Mass. Rice v. Codman, 1 Allen, 377; Gardners. Lane, 9 Alien, 493 ; Thayer v. L".pham, 13 Allen, 28; "Warden v. Marshall, 99 Mass. 305 ; Merchants' Nat. Bank v. Bangs, 302 Mass. 295; Marble v. Moore, 102 Mass. 4-H ; Martin v. A'toms, 104 Mass. 262 ; Morse v. Sherman, 10f> MP.SS. 430, 4,2, 4"-'\ J\fe. Merrill ?-, Parker, 24 Me. 83 ; Wing v. Clurk, 24 Me. 303 ; Waldron v. Chase, 7 Me. 4'4; Moans r. Williamson, 37 Me. 5-'6; Webber v. Paris, 44 M^, J47; Hotchkiss v. Hunt, 49 Me. 2H; Chase v. Willard, 57 Me. 157; Phillips v, Moor, 72 Me. 78. 3 r . /T. Page v. Carpenter, 10 N. H. 77 ; Felton v. Fuller, 29 N. H. 121 ; Bailey r. Smith, 43 N. H. 153. jy. Y. - Olyphant v. Baker, 5 Denio, S7 :) ; Langdell's Cases on Sal^s, 6: ri, t>: 7 ; Terry r. Wheeler, 25 N, Y. 520, 524, 55 ; Bigl^r r. Hall, 54 N. Y. 167. .A r . C. Hurlbnrt v. Simpson, 3 Ired. 233. 8. C. Fnwr r, Hilliard, 2 Strob. 309. federal Decision Barrett r, Goddard, 3 Mason, 107, 110. 3 Terry r. Wheeler, 25 N. Y. 520 ; Langdell's Cases on Sales, 706. $ 165. Delivery sufficient to pass title. Marking landed logs. A survey of a large quantity of logs, landed on a stream preparatory to driving by a person mutually agreed upon by the parties to a sale, and the vendor's putting the purchaser's mark on the logs as they were thus landed, has been held to constitute a sufficient delivery to pass the title, even as against subsequent pur- 239 TRANSFER OF TITLE. \ 165 chasers, 1 although by the terms of the contract of sale the vendor was bound to deliver the logs at a specified place many miles below the landing. 2 Piano left to be finished. And evidence has been held sufficient to authorize a jury to find a delivery of a piano sufficient to pass the title even as against a subse- quent purchaser, where it appeared therefrom that a person offered to purchase a piano at the shop of the maker if he would finish it ; that the offer was there- upon accepted, and a bill of sele made; and that the price was paid at a subsequent day, the piano being left to be finished. 3 Delivery to common carrier. It has been held that delivery to a common carrier prima facie vests the right to the immediate possession of the property in the consignee ; that the law implies by delivery to the car- rier that the goods become the property of the con- signee ; and that the effect of a consignment of goods by a bill of lading is to vest the property in the consignee. 4 Shipment to consignee. But the mere act of shipment would not have the effect to vest the title in the con- signee in a case where the consignee had never seen or accepted the property, where there had been no bill of lading nor any notice of shipment, and where the con- signor paid freight, and had the right to recall the goods or to change their destination, while the agree- ment under which the goods were shipped provided that the property should riot be credited to the account of the consignor until the same had actually been received and sold by the consignee. 5 1 Bethel Steam Mill Co. v. Brown, 57 Me. 9. 2 Bethel Steam Mill Co. v. Brown, 67 Me. 9. And see Dyer v. Llbby, Cl Mo. 4"> ; Filkins v. Whylaiul, 2i N. Y. 341 ; Russell v. Car- rington, 4'i N. Y. J!3 ; 1 Am. Rep. 493 ; Cummings v. Griggs, 2 Duval, 87 ; Bertelson v. Bower, 81 Irid. 512. 3 Thorndike t. Bath, 114 Mass. 116. And see Bates v. Coster, 3 Thomp. & C. cJO. 166 TRANSFER OF TITLE. 240 4 Wetzel v. Power, 5 Mont. 217 ; S. C. 2 Pac. Rep. 338. See Walsh v. Blakely, 9 Pac. Rep. (Mont.) 809. 5 First Nat. Bank v. McAndrews, 5 Mont. 325 ; 51 Am. Rep. 51. 166. Delivery as prerequisite to transfer of title. Where engagement to deliver at certain place, etc. The general rule is that title will not pass until delivery, if it is a part of the contract of sale that the seller shall deliver the property sold at some place specified, and receive payment on delivery, 1 and it is declared that the property in a specified chattel bought in a shop, to be paid for upon being sent home, does not pass before delivery, 2 and that if by the terms of the contract the seller engages to deliver the thing sold at a given place, and there be nothing to show that in the mean time the thing sold was to be at the risk of the buyer, the con- tract is not fulfilled by the seller unless he delivers it accordingly. 3 Applications of rule. The general rule has been ap- plied to the shipment of the cargo of a vessel captured after war had been declared between the United States and Great Britain, and claimed by the consignees, who were American citizens ; 4 to the loading of a buyer's barges with coal, which was attached by the seller's creditors before the barges could be floated to the place of destination; 5 to determine the place of sale on the setting apart of bottles of liquor afterwards carried to the purchaser; 6 and to a case where there was de- ficiency claimed in the quantity of milk in cans sent to the buyer by railroad. 7 Shipment to pay for advances. The rule 8 is that if there is a mere agreement to ship goods or produce to pay for advances, the property shipped would not belong to the consignee until actually received and possessed by him. 9 But if the agreement appropriates specific property to the payment of such advances, and 241 TRANSFER OP TITLE. 167 such appropriation is evidenced and authenticated by a bill of lading, then the title to the property passes to the consignee by a delivery to the carrier. 10 1 1 Corbin's Benjamin on Sales, 325, giving illustrations later stated. But Slight evidence is accepted as sufficient to show tiiat title passes immediately on thes.i!" though the seller is to make a delivery : 1 Corbin's Benjamin on Sales, 325. Compare 2 Schouler out Personal Property, 245. 2 See 1 Smith's Leading Cases (Eng. ed. 1879), p. 1G4. 3 Calcutta Co. v. De Mattos, Law J. 32 Q. B. 322, 355. See Bennett's Benjamin on Sales, # oGO, n. e t asserting that the statement made in the text as to goods bought in a shop is perhaps correct as one of presumption, but that the real test is the intention of the parties to make delivery by the vendor in the nature of a condition precedent. And citing Boynton v. Veazie, 24 Me. 2Sfi; Weld r. Cane, 98 Mass. 352; Lint v. Woodhall, 113 Mass. 394; Goddard v. Binney, 115 Mass. 455 ; 15 Am. Hep. 112. 4 The Venus, 8 Cranch, 253, 275. 5 Swenthers v. Grubbs, 88 Pa. St. 147, 150. And see Fry v. Lucas, 29 Pa. St. 35(> ; McCandlish v. Newman, 22 Pa. St. 4^0.. 6 Commonw. v. Greenfield, 121 Mass. 140. And compare Suit v. Woodhall, 113 Mass. 391, 394. 7 Devine v. Edwards, 101 111. 138. See further on this subject, The Elgee Cotton Cases, 22 Wall. 180, 192 ; Holliday v. Hamilton, 11 Wall. 560, 504 ; Thompson v. Cinn. B,. R. 1 Bond. 152 f Pierson v. Hoag, 47 Barb. 243 ; Underbill v. Muskegon Boom Co.' 40 Mich. 660. 8 Clearly illustrated by the case of Holliday v. Hamilton, 11 Wall. 564. 9 First Nat. Bank v. McAndrews, 5 Mont. 325 ; 51 Am. Rep. 51. 10 First Nat. Bank v. McAndrews, 5 Mont. 325 ; 51 Am. Rep. 51. $ 167. Delivery not such prerequisite. Express or im- plied intent. Although the general rule makes delivery when stipulated to be made at a particular place a pre- requisite to the transfer of the title, 1 yet property passes at once on the sale, if such is the intent, though the seller is afterwards to make a delivery of the goods ; a and such intent may be expressly declared, 3 or may be inferred from circumstances. 4 When intent inferred. And in the absence of an ex- press agreement, the intent that title shall pass at once by the contract, although the seller is to deliver, is in- ferred where the buyer is to give notice of time or place of delivery, 5 where payment in full is made, 6 where NirwMAiiK SALES. 21. ? 168 TRANSFER OF TITLE. 242 the buyer employs the seller to remove the property, 7 or where there is other evidence that the continued possession of the seller is merely for the convenience of the buyer, 8 or that the removal of the goods is made by the seller as agent for the buyer ; 9 nor where the sale appears to be absolute, the identity of the thing iixed, and the price for it paid, is there room for an in- ference that the property remains the seller's merely because he has engaged to transport the goods to a given point. 10 1 See last section, on DELIVERY AS PREREQUISITE, etc. 2 1 Corbin's Benjamin on Sales, \ C29. 3 As in Lynch ?'. O'Donnell, 127 Mass. 311. Compare Common w. v. Greenfield, 1-1 Muss. 40. 4 See citations in succeeding notes. 5 Weld v. Cane, 98 Mass. 152. And see Higgins v. Cheesman, 9 Pick. 7. 6 See Terry v. Wheeler, 25 N. Y. 525. 7 Lingham v. Eggleston, 27 Mich. 324. And see Whitcomb v. Whitney, 24 Mich. 486 ; Newcomb v. Cabell, 10 Bush, 460,468 ; Shelton v. Franklin, 68 111. 333, 338. 8 See Bethel Steam Mills Co. v. Brown, 57 Me. 9. 9 Hobbs v. Carr, 127 Mass. 532. And see Terry v. Wheeler, 25 N. Y. 5-5. 10 Terry v. Wheeler, 25 N. Y. 520, 525. And see Hunter ?-. Wetsell, 84 N. Y. 549, 555; Gray r. Mayor of New York, 46 N. Y. Sup. Ct. 4n4. Compare Bethel Steam Mills Co. v. Brown, 57 Me. i) ; Boynton r. Veazie, 24 Me. 286; Underbill v. Boom Co. 40 Mich. 6f>0 : Mutikegon Boom Co. r. Underbill, 43 Mich. 629. And consult 1 Corbin's Benja- min on Sales, \\ 330-332, stating illustrations given in paragraph. 163. Estoppel of seller. By active inducements, etc. In general, if the seller by his words or conduct act- ively induces the buyer's creditors to believe that the buyer's title to an article is absolute and unconditional, he will be estopped from afterwards setting up the con- ditions of that sale as against such creditors. 1 Delay in bringing replevin, etc. But when the buyer's creditors get possession wrongfully, delay of a few months in bringing replevin for the chattels, though expense was incurred by the wrong-doer in the care of 213 TRANSFER OF TITLE. g 169 them in the mean time, cannot be set up as an estoppel to the seller, 2 if the latter never induced the taking or withholding of the chattels. 3 1 Wy lie's Appeal, 00 Pa. St. 210. So one who puts chattels into the hands of another, with the understanding that the latter shall s^ll them as his own, is estopped from asserting his title as against an attaching creditor of the bailee representing himself to be the owner : Drew v. Kimball, 43 N. II. 282. 2 Hull v. Hull, 48 Conn. 250. 3 Hull v. Hull, 48 Conn. 250 ; 2 Schouler on Personal Property (2d e'l.), p. 554, 54', whence this and last paragraph derived. Estoppel of bankrupt manufacturer and his assignees by obtaining part pay- ment for engine on false representation that it was finished: Ex parte Bockford K. K. Co. 1 Low. 345. See 2 Scbouler on Personal Property (2d ed.), \ 543. 169, Estoppel of warehouseman, etc. Against seller and sub-buyer. Upon the principle of estoppel, ware- housemen and other bailees may render themselves liable not only to the sub-buyer, because of conduct in- ducing him to take a course otherwise prejudicial to his interests, 1 but also to the original seller, if such con- duct was unauthorized by him, and the goods should have continued to be held for him. 2 By attornment to sub-vendee. Whatever might be the rule between buyer and seller, 8 a warehouseman or agent who has once attorned to a party as sub-vendee cannot afterwards disaffirm his acts and admissions,* and dispute the sub-vendee's title to the goods. 5 By keeping delivery order. So it has been held in the British provinces of America that where a warehouse- man receives from a vendee the delivery order of a vendor, arid keeps it for over a month in his possession without notifying the vendee that the property docs not belong to the person who made tfie delivery order, such warehouseman is liable to the vendee for tlie goods mentioned in the order. 6 1 2 Schouler on Personal Property (2d ed.), | 544, Liability to ori,?aial buyer : See later paragraph of section. 2 2 Scuouler on Personal Property (2d ed.), \ 544. I 169 TRANSFER OF TITLE. 244 3 See Stonard v. Dunkin, 2 Camp. 344 ; Langdell's Cases on Sales, 653. 4 2 Schouler on Personal Property (M ed.), \ 544. 5 See Stonard v. Dunkin, 2 Camp. 344 ; Langdell's Cases on Sales, 653 ; Hawes v. Watson, 2 Barn. & C. 540 ; Langdell's Cases on Sales, 65,? ; Gosling v. Birnie. 7 Bing. 339 ; Gillett v. Hill, 2 Cromp. & M. 536 ; Langdell's Cases on Sales, 755; Hall v.C ' . Griffin, 10 Bing. 246 ; Lucas v. .. .. ___ .. . sventry, 2 Hurl. & C. 164 : 32 Law J. Ex. 187; Langdell's Cases on Sales, 760; Bennett's Benjamin on Sales (4th Am. ed.), p. 81)3, $ 781, so citing these cases, and referring also to Swamvick v. Southern, 9 Ad. & E. 8;>5 ; Langdeli's Cases on Sales, 673 ; Biddle v. Bond, 6 Best & Smith, 225 ; 34 Law J. Q. B. 137 ; Knights v. Wiffen, Law R. 5 Q. B. 660 ; Langdell's Cases on Sales, 766 ; Barnard v. Campbell, 55 N. Y. 456 ; Voorhis v. Olmstead, 66 N. Y. 113 ; Schouler on Bailments, 119. A warehouseman is estopped from denying the title of the one to whom he gives his receipt: Chapman v. Searle, 3 Pick. 38, 43 ; Hurff v. Hires, 40 N. J. L. 531, 5jl ; Adams v. Gorham, 6 Cal. 63 ; Goodwin v. Scaxwell, 6 C.il. 541 ; as cited, 2 Cor- biu's Benjamin on Sales (Am. ed.), p. 1007, 1155, n. 12 ; which also refers in note a to Farmeloe v. Bain, Law R. 1 C. P. D. 445 ; Water- house v. London etc. By. Co. 41 L. T. N. S. 553 ; Simm v. Anglo-Amer. Tel. Co. 5 Q. B. D. 1S8 ; Webb v. Herne Bny Commrs. Law B. 5 Q. B. 6-12 ; I'l re Bahia etc. By. Co. Law B. 3 Q. B. 584 ; Hart v. Frontino Gold Mg. Co. Law B. 5 Ex. ill. 6 See Twining v. Oxford, 2 Thomson, IS ; Hogan v. Frederickton Boom Co. 2 Pugs. . N. S. 2-iS; quoted, Barnard v. Campbell, 55 N. Y. 450, 4G9. And see Leigh v. Mobile etc. R. B. Co. 58 Ala. 165, 176. 4 Fawcett v. Osborn, 32 111. 425; 83 Am. Dec. 278, 282. And see McCully v. Hardy, 1.J 111. App. 631. 5 Se Wright v. Solomon, 19 Cal. 64 ; 79 Am. Dec. 196, 202 ; Klein v. Seibold, 89 111. 540, 542. 6 Nemo plus juris ad allum transferre potest quam ipse habet: Broom's Legal Maxims, 45-'; quoted, Barnard v. Campbell, .>> .V \ . 456, 460. And see Ventress v. Smith, 10 Peters, 161, l2, 893 ; Barnard v. Campbell, .>"> X Y 413 ; S.iltus r. Everett, 20 Wend. 207 ; 32 Am. Dec. 541 ; Stanley v. Gaylord, 1 Cush. 536 ; 48 Am. Dec. 643. 15 See the Brig Sarah Ann, 2 Sum. 211. 16 See The Brig Sarah Ann, 2 Sum. 211. Same effect, according to Bennett's Benjamin oa Sales, ? 6, n. a ; Hubbarcl v. Bliss, 12 Allen, 5.:0; Carpenter v. Hale, 8 Gray, 157; First Ward Nat. Bank v. Thomas, 125 Mass. 278 ; Cartland v. Morrison, 32 Me. ICO ; Webber v. Davis, 44 Me. 147. Reference is also made in note mentioned to Tome v. Dubois, 6 Wall. 551 ; Boynton r. Willard, 10 Pick. 16<> ; First Net. Bank v. Crocker, 111 Mass. 163; Hassell v. Borden, Hilt. 128; Z: -briskie v. Smith, 3 Kern. 22. 17 See Bruce t. Bishop, 43 Vt. 161, 163. 18 See g CS, under chapter on THIXG Soi/n. 11 Bennett's Benjamin on Sales, 6. And see Story on Sales, ?9 1^5, I 0/ i ; 2 Schouler on Personal Property, \\ 209, 210 ; 2 Kent Com. 463 ; Low v. Pew, 108 Mass. 347 ; 11 Am. Rep. G57. \ 172. Goods in another's wrongful possession. JVb sale by wrongful possessor. One wrongfully in posses- sion of goods J cannot sell them, 2 I 251 BONA FIDE PURCHASERS. \ 173 No transfer, formerly, of goods adversely claimed. And it was formerly held that no transfer could be made of goods held by another under adverse claim of title, 3 because such claim was considered a mere chose in action, 4 and therefore 5 not assignable. 6 Different modern view. But these cases seem to be against the modern authorities which proceed upon the theory that the owner is not bound to treat an invasion of his right as a tortious conversion, but may waive the tort and sell and convey a good title. 7 1 Possession in general : 2 Bouvier Law Diet. (14th ed.) 349. 2 1 Corbin's Benjamin on Sales, 6, n. 1, citing following cases: Me,. Prime v. Cobb, 63 Me. 200. Mass. Pearce v. Bowker, 115 Mass. 12!) ; Moody ?>. Blake, 1 17 Mass. 23 ; 19 Am. Rep. 304. JV. Y. Saltus v Everett, 20 Wend. 267 ; 32 Am. Dec. 541 ; Hoffman v. Carow,22 Wend 285, 2;)0 ; Brown v. Peabod y, 13 N. Y. 121 ; Wooster v. Sherwood, 25 N. Y. 278, 286; McGoldrick v. Willotts, ">2 N. Y. 612. Jff. J. Rucl:- man v. Decker, 8 Green, C. E. 283. III. Fawcett v. Osborn, 32 111.411 ; 83 .Am. Dec. 278; Creighton v. Sanders, 89 111. 543. Fed. Cts. The Fanny, 9 Wheat. 658 ; Ventress v. Smith, 10 Peters, 176. 3 See citations later given. 4 See that title : 1 Bouvier Law Diet. (14th ed.) 265. Consult, also, 1 Schouler on Personal Property, 11. 5 See 1 Schouler on Personal Property, 72. 6 1 Corbin's Benjamin on Sales, 6, n. p. 13 ; citing, Gardner v. Adams, 12 Wend. 2C7 ; Overtoil v. Williston, 31 Pa. St. 100 ; Dunklin v. Wilkins, 5 Al-u 190 ; Young v. Ferguson, 1 Litt. 298 ; Stogdelv. Fugate, 2 Marsh. A. K. 136. 7 See Tome v. Dubois, 6 Wall. 548 ; Hall v. Robinson, 2 N. Y. 293; criticising Gardner v. Adams, 12 Wend. 2.-I7 ; Cartland v. Morrison, 32 Me. 190 ; Webber v. Davis, 44 Me. H7 ; Carpenter v. Hale, 8 Gray, 157 ; so cited, 1 Corbin's Benjamin on Sales, \ 6, n. p. 13. 173. Judicial salos. Governed by general rule. It is, as has been shown, 1 a general rule of law, though subject to many exceptions, that no man can by his sale transfer to another the right of ownership in a thing wherein he has no property. 2 Nor is the rule different where the purchaser takes his title through a judicial sale. 8 No warranty of title. For in all such sales the doc- trine of caveat emptor applies, 4 since the officer selling has no power to warrant the title, while the purchaser g 174 BO^'A FIDE PURCHASERS. 252 is presumed to have examined the title, and to know what he is acquiring by his purchase. 5 1 See ? 170, qn GENERAL, DOCTRINES. - McCully v. Hardv, 13 111. App. 631 ; citing, Fawcett v. Osborn, 32 111. 411 ; 83 Am. Dec. 278 ; Burton v. Curyea,40 111. 320 ; Jones r. Nellis, 41 111. 432 ; Gibbs v. Jones, 46 111. 329 ; Klein v. Seibold, 89 111. 540. 3 McCully v. Hardy, 13 111. App. 631. 4 See Forev. McKenzie,48 Ala. 115, 117. Caveat emptor in general : See Lynch v. Postelthwaite, 7 Martin N. S. 183 ; as noted, Wiufield's VTords and Phrases, 96 ; also, Hargous v. Stone, 5 "N". Y. 73 ; Broom's L"<\ 604, (iiO, 611; Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196, 202; Putnam v. Lamphier, 36 Cal. 151, 158. 4 See citations in next note. 5 Leigh ;. Mobile etc. R. R. Co. 58 Ala. 165, 178, 179 ; citing, Hoff- man v. Noble, 6 Met. 73 ; 39 Am. Dec. 711 ; Moody v. Blake, 117 Mass. 23 ; 19 Am. Rep. 394. NKWMAKK SALKS. 22. g 175 BONA FIDE PURCHASERS. 254 6 See Putnam v. Lamphier, 36 Cal. 151, 153 ; Fawcett ?'. Osnorn, 32 111. 411 ; 83 Am. Dec. 278 ; Jennings r. Gage, 13 111. 610 ; 56 Am. Dec. 476, 480 ; referring to Bradeen v. Brooks, 2 1 } Me. 463 ; Dresser Manuf. Co. v. Waterston, 3 Met. 9 ; and 2 Kent Com. 497. 7 See citations in next note. 8 Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 176, 177 ; citing, Sumner v. Woods, 52 Ala. 94 ; Dudley v. Abner, 52 Ala. 572, apparently on va- lidity of condition between the parties. But this exception to the general rule, which is founded on the policy of the registration laws, is confined to cases where there has been an actual sale, as well as a change of possession : Leigh v. Mobile etc. R. R. Co. 58 'Ala. 165, 177; citing, Lehigh Co. v. Field, 8 Watts & S. 232 ; Lester v. McDowell, 18 Pa. St. 91 ; Chamberlain v. Smith, 44 Pa. St. 431. 9 See Saltus v. Everett, 20 Wend. 278 ; 32 Am. Dec. 541 ; note to Williams v. Merle, 11 Wend. 80 ; 25 Am. Dec. 611, 612. 10 Leigh v. Mobile etc. R. R. Co. 53 Ala. 165, 178. 11 Leigh ?-. Mobile etc. R. R. Co. 58 Ala. IBs, 178. And see Barstow 7\ Savage Mining Co. 64 Cal. 38S ; 49 Am. Rep. 705 ; quoting, McNeil r. Tenth Nat. Bank, 46 N. Y. 325; and distinguishing Winter v. Bel- mont Mining Co. 53 Cal. 428. Compare Arnold v. Johnson, 66 Cal. 402. 175, Ostensible ownership or authority. Possession alone. Possession is prima facie evidence of the owner- ship of all species of personal property. 1 But the mere possession of goods, without some other evidence of property, or of authority from the owner to sell, will not enable the possessor to transfer a better title than he has himself. 2 Whoever deals alone on the faith of p'os- session of the goods, must accept it as such, and in subordination to the paramount title, which would pre- vail over it, if the possession was not changed by the transaction into which he enters. 3 And a case does not fall within the exception unless the owner confers on the vendor other evidences of ownership, or of authority to dispose of the goods, than mere possession. 4 Indicia of title also. But the real owner suffering the vendor to have the possession, and delivering to him documentary evidence of title, thus enables him to hold himself out to the world as the true owner, and if any loss happens, 5 he who has thus clothed the vendor with the power to deceive ought to bear the loss. 6 Apparent ownership or right of selling. The question which determines in such cases whether the purchaser 255 BONA FIDE PURCHASERS. \ 176 is protected or not, is whether the real owner has con- ferred on the vendor the apparent ownership or right of selling. 7 For when the owner of property confers upon another an apparent title to, or power of disposition over it, he is estopped from asserting his title as against an innocent third party who has dealt with the apparent owner in reference thereto, without knowledge of the claim -3 of t'le true owner. 8 And the owner of corporate stock who voluntarily delivers the indorsed certificates to a third person, and thus allows him to assume the apparent ownership of the stock, cannot, at least without payment of the debt secured, recover the same from a bonafide pledge of the apparent owner. 9 1 Leigh r. Mobile etc. "R. R. Co. 58 Ala. 165, 178. And see Fawcett ?;. Osborn,32 111. 411; 83 Am. Dec. 278, 282, n. 285; citing, Avery v. demons, 46 Am. Deo. 323 ; Magee v. Scott, 55 Am. Dec. 49 ; Dick v. Cooper, 04 Am. Dec. 652. 2 See Covill v. Hill, 4 Denio, 323 ; Barstow v. Savage Mining Co. 64 Cal. 333, S'Jl ; 49 Am. Kep. 705. 3 Leigh v. Mobile etc. R. It. Co. 58 Ala. 105, 178. If this was not true, a felon acquiring possession by theft could, by a sale to the true owner of his property, and a naked bailee, intrusted with possession, dispose of goods to the prejudice of his principal: Leigh v. Mobile etc: R. R. Co. 53 Ala. 165, 17 .>. Bnt these things they cannot do ; See $ 176, on PuiiciiASK OK STOLEN GOODS, and 2 184, on UNAUTHORIZED SALES BY BAILEES. 4 McMahon v. Sloan, 12 Pa. St. 22f> ; as cited in Leigh ?>. Mobile etc. R. R. Co. 53 Ala. 165, 17!); whic-h reviews Anrlr -ws v. Dietrich, 14 Wend. 31 ; Sultus v. Everett, 20 Wend. 267; 32 Am. Dec. 541; Pickering v. Busk, 15 East, 38. 5 See Saltus v. Everett, 20 Wend. 278 ; 32 Am. Dec. 541 ; quoted in note to Williams v. Merle, 25 Am. Dec. 612. 6 Fawcett v. Osborn, 32 111. 411 ; 83 Am. Dec. 278, 284. And see Jennings v. Gage, 13 Ul. 610 ; 56 Am. Dec. 476, 4. .). 7 See note to Williams v. Merle, 25 Am. Dec. 612. 8 McNeil r. Tenth Nat. Bank, 46 N. Y. 325 ; as quoted, B?rstow v. Savage Mining Co. 64 Cal. 333, 39:5 ; 49 Am. Rep. 705. 9 Arnold v. Johnson, 66 Cal. 402 ; distinguishing. Barstow ?.. Savage Mining Co. 64 Cal. 383; 4J Am. Rep. 705; referring to Ambrose v. Evans, 66 Cal. 74. 176. Purchase of stolon goods, No transfer of title. A thief cannot acquire any title to stolen property, by means of a larceny thereof, and as he has no rightful possession against the true owner, he can confer no title 176 BON A FIDE PURCHASERS. 256 thereto on his vendees. 1 And where goods or other kinds of property have been stolen, or taken by robbery, no sale, or number of sales, can affect the title of the true owner ; 2 so that however remote the buyer may be in the chain of transfers, the owner can recover the goods from him. 3 Liability for conversion. Hence it may be generally stated that the consummated purchase of stolen goods is a con version, 4 at least if the buyer retains the property and withholds it from the true owner after demand, 5 or otherwise exercises direct dominion over it, as by letting it to a third person. 6 Good faith of purchaser. And it is immaterial that the purchase is made in the best of faith, for full value, and without knowledge or notice of the theft, 7 as in the case of a stolen horse bought at public auction, 8 in utter ignorance of the larceny or the owner's rights; 9 for' though a party who honestly and fairly, and for a valuable consideration, buys goods of one who has stolen them, is not liable to be charged criminally, be- cause innocent of any intentional wrong, yet as he ac- quired no rights under his purchaser, the owner may avail himself against him of all civil remedies provided by law for the protection of property. 10 Thus, it has been held that where stock of a corporation stands on the books in the name of one party, and the stock is owned by another, from whom the certificates, though properly indorsed, are stolen without the fault of such other, the thief can pass no title to an innocent pur- chaser of the certificates, and the owner may pursue his property though it has been still further transferred. 11 Character of larceny. Nor does it matter whether the possession of the goods be obtained by stealth, as in larceny at common law which required asportation by trespass, or they are intrusted to the party as in statu- 257 BONA FIDE PURCHASERS. 177 tory larceny, like that committed by a farm laborer who sold his employer's wheat which he had persuaded his master's wife to deliver to him, 12 provided the owner did not intend to part with the title, so as to make the offense that of obtaining goods by false pretenses. 13 1 See Breckenridge v. McAfee, 54 Ind. 141 ; Hoffman v. Carow, 20 Wend. 21 ; Cundy v. Lindsay, Law R. 3 App. C. 463 ; 24 Eng. Hep. 345 ; Galvin v. Bacon, 2 Fairf. 30, 31 ; 25 Am. Dec. 25S ; note to Williams v. Merle, 11 Wend. 80 ; 25 Am. Dec. G04, 606. 2 Parham v. Riley, 4 Cold. 9. It is well known to be the general rule that a thief acquires no title to the stolen property and that he can pass none : Barstow v. Savage Mining Co. 64 Cal. 388 ; 49 Am. Rep. 705. 3 See " Conversion by Purchase," 15 Am. Law Rev. 363, 366 : 2 Schouler on Personal Property, 18. 4 Sharp v. Parks, 48 111. 511. 5 Barrett v. Warren, 3 Hill, 348. See " Conversion by Purchase," 15 Am. Law Rev. 363, 3P6, 377. 6 Gilmore v. Newton, 9 Allen, 171. 7 See Lee v. Bayes, IS Com. B. 599 ; " Conversion by Purchase," 15 Am. Law Rev. 363, 366 ; 2 Schouler on Personal Property, 19. Bonn, fide purchaser of stolen mining stock : Barstow v. Savage Min- ing Co. 64 Cal. 388 ; 49 Am. Rep. 705. Property given in exchange for stolen goods not recoverable from bona fide purchaser: Sadler v. Lewers, 42 Ark. 148. 8 Lee v. Bayes, 18 Com. B. 599. 9 Robinson v. Shipworth, 23 Ind. 311. 10 Galvin v. Bacon, 2 Fairf. 30, 31 ; 25 Am. Dec. 258. 11 Barstow v. Savage Mining Co. 64 Cal. 388 ; 49 Am. Rep. 705 ; dis- tinguishing, Winter v. Belmont Mining Co. 53 Cal. 428. 12 Breckenridge v. McAfee, 54 Ind. 141. What constitutes larceny : See Mowry v. Walsh, 8 Cowen, 238. 13 Florence Sewing Machine Co. v. Warford, 1 Sweeny, 433 ; Wil- liams r. Given, 6' Gratt. 268. See " Conversion by Purchase," 15 Am. Law Rev. 363, 367, referring further to misleading views in Andrews v. Dieterioh, 14 Wend. 34, and Mowry v. Walsh, 8 Cowen, 238, and to correct rulings in Malcolm v. Loveridge, 13 Barb. 372 ; Keyser v. Har- beck, 3 Duer, 373. \ 177. Liability of agent or bailee, Sale by auctioneer or broker. Even the auctioneer who receives and sells stolen goods, and delivers the proceeds to the thief, is liable in trover to the true owner 1 without demand, al- though such auctioneer did not know or have reason to suspect that the goods were stolen ; 2 and the same is true of the broker who sells on commission stolen stocks brought to him by a stranger. 3 178 BOX A FIDE PURCHASERS. 258 Transfer by agent or bailee. So if the bailee of stolen goods sells them, though in good faith, he cannot escape liability to the true owner for their value. 4 But there is 110 such liability in the case of stolen negotiable in- struments like interest coupons of United States bonds, on the part of one who in good faith and without gross negligence received them as an agent for exchange from a party to the theft, and on transferring them by delivery paid the proceeds to his employer, without benefit to himself and without demand or notice. 5 Return to depositary. And there is no liability in conversion to the owner on the part of a mere naked bailee who voluntarily returns stolen property to the depositor, as an innkeeper who thus redelivers a horse which he knew to have been stolen. 6 1 See Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. ISO, 185 ; quoting, Hills v. Snell, 104 Mass. 173 ; 6 Am. Rep. 216. 2 Hoffman v. Carow, 20 Wend. 21 ; 22 Wend. 2S5. And see 2 Schouler on Personal Property, \ in ; 1 Corbin's Benjamin on Hales, ? rt. n. 2 ; citing, also. Knapp r. Hobbs, 50 N. IT. 47fi ; Dudley v. Haw- ley, 40 Barb. 397 ; Cobb r. Dows, 10 N. Y. 335 ; Sharp v. Parks, 48 111. 511 ; Story on Agency, 312. 3 Bercich v. Marye, 9 Nev. 312. 4 Kramers. Faulkner. 9 Mo. App. 34 ; following, Koch r. Branch, 44 Mo. 542. Cal. 428 ; disting 49 Am. Rep. 705. N. N. Y. 477. And consult 1 Corbin's Benjamin on Soles, { 6, n. '_' ; citing, further, on depositary's return of stolen goods to depositor, Hill v. Hays, 38 Conn. 532 ; Dudley v. Hawley, 40 Barb. 397. \ 178. Markets overt. Nature. The ancient excep- tion, which still subsists in England, to the rule that no purchaser, however innocent, can obtain title to stolen goods, related to transfers in markets overt, 1 which comprised those open markets or fairs where the 259 BONA FIDE PURCHASERS. $ 178 owner was supposed to have the amplest opportunity to make pursuit of his property, and prevent its sale. 2 Place of operation. Custom sanctioned their estab- lishment in the country at designated spots, and their operation thereon particular days; 3 while within the ancient limits of London, 4 now comprising the business quarter called the city, 5 their protective function was extended on every week-day to every shop in this region, for its special class of goods. 6 Requisite of good faith. Wherever situated, the market was, and still is, required to be open, public, and legally constituted, 7 while the time, place, and manner of sale were subject to special regulations, mainly to insure good faith; 8 though this would ordinarily be presumed from the character of these markets, w T here those who had lost property, by theft or otherwise, could be present and make known their loss, while every assurance of good faith was given by the publicity of the transaction. 9 1 See 2 Blackst. Com. 449 ; 2 Bouvier Law Diet. (14th ed.) 105 ; 2 Sohouler on Personal Property, ? 19 ; Hilliard on Sales (1st ed.), 23 ; Fawcett v. Osborn, 32 111. 425 ; 83 Am. Dec. 278, 283 ; Gundy v. Lindsay, Law R. 3 App. C. 463 ; 24 Eng. Rep. 345. Innocent sale of stolen cattle for thief by public salesmaster : Delaney v. Wallis, 14 Law R. Ir. 31 ; noted, 32 Week. R. Dig. 213. 2 Crane v. London Dock Co. 33 Law J. Q. B. 224 ; " Conversion by Purchase," 15 Am. Law Rev. 363,368; note to Williams v. Merle, 25 Am. Dec. 607. 3 Benjamin v. Andrews, 5 Com. B. N. S. 299 ; 27 Law J. M. C. 310. 4 Anon. 12 Mod. 521. 5 See Lee v. Bayes, 18 Com. B. 599, 601. 6 See 2 Blackst. Com. 449; 2 Bouvier Law. Diet. (14th ed.) 105; " Con- Market. E. ; Lyons v. De Pass, 11 Ad. & E. 326 ; Crane v. The Lon- don Dock Co. 5 Best & Smith, 313 ; 33 Law J. Q. B. 224. And consult Campbell on Sales, 55; 2 Schouler on Personal Property, 19 ; note to Williams v. Merle, 25 Am. Dec. 607. 7 Lee v. Bayes, 18 Com. B. 599 ; Benjamin v. Andrews, 5 Com. B. N. S. 299 ; 27 Law J. M. C. 310. 179 BOXA FIDE PURCHASERS. 260 8 See Crane r. London Dock Co. 5 Best 8 ; 2 Blackst. Com. 450; 2 Bouvier Law Diet. (14th ed.) 105; note to Wil- liams r. Merle, 25 Am. Dec. 608. 9 Fawcett v. Osborn, 32 111. 411, 426 ; 83 Am. Dec. 278, 283. 179 . Extent of exemption. Restrictions on protection. The unassailable title acquired by a purchaser of stolen goods in market overt in England does not cover 1 sales by sample, 2 nor probably sales to a shopkeeper dealing in the kind of goods bought by him, though made within the precincts of the city of London, 3 nor sales at auction in a horse repository outside such ancient limits. 4 Transfer spending conviction. And the validity of titles thus acquired was affected and apparently endangered by enactments, providing that upon the conviction of the thief the restoration of the goods to the owner should be ordered. 5 But these enactments were con- strued, not as invalidating all transfers by others than the owner, but as impliedly requiring the conviction of the thief before a civil action could be maintained. 6 Hence, the bon a fide purchaser in market overt was protected until such conviction, and could meanwhile dispose of the goods, even after notice of the robbery. 7 The basis of this view was that pending the prosecution the title was suspended, 8 and that the owner did not become re-invested therewith until the conviction of the offender. 9 Liability of seller and of purchaser out of market overt. The privilege of market overt does not extend protec- tion, however, to the innocent seller as well as the pur- chaser of goods; 10 nor is there a similar exemption from liability on the part of an innocent purchaser, not in market overt, before the prosecution of the thief, 11 as the asserted doctrine that a civil action was not main- tainable until the prosecution of the offender has been 261 BON A FIDE PURCHASERS. g 180 held inapplicable where the action was against a third party. 12 1 According to Bennett's Benjamin on Sales, and 1 Corbin's Benjamin on Sales, 2 10, 14. And see note to Williams v. Merle, 25 Am. Dec. 608. 2 Hill r. Smith, 4 Taunt. 532 ; approved in Crane r. London Dock Co. Law J. 33 Q. B. 224 ; 5 Best & Smith, 313. And see Story on Sales, # 191 ; Bailiffs etc. v. Ditson, 6 East. 438 ; Town Commrs. v. Woods, I. R. 11C.L. 506 3 See Crane ?>. London Dock Co. 5 Best & Smith, 313 ; questioning counter-ruling in Lyons v. Do Pass, 11 Ad. & E. 326. 4 Lee v. Bayes, 18 Com. B. 599. And see on sales of horses in market overt, Joseph v. Adkins, 2 Stark. 76 ; Browning v. Magill, 2 Har. & J. 308 ; 2 Blackst. Com. 450. 5 Stats. 21 Hen. 8, ch. 11 ; 7, 8 Geo. 4, ch. 29, ? 57; re-enacted and enlarged by stats. 24, 25 Viet. ch. 96, 100. Excepting negotiable se- curities from its operation: See Story on Sales, \ 194 ; Bennett's Benjamin on Sales, 2 11 ; 1 Corbin's Benjamin on Sales, 11 : Camp- bell on Sales, 56. 6 " Conversion by Purchase," 15 Am. Law Bev. 363, 368. 7 See Horwood ?'. Smith, 2 Term Rep. 750. Similar views where goods obtained by false pretenses: See Moyce v. Newington, Law R. 4 Q. B. D. 32 ; Lindsay v. Gundy, Law R. 1 Q. B. D. 347, 357. 8 Bonn fide purchaser of stolen blasts sold in market overt, held not entitled to counter-claim on action by original owner, for cost of their keep between such sale and the conviction of the thief : Walker v. Matthews, Law R. 8 Q. B. D. 101) ; same case with note in 21 Am. Law Reg. 9 " Conversion by Purchase," 15 Am. Law Rev. 363, 36S. It has been held that the title then becomes re-invested although no writ or order of restitution has been made by the court : Soattergood ?;. Sylvester, 15 Q. B. 50G ; Law J. 1!) Q. B.~447: Bennett's Benjamin on Sales, 11, n. z ; referring, also, to Peer v. Humphrey. 2 Ad. 5 ; Queen v. Horan, I. R. 6 C. L. 293 ; Reg. v. Stancliffe,'ll Cox C. C. 318. 10 Ganley v. Ledwidge, I. R. 10 C. L. 33 ; stated, Bennett's Benja- min on Sales, 8 a ; 1 Corbin's Benjamin on Sales, 8. 11 See citations in next note. 12 White v. Spettigue, 13 Mees. : Hoff- man v. Carow, 22 Wend. 285 , S. C. 20 Wend. 21 ; Mowrey r. Walsh. 8 Cowen, 238. 8 Easton r. Worthington, 5 Se^g. See citations in next note. Transfer of title by sheriff's sale : See note to Williams v. Merle, 25 Am. Dec. 610. 17 Freeman on Executions, \ 335 ; citing, McClanahan r. Barrow, 27 Minn. 664 ; Chambers v. Lewis, 28 N. Y. 454 ; Farrant v. Thompson, 5 Barn. & Aid. 820 ; Buffum v. Deane, b Cush. 41 ; Shaw v. Tumbriclge, 263 BOXA FIDE PURCHASERS. ?g 181-182 2 Black. W. 1064 ; Stone v. Ebberly, 1 Bay, 317; Champney v. Smith, 15 Gray, 212; Sheanck v. Ifubcr, 6 Binn. 2 ; Symonds v. Hull, 37 Me. 351 ; Austin ?-. Tilden, 14 Vt. 327; lEomesley v. Hague, 4 Jones, 481 ; Williams v. Miller, 16 Conn. 144 ; Bartholomew v. Warren, 32 Conn. 202. IS See Samms v. Allexander, 3 Yeates, 268; Forsythe v. Ellis, 4 Marsh. J. J. 2!)8 ; The Monte Allegre, 9 Wheat. 616; Heacock v. Walker, 1 Tyler, 341 ; Story on Sales, 199, n. 181. Lost chattels. ^Vb title in purchaser. If the purchaser of a chattel does not buy it in market overt, 1 and if it turns out that the chattel has been found by the person who professed to sell it, the purchaser will not obtain a title good as against the real owner, 2 any more than if it turned out that the chattel had been stolen by such person. 3 Certificates of stock. And the principle that the finder of goods holds them in subordination to the owner's 'rights, and has no title to confer upon a bonafide buyer, 4 has been applied to the case of lost certificates of stock in a mining corporation indorsed by the owner, so as to hold that a bona fide purchaser acquires no title where the shares are transferable on the books of the company by indorsement and surrender of the certificate. 5 1 See preceding sections of book relating to markets overt. 2 Cundy v.Lindsay, Law R. 3 App.C. 463; 24 Eng. Rep. 345. Rights of finder of lost chattels: 2 Schouler on Personal Property, g 14 ; cit- ing, Bridges ?'. Hawkesworth,7 Eng. Law & Eq. 424; 15 Jur. 1029; McAvoy v. Medina, 11 Allen, 548 ; 2 Kent Com. 356. 3 Cundy v. Lindsay, Law R. 3 App. C. 463 ; 24 Eng. Rep. 345. Estrays etc., and their ownership : 2 Schouler on Personal Property, 17. B'fita n6J. And consult Williams r. Miller, 16 Co :in. 143. 8 Buckley v. Wheeler, 52 Mich. 1. 9 Wells ?'. Raglan, 1 Swan, 501. So in the case of property donated by the decedent : Harris v. Saunders, 1 Strob. Kq. ;xx). 10 Miller v. Thompson, 60 Me. 322. 11 Wheelwright v. Depeyster, 1 Johns. 471 ; 3 Am. Dec. 345. See " Conversion by Purchase," 15 Am. Law Rev. 363, 375, 376, giving these illustrations. 12 Process in general : 2 Bouvier Law Diet. (14th ed.) 379. 13 See Farrant v. Thompson, 5 Barn. & Aid. 826 ; Lock v. Selwood, 1 Q. B. 736. 184. Unauthorized sales by bailees. In general. A bailee intrusted with personal property has no absolute title thereto which he can transfer, 1 and his sale with- out authority or in material excess of that given is a conversion, 2 which can confer no rights of ownership even upon a bonafide purchaser. 3 In various kinds of bailment. Such is the case whether the bailment be for use, 4 for hire, 5 for loan, 6 for custody, 7 for transportation, 8 or for the performance of work upon the object intrusted. 9 bailment with privilege of purchase. Even where the bailee has the privilege of purchasing, 10 it has generally been considered that such option to purchase does not, before it has been exercised, give him any greater power to dispose of the goods than an ordinary bailee ; n and this principle applies to a sale by the hirer of a bill- iard table detained by the purchaser after demand so as to constitute a conversion, 12 or of a yoke of cattle de- livered to use and return, with privilege to pay for and keep, which the owner could follow and peaceably retake. 13 1 See Galvin v. Bacon, 2 Fairf. 28, 31 ; 25 Am. Dec. 258. 2 See " Conversion by Purchase," 15 Am. Law Rev. S63, 371. Sales and pledges by bailees and agents : See note to Williams v. Merle, 25 Am. Dec. 615. 3 See Galvin v. Bacon, 2 Fairf. 28, 31 ; 25 Am. Dec. 258; Maycs ?'. Bruton, 1 Tex. App. (Civ. Cas.) \ 699. Bailment of jewelry : Smith v. Clews, 33 Hun, 501 ; Levi v. Booth, 58 Me. o05 ; 42 Am. Rep. 332. 2f)7 BONA FIDE PURCHASERS. g 185 ^ 4 GiJmoro r. Newton, 9 Allen, 171 ; Riford v, Montgomery, 7 Vt. 5 Donald r. Arnold. 28 Tex. 97 ; Sanborn v. Colman, 6 N. H. 14. When no larceny in such a case : Morrison v. State, 4 Tex. Law Rev. 28;). 6 Roland v. Gundy, 5 Ohio, 202 ; Heacock v. Walker, 1 Tyler, 338. 7 Stanley v. Gay lord, 1 Cush. 536; 48 Am. Dec. 643; Hartop v. Hoare, 3 Atk. 44 ; Newcomb-Buchanan Co. v. Baskett, 11 Bush, 653. 8 Covill v. Hill, 4 Denio, 323 ; Hyde v. Noble, 13 N. H. 494 ; 38 Am. Doc. 503 5 Linnen v. Crugger, 40 Barb. 633 ; Sultus v. Everett, 20 Wend. 267 ; 32 Am. Dec. 541. 9 Wooster v. Sherwood, 25 N. Y. 278 ; Buckmaster r. Mower, 21 Vt. 204. HVe " Conversion by Purchase," 15 Am. Law Rev. 36;', 371, giving these illustrations. 10 See Carter v. Wallace, 35 Hun, 189. Lease with title reserved: Pu.fer v. Reeve, 35 Hun, 480 ; 15 Abb. N. C. 388. 11 See citations in succeeding notes. 12 Burroughs v. Bayne, 5 Hurl. 7t) ; Schouler on Bailments, 201 ; Whitaker v. Sumner, 20 Pick. 3J9 ; Moses v. Conhuin, Owen, 123 ; Shelton v. French, 33 Conn. 489. 2 Bailey r. Colby, 34 N. II. 29. And see McNeil v. Tenth Xat. Bank, 55 Barb. 5J ; " Conversion by Purchase," 15 Am. Law Rev. :.(>>, 37J ; 1 Schouler on Personal Property, 403 ; citing cases given in last note, and referring, also, to Belclen v. Perkins, 7* 111.449; Ashtoirs Appeal, 73 Pa. St. 153. Consult, also, note to Williams v. Merle, 25 Am. Dec. 615. 3 Donald v. Suckling, Law R. 1 Q. B. 5S5 ; Bigelow's Leading Cases on Torts, 394 ; Halliday v. Holgute, Law R. 3 Ex. 2U9. 4 Talty ?. Freedman's Sav. Bank, 93 17. S. 321. 5 See statements of cases just cited in article on " Conversion by Purchase," 15 Am. Law Rev. 363, C72. 6 See query in Tally r. Freedman's Bank, 93 U. S. 321. 7 Donald r. Suckling, Law R. 1 Q. B. 585 ; Bigelow's Leading Cases on Torts, 3J4. 8 Donald v. Suckling, Law R. 1 Q. B. 585 ; Bigelow's Leading Cases on Torts, 35)4; quoted in article on "Conversion by Purchase," 15 Am. Law Rev. 363, 372, 373. The doctrine stated is said to be the declared American rule in various instances : 1 Schouler on Personal Property, jf 404 ; citing, Lewis v. Mott, 6 Jf . Y. 3;>5 ; Belden r. Perkins, 78 ill. 44J ; Schouler on Bailments, 202 ; First JSut. Bank r. Boyce, 78 Ky. 42. I 183. Sales of forfeited pledges. Mode of making. If the pledger fails to make payment at the time agreed therefor, the pledgee may, aside from his personal remedy upon the debt, legally sell the goods pledged to him, and convey a valid title thereto, 1 either at a judicial sale upon foreclosure of the pledge, 2 or by a sale with- out the supervision of the courts, 3 in a public manner, after notice, 4 in the mode prescribed by the general la\v, 3 or by local statute, 6 or by the special agreement of the parties. 7 269 BONA FIDE PURCHASERS. 187 Irregularity in. But it is the latest American doctrine that the pledgee cannot treat a sale which is made with- out any or sufficient notice, or is otherwise irregular or informal, as in itself a conversion of the pledged prop- erty; 8 but that as a prerequisite to suing either the pledgee or a third person to whom the pledgee may have transferred the property, 9 he must tender the amount that he owes, 10 or at any rate, that whatever the ground of illegality, the pledger can only recover dam- ages over and above the amount of indebtedness on his part. 11 1 See Martin v. Rei 1, 11 Com. B. N. S. 7CO ; Johnson v. Stear, 15 Com. B. N. S. 3;,0 ; Pigott v. Cubley, in Com. B. N. S. 701. 2 See citations in succeeding notes. 3 Soo 2 Bouvlcr Law Diet. (14th ed.) 341. 4 See 2 Kent Com. 582 ; Story on Bailments, ? 310 ; 1 Schouler on Personal Property, \ 407 ; referring, also, to Kemp ?. Westbrook, 1 Ves. 278 ; Tinker v. Wilson, 1 P. Wms. 261 : Wflshburn r. Pond, 2 Allen, 474 ; Elder v. Rouse, 15 Wend. 218 ; Davis v. Funk, C3 Pa. St. 243. 5 See 2 Bouvicr Law Diet. (14th ed.) 341. 6 See Mass. Pub. Stats, ch. 192, \\ 10, 12 ; Schouler on Bailments, 222 ; Cal. Civ. Code, \\ 300o, 3011. 7 1 Schouler on Personal Property, ? 408 ; citing, Robinson v. Hurley, 11 Iowa, 410; Mowry r. Wood, 12 Wis. 413 ; Stevens v. Bell, 6 Mass. 339 ; Rolirle v. Stidger, 50 Cal. 207. 8 See citations in succeeding notes. 9 See preceding section of book. 10 Tender in general : 2 Bouvier Law Diet. (14th ed.) 581. 11 1 Schouler on Personal Property, ? 407, p. 484, n. 3 ; referring to Hallilay r. Holgute, Law R. 3 Ex. 2!)') ; Baltimore Mar. Ins. Co. v. Dalrymple, 2f> Mel. 14'2 ; Lewis r. Mott, 36 N. Y. 3<)f> ; Bulkeley r. Welch, 31 Conn: 339; Kidney?-. Persons, 41 Vt. 380 ; Schoul^ron Bail- ments, 20!), 210, and cases cited ; Talty v. Freedman's Savings Co. 93 U. 8. 321. $ 187, Delivery of goods for sale, Disposal by bailee or agent. Where goods are intrusted for sale to a bailee or agent, 1 his disposal of them for his own use instead of that of the party who delivered them to him, is a conversion which invalidates the title of the purchaser 2 as where an article of personal property is delivered to another to sell for the owner, and the bailee turns it 188 BOXA FIDE PURCHASERS. 270 over to his creditor in payment of his own pre-existing debt. 3 Departure from orders. And the general rule that a material surpassing of authority is a conversion, applies where there is a substantial departure from orders, as where an exchange of the goods is made instead of a sale; 4 but not where there is merely a sale at prices below those authorized. 5 1 Goods in possession of agent or bailee: Glass t\ Gelvin, 80 Mo. 297. 2 See article on " Conversion by Purchase," 15 Am. Law Rev. "63, 373. 3 Parsons v. Webb, 8 Greenl. 38 ; Roclick r. Coburn, 6S Me. 170. 4 Haas i\ Damon, 9 Iowa, 5S9. Exchange by agent authorized to sell : Trudo v. Anderson, 10 Mich. 357 ; 81 Am. Dec. 795. 5 Sargent ?-. Blunt, 16 Johns. 74. See "Conversion by Purchase,'* 15 Am. Law Rev. 363, 373. Sale in excess of instructions us giving good title to bona fde purchaser : Arnold ?\ Halenbake, 5 Wend. 34 ; as cited in note to Williams v. Merle, 25 Am. Dec. 615. 188. Transfer by factor. Pledge. A factor or com- mission merchant has an assignable lien ] on his prin- cipal's goods for advances made; 2 but if he pledge them 3 be3 r ond this for his own use,* ho has generally been deemed guilty of a conversion. 5 And the pledgee has been held to acquire no title to the goods in such a case, even against a subsequent bona fide purchaser from the factor. 6 Exchange, So a factor having a general authority to sell his principal's goods, has no authority to exchange them for others, and if he does so, his authority as factor ceases, and he becomes liable to account for their value to his principal. 7 Factors? acts, etc. But the rigor of the rule adverse to effectual pledges by factors has been modified both in England and in many parts of America by the pass- age of factors' acts, 8 which usually provide for the pro- tection of bona fide transferees, especially where they are intrusted with such documents of title, 9 or control, 271 BONA FIDE PURCHASERS. \ 189 as bills of lading, warehouse receipts, etc. 10 And inde- pendently of statute, the rule lias been questioned and qualified, 11 and the doctrine of estoppel has been in- voked against the owner of goods who confers apparent ownership or authority to sell upon a factor or other person. 12 1 See Donald v. Suckling, Law R. 1 Q. B. 585; Bigelow's Leading Cases on Torts, 394. 2 See article on " Conversion by Purchase," 15 Am. Law Rev. 363, 373. 3 Pledge by factor of notes and goods as collateral : St. Louis Bank v. Ross, a Mo. App. 399. 4 Power of sale by agent or factor gives no right to pledge under English or Canadian law : City Bunk v. Barrows, Law R. 5 App. C. 664 ; 34 Eng. Rep. 41. 5 Story on Agency, 113 ; Wright v. Solomon, 19 Cal. 64 ; 73 Am. Dec. 1;>6 ; overruling decisions thut doctrine confined to technical factor, in Hutchinson v. Bows, 6 Cal. 385 ; Glidden v. Lucas, 7 Cal. 16 ; and Horr v. Barker, 11 Cal. 393 ; 70 Am. Dec. 791. Agent to sell can- not pledge : McCreary v. Gains, 55 Tex. 485 ; 26 Alb. L. J. 57. 6 Nowell v. Pratt, 5 Gush. 111. Sale by factor as distinguished from mere broker: Batmen nan v. Quackenbush, 11 Daly, 52',). Pur- chase from factor ; notice of facts to put on inquiry : McLachlin v. Brett, 34 Hun, 478. 7 Wing v. Neal, 2 Atl. Rep. (Me.) 881. 8 See 2 Kent Com. 628, n. I ; Smith's Mercantile Law (Am. ed.), 126, n. ; 2 Schooler on Personal Property, g 550, noto on p. 508 ; note to Williams ?'. Merle, 25 Am. Dec. 616. And consult subsequent chapter on that subject. 9 See subsequent chapter on that subject. 10 See article on " Conversion by Purchase," 15 Am. Law Rev 363, 373, 374; section on FACTORS' ACTS ix GENERAL in next chapter. 11 See Higgons v. Burton, 23 Law J. Ex. 32 ; Story on Agency, \ 113. 12 See section on APPARENT OWNERSHIP OR AUTHORITY, in chapter on FACTORS' ACTS. 189, Purchase generally from one lacking title. As constituting conversion. A thief, a trespasser, and a converter, all act, not merely without the owner's con- sent, but in hostility to his authority; 1 hence, these tort-feasors can acquire none of the owner's rights, 2 and can transmit no title to the innocent purchaser, who is liable for conversion because " the very act of taking goods from one who had no right to dispose of them is a conversion." 3 For the unauthorized 189 BOX A FIDE PURCHASERS. 272 appropriation of another's property is, as a rule, suffi- cient to enable the owner to maintain an action for its conversion. 4 And it is declared that "certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it." 5 So it has been held that one who claimed a right to property under a parchase from a person who had no title or power to sell, was liable for a conversion. 6 In this class of cases no regard is had to the vendee's ignorance of the vendor's want of title, or to the vendee's coming rightfully to the goods as a purchaser without notice, or to the vendor's having the lawful possession of the goods. 7 Liability of auctioneer, etc. Even an auctioneer or broker, who sells property for one who has no title, and passes over the proceeds to his principal, with no knowledge of the defect of title or want of authority, 8 is held liable for its conversion to the real owner. 9 And where a sale of personal property is made by an auctioneer without disclosing the name of the owner, and the property is afterwards claimed by a superior title, it has been held, though not without dissent, that the purchaser may, in an action for money had and received, recover the purchase money of the auctioneer. 10 1 See article on " Conversion by Purchase," 15 Am. Law Rev. 363, 374. And consult Russell r. Oppenheimer, 1 Tex. App. (Civ. Cas.) 2 269-272. 2 See Galvin v. Bacon, 11 Me. (2 Fairf.) 23 ; 25 Am. Dec. 258. 3 Hurst ?-. Gwennap. 2 Stark. "06 ; McCombie r Davis, fi East, 540. And seo Baldwin r. Cole, 6 Mod. 212 ; Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. ISO. 4 Alexander r. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. ISO. 5 McCombie ?-. Davis, 6 East, 540. See Alexander r. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. IrfO. 6 Hyde v. Noble, 13 N. H. 494 ; 38 Am. Dec. SOS. And a purchase without notice from one who has no title, and no right or apparent authority to transfer the property, will not be a defense : Alexander v. Swackhamer, 105 Ind. SI ; 55 Am. Rep. 180. 273 BONA FIDE PURCHASERS. 193 7 ITartop v. Hoare, 3 Atk. 49. As quoted, Roberts v. Dillon, 3 Daly, 50. 8 Hills v. Snell, 104 Mass. 173 ; G Am. Rep. 216. 9 Hills v. Snell, 104 Mass. 173 ; 6 Am. Rep. 216. As quoted, Alex- ander v. Swackuamer.105 Ind. 81 ; 3 Am. Rep. 180 ; citing, Shearer v. Evans, 8:> Ind. 400 ; Breckenrid^o v. McAfee, 54 Ind. 401 ; Curme v. Rauh, 100 Ind. 2^7 ; Gilmore ?>. Newton, 9 Allen, 171 ; Grunson v. State, 89 Ind. 533 ; 46 Am. Rep. 178. 10 Seemuller v. Fuchs, 64 Md. 217 ; citing, Hanson v. Roberdeau, Peake, 163; Jones v. Littledale, 6 Ad. & E. 486 ; Mills v. Hunt, 20 Wend. 431 ; Franklyn v. Lamond, 4 Com. B. 637 ; Story on Agency, 207; Addison on Contracts, 642; Babington on Auctions, 9 Law Lib. 185. 190. Stato of title governs. Purchase from bank- rupt, etc. The entire controversy in doubtful cases re- volves about the title ; l and whoever takes the property of another without his assent, express or implied, or without the assent of some one authorized to act in his behalf, takes it in the eye of the law, tortiously, so that his possession is not lawful against the true owner 2 Hence, where goods are bought of a bankrupt, it would seem that the purchaser is guilty of a conversion, aa well as the seller; 3 for the title vests in the assignee from the moment of bankruptcy, and therefore the vendor has no title to convey. 4 So where plate has been pawned by a widow, who had only a life interest in it, the pawnee was held liable in conversion, although he had no notice of the fact. 5 Artisan's reservation of title. Even wheels and axles have been recovered in trover from a bona fide pur- chaser of the wagon, though he bought from the owner of the wagon himself, where the latter had previously delivered the wagon to a bailee, who had it repaired, but exacted that he should retain the wheels and axles furnished, as security for the payment of a note given for the repairs. 6 Objects affixed to land. And where the tenant of one person borrowed some rails from another, and built them into a fence and corn-bin on the land occupied \ 190 BONA FIDE PURCHASERS. 274 by the borrower, a third person, who bought this land of the owner without notice of these facts, was held liable in trover to the owner of the rails. 7 Animal coming into stranger's possession. Nor has any escape from such liability been allowed in the case of a bona fide purchaser of a horse which had been stolen from the owner, and came into the possession of an officer of the United States army, who did not clearly establish the paramount title of the government by capture or confiscation. 8 Similarly it has been held that the possession and use of a horse which disap- peared from the plaintiff, though honestly purchased by the defendants and their vendors, is a violation of the rights of the plaintiff, for which an action of con- version will lie. 9 Chronometer not returned by hirer. And conversely where the plaintiff, a master of a ship, sent his chro- nometer to the defendants to have it repaired, and the latter recognized it as one which had been hired by them to another master, to be returned at the end of the voyage, or within twelve months, but which had never been returned, it was held that though the plaint- iff had purchased the chronometer in good faith of a watchmaker more than two years previously, for a fair price, he could not recover it of the defendants. 10 1 See Cundy v. Lindsay, Law B. 3 A pp. C. 463 ; 24 Ens:. Rep. 345 ; article on " Conversion by Purchase," 15 Am. Law Jlev. 863, 375. 2 Galvin v Bacon, 11 Me. (2 Fairf.) 23 ; 25 Am. Pec. 258. 3 See Stephens v. Elvvall, 4 JMaule . N. Y. & II. II. II. Co. 12 Barb. 442. In Bales : See 2 Schouler on Personal Property, 300. 3 Transfer of title generally : See chapter on that subject. 4 Article on Conversion by Purchase," 13 Am. Law Hev. 303, 379. 194 BONA FIDE PURCHASERS. 280 5 Hills v.. Snell, 104 Mass. 173, 177 ; 6 Am. Rep. 216. 6 Bigelow on Torts, 192. 7 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 380. 8 Lewis ?'. Palmer, Hill & D. Supp. 68. And see Southwick v. Smith, 29 Me. 228 ; Chamberlain v. Dickey, 31 Wis. 63. 9 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 380. 10 Moss v. Sweet, 16 Q. B. 493 ; 20 Law J. Q. B. 167 ; Schlesinger v. Stratton, 9R. I. 578 ; Ray v. Thompson, 12 Cush. 281 ; 59 Am. Dec. 187 ; Hall v. JStna Manuf Co. 30 Iowa, 215. 11 See Hotchkiss v. Higgins, 52 Conn. 205 ; 52 Am. Rep. 582; discuss- ing cases on sale or return. 12 Buswell v. Bicknell, 17 Me. 344; ?5 Am. Dec. 262; Perkins v. Douglas, 20 Me. 317 ; Jameson v. Gregory, 4 Met. (Ivy.) 363; Martin r. Adams, 104 Mass. 262; McKinnee v. Bradlee 117 Mass. 821. But it would be otherwise where the title is retained by special agreement : Crocker v. Gullifer, 44 Me. 401 ; 63 Am. Dec. US ; Porter v. Pettengill, 11 N. H. 299. Bargains of " sale or return " : 2 S^houler on Personal Property, \ 312 ; Hotchkiss v. Biggins, 52 Conn. 205 ; 52 Am. Rep. 582. 13 Compare 192, on PURCHASE FROM ONE HAVIXQ A VOIDABLE OR DEFEASIBLE TITLE. 14 See Hunt v. Wyman, 100 Mass. 198. 15 Article on '* Conversion by Purchase," 15 Am. Law Rev. 363, 380. \ 194. Sale with condition precedent. Nature of trans- action. As distinguished from the class of cases where the title passes subject to subsequent defeat from breach of condition, 1 the terms of sale may provide that the title shall remain in the vendor until the performance of some condition, as payment, security, and the like. 2 A common illustration is the case of instalment sales, 3 where the bill of sale is not to be given until the final payment is made.* Position of bona fide purchasers. In such instances there is a condition precedent to the vesting of the ti'Je in the vendee, 5 and his sale before the fulfilment of this condition confers no rights even upon an innocent purchaser. 8 As the law upon the subject of such a transaction between the parties has been recently ex- pressed, where a sale is made and possession delivered to the vendee upon the express condition that the title to the thing is to remain in the vendor until the pur- chase price be paid, such payment is strictly a con- 281 BONA FIDE PURCHASERS. $ 194 dition precedent, 7 and until performance thereof, the sale is incomplete, and the right of property is not vested in the vendee. 8 But in regard to the liabilities of bona fide purchasers, it is deemed possible that the remedy of the vendor, who confers upon another an apparent title by a conditional sale, may be restricted to the right to recover the property; 9 and that no one can be held responsible in tort for the conversion of the property, who " merely exercises such dominion over it as is warranted by the authority thus given." 10 Difficulties in discrimination. Jt is often difficult to distinguish between an agreement for a future sale upon the performance of a condition, and a bailment with the privilege of purchasing. 11 but there is no difference in principle as to the lack of title of a bona fide purchaser. 12 The real problem in the domain of sales, however, is in deciding whether there is a sub- sisting condition precedent, or whether the title has absolutely passed, and this requires the determination of a question of fact, governed by the intention of the parties ; 13 but it is not easy to apply such a criterion when there is a pronounced conflict between the apparent purport of an express agreement and the implications arising from conduct. 14 1 See preceding section of book. 2 See succeeding portions of section. 3 Ketchum. v. Brennan, 53 Miss. 546. 4 Sanders v. Keeber, 23 Ohio St. 630 ; Naglee v. Eddy, 53 Cal. 537. Title does not pass where reserved under agreement, till bill of sale or taking possession : Wilcox ?>. Russell, 1-56 Mass. 211, 21(5; citing, Chase v. Denny, 130 Mass. 560 ; Moody v. Wright, Li Met. 17, :>J. 5 Condition precedent in general : 1 Bouvier Law Diet. tit. Condi- tion (14th ed.), 313; Winiield's Words etc.; citing, Redman v. ^Etna Ins. Co. 49 Wis. 438 ; Moore v. Moore, 47 Barb. 2U2 ; Selden ?'. Priagle, 17 Barb. 466 ; Ludlow v. N. Y ; Co-i-cill /. Hartford etc. B. li. Co. a Gray, 541; r.angdfll'8 rises 0:1 Sales, 7i:s; HotchkiM v. Hunt, 4 .Me. 21:5 ; Ballurd v. 15u:--"tt, 40 N. Y. 814 ; Lang'lfll's Cas-s on Sales, T-0 ; r:trni"lc" ?> Catherwood, 36 Mo. 47'J ; Little v. Page, 44 Mo. 412; Itidgeway v. Kennedy, 52 Mo. 24. 9 Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Hep. 180. 10 Alexander ?;. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. 180 ; citing* Hills?'. SnHI, lot Mass. IT:;; (i Am. Hep. 21H ; liurbank v. Crook.-.-, 7 Gray, 158 ; Vincent v. Cornell, 13 Pick. 234. 11 See Hunt ?'. Wyman, 100 Mass. 98 ; Kohler v. Hayes, 41 Cal. 455 ; Carter v. Kingman, io:i Mass. 517. 12 See Austin v. Dye, 46 N. Y. 500. 13 Article on " Conversion by Purchase," 15 Am. Law Rev. 303, 381. 14 See Wait v. Green, 35 TJarb. 5S5 ; S. C. 62 Barb. 241 ; S. C. 30 N. Y. 556 ; or Langdell's Cases on Sales, 72.5. 195. Delivery as waiver of condition. Need of deter- mining question. The difficulty in determining the exact character of contracts of sale attended with special stipulations, 1 is enhanced by the fact that it is often necessary to determine not only whether there is such a condition attached to the contract of sale, but also whether there has not been a waiver of such condition. 2 Delivery not decisive. Delivery of itself would not, ordinarily, according to the prevailing view, amount to such a waiver of a condition requiring previous or con- temporaneous payment or security; 3 but the inference derived from such an act would be rebuttable by other manifestations of intention to retain the title. 4 Protection of bona fide purchaser. Yet it has been at- tempted to maintain in this regard a distinction in bo- half of bona fide purchasers, identical with that which governs fraudulent sales. 5 In this view it lias been maintained that mere delivery, even though qualified, 283 BONA FIDE PURCHASERS. $ 193 is, so far as the rights of innocent purchasers are af- fected, a waiver of conditions precedent, 6 and even in cash sales, of conditions concurrent. 7 Prei^alcnt counter-view. But the weight of authority favors the view that bona fide purchasers must stand upon the title of their vendors, 8 and that since delivery to the latter is often immaterial, and at all events inde- cisive as to the transfer of title, 9 it cannot have greater potency in conferring a title upon one who has not otherwise acquired it. 10 1 See latter part of preceding section of book. 2 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 381. 3 See citations in next note. 4 Article on '* Conversion by Purchase," 15 Am. Law Rev. 363, 381. And consult Farlow v. Ellis, 15 Gray, 229 ; Langdell's Cases on Sales, 720. 5 See Mears v. Waples, 4 Houst. 79 ; Hall v. Hinks, 21 Md. 406 ; Vaughn r. Hopson, 14 Bush, 337 ; Old Dominion Steamship To. ?. Burckhardt, 31 Gratt. 664 ; Mich. Central it. II. Co. v. Phillips, 60 111. 1!)0, 194 ; Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 176 ; note to \Vil- li'irns v. Merle, 25 Am. Dec. 614. But consult contra, Andrews v. Cox, 42 Ark. 473 ; 48 Am. Rep. 68, 71. 6 Brundage v. Camp, 21 111. 233 ; Van Duzor v. Allen, 90 111. 499. 7 Comer v. Cunningham, 77 N. Y. 391 ; Goodwin r. Bradley, 63 111. 553. And see Smith v. Lynes, 1 Sold. 41 ; Langdell's Cases 0:1 Salts, 724 ; Holllngs worth ?>. Napier, 3 Caines, 182 ; Western Transportation Co. v. Marshall, 37 Barb. 509. Consult 2 Schouler on Personal Prop- erty, \ 300. And compare Stadtfeldt v. Huntsman, 92 Pa. St. 53 ; 37 Am. Rep. 661, n. 664. 8 See citations in subsequent note. And consult Harkness v. Russell, 118 U. S. 663, 672, et seq, fully reviewing the authorities in the various States ; Andrews v. Cox, 42 Ark. 473 ; 4S Am. Rep. 6S, 71 ; note to Williams v. Merle, 25 Am. Dec. 615 ; Heinbocke v. Zugbaum, 5 Mont. 344 ; 51 Am. Rep. 59. 9 See preceding portion of section. 10 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 1st, 382; eiti:ig, Sunders v. Keeber, 28 Ohio St. 6oO; Coggill v. Hartford etc. R. 11. 'Co. 3 Gray, 545; Langdell's Cases on Sales, 713 ; Parmelee v. ( ath-rwood, J'.fi Mo. 439 ; Pitts v. Owen, d Wis. 145. And consult 2 Schouler on Personal Property, \ 300. $193- Sailer's possession. Custodian 1 * s second sale. It is immaterial, except as to creditors, that the possession remains with the vendor, where he has parted with the title, as he is then a mere custodian. 1 Hence his second 197 BONA FIDE PURCHASERS. 284 sale is a conversion, even if he is still unpaid, 2 and can convey no title to a bonafide purchaser. 3 Restored documents of title. The same principle woul d apply where the vendor disposed of documents of title which were restored to him for a special purpose; 4 as where warehouse receipts, returned to him so that he could repack pork which he had sold, were pledged by him with a bank, which transferred them to an innocent purchaser. 5 1 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 382. 2 Chinery v. VialL 5 Hurl. ec. 615 ; citing, Cullom r. Gnillot, 18 La. An. 60<3 ; Shaw v. Levy, 17 Serg. . Bigelow, 2 Pick. 307 ; 23 Am. Dec. 607 , Barnard v. Campbell, Go Barb. 2s<; ; 55 N. Y. 45(5 ; 58 N. Y. 73 ; or 17 Am. Hep. 2,H ; Old Dom. Steamship Co. v. Burcklmrdt, 31 Gratt. (56-1 ; note to \Vil- li'ims ?'. Merlo, 25 Am. Dec. <>13. Fraudulent sales of copyrighted book: Henry Bill Pub. Co. v. Wmythe, 27 Fed. Rep. 914. 2 Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. 180 ; citing, Curme v. Rauh, 100 Ind. 247 ; Parrish v. Thurston, 87 Ind. 4:17. 3 See article on " Conversion by Purchase," 15 Am. Law Rev. 363, 382. 198 BONA FIDE PURCHASERS. 286 4 See Barnard v. Campbell, 53 X. Y. 453, 460. 5 Soe F-iwcett v. Osborn, 32 111. 411 ; 83 Am. Dec. 278 ; sections on MARKETS OVERT. 6 McCarty v. Vickery, 12 Johns. 348. 7 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 382. 8 See Mowrey v. Walsh, 8 Cowen, 238. 9 See Stevens v. Hyde, 32 Barb. ISO. 10 See Rowley ?. Bigelow, 12 Pick. 307 ; 23 Am. Dec. 607 ; Stevenson u. Newnham, 13 Com. B. 2s5; 22 Law J. Corn. P. 10; Old Dominion Steamship Co. v. Burckhardt, 31 Gratt 664. 1 1 See Barnard v. Campbell, 65 Barb. 286 ; S. C. 55 N. Y. 456 ; 5S N. Y. 7) ; or 17 Am. Rep. 20S ; Root?'. French, 13 Wend. 572 ; 28 Am. Dec. 428 ; Sal+us v. Everett, 20 Wend. 275 ; 32 Am. Dec. 541 ; Cochran v. Stewart, 21 Minn. 440. 12 Hall v. Hinks, 21 Md. 417. 13 Barnard v. Campbell, 65 Barb. 288 ; Butler v. Collins, 12 Cal. 457, and cases reviewed. 14 See Rowley v. Bigelow, 12 Pick. 307 ; 23 Am. Dec. 607. 15 George v. Kimball, 24 Pick. 241. See article on " Conversion by Purchase," 15 Am. Law Rev. 363, 386. I 198. Superior equity of innocent purchaser. Occa- sioning loss, etc. A reason for the favor shown to a bonafide purchaser from a fraudulent vendee has been found in New York, and elsewhere, in the equitable principle that when one of two innocent persons must suffer by the acts of a third, he who enabled such third party to occasion the loss must sustain it. 1 Conflicting maxims, etc. This position was maintained in the face of the criticism that the fraud was the owner's misfortune, not his fault ; that if he was to blame for parting with the possession, then the purchaser from a converting bailee would on like grounds also be pro- tected ; and further, that the real maxim of equity in such a conflict of claims was that tho right which was prior in time should prevail. 2 Overcoming owner's legal rights. For it was asserted, originally upon the analogy of negotiable paper, that in this instance the superior equity of the innocent pur- chaser, 3 though subsequent in time, overcame the legal rights of the owner, as in the equality of legal rights, 287 BONA FIDE PURCHASERS. 199 the supervening equity prevailed. 4 But this, it was objected, was only creating a fresh exception, 5 without investing the purchaser with the legal title, though it was only upon the strength of the right of possession involved in such legal title, that the purchaser could re- cover the property in cases where the owner had re- possessed himself of it. 6 Estoppel of owner, etc. It is substantially laid down, however, that the innocent purchaser from a fraudulent buyer has not a perfect title, but a superior equity, based on the estoppel of the latter from setting up his rights after having conferred on his vendee the apparent ownership. 7 In such a case, it is declared, the superior equity of the honest purchaser is allowed to overcome the legal rights of the owner, and this is said to be the only instance in which our law divests the title to prop- erty without the owner's consent or default. 8 1 Boot v. French, 13 Wend. 572 ; 28 Am. Dec. 428. And see Mal- com v. Loveridge, 13 Barb. 372 ; Barnard v. Campbell, 55 N. Y. 459 ; Somes v. Brewer, 2 Pick. 202 ; 13 Am. Dec. 406 ; George v. Kimball, 24 Pick. 241 ; Kingsbury v. Smith, 13 N. H. 103 ; Cochran v. Stewart, 21 Minn. 438 ; White v. Garden, 10 Com. B. 926 ; Moyce v. Newington, Law R. 4 Q. B. D. 32 ; 28 Eng. Rep. 674. 2 Ash v. Putnam, 1 Hill, 30fi. The maxim "he who trusts most shall lose most," is regarded as more than overcome by the principle of the counter-maxim caveat ernptor: See Fawcett v. Osborn, 32 111. 425 ; 83 Am. Dec. 278. 3 See Root v. French, 13 Wend. 570 ; 28 Am. Dec. 428 ; Andrews v. Dietrich, 14 Wend. 34. 4 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 383. 5 Ash v. Putnam, 1 Hill, 307. 6 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 383. 7 Barnard ?>. Campbell, 65 Barb. 286 ; S. C. -55 N. Y. 450 ; S. C. 58 N. Y. 73; or 17 Am. Rep. 208. As stated in article on "Title from Fraudulent Vendees," 7 South Law Rev. 549, 558. 8 Barnard v. Campbell, 65 Barb. 286, 288, 289. Compare final opinion in 58 N. Y. 73, 75, or 17 Am. Rep. 208. 199. Estoppel of owner. Statement of doctrine. The principle which justifies the protection of a bona fide purchaser from a fraudulent vendee, as laid down in New York, is declared to be founded upon the idea that \ 199 BON A FIDE PURCHASERS. 288 where one trusts a party with the possession and appar- ent ownership of property, 1 voluntarily parting with the possession in the form of a sale, he puts it in the power of his vendor to deceive an innocent purchaser, and therefore he cannot enforce his right to retake the property against one whom that party has deceived, provided the latter has acted all the while in entire good faith, and paid his money for the property. 2 In such instances the equitable rule is said to apply, 3 that where one of two innocent persons must suffer loss by reason of the fraud or deceit of another, the loss should fall upon him by whose act or omission the wrong-doer has been enabled 4 to commit the fraud. 3 Equitable estoppel raised ~by law. Just as there are various exceptional instances in which the law relieves the buyer of merchandise from the rule of caveat emptorf as applied to the title, 7 so in favor of one acting with ordi- nary caution and prudence in the usual course of busi- ness, and as against those who have voluntarily conferred upon others the usual evidences of ownership or prop- erty, or an apparent authority to deal with it and dispose of it, 8 it is asserted that the law for obvious reasons, and with manifest justices, raises an equitable estoppel. 9 Apparent and real title and authority. Applying the principle that the loss should fall on those aiding or abetting the fraud, or enabling it to be committed, 10 the law is said to declare that the apparent title or authority which exists by the act or omission of such parties shall, so far as concerns persons acting and parting with value upon the faith of it, stand for and be regarded as the real title and authority. 11 Analogy and objections. By assimilation to the famil- iar rule of agency, which protected parties w r ho relied on a factor's apparent authority, the buyer was in this case justified for trusting to the appearance of prop- 289 BONA FIDE PURCHASERS. 200 erty. 12 But a difficulty suggested is that such apparent authority might exist in one who had no title to convey, as a mere bailee who was intrusted with the property and the documents of title ; 13 and yet it was never con- tended that the owner was estopped as against a pur- chaser, however innocent, from such a converter. 14 1 Effect of apparent authority : See Saltus v. Everett, 20 Wend. 279 ; 32 Am. Dec. 541 ; Malcom v. Loveridge, 13 Barb. 372 ; l)o\vs /. Hush, 28 Barb. 157 ; Craig v. Marsh, 2 Daly, 61 ; Combes v. Chandler, 33 Ohio St. 184. 2 Barnard v. Campbell, 65 Barb. 290, 291 ; citing the charge of the judge at the trial. 3 See preceding section on SUPERIOR EQUITY, etc. 4 Doctrine in more general form, first applied in Root v. French, 13 Wend. 572; 28 Am. Dec. 428 ; criticised in Ash v. Putnam, 1 Hill, 306 ; adopted In Malcom v. Loveridge, 13 Barb. 372 ; Kingsbury r. Smith, 13 N. H. 109 ; Cochran v. Stewart, 21 Minn. 438 ; White v. Garden, 10 Com. B. 926; Somes v. Brewer, 2 Pick. 202; 13 Am Dec. 406 ; George v. Kimball, 24 Pick. 241. 5 Barnard v. Campbell, 55 N. Y. 459. See article on " Title from. Fraudulent Vendees," 7 South. Law Rev. 549, 558. 6 Caveat emptor : See 1 Bouvier Law Diet. (14th ed.) 248. 7 See Fawcett v. Osborn, 32 111. 425 ; 83 Am. Dec. 278. 8 See Leigh v. Mobile etc. R. R. Co. 58 Ala. 165, 178. 9 Barnard v. Campbell, 55 N. Y. 460. And see Ash v. Putnam, 1 Hill, 407 ; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41 ; Combes v. Chandler, 33 Ohio St. 184; article on "Title from Fraudulent Vendees," 7 South. Law Rev. N. S. 549, 559; McNeil v. Tenth Nat. Bank, 46 N. Y. 325 ; as quoted, Barstow v. Savage Mining Co. 64 Cal. 388; 49 Am. Rep. 705 ; article on "Conversion by Purchase," 15 Am. Law Rev. 363, 386 ; citing, Hall v. Hinks, 21 Md. 418 ; Old Dominion Steamship Co. v. Burckhardt, 31 Gratt. 681. 10 See preceding portion of section. 11 Barnard v. Campbell, 55 N. Y. 460. Compare final opinion in 58 N. Y. 73, or 17 Am. Rep. 208. 12 See Somes v. Brewer, 2 Pick. 201 ; 13 Am. Dec. 406 ; article on ' Conversion by Purchase," 15 Am. Law Rev. 363, 383. 13 Unauthorized sales by bailees: See 184. Documents of title : See chapter on that subject. Fraudulent pledge by broker of cus- tomer's shares put in his keeping for sale, and estoppel of owner to claim against innocent pledgee : Burton's Appeal, 9'i Pa. St. 214. 14 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 383. Besides it is not always easy to explain the function of estoppel in passing the title, in cases where the bonafl.de purchaser recovered the goods from the owner who had retaken them : See discussion just cited. g 200, Voidable or defeasible title. Derivation of doc- trine. The tendency of the modern cases is to adopt a NEWMARK SALKS. 25. 200 BONA FIDE PURCHASERS. 290 view based on a closer analysis of the fraudulent ven- dee's title, and which may have been suggested by the instance of a prima facie title 1 afforded by markets overt, 2 or by the inclination to treat the contracts of in- fants as voidable and not void; * but it seems to have been more immediately derived 4 from the analogy of real property, where a like distinction was maintained. 5 Transfer of title. The title of the fraudulent vendee had been assumed to be utterly void ; 6 but this view of the contract as entirely null implied that the vendee might take advantage of his own wrong and treat it as such ; 7 whereas it was merely voidable at the election of the vendor. 8 The question arises, however, whether this means that the contract is void until ratified by the defrauded owner, or valid until rescinded. 9 If the former be the case, and the title does not pass at the time of the sale upon delivery, it is asked when it does pass, and whether it remains forever in the clouds, or in nubibus, and what definite act is essential to pass it afterwards. 10 It has been considered not enough to say that the title passes or not, as the vendor pleases, 11 since the very right of rescission implies the subsistence of the contract, for there can hardly be a revocation of a transfer which never took place, and there must have been a title for the owner to disaffirm, as well as a title to convey to the innocent purchaser. 12 The conclusion is accordingly deemed irresistible that a fraudulent vendee of chattels, where there is an absolute and un- qualified delivery with intent to transfer the property, acquires the title, though it be merely a naked, void- able, defeasible title, 13 and that on a sale by such vendee the title passes to a bonafide buyer. 14 Consent to transfer. In such a case there is no room for the application of the doctrine that no one can be divested of his property except by his own consent or 291 BONA FIDE PURCHASERS. 201 by operation of law, 15 for the owner in this instance has consented to the transfer of his title as well as his pos- session; 16 and this consent is binding, by whatever artifice it was produced, 17 since when a compact is con- summated, the motive that led to such a deliberate act cannot alter its obligatory character. 18 1 See White v. Garden, 10 Com. B. 924. 2 Markets overt : See \\ 178-180. 3 Seo Walk. Am. Law (4th ed.) 427. 4 According to article on " Conversion by Purchase," 15 Am. Law Rev. 363, 384. 5 See Somes v. Brewer, 2 Pick. 184, 201 ; 13 Am. Dec. 406. 6 See Stevens v. Hyde, 32 Barb. 175. 7 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 384. 8 See Matteawan Co. v. Bentley, 13 Barb. 644 ; Ayres v. Hewitt, 19 Me. 281 ; Stevenson v. Newnham, 13 Com. B. 285. 9 See Oakes v. Turquand, 2 Eng. & Ir. App. 275. 10 Stevens v. Hyde, 32 Barb. 180. The further inquiry made is, at what precise moment thereafter the title of the vendor is divested, and when it can be said with certainty that the one has parted with and the other acquired the title : Stevens v. Hyde, 32 Barb. 180. 11 See George v. Kimball, 24 Pick. 241. 12 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 384. 13 See Rowley v. Bigelow, 12 Pick. 307 ; 23 Am. Dec. 607. 14 Article on " Conversion by Purchase, 15 Am. Law Rev. 363, 384. 15 See Saltus r. Everett, 20 Wend. 267 ; 32 Am. Dec. 541 ; Fawcett v. Osborn, 32 111. 411 ; 83 Am. Dec. 278, 281. 16 See Old Dom. Steamship Co. v. Burckhardt, 31 Gratt. 664. 17 Article on " Title from Fraudulent Veiulees," 7 South Law Rev. N. S. 549. 18 Oakes v. Turquand, 2 Eng. & Ir. App. 3 10 ; Somes v. Brewer, 2 Pick. 201 ; 13 Am. Dec. 406; from which it appears that such is also the reasoning of the civil and the Scotch law. See Pothier on Obli- gations, pt. 1, ch. 1, art. 3, 1, No. 29, and Brown on Sales, 396. g 2D1. Title of innocent purchaser, Liability to avoid- ance. The doubt has been suggested whether an inno- cent purchaser does not take the title with all its defects, so that it is still liable to avoidance in his hands, 1 and whether the conveyance of a defeasible title can transfer aught but a defeasible title. 2 Party not privy to fraud. But the answer to this is said to be, that the bona fide purchaser not only failed g 202 BONA FIDE PURCHASERS. 292 to participate in the fraud, but was not even aware of its perpetration, 3 and should not suffer its penalty.* Since delay gives the aspect, of ratification, the owner should exercise due diligence in rescinding, 5 and his demand comes too late when the goods have passed into the control of an innocent purchaser ; 6 for such an option to rescind a contract for fraud 7 is a legal privilege, not binding upon one who was not privy to the fraud. 8 Removal of element of defeasibility . Hence, it is sug- gested that such option is not enforcible against the bona fide purchaser, who obtains a perfect title free from the possibility of impairment, not by virtue of the transfer itself, for no one can convey a better title than he has, 9 but an operation of law, which eliminates from the title an element of it which is no longer applicable. 10 1 See citations in next note. 2 See argument in Williamson v. Russell, 39 Conn. 406 ; article on "Conversion by Purchase," 15 Am. Law Rev. 363, 384. 3 See Rowley v. Bigelow, 12 Pick. 307 ; 23 Am. Dec. 607 ; Steven- son v. Newniuun, 13 Com. B. 285 ; 22 Law J. Com. P 10. 4 Article on " Conversion by Purchase," 15 A m. Law Rev. 363, 385, 5 Diligence in rescission generally: See 2 Bouvier Law Diet, tit. Rescission of Contracts (14th ed.), 468. 6 See Old Dominion Steamship Co. v. Buickhardt, 31 Gratt. 664. 7 See Stevenson v. Nownham, 13 Com. B. 2&> ; 22 Law J. Com. P. 10. 8 See Rowley t>. Bier low, 12 Pick. "Ofi ; 23 Am. Dec. 607 ; article on " Conversion by Purcli-.se," 15 Am. Law Rev. 363, 385. 9 See Leigh ?. MoMle etc. R. R, Co. 58 Ala. 165, 176; Barnard v. Campbell, 55 JS~. Y. 45 (1842), Williams ;. Given. 6 Gratt. 268 (1849); Keyser v. Harbeck, 3 Duer, 373 (1854); Titcomb v. Wood, 38 Me. 563 (1854) ; Mears v Waples, 3 Houst. 581 (1868) , S. C. 4 Houst. 62 (1869) ; Old Dominion S. S. Co. v. Burckhardt, 31 Gratt. 664 (1879). Consult article on " Conversion by Purchase," 15 Am. Law Rev 363, 386, 387 6 Barnard v. Campbell, 58 N. Y. 75 ; 17 Am. Rep. 208. See artinle on Title from Fraudulent Vendees, 7 South. Law Rev. N. S. 549, 560. 204. Prevalence of exemption. Without definite or consistent grounds. In many of the cases the protection of the bona fide purchaser of chattels from a fraudulent vendee is simply asserted, without any reason or definite ground being given therefor, 1 while in others it is treated as an exception to ordinary rules, and the title of such fraudulent vendee is declared to be void, 295 BONA FIDE PURCHASERS. 204 so that he has none to convey, but yet the innocent purchaser is said to acquire the property, because he has parted with value and is ignorant of the fraud. 2 Recognition in United States. But though justified in different decisions on a variety of grounds, the protec- tion of the bonafide purchaser from a vendee who has effected a sale by fraudulent devices, or with fraudu- lent designs, is widely and almost universally recog- nized in this country. 3 It may be regarded as established in at least the fol- lowing States of the Union : California, 4 Connecticut, 5 Delaware, 6 Georgia, 7 Illinois, 8 Indiana, 9 Kansas, 10 Ken- tucky, 11 Maine, 12 Maryland, 13 Massachusetts, 14 Minne- sota, 15 Mississippi, 16 New Hampshire, 17 New York, 18 Ohio, 19 Pennsylvania, 20 Tennessee, 21 Virginia, 22 and Wis- consin. 23 Adoption in England. In England the result of recent cases 24 is also to accord like protection, and upon the ground of the prevalent American doctrine of the void- able or defeasible title, 23 although stress is laid rather on the intention of the original vendor than on the actual transfer of the title. 26 1 West. Transportation Co. v. Marshall, 4 Abb. N. Y. App. 575 ; Trott v. Warren. 11 Me. 227 ; Sparrows v. Chesley, 19 Me. 79 ; Ditson v Randall. 83 Me. 202 ; Powell v. Bradlee, 9 Gill & J. 220 ; Gibson v. Moore, 7 Mon. B. 92 ; Ohio etc. R. Co. t. Kerr, 49 111. 458 ; Chicago Dock Co. v. Forster, 48 111. 507 ; Thompson v. Lee, 3 Watts 5 Am. Rep. 439. Fraudulent obtain- ing of tickets by agent, bona flde purchaser not protected: Frank v. Ingalls, 41 Ohio St. 560. 9 Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. 180. 10 Alexander v. Swackhamer, 1C5 Ind. 81 ; 55 Am. Rep. 180 ; citing, Hamet v. Letcher, 7 Oiiio St. ^G; 41 Am. Rep. 519 ; Barker v. Dins- more, 72 Pa. St. 427 ; 13 Am. Rep. 679 ; Moody v. Blake, 117 Mass. 23; 19 Am. Rep. 394 ; Cundy v. Lindsay, Law R. 3 App. Cas. 459 ; 24 Eng. Hep. 345. 11 Barnard v. Campbell, 58 N. Y. 73 ; 17 Am. Rep. 203. 12 Cochran v. Stewart, 21 Minn. 4"5 ; Green v. Humphreys, 50 Pa. St. 212. But see Mears v. WapJes, 4 Houst. 62. Consult articles on " Conversion by Purchase," 15 Am. Law Rev. 363, 3:-8 ; " Title from Fraudulent Vendees," 7 South. Law Rev. N. S. 567, 533, discussing good faith and notice. 13 Root v. French, 13 Wend. 570 ; 28 Am. Dec. 428 ; Barnard r, Campbell, 58 N. Y. 73; 17 Am. Ri-p. 203; Stevens v. Breiinan, 79 N. Y. 254; Sargent v. Sturm, 23 Cal. 359 ; 83 Am. Dec. 118. Contra, Shufeldt v. Pease, 16 Wis. 689; Butters v. Houghwout, 42 111. 18. 14 Barnard v. Campbell, 53 N. Y. 73 ; 17 Am. Rep. 208 ; Padden v, Taylor, 44 N. Y. 371; Kingsburyv. Smith, 13 N. H. 109. See article on "Conversion by Purchase," 15 Am. Law Rev. 363, 388. And con- sult discussion of consideration in article on "Title from Fraudulent Vendees," 7 South. Law Rev. N. S. 549, 569. Taking a pledge of stock as collateral security for a pre-existing debt, from one who obtained the stock by fraudulent pretenses, is not such a purchase for value as to cure the defect in the title or preclude the original owners from reclaiming their stock on the ground of its transfer: Linnard's Appeal, 3 Atl. Rep. (Pa.) 840. \ 236. Obtaining goods by false pretenses. English legislation. In England there is a statutory exception 299 BONA FIDE PURCHASERS. 206 to the usual rule l which confirms the title of the bona fide purchaser, made in cases where the goods are obtained by criminal false pretenses. 2 In such in- stances, just as where the goods are procured by lar- ceny, their restoration to the owner is ordered upon the conviction of the offender. 3 Before such enactment it was held otherwise ; 4 and it has recently been ruled that the effect of the statute is not to revest the title in the vendor as against a bona fide purchaser who had bought before the conviction : 5 so that the doctrine is assimilated 6 to that governing the purchase of stolen goods in market overt. 7 View in this country. In this country it was at first attempted to create the same exception in States where the offense of obtaining goods by false pretenses might amount to felony ; 8 but the doctrine was sifted and found untenable, 9 for it was perceived that the nature or degree of punishment which the law may attach to the fraudulent pretense or contrivance cannot affect the title of the subsequent innocent purchaser. 10 1 See 25 Viet. ch. 96, 100, re-enacting and enlarging, 7, 8, Geo. IV. ch. 29, 57. 2 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 388. 3 See enactments cited in note before last. 4 See Parker v. Patrick, 5 Term Rep. 175, explained in Keyser v. Harbeck, 3 Duer, 329. 5 Movce v. Newington, Law R. 4 Q. B. D. 32 ; 48 Law J. Q. B. 125 ; 28 Eng. Rep. 674. See, also, Lindsay r. Cundy, Law R. 1 Q. B. D. 348, Ho? ; 45 Law J. Q. B. 381 ; dissenting from Nickling v. Heaps, 21 L. T. R. 754. 6 Article on " Conversion by Purchase," 15 Am. Law Rev. 363, 383, 389. 7 Markets overt : See \\ 178-180. 8 Andrews v. Dietrich, 14 Wend. 31 ; Robinson v. Dauchy, 3 Barb. 20. 9 Malcom v. Loveridge, 13 Barb. 372 ; Keyser v. Harbeck, 3 Duer, 373 ; Cochran v. Stewart, 21 Minn. 435 ; Williams v. Given, 6 Gratt. 268. 10 Williams v. Given, 6 Gratt. 268. See article on " Conversion by Purchase," 15 Am. Law Rev. 363, 389. 207 FACTORS' ACTS. 300 CHAPTER XV. FACTORS' ACTS. 207. Factors' acts in general. 208. Occupations covered. 2 209. Intrusting goods or documents. \ 210. Apparent ownership or authority. $ 207. Factors' acts in general. Factor's pledge at common law. A factor or commission merchant 1 has an assignable lien on his principal's goods for advances made ; 2 but if he pledge beyond this for his own use, he is, according to the strict construction of the common law, deemed guilty of a conversion, 3 and the pledge acquires no title to the goods against a subsequent bona fide purchaser from the factor. 4 Pi^evalence of these enactments. But the rigor of the rule has been modified by the passage of factors' acts in England 5 and Canada, 6 and similar enactments in many of the States of the Union, 7 including New York,* Massachusetts, 9 Alabama, 10 California, 11 Maine, 12 Ohio, 13 Pennsylvania, 14 Rhode Island, and probably other States. 15 Usual provisions. These usually provide for the pro- tection of bona fide purchasers or pledgees 16 from the factor, consignee, or other agent intrusted with the possession of the goods, 17 if the transaction be in the ordinary course of business, 18 without notice of the agent's want of authority, 19 especially when the agent holds such documents of title or control as bills of lad - ing or warehouse receipts, or in England-dock warrants, delivery orders, and the like; 20 with the proviso, at least under the British decisions, that the goods were transferred for advances made, 21 and not merely as security for an antecedent debt. 22 301 FACTORS' ACTS 207 Protection independent of. Protection under such, or like circumstances, has even been justified irrespective of these statutes, 23 at least where the person having possession of the goods, and the marks of title, 24 was one who from the nature of his employment might be presumed to have had the right to sell the property. 25 Theory of such enactments. And the theory of such legislative intervention is, that the innocent pledgee is justified in treating as owners those whom the owners have themselves clothed with the indicia of title. 26 1 See 1 Bouvier Law Diet. tit. Factor. 2 Donald v. Suckling, Law R, 1 Q. B. 585. 3 Story on Agency, 113 ; McCombie v. Davis, 7 East, 5 ; Wright v. Solomon. 1!) Cai. 64 ; 79 Am. Dec. 196. And see Hayes v. Campbell, 55 Cai. 421, 424. 4 Nowell v. Pratt, 5 Cush. 111. See '* Conversion by Purchase,'* 15 Am. Law Rev 373 ; \ 188, on TRANSFER BY FACTOR, under chapter on BOJSA FIDE PURCHASERS. 5 4 Geo. IV ch. 83 (1823) ; 6 Geo. IV. ch. 94 (1825) ; 5, 6, Viet. ch. 39 (1842) ; 40, 41, Viet. ch. 39 (1877). See 1 Chitty on Contracts (llth Am. ed.), 21)8. 300; Campbell on Sales, 412, 417; Bennett's Benjamin on Sales, p. 20, $ 1!); and pp. 922, 926, \\ 809. 80!) a ; Cole v. Northwestern Bank, 9 C. P. 470 ; 10 C. P 354 ; Johnson v. The Credit Lyonnuis, 2 C. P Div. 224 ; 3 C. P. Div. 32 ; Nickerson v. Darrow, 5 Allen, 419, 422 ; Navulshaw v. Brownrigg, 2 De Gex, M. & G. (Am. ed.) 441, 445, and notes ; Kaltenbach v. Lewis, Law R. 24 Ch. D. 54. 6 Consol. Stats. Can ch. 54 (1859); In re Coleman, 36 Up. Can. Q. B. 559; Todd ?;. Liverpool etc. Ins. Co. 20 Up. Can. C. P 523; Cockburn v. Sylvester, 27 Up. Can C. P 34 reversed in 1 Ont. App. 7 See 2 Kent. Com. 628, n b ; Smith Merc. Law (Am. ed.) 12fi, n. ; Jones' Pledges, 333,353, stating State statutes; Bennett's Benjamin, and 1 Corbin's Benjamin, ? 19 ; Story on Sales, 104 ; 2 Sohouler on Personal Property, 556, note on p. 568 , Warner v. Martin, 11 How. 8 N. Y. Rev. Stats. 76 ; Jennings v. Merrill, 20 Wend. 9. 9 Mass. Rev. Stats. 1882, 417 ; Ullmann v. Barnard, 7 Gray, 554 ; Mich. State Bank v. Gardner, 15 Gray, 362 ; De Wolf v. Gardner, 12 Cush 19. 10 Bott v. McCoy, 20 Ala. 578. 11 Cai, Civ. Code, 2369 ; Wisp v. Hazard, 66 Cai. 459. And see Green ?;. Campbell, 52 Cai. 586, 589. 12 See Me. Rev. Stats. 326. 13 Ohio Rev. Stats. 1880, 3216, etc. 14 Brightley'sPurdon's Digest, 664. 15 See " Conversion by Purchase," 15 Am. Law Rev. 374 ; Md. Rev, Code, 291. NEWMARK SALES. 26. $ 208 FACTORS' ACTS, 302 16 Compare Dodge v. Meyer, 61 Cal. 405. 17 Compare Chicago etc. Co. v. Lowell, 60 Cal. 454. 18 See proviso later in paragraph. 19 Compare Dodge v. Meyer, 61 Cal. 405. 20 See next chapter on DOCUMKNTS of TITLE ; " Conversion by Purchase," 15 Am. Law llev. 363, 374. 21 As to extent of these, see Xavulshaw v. Brownrigg, 2 De Gex, M. & G. 441 ; 21 Law J Ch. 57 ; Portalis v. Tetty, Law R 5 Eq. 140. 22 Heyman v. Flewkes. 13 Com. B. IS". S. 519 : Jpwan v. Whit- worth, Law R. 2 Eq. 6<)2 ; Macnee r. Gorst, Law R. 4 Eq. 315 ; Portalis ?'. Tetty, Law R. 5 Eq. 140 ; Vickers r. Hertz, Law R. 2 H. L. S. 113. See Campbell on Sales, 412, main basis of discussion of proviso. 23 See Story on Agency, 113, n. ; Higgons v. Burton, 23 Law J. Ex. 342. 24 See Nixon r. Brown, 57 N. H. 34 ; Western Union R. R. Co. v. Wagner, 65 111. 197. 25 Higgons v. Burton, 23 Law J. Ex. 32. 26 See " Conversion by Purchase," 15 Am. Law Rev. 363, 474 ; Davis v. Russell, 52 Cal. 611, 616. $ 208, Occupations covered. Wliarfmger, luarehouse- man, etc. The English factors' acts, which were de- signed to overcome the effect of previous rulings, 1 have been held not to apply to a wharfinger, who usually receives goods without power to sell; 2 nor to a ware- houseman, although he was also in the habit of acting as a wool-broker, 3 although they have been held to cover the case of a picture-dealer, whose ordinary busi- ness was not that of selling pictures.* Transactions not mercantile. Nor have they been regarded as extending to transactions which are not of a mercantile character, 5 as sales of furniture or goods in possession of a tenant, or of a bailee for hire, 6 so that a purchaser in good faith from such vendors would be liable in trover to the true owner. 7 Factor "perching" goods. But a factor or commis- sion merchant to whom goods are sent to be " perched," or stretched on poles for examination by a pretended purchaser, may be deemed an agent within the English acts. 8 303 FACTORS* ACTS. \ 209 1 See Fletcher 7'. Heath, 7 Barn. & C. 517 ; Phillips v. Heath, 6 Mees. & W 572; llatfteld v. Phillips, 9 Mees. & W. 0-47 Kvans >. Trueman. 1 Moody tfc R 10; Benzi v Stewart, 4 Man. & G. 2s5; Taylor ?> Rymer. 3 Barn. & Adol. 320. Cases collected and stated: Campbell on Sales- 413. 2 Mark v "Whittenbury, 2 Barn. & Adol. 484. 3 Cole v North Western Bank, 9 C. P 470 ; 10 C. P. 354. Case con- sidered Campbell on Sales, 415. 4 Hayman v. Flewker, 13 Com. B. N. S. 519. Case noted: Ben- nett's Benjamin on Sales, p. 24, \ 20. 5 Wood v Rowcliffe, 6 Hare, 183. And see Baines v. Swainson, 4 Best ">'), n. ; Bennett's Benjamin on Sales, pp. 939-941, \ 822, and pp. 9M, 901, 2 861 ; 2 Corbin'a Benjamin on Sales, p. 105:',, \ 1224. Where the bill of lading delivered to the consignor differs from that kept by the master of the vessel, the former controls : Ontario Bank ?>. Hanlon, 23 Hun, 283 ; The Thames, 14 Wall. 98, 105. Duplicate bills and stop- page in transitu : Castanda v. Mo. Pac. Ry. Co. 24 Fed. Rep. 267. 11 See 2 Schouler on Personal Property, \\ 271-275, and p. 569, 556 ; Craven v. Ryder, 4 Taunt. 433; Cowasjee v. Thompson, 5 Moore P. C. C. 165 ; Dodge v. Meyer, 61 Cal. 405, 417. 12 See 2 Schouler on Personal Property, \ 273. 13 Emery's Sons v. Irving Xat. Bank. 2~> Ohio St. 366. See Dodge v. Meyer, 61 Cal. 405, 417. And the consignor who retains the bill of lading may order delivery to some person other than the consignee : Halsey v. Warden, 25 Kan. 128, 136. 14 West. Transp. Co. r. Hawley, 1 Daly, 327. And until then no title or right to possession or ownership passes from the owner or shipper : West. Transp. Co. v. Hawley, 1 Daly, 327. 213. Nature and effect. Represent property. Bills of lading by the law merchant are the representatives of the property for which they have been given. 1 Effect of transfer. And the indorsement and delivery of a bill of lading transfers the property 2 from the vendor to the vendee; 3 is a complete legal delivery of the goods ; 4 divests the vendor's lien ; 5 and though the contract is not at common law transferred to the as- signee, 6 yet by statute in England, 7 it vests in the vendee all the vendor's rights of action against the ship-master, or owner. 8 Stoppage in transitu. But though the vendor's lien is thus divested by reason of the complete delivery of the indicia of title, 9 yet the seller may, if the goods have not yet reached the actual possession of the buyer, 10 and if no third person has obtained rights by obtaining a transfer of the bill of lading from the buyer, 11 intercept the goods, 12 in the event of the buyer's 311 DOCUMENTS OF TITLE. 214 insolvency before payment, 13 by the exercise of the right 14 of stoppage in transitu^ 1 Bennett's Benjamin on Sales, p. 928, g 813. And see Dodge v. Meyer, 61 Cal. 405, 416. Even after goods are landed, until replaced by wharfinger's warrants : Myerstein v. Barber, Law R. 4 App. Cas. 317 ; Law It. 2 Com. P. 308, 361. 2 Though such indorsement is not essential to the transfer of title : See First Nat. Bank v. Northern Railroad, 53 N. H. 203 ; City Bank v. Borne etc. B. R. Co. 44 N. Y. 136 ; Merch. Bank v. Union B. R. etc. Co. 69 N. Y. 373 ; Holmes v. German Security Bank, 87 Pa. St. 525 ; Holmes v. Bailey, 97 Pa. St. 57 ; Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360, 366. Sometimes otherwise under commercial code of German Empire : See Becker v. Halgarten, 86 N. Y.167. 3 See McKee v. Garcelon, 60 Me. 167 ; Bobinson v. Stuart. 68 Me. 61 ; Davis v. Bradley, 24 Vt. 55; Same v. Same, 28 Vt. 118 ; Til den v. Minor, 45 Vt. V,;6 ; Joslyn v. Grand Trunk B. B. Co. 51 Vt. 921 ; Peters v. Ballisticr, 3 Pick. 41)5 ; Stone v. Swift, 4 . . . . ift, 4 Pick. 389 ; Hazard v. Fiske, 3 . . 267 ; tens v. Waas y. o. 9 111. App. 48 ; Royal Can. Bank v. Grand Trunk By. Co. 23 Up. Can. C. P. 225; Glyn v . East India Dock Co. 5 Q. B. D. 129 ; 28 Week. R. 444 ; 35 Eng. Bep. 414. See, also, Dodge v. Meyer, 61 Cal. 405, 416. Transfer of title by bill of lading: St. Paul Boiler Mill Co. v. Great Western Dispatch Co. 27 Fed. Bep. 434 ; under Louisiana Code, see Allen v. Jones^ 24 Fep. Bep. 11. 4 See under chapter on DELIVERY. 5 See preceding section on BILLS OF LADING. 6 See Stone v. Swift, 4 Pick. 389. 7 See Bills of Lading Act, 18, 19 Viet. ch. 3 ; The Freedom, Law. R. 3 P. C. 594. 8 Bennett's Benjamin on Sales, p. 928, g 812, and pp. 928, 929, \ 813, whence foregoing matter derived. Effect of indorsement of bills of lading in Canada to banks : Goodenough v. City Bank, 10 Up. Can. C. P. 51. Negotiability in Louisiana: Henry v. Phila. Warehouse Co. 81 Pa. St. 76. 9 See preceding section on BILLS OF LADING. 10 See under chapter on STOPPAGE IN TRANSITU. 11 See section under STOPPAGE IN TRANSITU, on MODE OF DEFEATING RIGHT. 12 See section under STOPPAGE IN TRANSITU, on MODE OF EXERCISING RIGHT. 13 See section on BUYER'S INSOLVENCY, etc., under STOPPAGE IN TRANSITU. 14 Bennett's Benjamin on Sales, p. 929, g 813 ; citing, Lickbarrow v. Muson, 2 Term Rep. 62 ; 1 Black. H. 357 ; 6 East, 20 ; 1 Smith's Leading Cases (ed. 1879), 753. 15 Nature of right : See first section of chapter on STOPPAGE IN TRANSITU. Duplicate bills of lading and stoppage in transitu: Castanola v. Mo. Pac. By. Co. 24 Fed. Rep. 297. \ 214. Shipping receipts, Prerequisite to vesting of title in consignee. The rule seems to be that in order to change the title to property shipped, and vest it in the I 215 DOCUMENTS OF TITLE. 312 consignee, there must be a bill of lading, receipt, or letter of information forwarded to the consignee, or advances must have been made on the faith of the particular consignment. 1 Forwarded too late, etc. But there is no transfer of title, risk, or possession where the shipping receipts for grain were not forwarded until after the grain was attached as the property of the consignor, and the ad- vancements for which a lien was claimed by the con- signees were all made before the grain in controversy was shipped. 2 1 First Nat. Bank v. McAndrews, 5 Mont. 325 ; 51 Am. Rep. 51, 58. 2 Hodges v. Kimball, 49 Iowa, 577 : following, Elliott v. Bradley, 23 Vt. 217 ; citing in support, Bank of Rochester v. Jones, 4 N. Y. 497 ; Winter v. Coit, 7 N. Y. 288; Kinloch v. Craig, 3 Term Rep. 119; Wight, 24 Wend. 169 ; Grosvenor v. Phillips. 2 Hill, 147 ; Bailey v. Hudson River R. Co. 49 N. Y. 70 ; Haille r. Smith, 1 Bos. & P. 563 ; Krulder v. Elson, 47 N. Y. 36 ; distinguishing, Anderson r. Clark. 2 Bing. 20 ; Cuming v. Brown, 9 East, 506; Vertue v. Jewell, 4 Camp. 31 ; Patten v. Thompson, 5 Maule . Brien, 8 How. 429; Bryans r. Nix, 4 Mees. & W. 774; Evans v. Nichol, 3 Man. & G. 614 ; Alderson v. Temple, 4 Burr. 2235 ; Berly v. Taylor, 5 Hill, 577. \ 215. Estoppel of ship-owners. English rule. It is beyond the scope of the master's authority to sign a bill of lading for goods which have never been shipped ; l and in England, the ship-owner can set up such want of authority, 2 even as against one who has made ad- vances on the faith of the bill, 3 except so far as this right may be affected by statutory regulation. 4 Like American view. The English rule is followed 5 in Canada, 6 in the federal courts, 7 in Massachusetts, 8 and in Missouri. 9 Different American doctrine. But the counter-view, that as against innocent third persons, the ship-owners are estopped to deny the bill of lading upon this point, is maintained in New York, 10 and in Illinois. 11 5 UJtUlllOUUUU It-i J-^evv iVJJLJt^., - dlJU. ill XXHAIV 1 Bennett's Benjamin on Sales, p. 930, 813, n./. 2 According to source just cited. , DOCUMENTS OF TITLE. \ 216 3 Grant v. Norway, 10 Com. B. 665 ; Coleman v. Riches, 16 Com. B. 104 ; Hubbersty v. Ward, 8 Ex. 330. 4 Bills of Lading Act, 18, 19 Viet. ch. 3, 3 ; Jessel v. Bath, Law B. 2 Ex. 267 ; Brown v. Powell etc. Coal Co. Law R. 10 Com. P. 5G2. 5 According to Bennett's Benjamin on Sales, p. 930, 813, n. /. 6 Eel v. Great West. By. Co. 5 Duval, 179. 7 The Lorn, 7 Blatchf. 244 ; Hickox v. Buckingham, 18 How. 182. 8 Sears v. Wingate, 8 Allen, 103 ; Walter v. Brewer, 11 Mass. 99. 9 Louisiana Nat. Bank v. Laveille, 52 Mo. 380. Inclination toward same view : Lehman v. Central B. R. Co. 26 Alb. L. J. 389. 10 Meyer v. Peck, 28 N. Y. 590 ; Armour v. Mich. Cent. R. R. Co. 65 N. Y. Ill ; Miller v. Hannibal etc. R. R. Co. 90 N. Y. 430 ; 24 Hun, 607. 11 St. Louis R. R. Co. v. Lamed, 103 111. 293. See Bennett's Benja- min on Sales, p. 930, \ 813, n. /, for basis of this statement. 216. Warehouse receipts, In England. In many cases in the English courts it has been held that an as- signment of a document of the character of a warehouse receipt, does not amount to a constructive delivery of the goods until the warehouseman is notified thereof, and agrees to hold the goods for the assignee. 1 Effect of local usages. But local mercantile usage, so well recognized as to have presumably entered into the mutual agreement of parties, has a material bearing on the effect to be given to instruments accompanying the transfer of goods. 2 As documents of title. And in the United States, ware- house receipts have in several instances, especially in sections largely concerned in inland transportation, been treated as documents of title to much the same ex- tent as bills of lading. 3 Statutory regulation. So local statutes sometimes specially provide 4 that any person to whom warehouse receipts are transferred by indorsement shall be deemed the owner, so far as to give validity to any pledge, lien, or transfer by him. 5 Negotiability. Warehouse receipts are sometimes made negotiable by statute; 6 but usually a receipt of this character is not, in any technical sense, negotiable, 7 NEWMARK SALES. 27. \ 216 DOCUMENTS OF TITLE. 314 and the delivery of the receipt, apart from any statute regulating the transfer, would have the same effect in transferring the title to the property, as the delivery of the property itself. 8 Thus, it is laid down that in the absence of statutory enactment a warehouse receipt is not a negotiable instrument, and an assignment thereof operates merely as a transfer of the property deposited, and passes no better title to the purchaser than the vendor had. 9 Bonaflde purchaser of bonded goods. Where brandy manufactured by the owner for a licensed distiller is stored in a United States bonded warehouse, in order to delay the payment of the revenue tax, and the laws governing the matter require brandy to be stored in a distiller's name, but do not require the distiller to be the owner, then if the warehouse receipt was issued to the distiller, and he subsequently sold the liquor to another, without authority, the latter, though a bona fide purchaser for value and without notice, acquired no title to the property, and the owner of the liquor was entitled to a return thereof on paying to such purchaser his payments for warehouse charges and the govern- ment tax. 10 1 Davis v. Russell, 52 Cal. 611, 615. And see Blackburn on Sales, 297 ; Bennett's Benjamin on Sales, p. 931, 815. 2 See 2 Schouler on Personal Property, p. 568, \ 556, n. 3 Gibson v. Stevens, 8 How. 384 ; Shepardson v. Gary, 29 Wis. 34 ; 2 Schouler on Personal Property, 556, note on p. 568, so citing these cases : Horr v. Baker, 8 Cal. 613 ; Davis v. Busseil, 52 Cal. 611. 4 See Stims. Am. Stat. Law pp. 517-519, \\ 4370-4372, for analysis of enactments on this general subject. 5 Yenni ?-. McXamee, 45 N. Y. 614 ; N. Y. Laws, 1858, ch. 326 ; as cited, 2 Schouler on Personal Property, p. 568, 556, n. And see Mass. Pub. Stats, ch. 72, g 1 ; Rev. Stats. 111. 1880, ch. 114, 142 ; Burton v. Curyea, 40 111. 320 ; Bennett's Benjamin on Sales, p. 932, 815, n. m. 6 Thus in Kentucky, under the statute, with certain conditions, the transfer of the receipt passes the property in the goods : See Cochran r. Ripy, 13 Bush, 495, 502. But even though the statute con- fer negotiable qualities on such instruments, it could not fairly render the warehouseman a guarantor of the title of property placed In his custody: Insurance Co. v. Kiger, 103 U. S. 352; as cited,! 315 DOCUMENTS OF TITLE. $ 217 r arehouse State v. , - . . . . , . 7 Allen v. Maury, 66 Ala. 10. It merely stands in th property represented by it: Allen v. Maury, 66 Ala. 10. receipts made payable to bearer are not negotiable ; but they require a written indorsement and delivery : 1 Schouler on Persona] Prop- erty, 472, n. 1 ; citing, 6 Mo. App. 172. ^ae place of the . 10. Warehouse but they require v. Frank, 12 Or. 507 ; distinguishing, Solomons v. Bushnell, 11 ( and quoting with approval, Hallgarten v. Oldham, 135 Mass. 1. also, Lickbarrow v. Mason, 2 Term Hep. 63; 1 Smith's Leading Cases (7th Am. ed ), 1198 ; Second Nat. Bank v. Walbridge, 19 Ohio St. 419 ; Ins. Co. v. Kiger, 103 U. S. 356. 10 Bliss v. Carroll, 9 Pacif. Kep, (Cal,) 88 ; S. C. 21 The Reporter. 140 ; Sup. Ct. Cal. Dec. 23, 1885. 217 Documents of title, Enactments concerning. Various acts of legislation have been passed, both in England and America, which for certain purposes therein specified, preserve or destroy liens, or give certain classes of documents of title a quasi negotiable character , l and prominent among such statutes are the English Factors' Acts 2 and Bills of Lading Act, 3 whose features are followed in this country in the codes of some of the States. 4 Assimilation to bills of lading. And among other changes effected by the latest English Factors' Acts 5 all documents of title, when in the hands of a bona fide transferee for value from the original purchaser, are assimilated to bills of lading, for the purpose of defeat- ing the seller's lien and stoppage in transitu. 6 Protection of pledgee, etc. So the effect of the late English statutes is to now enable not only the 'bona fide buyer of goods under indorsement of the bill of lading, but also a party who loans or advances money upon 218 DOCUMENTS OF TITLE. 316 the faith of such security, 7 to prevail in title over the original seller who has actually transferred the docu- ment, and suffered it to go into the market. 8 Lost or stolen documents. But one who buys or ad- vances on the faith of these documents of title, does not so far stand in the same position as the innocent holder for value of a genuine bill of exchange or promissory note, as to be able to claim the goods when the document came to him through a finder or thief who had no right thereto. 9 Misdescription in. And in the absence of legislation, usage, or express agreement, it seems that nothing is to be delivered up under the document but the goods which it actually represents, whatever error of de- scription not of a fraudulent character may be made in the document. 10 1 2 Schouler on Personal Property, p. 568, \ 55, upon which para- graph based. 2 4 Geo. 4, ch. 83, ? 3; 6 Geo. 4, ch. 94 ; 5, 6, Viet. ch. 30 ; 40, 41, Viet. ch. 30. See Bennett's Benjamin 'on Sales, pp. 922, 926, \ 809 ; Campbell on Sales, 412. 3 18, 19, Viet. ch. Ill ; Bennett's Benjamin on Sales, p. 928, \ 811 ; Campbell on Sales, 66 ; Barber v. Meyerstein, Law R. 4 H. L. 317 ; Jessel v. Bath, Law R. 2 Ex. 267. 4 See Dows v. Greene, 24 N. Y. 638 ; Hale v. Milwaukee Dock Co. 29 \Vis. 482. 5 40, 41, Viet. ch. 39 (1877). See Bennett's Benjamin on Sales, p. 026, 809 a ; Campbell on Sales, 417, 419. 6 2 Schouler on Personal Property, p. 568, \ 55fi, n. 7 See 205, on LIMITATIONS ox EXEMPTION OF BONA FIDE PURCHASER. 8 Short v. Simpson, Law R,. 1 Com. P. 248 ; Barber v. Meyerstein, Law R. 4 H. L. 317 ; Pease r. Gloahec, Law R. 1 P. C. 219, as noted ; 2 Schouler on Personal Property, p. 568, g 556, n. 9 Gurney v. Behrend, 3 El. . Sherman, 106 Mass. 430, 433. See Simmons v. Swift, 2 Barn. & C. 540 ; Langdell's Cases on Sales. 656, 663 ; Riddle v. Varnum, 20 Pick. 280, 285. Marked distinction between delivery to pass title and to destroy seller's lien : Arnold v. Delano, 4 Cush. 33 ; 50 Am. Dec. 754, 756. And compare Messer v. Woodman, 22 N. H. 172 ; 53 Am. Dec. 241,247. 9 Dixon v. Yates, 5 Barn. & Adol. 313 ; Ross' Leading Cases. 55, 75. For the very appropriation of the chattel is equivalent to deliv- ery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting posses- sion : Dixon v. Yates, 5 Barn, cfe Adol. 313. See Morse v. Sherman, 106 Mass. 430, 433. And consult Brazier v. Ansley, 11 Ired. 12 ; 51 Am. Dec. 408, 409. 10 See Marsh v. Hyde, 3 ftray, 331, 332 ; Langdell's Cases on Sales, 313 ; Demon ?>. Osborn, 1 Pick. 476, 480 ; II Am. Dec. 229 ; Messer v. Woodman, 22 N. H. 172 ; 53 Am. Dec. 241, 242. 11 Boardman v. Spooner, 13 Allen, 353, 357; Langdell's Cases on Sales, 610. 12 Upton v. Sturbridge Cotton Mills, 111 Mass. 446, 453. $ 222. Actual and constructive delivery. /Statement of distinction. Actual or real delivery is the transfer of the commodity sold to the recipient, while constructive or symbolical delivery may be made with equal effect, at least between buyer and seller, by a transfer of some article which is a symbol or evidence of ownership, 1 such as the delivery of the key of a warehouse contain- ing the goods sold, or of the bill of lading of goods at sea, or of a bill of sale of a vessel at sea. 7 Further exposition of difference. So it has been laid down that actual delivery consists in the giving real possession of the thing sold to the vendee or his serv- ants or special agents, who are identified with him, and I 223 DELIVERY. 322 represent him ; 3 while constructive delivery is a general term, comprehending all those acts which, although not truly conferring on the vendee a real possession of the thing sold, have been held constructione juris, equivalent to acts of real delivery. 4 1 1 Abbott's Law Diet. 360. Delivery need not be actual, but con- structive delivery may be inferred from a variety of facts: See Ga. Code of 1882, g 26-14 ; Stims. Am. Stat. Law, \ 4567. p. 544. 2 1 Abbott's Law Diet. 360. And see Lambeth v. Wells, 12 Bob. (La.) 51 ; La. Code, art. 2453. Or of a warehouse receipt: See New- comb i?. Cabell, 10 Bush, 460, 469. 3 Bolin v. Huffnagle, 1 Rawle, 9, 19. Actual possession exists where the thing is in the immediate occupancy of the party : Brown v. Valkening, 64 N. Y. 80 ; as quoted, Winfleld's Words etc. 17. 4 Bolin v. Huffnagle, 1 Rawle, 9, 19. In this sense constructive delivery includes symbolical delivery, and all those traditiones fictce, which have been admitted into the law as sufficient to vest the abso- lute property in the vendee, and bar the rights of lien and stoppage in tt-fniftitii., such as marking and setting apart the goods as belonging to the vendee, charging him with warehouse rent, etc. : Bolin v. Huffnagle, 1 Rawle, 9, 19. Constructive possession is that which exists in contemplation of law, without actual personal occupation : Winfleld's Words, etc. 139 ; quoting, Brown v. Valkening, 64 N. Y 80. 223. Seller's custody, Goods not taken away by buyer. It is said that when the contract of sale is complete, and the vendee does not take away the goods, the vendor may recover the price 1 in tndebitatus as- sumpsit, 2 as the law does not require therefor that complete delivery or that actual receipt, which would be necessary to defeat the vendor's lien for the price, 8 or his right of stoppage in transitu* or which would be required to take the case out of the statute of frauds. 5 Later statement of law. And more recently it has been declared that there may be a bargain and sale of goods, sufficient to transfer the title, and thus to sup- port an action for goods bargained and sold, without any such delivery as will amount to a transfer of pos- session. 6 For the transfer of title is quite consistent with the vendor's retaining a lien for the price, and so retaining possession till the price is paid, 7 323 DELIVERY. \ 224 1 See Damon v. Osborn, 1 Pick. 476, 481. 2 Morse ?>. Sherman, 106 Mass. 430, 432 ; citinsr, Tin-ley v Bates, 2 Hurl. & C. 200 ; Langdell's Cases on Sales, 692 ; distinguishing, Atwood v. Lucas, 53 Me. 508. And see Parsons v. Dickinson, 11 Pick. 352, 354. 3 Seller's lien generally : See subsequent chapter on that subject. 4 Stoppage in transitu generally : See later chapter of book. 5 Morse v. Sherman, 106 Mass. 430, 432. Statute of frauds in gen- eral : See subsequent chapter on that subject. 6 Frazier v. Simmons, 139 Mass. 531, 535. 7 Frazier v. Simmons, 139 Mass. 531, 535 ; citing, Morse v. Sherman, 106 Mass. 430, 432 ; Haskins ?'. Warren, 115 Mass. 514, 533; Safford ?<. McDonough, 120 Mass. 290; Arnold v. Delano, 4 Cush. 33, 38 ; 50 Am. Dec. 754 ; Simmons v. Swift, 5 Barn. & C. 857 ; Langdell's Cases on Sales, 659 ; 2 Kent Com. 492. 224. Transfer of title without delivery. In England. It is now well settled 1 that by the law of England, by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties ; 2 so that the sale of a specific chattel passes the property in it to the vendee without delivery. 3 All that is essential to the sale of a chattel at common law is the agreement of the parties that the property in the subject-matter shall pass from the vendor to the vendee for a consider- ation given or promised to be given by the vendee. 4 In United States. And in this country it is the general rule that a sale of personal property is complete by the mere consent of the parties and without delivery, 5 at least as between the parties. 6 So soon as a bargain of sale of personal goods is struck, the contract becomes absolute, without actual payment or delivery, and the property and risk of accident to the goods vest in the buyer. 7 Right of possession. But though the vendee in the case of a bargain of sale acquires the right of property in the thing sold, yet the payment of the price is a preced- ent condition implied in the contract, and the payment or tender thereof alone entitles him to the possession. 8 I 224 DELIVERY. 324 Delivery as passing title. It is also sometimes de- clared, though in speaking of the execution of the con- tract, that without delivery, the title does not vest in the vendee so as to enable him to make title to a third party. 9 And in Pennsylvania, it is said that the only ex- ceptions to the rule that upon a sale of personalty the title passes by delivery, 10 are where the sale is for cash and the delivery is upon condition that the payment be made as a concurrent act, 11 and where the delivery is without condition, but is procured by fraud or artifice 12 on the part of the purchaser. 13 Under Louisiana law. Under the law of Louisiana, also, a contract of sale is perfect as between the parties, from the moment of valid agreement, and operates to vest property in the vendee, even though there has been no delivery. 14 And although, in the absence of delivery, such sales are without effect as against seizing or attaching creditors of the vendor and his bona fide transferees in possession and without notice, yet the vendee's title is not affected by the vendor's mere sur- render in insolvency to his creditors. 15 1 See Morse v. Sherman, 106 Mass. 430, 433. 2 Gilmour v. Supple, 11 Moore P. C. C. 551, 556 ; Langdell's Cases on Sales, 624, 632 ; Calcutta Co. v. Be Mattos, 32 Law J. Q. B. 326, 329. And see Simmons v. Swift, 5 Barn. . Yates, 5 Barn. & Adol. 313; Ross' Leading Cases, 55, 74. And see Hinde v. Whitehouse, 7 East, 55S ; Langdell's Cases on Sales, 102, 110; Noy's Maxims, 88; 2 Blackst. Com. 448; Wade 7;. Moffitt, 21 111. 110, 111, 112 ; 74 Am. Dec. 79. 4 Newcomb v. Cabell, 10 Bush, 460, 468 ; quoting, Parsons on Con- tracts p. 4:!5. And see Wade v. Moffitt, 21 111. 110, 111 ; 74 Am. Dec. 79. Compare, however, Gardner v. Howland, 2 Pick. 599, 602. 5 See Taylor v. Twenty-Five Bales of Cotton, 26 La. An. 247. Delivery not necessary to sale : Nance r. Metcalf, 1 West Rep. (Mo.) 441, 442, 44:?. Compare contra, declarations in Farlow v. Ellis, 15 Gray, 229 ; Langdell's Cases on Sales, 720, 722. 6 See Ricker v. Cross, 5 N. H. 570, 571 ; Bradeen v. Brooks, 22 Me. 463, 470 ; Puckett v. Reed, 31 Ark. 131, 136 ; Hooben v.Bidwell, 16 Ohio, 509, 511 ; Wade v. Moffitt, 21 111. 110, 111, 112 ; 74 Am. Dec. 79, reviewing the cases. 325 DELIVERY. \ 225 7 Willis v. Willis, 6 Dana, 48 ; citing, 2 Kent Com. 492. And see Wade v. Moffitt, 21 III. 110, 112; 74 Am. Dec. 79; Potter v. Coward, Meigs, 22, 26 ; Wing v. Clark, 24 Me. 366, 372. Delivery not necessary to pass title : See Pierce v. Moore, 1 Tex. App. (Civ. Cas.) \ 911 ; Ander- son v. Levyson, 1 Tex. App. (Civ. Cas.) \ 927. Delivery to pass risk : to cotton "free on board" : Hobart v. Littlefield, 13 R. I. 341 ; though seller to pasture lambs, Bertelson v. Bowers, 81 Ind. 512; though wood not measured or paid for, Upton v. Holmes, 51 Conn. 500. Until delivery, shrinkage at risk of seller: Gilman v. Andrews, 20 The Reporter (Mich.) 180. 8 Willis v. Willis, 6 Dana, 48, 49. And it is said that though the prope-ty passes by a bargain without delivery, yet the vendee has no right of possession until delivery, which cannot be obtained till payment is made, or the other terms of sale complied with : Barnes v. Bartlett, 15 Pick. 71, 77. 9 Farlow v. Ellis, 15 Gray, 229 ; Langdell's Cases on Sales, 720, 722. 10 Delivery to pass title : Forcheimer v. Stewart, 65 Iowa, 594 ; 54 Am. Rep. 30. 11 Delivery and payment concurrent : See \ 225. 12 See Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. 180 ; $ 205, on LIMITATIONS UPON EXEMPTION, in chapter on BONA FIDE PURCHASERS. 13 Logan v. Smith, 14 Phila. 114, citing various cases. 14 Nicolopulo v. His Creditors, 37 La. An. 473. And see La. Code art. 2456. 15 Nicolopulo v. His Creditors, 37 La. An. 472. g 225. Delivery and payment as concurrent, Contem- poraneous character. Where the contract makes no special provision on the subject, the payment for and receipt of the property are contemporaneous acts, 1 and the rights of the parties in this respect are reciprocal. 2 In such cases a vendor can never be compelled to part with his property without payment, 3 nor the vendee to pay for the same without receiving it. 4 Allegations of readiness, etc. And the vendor cannot insist on payment of the price, without alleging that he is ready and willing to deliver the goods, 5 nor can the buyer demand delivery of the goods, without alleging that he is ready and willing to pay the price. 6 1 The promise to deliver involved in an agreement of sale, and the promise to pay the purchase money, are mutually dependent, and neither party is bound to perform without contemporaneous performance by the other: Haskins v. Warren, 115 Mass. 533; as noted, Bennett's Benjamin on Sales, \ 677, p. 785, n./. 2 Phelps v. Hubbard, 51 Vt. 489, 493. NEWMARK SALES. 28. I 226 DELIVERY. 326 3 Delivery not required before payment: Lapene v. Badeaux, 19 The Reporter (La.) 303. 4 Phelps v. Hubbard, 51 Vt. 489, -493. Delivery and payment con- current conditions : See Bennett's Benjamin on Sales. \ 677, p. 785, n. / ; and 2 Corbin's Benjamin on Sales, 1016, n. 2 ; citing following cases: Mich. Cent, R. R. Co. v. Phillips, 00 111. 190 ; Barnes v. Bart- lett, 15 Pick. 77 ; Knight n New England Worsted Co. 2 Cush. 271, 288; Scudder v. Bradbury, 106 Mass. 422, 427 ; Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Goodwin v. Bost. etc. R. R 111 Mass. 487 ; Has- kins i'. Warren, 115 Mass. 533; Freeman v. Nichols, 116 Mass. 309; South w. Freight Co. v. Plant, 45 Mo. 517 ; West, Transp. Co. v. Mar- shall. 4 Abb. N. Y. App. 575 ; Tipton v. Feltner, 20 N. Y.-423 ; Mack- aness v. Long, 85 Pa. St. 158 ; Leonard r. Davis. 1 Black, 476 ; McCann v. Kirlin,3 Allen N. B. 345 ; Platt v. McFaulj 4 Up. Can. C. P. 293; Moore v. Logan, 5 Up. Can. C. P. 294 ; Phippen v, Stickney, 19 Up. Can. C. P. 4164 Butters v. Stanley, 21 Up. Can. C. P. 402 ; Hancock v. Gibson, 3 Up. Can. Q. B. 41 ; Wright v. Weed, 6 Up. Can. Q. B. 140 ; Hefferman v. Berry, 32 Up. Can. Q. B. 518. 5 See citations in next note. 6 Bennett's Benjamin, \ 677, p. 786, n. .17 ; citing, Toledo etc. Ry. Co. v. Gilvin, 81 111. 511 ; Haskiris v. Warren, 115 Mass. 533 ; Chapin v. Potter, 1 Hilt. 366, 376 ; Pierson v. Hoag, 47 Barb. 244 , Whitcomb v. Hungerford, 42 Barb. 177 ; Fleeman v. McKean, 25 Barb. 474 ; Conway v. Bush, 4 Barb. 564 ; McDonald v. Hewlett, 15 Johns. 349 ; Hancock v. Gibson, 3 Up. Can. Q. B. 41. $ 226, Credit sale. Delivery under promise to pay. A sale may be as complete, and the title to a chattel pass as fully, in consideration of a promise to pay, as by an actual payment, when possession is given. 1 And if a vendor relies on the promise of the vendee to per- form the conditions of the sale, and delivers the goods absolutely, the right of property will be changed, although the conditions never be performed. 2 For wherever there has been absolute delivery pursuant to a bargain perfect in its members, the ownership of the property is vested by it. 3 Buyer's right of possession. But though, where the sale is upon credit, and nothing is agreed upon as to the time of delivering the chattel, the vendee is im- mediately entitled to the possession, and the right of possession and the right of property vest at once in him, 4 yet his right of possession is not absolute, but is liable to be defeated if he becomes insolvent before he obtains possession. 5 327 DELIVERY. 227 1 Mackaness v. Long, 85 Pa. St. 158, 163. 2 Harris v. Smith, 3 Serg. & R. 21 (sale by auction) ; as stated in Mackaness v Long, 85 Pa. St. 158, 162, declaring that this was held to be a general rule in Scott v. Wells, 6 Watts & 8. 357. 3 Mackaness v. Long, 85 Pa. St. 158, 162. 4 Bloxam v. Sanders, 4 Barn. & C. 941 ; Ross' Leading Cases, 48. 5 Bloxam v. Sanders, 4 Barn. & C. 941 ; Ross' Leading Cases, 48 ; citing, Tooke v. Hollingsworth, 5 Term, Rep. 215. \ 227, Delivery under expectation of payment. Waiver "by absolute delivery. Payment of the price is the con- dition 1 upon which alone the purchaser can require the seller to complete the sale by delivery of the prop- erty. 2 But it is so at the option of the seller, and if he proceeds to deliver without insisting upon payment, and without qualifying the act in some way, the con- dition or mutual dependence is waived or severed, 3 the contract is executed finally on his part, and he retains no lien upon the property.* Seller } s right to reclaim goods. If, however, the de- livery and payment are to be simultaneous, and the goods are delivered in the expectation that the price will be immediately paid, the refusal to make payment will be such a failure on the part of the purchaser to perform the contract as to entitle the vendor to put an end to it and reclaim the goods. 5 1 Conditions generally : See 1 Bouvier's Law Diet. (14th ed.) 312. And see under chapter on CONDITIONAL SALKS. 2 Haskiris v. Warren, 115 Mass. 533. 3 See Smith v. Lynes, 1 Seld. 41 ; Langdell's Cases on Sales, 724, 725. 4 Haskins v. Warren, 115 Mass. 533. Delivery of possession un- qualified, is a release or waiver of his right, whether it be in the nature of a condition affecting the title or only a lien for the price : Haskins ?>. Warren, 115 Mass. 533. So quoted, Bennett's Benjamin on Sales. 677, p. 785, n./. And consult Story on Sales, 313, p. 345; Farlow v. Ellis, 15 Gray, 229 ; Langdell's Cases on Sales, 720, 722. 5 Paul D. Reed, 52 N. H. 136, 138; Bennett's Benjamin on Sales, ? 677, p. 788, n. /. ; citing, also, Beauchamp v. Archer, 58 Cal. 4:3. See Stims. Am. Stat. Law, p. 544, 4566 ; citing, also, Dak. Civ. Code. %\ 997-999. Demand held unnecessary : Wagers v. Dickey, 17 Ohio, 439 ; 49 Arn. Dec. 467, 468. 3 1 Corbin's Benjamin on Sales, 325, and notes, citing nearly all authorities stated in paragraph. And see 223, on SELLER'S CUSTODY. 4 See Bissell ?>. Balcom, 89 N. Y. 275, 279 ; Wade v. Moffitt, 21 111. 110 ; 74 Am. Dec. 79 ; Kohl v. Lindley, 39 111. 195. 329 DELIVERY. g 229 5 See citations in next note. And consult Morse v. Sherman, 106 Mass. 430, 432 ; Frazier v. Simmons, 139 Mass. 531, 535. 6 1 Chitty on Pleading, 345, 347 ; Stearns v. VVashburn, 7 Gray, 187, ISO ; Turner v. Langdon, 112 Mass. 265 ; Allingham v. O'Maheney, 1 Pugs. 326. 7 See Story on Sales, 302. 8 It is enacted in California that when either party to a contract of sale has an option as to the time, place, or manner of delivery he must give the other party reasonable notice of his choice, and if he does not give such notice within a reasonable time, his right of option is waived : Cal Civ. Code, g 1756. See Stims. Am. Stat. Law. p. 544, 9 See 2 Schouler on Personal Property. 384 ; citing, Bennett's Benjamin on Sales, \ 677 ; Armitage v. Insole, 14 Q. B. 728 ; Stanton ?. Austin, Law R. 7 Com. P. 651 ; Posey v. Scales, 55 Ind. 282. Notice to deliver discussed : 2 Corbin's Benjamin on Sales, \ 1018, n. 7. g 229. Place of delivery. Place of sale. If no place of delivery l be designated by the contract, the general rule is that the articles sold are to be delivered at the place where they are at the time of sale. 2 And the store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer, at which the commodities sold are deposited or kept, must be the place where the demand and delivery are to be made, when the contract is to pay upon demand, and is silent as to the place. 3 Nor is it incumbent upon the seller, or prudent in him, to take the goods from place to place in search of the buyer, and thus expose the goods to hazard and increased expense. 4 Other place. But some other place than the place of sale may be required as the place of delivery by the nature of the articles, or by the usage of trade, or by the previous course of dealing between the parties, or may be inferred from the general circumstances of the case. 5 Fixed by agreement. Wherever a place of delivery is agreed upon, the buyer is not bound to accept the goods, nor the seller to tender them elsewhere; 6 but when delivery is made at a specified place, as by rail to a certain point, where the buyer is to come for the 1 230 DELIVEEY. 330 goods, the seller's duty is performed, and presumably the title and its risks are transferred. 7 1 Place of delivery : Janney v. Sleeper, 30 Minn. 473. 2 2 Kent Com. 505. Place of sale as place of delivery : Lewis v. Thomas, 14 Mo. App. 581. It is enacted in California that personal property sold is deliverable at the place where it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliv- able at the place where it is produced : Cal. Civ. Code, \ 1754. See Stims. Am. Stat. Law. p. 544, \ 4366. 3 2 Kent Com. 505, and cases cited ; 2 Schouler on Personal Prop- erty, 3S5; citing, also, Pothk-r Traite des Oblig. No. 512; Rice v. Churchill, 2 Denio, 145 ; Smith t. Gillett, 50 111. 2'K) ; Middlesex Co. v. Osgood, 4 Gray, 429 ; Miles v. Roberts, 34 N. H. 253. Consult, further, 2 Corbin's Benjamin on Sales, 1022, p. 890, n. 10 ; Bennett's Benjamin on Sales, 62 ; citing, 2 Chitty on Contracts (llth Am. ed.), 120, et seq. and notes ; Burr v. Myers, 3 Watts & S. 299; Lobdell v, Hopkins, 5 Cowen, 516 ; Goodwin v. Holbrook, 4 Wend. 380 ; Kraft v. Hurtz, 11 Mo. 109. 4 2 Schouler on Personal Property, 2 385. 5 Story on Sales, \ 308. 6 See Story on Sales, ? 308. Designation of place of delivery : See succeeding section on that subject. Waiver of condition determining place 9f delivery : McCombs v. McKennan, 2 Watts & S. 216. Parol variation of stipulated place of delivery : Hunt v. Thurman, 15 Vt. 336 ; 40 Am. Dec. 683, 685. 7 See Sedgwick v. Cottenham, 54 Iowa, 512 ; also, Washburn Co. v. Russell, 130 Mass. 543. Arid if the goods at the time of sale be in the buyer's own possession, and under his control, there is presumed to be no other place of delivery agreed upon, nor, indeed, any formal act of delivery expected at all : 2 Schouler on Personal Property ? 385 ; citing, Shurtleff v. Willard, 19 Pick. 210 ; Warden r. Marshall, 99 Mass. 305 ; Lake v. Morris, 30 Conn. 201. License to go on prem- ises, etc. : See 2 Corbin's Benjamin on Sales, 1020, n. << ; Bennett's Benjamin on Sales, 679-681 ; citing, McLeod ?'. Jones, 105 Mass. 403, and cases cited ; McNeal v. Emerson, 15 Gray, 384 ; Wood ?'. Manley, 11 Ad. . Brett, 11 H. L. Gas. 337 ; 34 Law J. Com. P. 241 ; Campbell on Sales, 279. 13 See citations in next note. " As soon as possible," construed : Rhodes ?'. Cleveland Rolling Mill Co. 17 Fed. Hep. 426, 431. And see next subdivision of section. 14 See Duncan v. Topham, 8 Com. B. 225; Rommell v. Wing-ate, 103 Muss. 3:7 ; Roberts v. Brett, 11 H. L. Cus. 3;!7 ; Isaacs v. Plaster Works. G7 N. Y. 1-4 ; so cited, 2 Schouler on Personal Property, f 386. And consult Bennett's Benjamin on Sales, \ 687. But compare Stainton v. Wood, 16 Q. B. 608 ( " forthwith "). And see Neldon v. Smith, 36 N. J. JU 148 (" immediate delivery "). 15 Atwood v. Emery, 1 Com. B. N. S. 110. And see Campbell on Sales, 279. 16 Hydraulic Engineering Co. v. McHaffie, Law R. 4 Q. B. D. 670 ; 2 J Eng. Rep. 102 ; Pope v. Filley, 3 McCrary, 190 ; 2 Schouler on Per- sonal Property, 386. And consult Bennett's Benjamin on Sales, 2 687 ; Khodes v. Cleveland Boiling Mill Co. 17 Fed. Bep. 426. I 232. Reasonable timo. When no time set for deliv- ery. In the absence of evidence to the contrary, the law supposes a reasonable time for delivery, which is the exact standard of diligence whether the seller or buyer is to take the initiative, unless a definite time is set, when it is of the essence of the contract between the parties. 1 Determination of. What is a "reasonable time " will depend upon the circumstances, 2 and is determined by deducing the real meaning of the parties from their uncertain expressions. 3 Parol evidence concerning. When a written contract of sale says nothing as to time, it may bo shown by parol evidence 4 of the facts and circumstances attend- ing the transaction, 5 what the parties thought was a reasonable time for delivery. 6 Circumstances of contract. The question of a reason- able time is determined by a view of all the circum- stances of the case, by placing the court and jury in the same situation as the contracting parties were at the time they made the contract ; that is, by placing be- fore them all the circumstances known to both parties at the time. 7 And for that purpose it has been held 233 DELIVERY. 334 that evidence of the conversations of the parties may be admitted to show the circumstances under which the contract was made, and what they thought was a rea- sonable time. 8 1 2 Schouler on Personal Property, SSfi ; citing, Higgins; i. Dela- ware etc. 11. R. 60 ]\ T . Y. 553 ; Bolton v. Kiddle, 35 Mich. i:{ ; Kellam v. McKinstry, 69 N. Y. 264. And consult 2 Corbin's Benjamin oa Sales. 3 1023, n. 1L 2 Reasonable time in general : 2 Bouvier Law Diet. (14th ed.) 415; Winfield's Words etc. 51. Aucompte, 2 Com. B. N. S. 440 ; 26 Law J. Com. P. 194 ; Creighton v. Comstock, 27 Ohio St. 548 ; Holland v. Rea, 48 Mich. 218 ; Day v. Cross, 59 Tex. 595, 604, 605. 4 See Bourne v. Seymour, 16 Com. B. 337 ; Moore r. Campbell, 10 Ex. 323; 23 Law J. Ex. 310 ; Pembroke Iron Co. v. Parsons. 5 Gray, 589 ; McLay v. Perry, 44 L. T. X. S. 152 ; Clapp v. Thayer, 112 Mass. 296. 5 See McConnell r. Murphy, Law R. 5 P. C. 203 ; 8 Eng. Rep. 164 ; Morris v. Levison, Law R. 1 C. P. D. 155. 6 Rules of construction concerning such expressions : Brawley v. United States, 6 Otto, 168, 171 ; quoted, Day v. Cross, 59 Tex. 595, p. 604. 7 2 Schouler on Personal Property, ? 389 ; citing, McConnell v. Murphy. Law R. 5 P. C. 203; 8 Eng. Rep. 164 ("say about six hun- dred spars"); Cross v. Eglin, 2 Barn. & Adol. 106; Moore?'. Camp- bell, 10 Ex. 323 ; Pembroke Iron Co. v. Parsons, 5 Gray, 589 ; Shepard , M691, 692 ; 2 Corbin's Benjamin on Sales, ? 1039 n. 22 ; Day v. Cross, Tex. 595, 604, 605 ; Holland v. Rea, 48 Mich. 218, 221. 8 See Bourne v. Seymour, 16 Com. B. 337 ; Robinson v. Noble, 8 Peters, 181 ; so cited, 2 Schouler on Personal Property, ? 3S!>. And consult Brawley v. United States, 6 Otto, 168 171. Construction of order for "a small cargo" of wood, "in all about sixty cubic fathoms " : Kreuger v. Blanck, Law R. 5 Ex. 179. 237. Partial delivery, Under entire contract. If only a portion under an entire contract is seasonably delivered, the buyer may refuse to receive the residue ; l 339 DELIVERY. 237 but until the period of delivery has elapsed the seller has the opportunity of remedying errors and making up a deficiency; 2 and in the mean while the buyer is not put to his election between returning the portion de- livered on the ground of non-performance, and keeping it to be paid for. 3 Where the plaintiff contracted to sell and deliver six hundred and ninety-nine boxes of glass to defendant, delivery to be made at one time, but prior to any delivery the defendant wrote to plaintiff asking for immediate delivery of a small portion, whereupon plaintiff delivered three hundred and sixty-five boxes, which the defendant received and used, afterwards writing that he wished the order completed in a reason- able time, and a correspondence ensuing as to the terms of the agreement, the plaintiff subsequently offered to complete, but defendant declined on the ground that the time had elapsed, it was held that the plaintiff could recover for the amount delivered. 4 Parcels deliverable from time to time. So if the con- tract was for a certain quantity to be delivered in parcels from time to time, the parcels first delivered may be re- turned if the seller fails to deliver the latter parcels as promised ; 5 for when the period of delivery has elapsed it may be asked whether the total amount contracted for is already delivered. 6 1 See Wilson v. Wagar, 26 Mich. 452. Retaining part delivered : See Reed v. Randall, 29 N. Y. 35S ; 86 Am. Dec. 305, 311. 2 2 Schouler on Personal Property, $ 388, whence paragraph derived. 3 Compare Waddington v. Oliver, 2 Bos. & P. N. R, 61 ; Oxendale v. Wetherell, 9 Burn. & C. 386. 4 Avery v. Wilson, 81 N. Y. 341 ; 37 Am. Rep. 503. 5 See citations in next note. 6 2 Schouler on Personal Property, $ 388 ; relying upon Oxendale v. Wetherell, 9 Barn. & C. 386 ; Haines v. Tucker, 50 N. H. 307. And see Catlin v. Tobias, 26 N. Y. 217 ; 84 Am. Dec. 183. Acceptance of part delivery under entire and severable contracts, with consideration of modern American rule: 2 Corbin's Benjamin on Sales, $ 10,72, n. U. And consult Avery v. Wilson, 81 N. Y. 341 ; 37 Am. Rep, 503, I 238 DELIVERY. 340 g 238, Delivery by instalments, Modification of con- tract. A contract which provides for delivery by in- stalments * may become inextricably complicated under the postponement from time to time of full periodical performance with the buyer's assent, and the substitu- tion of new terms by mutual assent ; 2 but whatever the modifications of a contract not rescinded, the seller still remains bound to make delivery at some reason- able time, and hence cannot rightfully refuse perform- ance altogether. 3 Need of payment. It has been held that the purchaser of goods to be delivered in instalments, and to be paid for as delivered, cannot claim further deliveries with- out paying for the part which has been delivered, and therefore he cannot require the tender of any more of them by the vendor without doing so. 4 Entire or severable contract. But a partial delivery of goods under an entire contract, even though delivery of the residue has been rendered impossible under cir- cumstances which exempt the seller from full perform- ance, will not, apart from a waiver on the buyer's part, enable him to enforce part performance against the buyer; 5 though it is a matter of construction whether a given contract shall be deemed an entire one with partial deliveries, or as providing for a separate sale of each lot. 6 1 See generally Mersey Steel etc. Co. r. Naylor, Law K. 9 A pp. Cas. 484 ; 36 Eng. Rep. 164 ; Honck r. Muller, Law R. 7 Q. B. D. 92 ; 36 Eng. Rep. 264 ; Norrington v. Wright, 115 U. S. 188; 6 Sup. Ct. Rep. 12 ; Blackburn v. Reilly, 47 N. J. L. 290 ; 54 Am. Rep. 159 ; Gill r. Ben- jamin, 64 Wis. 362 ; 54 Am. Rep. 619 ; Johnson v. Allen, 78 Ala. 387 ; 56 Am. Rep. 34. 2 2 Schouler on Personal Property, 390. And see Davis v, Budd, 60 Iowa, 144 ; Hill v. Blake, 97 N. Y. 216. 3 Tyers v. Rosedale etc. Iron Co. Law R. 10 Ex. 195, reversing S. C. Law R. 8 Ex. 305 ; as cited, 2 Schouler on Personal Property, 390 ; referring, also, to Ireland v. Livingston. Law R. 5 H. L. 395; Nel- don v. Smith, 36 N. J. L. 14S ; O'Neill v. James, 43 N. Y. 84 ; Berg- heim ?'. Iron Co. Law R. 10 Q. B. 319. Contract silent as to quantity to be delivered of each of various kinds ^numerated, or at each of certain fixed periods : Metz v. Albrecht, 52 III. 491. 341 DELIVERY. \ 239 4 Walton v. Black, 4 Houst. 149. Instalment deliveries consid- ered : Bennett's Benjamin on Sales, gg 598, 593 ; 2 Corbin's Benja- min on Sales, 909, n. 26 ; Campbell on Sales, 281-295. And see authorities cited in note at beginning of section. 5 See Klein v. Tupper, 52 N. Y. 550. 6 See Verkamp v. Hurlburd Co. 58 Cal. 229 ; 41 Am. Rpp. 2fio ; Gardner v. Clark, 21 N. Y. 39!) ; Couston v. Chapman, Law K. 2 II. L. S. App. 250 ; 3 Eng. Rep. 187 ; 2 Schouler on Personal Property, 890, whence paragraph derived. Compare \ 237, 011 PARTIAL, DELIVEIIY. 239. Mode of making, Unspecified and specified chattels. The mode of making delivery involves in the case of unspecified chattels the idea of such acts as sep- aration, selection, and setting apart for the buyer; 1 while in the case of specific chattels, the extent of the seller's duty depends upon such circumstances as the character and situation of the property, 2 and the nature of the agreement between the parties, whereby the seller is either to merely let the buyer take the goods, 3 or is to forward them to the latter. 4 Tender of thing sold. A mere offer to deliver does not constitute a sufficient compliance with the seller's engagement to deliver, but there must be either actual or constructive delivery, 5 and at least an actual tender 6 of the thing. 7 Ponderous articles. Where goods, however, are pon- derous and incapable of being handed over from one to another, there need not be an actual delivery, but it may be done "by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or the delivery of other indicia of property. 8 Symbolical or constructive delivery. And this doctrine of symbolical or constructive delivery 9 applies not only where the goods are ponderous or bulky, or cannot conveniently be delivered manually, but also where they are not in the personal custody of the seller, and are put into the absolute power and subject to the authority of the buyer. 10 239 DELIVERY. 342 Goods in buyer's possession. If the thing sold be already in the buyer's possession and control, the prop- erty will pass without any formal act of delivery, 11 if the circumstances and subsequent conduct of the par- ties are consistent with such mutual intention. 12 1 See 103, on SELECTION AND SEPARATION. And consult note to Walden v. Murdock, 83 Am. Dec. 142. 2 See Hayden v. Demets, 53 N. Y. 426. Delivery of cattle run- ning at large : See Walden v. Murdock, 23 CaL 540 ; S3 Am. Dec. 135, n. 142 ; Bennett's Benjamin on Sales, 696, n. 6; 2 Kent Com. 500; Hall v. Richardson, 16 Md. 397 ; 77 Am. Dec. 303, 307. 3 See \ 228, on DUTY TO DELIVER. 4 See 2 Kent Com. 490, 500 ; 1 Schouler on Personal Property, II 87, 88 ; 2 Schouler on Personal Property, 391 (basis of paragraph). The law requires good faith, and such acts only as are practicable according to the character of the thing tendered and the nature of the business : Hayden v. Demets, 53 N. Y. 426. Delivery subject to inspection : McLennan t'. McDermid, 50 Mich. 370. Delivery " ex ves- sel ": Cunningham v. Judson, 100 N. Y. 179 : 2 N. E. Rep. 915. Delivery at one time and in one lot not required : Roberts ?'. Mazeppa Mill Co. 30 Minn. 413, 415. 5 See on these kinds of delivery, Bolin v. Huffn aerie, 1 Rawle, 9, 19 ; Brown v. Volkening, 64 N. Y. 80*; Winfield's Words etc. 17, 139 ; 1 Abbott's Law Diet. 360; 222, on ACTUAL AND CONSTRUCTIVE DELIVERY. 6 Tender in general : 2 Bouvier Law Diet, (14th ed.) 581. Suffi- ciency of tender of goods sold : Hayden v. Demets, 53 N. Y. 426 ; Van Sickle v. Xester, 34 Hun, 64. 7 See Webber r. Minor, 6 Bush, 463 ; as cited, 2 Schouler on Per- sonal Property, g 391. Further tender dispensed with : Van Sickle r. Nester, 34 Hun, 64. Tender by wagon-loads and from day to day sustained: Van Sickle v. Nester, 34 Hun, 64. Tender of manufac- tured article: See Smith v. Wheeler, 7 Or. 49 ; 33 Am. Rep. 698. 8 Chaplin v. Rogers, 1 East, 696 ; Langdell's Cases on Sales, 97. And see Ellis r. Hunt, 3 Term Rep. 464 ; Ross' Leading Cases, 153 ; Bennett's Benjamin on Sales, \ 696; Story on Sales, 311 ; 1 Schouler on Personal Property, ? 87, 88 ; 2 Schouler on Personal Property, $ 391 ; citing, also, 2 Kent Com. 499, 500, and Thompson v. Baltimore etc. R. 2S Md. 396. Consult Hall r. Richardson, 16 Md. 307 ; 77 Am. Dec. 303, 307 ; Van Brunt v. Pike, 4 Gill, 270 ; 45 Am. Dec. 126, 128. 9 See 1 Bouvier Law Diet. tit. Delivery (14th ed.) 452. 10 See Story on Sales, 311 ; 2 Schouler on Personal Property, 391. Delivery of the brass knobs worn by oxen not presumably a symbolical delivery of the oxen themselves : Clark v. Draper, 19 N. H. 419. 11 See Story on Sales, 312 a ; Griffin v. Wright, 1 Tex. App. (Civ. Cas.) \ 638. 12 See Warden v. Marshall, 99 Mass. 305 ; Lake r. Morris, 30 Conn. 201 ; Stowe v. Taft, 58 N. H. 444, as cited in support of text in 2 Schouler on Personal Property, 399. And consult Griffin v. Wright, 1 Tex. App. (Civ. Cas.) ft 638. ' 343 DELIVERY. % 240-241 \ 240. Symbolical delivery. In general. Symbolic delivery is the delivery of some thing as a representa- tion or sign of the delivery of some other. 1 And where an actual delivery of goods cannot be made, 2 a sym- bolical delivery of some particular thing, 3 as a half- penny, will vest the property equally with an actual delivery. 4 Bills of sale and of lading. Transfers of a ship at sea by bill of sale, 5 and of a cargo or of goods in transit, or in a warehouse by delivery of the bill of lading, 6 are familiar instances of symbolic delivery. 7 Cumbrous property. And a symbolic delivery operat- ing by force of the making of a present contract with- out any further formality, is held sufficient 8 to pass possession as well as property, 9 in the case of the sale of logs floating in the water, or other cumbrous property. 10 1 2 Bouvier Law Diet. (14th ed.) 575. And see 2 Abbott's Law Diet. 533 ; citing, 2 Blackst. Com. 313-315 ; 1 Steph. Com. 507, 508. 2 Actual delivery defined : Bolin v. Huffnagle, 1 Rawle, 9, 19 ; 1 Abbott's Law Diet. 360. And see Wlnfield's Words etc. 17 ; quoting, Brown v. Volkening, 64 N. Y. 80. 3 See 2 Kent Com. 500. 4 2 Bouvier Law Diet. (14th ed.) 575 ; citing, Long on Sales, 575. Delivering key of granary : Sharp v. Carroll, 27 N. W. Rep. (Mich.) 832. Nailing up crib, etc. : Pope v. Cheney, 27 N. W. Hep. (Iowa) 754. 5 Bill of sale : See 1 Bouvier Law Diet. (14th ed.) 207 ; 1 Abbott's Law Diet. 149. 6 Bill of lading : See under chapter on DOCUMENTS OF TITLE. And consult Winfield's Words etc. 77, 78 ; 1 Abbott's Law Diet. 148. 7 2 Corbin's Benjamin on Sates, 1044, n. 26 ; referring to Conrad v. Atlantic Ins. Co. 1 Peters, 445; Gibson v. Stevens, 8 How. 384, 389; Prickett v. Bead, 31 Ark. 131 ; King v. Jarman, 35 Ark. 190, 196 ; Davis v. Russell, 52 Cal. 611 ; 28 Am. Rep. 647 ; Russell v. O'Brien, 127 Mass. 343. And see 1 Abbott's Law Diet. 360 ; Story on Sales, g 311. 8 See 2 Kent Com. 500. 9 See citations in next note. 10 See Leonard v. Davis, 1 Black, 476, 482 ; Hayden v. Demets, 53 N. Y. 42G ; Buffer v. United States, 15 Ct. of Cl. 291 ; 2 Corbin's Benja- min on Sales, g 1044, n. 26, citing these cases in support of text, and also Tognini v. Kyle, 17 Nev. 209 ; 45 Am. Rep. 442, and cases cited. \ 241. Constructive delivery. In general. The terms "constructive delivery" and "symbolical delivery J> I 241 DELIVERY. 344 are sometimes used as synonymons. 1 But, strictly speaking, constructive delivery includes symbolical delivery, and also all those acts which by construction of law are deemed sufficient to transfer the possession. 2 Bailee for buyer. And a delivery may take place by mere arrangement that the seller or a third person hav- ing the possession shall hold as bailee for the buyer. 8 Order on borrower. But it has been held that where the owner of a threshing machine, which was in the possession of a third person, to whom it had been loaned, gave the purchaser, who executed his note for the price, an order on said person for the* machine, this did not constitute a delivery of the article. 4 Of part for whole. There may be a constructive de- livery of part for the whole, where the goods are scat- tered about in various places, and the simultaneous delivery of each part is impracticable. 5 Giving opportunity to take possession. And in general, wherever the seller has not expressly bound himself to special activity in placing the chattels within the buyer's control and dominion, he will have performed his part by giving the buyer every opportunity to take posses- sion, 6 which the nature and situation of the property fairly demand. 7 1 See 1 Abbott's Law Diet. 360. 2 See Bolin v. Huffnagle, 1 Bawle, 9, 19 ; $ 222, on ACTUAL AND CONSTRUCTIVE DELIVERY. 3 See Carpenter v. Graham, 42 Mich. 191; Webster v. Anderson, 42 Mich. 5o4 ; Chapman v. Searle, 3 Pick. 38 ; 1 Corbin's Benjamin on Sales, ?? 174, 182; 2 Corbin's Benjamin on Sales, \ 1044, n. 26, making these citations in support of text. 4 Edwards v. Meadows, 71 Ala. 42. And that though the pur- chaser's permitting tue person in possession to use the machine for a definite time, as a matter of favor, would operate as a waiver of deliv- ery, yet a more submission to such use because of the person's refusal to give it up until certain work was done, would not so operate : Edwards v. Meadows, 71 Ala. 42. 5 See Pratt v. Chase, 40 Me. 269 ; Phelps v. Cutler, 4 Gray, 131 ; Story on Sales, 311 a ; 2 Schouler on Personal Property, 393, mak- ing those citations in support of text. And consult Campbell on Sales, 347. DELIVEBY. g 242 6 See Hayden v. Demets, 53 X. Y. 426 ; ? 228, on DUTY TO DELIVER. 7 2 Schouler on Personal Property, 393. Constructive delivery more fully discussed : Story on Sales. g$ 311 a, 312 & ; 2 Kent Com. 500-503. Waiver of objection to tender or otherwise of right to com- plete delivery : See Hayden v. Demets, 53 N. Y. 426 ; Avery v. Will- son, 81 N. Y. 341 ; 37 Am. Rep. 503 ; 2 Schouler on Personal Property, 394; referring, also, to- Alexander ?. Gardner, 1 Bing. N. C. 671 ; Lang- dell's Cases on Sales, 810 ; Iron Cliffs Co. v. Buhl, 42 Mich. 86 ; Knights v. Wiffen, Law B. 5. Q. B. 660 ; Langdell's Cases on Sales, 766. I 242. Delivery of bill of sale, Qtc. Bill of sale of vessel at sea. Among the indicia of title which the seller may deliver or tender in fulfillment of his obliga- tion under the contract is the bill of sale of a vessel, 1 which has long been held a sufficient symbolical de- livery of a vessel still at sea. 2 Sills of lading, delivery orders, etc. So bills of lad- ing, 3 and various instruments in the nature of delivery orders addressed to warehousemen and other third parties who hold possession of the goods, 4 will suffice when transferred in such form as to make the goods in another's custody deliverable to the buyer; 5 and the delivery or tender of such documents may constitute such a sufficient performance on the seller's part as to defeat any action against him for non-delivery of the goods; 6 though the seller's lien for non-payment, 7 or right of stoppage in transitu, 8 might not have been extinguished. 9 Where possession of goods given. But wherever de- livery of possession of corporeal chattels is given in conformity to the contract of sale, a bill of sale, except as to vessels, is unnecessary, 10 or at all events, serves merely as evidence of the transfer, in connection, it may be, with a receipt, or perhaps notice of the price ; u though in modern practice where goods are put on water or railway transit, a bill of lading is to be delivered or transferred 12 as well as the goods themselves. 13 1 See 2 Kent Com. 501 ; 1 Bouvier Law Diet. (14th ed.) 207. 2 See Atkinson v. Mailing, 2 Term Rep. 43 ; Gardner v. Howland, 2 Tick. 602 ; Story on Sales, 1 811 ; 1 Schouler on Personal Property, 243 DELIVERY. 346 305 ; 2 Schouler on Personal Property, g 392, making these citations in support of text. And consult Bennett's Benjamin on Sales, g 696, u. c. 3 See I 243, on DELIVERY OP BILLS OF LADING. 4 See chapter on DOCUMENTS OF TITLE. 5 2 Schouler on Personal Property, \ 392. 6 See Suiter ?. Woollams, 2 Man. & G. 650 ; Wood ?'. Manley, 11 A3. & E. 34; First Nat. Bank v. Dearborn. 115 Mass. 219; Davis v. Jones, 3 Houst. 68 ; Hayden v. Demets, 5:5 N. Y. 4J6 ; Russell r. Car- rington, 42 N. Y. 118 ; 1 Am. Hep. 498 ; Gibson v. Stevens, 8 How. 399 ; Mclvee v. Garcelon,60Me. 167 ; 11 Am. Hep. 200. 7 See subsequent chapter on SELLER'S LIEX. 8 See subsequent chapter on STOPPAGE ix TKAXSITU. 9 2 Schouler on Personal Property, 392. And consult Bennett's .Benjamin on Sales, 6./7. 10 See 1 Bouvior Law Diet. (14th ed.) 207. But where personal property is in the hands of a bailee, a transfer by bill of sale alone is good and valid even as against the creditors of the vendor : Keil v. Harris, 6 Atl. Rep. (Pa.) 750. 11 2 Sohouler on Personal Property, \ 392 ; citing, Gatzweiler v. Morgnrr, 51 Mo. 37. Compare 2 Kent Com. 501. No delivery of the personal property named in a formal bill of sale is necessary to pass the title as between the parti -s : Philbrook v. Eaton, 134 Mass. ?98 ; citing, Parsons r. Dickinson, 11 Pick. 3f-2 ; Packard ?'. Wool, 4 Gray, 307. Bill of parcels and lease back, insufficient to pass title as against innocent purchaser from seller : Harlow v. Hall, 132 Mass. 232. 12 See 243, on DELIVERY OF BILLS OF LADING. 13 See Schouler on Bailments, under Carriers in General ; Barber r. Taylor, 5 Mees. & W. r,27 ; 2 Schouler on Personal Property, 393, p. 396, n. 2, making these citations in support of statement in text. \ 243. Delivery of bills of lading. As compliance with statute of frauds. It has been held that a bill of lading is a symbol of the ownership of the goods covered by it, and that the transmission of a bill of lading amounts to the possession of the propertj 7 described in it, and is a compliance with the statute of frauds as to the sale and dc liveiy of property. 1 As transferring title, etc. But bills of lading differ essentially from bills of exchange and other commer- cial negotiable instruments, 2 and oven possession of a bill of lading, without the authority of the owner and vendor of the goods, or when obtained by fraud, will not authorize a transfer so as to defeat the title of the original owner, 3 or aftect his right to rescind the sale and stop the goods in transit. 4 For while possession of DELIVERY. I 243 a bill of lading or other document of like nature may be evidence of title, and in some circumstances and for some purposes equivalent to actual possession of the goods, it does not constitute title, 5 nor of itself affect the operation of the general rule that property in chattels cannot be transferred except by one having the title or an authority from the true owner. 6 Reservation of control. Where the shipper retains the right of disposing of the property while in the hands of the consignee, there is, of course, no delivery to the con- signee ; 7 and the object which the shipper usually has in taking the bill of lading in his own name, when he does so, is to enable him to retain such right. 8 But there is a delivery in such cases by the subsequent delivery of the indorsed bill of lading, so that the risk of damage from the elements should, in the absence of any agree- ment to the contrary, be borne by the consignee, 9 although there was no opportunity to inspect the goods at the time. 10 1 First Nat. Bank v. McAndrews, 5 Mont. 328. 329 ; 51 Am. Rep. 51 ; 5 Pacif. Rep. 879. 2 Barnard v. Campbell, 5 N. Y. 456. 3 See Saltus v. Everett, 20 Wend. 267 ; 32 Am. Dec. 541. 4 Barnard v. Campbell, 55 N. Y. 456 ; Evansville etc. R. R. Co. v. Erwiu, 84 Ind. 457, 466. 5 Barnard v. Campbell, 55 N. Y. 456. 6 Barnard v. Campbell, 55 N. Y. 456 ; as quoted, Evansville etc. R. R. Co. v. Ervvin, 84 Ind. 457, 466. Tender of bill of lading drawn in triplicate : Sanders v. Maclean, Law R. 13 Q. B. D. 327. Indorsement and delivery for security : Burdick v. Sewell, Law R. 13 Q. B. D. 159. As transferring property under Louisiana laws : Allen v. J ones, 24 Fed. Rep. 11. 7 Reservation of control : See chapter on that subject. 8 Forcheimer v. Stewart, 65 Iowa, 594 ; 54 Am. Rep. 30. Hence where the seller proceeded at once to transfer the bill of lading or shipping receipt, taken in his own name and to his own order, to a bank, as security for a sight draft for the price of the goods, the amount of such draft being credited to him in his bank account, it was held that there was no delivery made to the buyers by delivery to the currier : Forcheimer v. Stewart, 65 Iowa, 594 ; 54 Am. Rep. 30. 9 Concerning risk in general : See under chapter on TKAXSFER OF TITLE. 10 Forcheimer v. Stewart, 65 Iowa, 364 ; 54 Am. Rep. 30. ? 244-245 DELIVERY. 348 \ 244, Delivery of warehouse receipts. As symbolical delivery of property. When the terms of a warehouse receipt are such that the warehouseman offers or under- takes to deliver the property to whomsoever the receipt may be indorsed, a symbolical delivery of the property may be effected by the assignment or delivery of the receipt, and the warehouseman becomes bailee to such assignee, in accordance with the terms of his contract. 1 Consent of bailee. But when the receipt restricts the promise to deliver to the bailor personally, and not to deliver to his order, 2 a change in the possession of the property bailed cannot be effected by a mere assign- ment of the receipt, without the consent of the bailee thereto, so as to defeat the rights of subsequent attach- ing creditors of the bailor. 3 1 Gill v. Frank, 12 Oreg. 507 ; 8 Pacif. Rep. 764. 2 As was the case in Solomon v. Bushnell, 11 Or. 277 ; 3 Pacif. Rep. 3 Gill v. Frank, 12 Or. 507 ; 8 Pacif. Rep. 764, 766 ; quoting and approving, Hallegarten v. Oldham, 135 Mass. 1. \ 245. Excuses for failure to deliver, etc. Refusal of tender. Where the buyer, after a part of the grain sold was delivered, refused to receive any more of it, upon the ground that the time had expired within which it was required to be delivered by the terms of the con- tract, such refusal has been held to amount to a waiver on the buyer's part of any subsequent tender or offer to deliver. 1 Insolvency of purchaser. And it has been considered that if after the making of an executory contract for the delivery of goods, the purchaser, who has not paid the contract price, becomes insolvent, the vendor may re- fuse to deliver without being liable therefor. 2 Freezing of river. But performance of a contract to deliver corn is not excused in Louisiana 3 by the freezing 349 DELIVERY. I 246 of a river on the eleventh day, when transportation could have been made in some other way. 4 1 Roberts v. Mazeppa Mill Co. 30 Minn. 413, 415. And see Cauda V. Wide, 100 N. Y. 127. 2 Ullman v. Babcock, 63 Tex. 68, 71. 3 See La. Rev. Civ. Code, art. 1933, paragraphs 2 and 3. 4 Engster ?-. West, 35 La. An. 119; 48 Am. Rep. 232 ; distinguish- ing, White v. Kearney, 9 Rob. (La.) 495; Police Jury v. Taylor, 2 La. An. 272 ; Lagrave v. Fowler, 4 La. An. 243 ; Bietry v. New Orleans, 22 La. An. 149. $ 246. Kelation to third parties. More required than between the original parties. The effect of delivery with reference to the rights, not of buyer and seller alone, but of third persons, such as attaching creditors 1 and subsequent purchasers, should be carefully distin- guished from its effect as between the parties them- selves. 2 For as between seller and buyer, property may often pass without actual delivery of the goods, while the seller may be estopped to deny the validity of his own sale, 3 arid the seller performs his duty of de- livery sufficiently 4 by tendering the subject-matter for acceptance. 5 But in cases which involve the rights of third persons, something more is usually required, comprising a complete delivery, acceptance by the buyer, 6 an actual and substantial change of possession between the parties, 7 and a transfer not only of property rights or indicia, but of the thing itself. 8 Bill of sale Severance of grass. Delivery of a bill of sale will not, independently of registry statutes, suffice as against third persons, where actual delivery is pos- sible; 9 and severance of grass is necessary before de- livery, since the article must exist as a chattel. 10 Delivery to transfer title. In regard to delivery effect- ing the transfer of title, less might be required between third persons than between the parties themselves, 11 since a title might pass as against creditors of the seller, JSTEWMAKK SALES. 4O. 246 DELIVERY. 350 where something further, such as an opportunity to inspect, might still be expected by the buyer, as between himself and the seller, in performance of the full en- gagement to deliver. 12 Notice to custodian. When property sold in good fa ith is at the time in the care and custody of a third person, notice to such third person of the sale is sufficient to constitute a delivery, as to subsequent purchasers or attaching creditors. 13 1 Sufficiency of delivery against creditors (case of nailing up holes in corn-crib): Pope ?'. Cheney, 27 N. \V. Rep. (Iowa), 754, citing cases and discussing subject. 2 2 Schouler on Personal Property, \ 395. And consult Bennett's Benjamin on Sales, \ 675, 11. d, pp. 781, 785. 3 See under chapter on TRANSFER OF TITLE. 4 See 228, on DUTY OF DELIVERY. 5 2 Schouler on Personal Property, I 395. 6 Acceptance in general : See chapter on that subject. 7 Presumption of fraud upon creditors or third parties where a seller retains possession of the things sold : See under chapter on FRAUDULENT SALES. 8 2 Schouler on Personal Property, 395, referring as to delivery against the seller's creditors, to "Bullard v. Wait, 16 Gray, 55 ; Veazie v. Somerby, 5 Allen, 280 ; Wright r. Vaughn, 45 vt. 388 ; Garman v. Cooper, 72 Pa. St. 32 ; McKee v. Garcelon, 60 Me. 165 : 11 Am. Rep. 200 ; Morgan v. Taylor, 32 Tex. 363. 9 See Burge v. Cone, 6 Allen, 412 ; Solomons v. Chesley, 58 N. H. 238 ; Dempsey v. Gardner, 127 Mass. 381 ; 34 Am. Rep. 383 ; citing, Carter v. Williard, 19 Pick. 1 ; Shumway v. Rutter, 7 Pick. 56, 58 ; 19 Am. Dec. 340 ; and 8 Am. Dec. 443. 447 ; Packard v. Wood, 4 Gray, 307 ; Rourke r. Bullens, 8 Gray, 549 ; Veazie v. Somerby, 5 Allen. 280, 289 ; and distinguishing, Tux worth v. Moore, 9 Pick. 347 ; 20 Am. Dec. 479 ; Bullard ?>. Wait, 16 Gray, 55 ; Chapman v, Searle, 3 Pick. 38 ; Ingalls r. Herrick, 108 Mass. 351 ; Thorndike v. Bath, 114 Mass. 116 ; 19 Am. Rep. 318 ; Dugan v. Nichols, 125 Mass. 43 ; Hardy v. Potter, 10 Gray, 89. But when personal property is in the hands of a bailee, a transfer by bill of sale alone is good and valid, even as against the creditors of the vendor : Keil v. Harris, 6 Atl. Rep. (Pa.) 750. 10 See Lamson v. Patch, 5 Allen, 586 ; 81 Am. Dec. 765 ; as stated, 2 Schouler on Personal Property, 395, n. 3, whence paragraph derived, excepting mention of Dempsey v. Gardner, 127 Mass. 381 ; 34 Am. Rep. 388. 11 See citations in next note. 12 See Hunter v. Wright, 12 Allen, 548, as cited in support of text in 2 Schouler on Personal Property, ? 395, which also refers to Washburn Co. v. Russell, 130 Mass. 543 ; Wyoming Bank v. Dayton, 102 U. S. 59. 13 Lufkins v. Collins, 7 Pac. Rep. (Idaho) 95. Relying upon Ben- nett's Benjamin on Sales, \ 675, n. d\ How v. Taylor, 52 Mo. 592; 351 DELIVERY. \ 247 Cofield ?'. Clark, 2 Colo. 101 ; Dempsey v. Gardner, 127 Mass. 381 ; 34 Am. Hep. 388. Holding that error arises from contradictor in- struction that in order to constitute such delivery it is necessary that the seller, purchaser, and third party should all agree, and that such a charge falls within the rules as to the incurable character of inconsistent instructions, laid down in Mackey v. People, 2 Colo. 13 ; Kice v. Olin, 7fl Pa. St. 3S1 ; Thompson's Charging the Jury, | 69; People v. Campbell, 30 Gal. 312. 247. Sufficiency of delivery against creditors. Kind of possession necessary to be given. The general rule is, that a sale of personal property is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. 1 And in determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property, while no such change of possession as will defeat the fair and honest object of the parties is re- quired. 2 A change in the location of the property is not always essential to protect the property against the creditors of the vendor, but if the purchase was in good faith, and for a valuable consideration, 3 followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot, as matter of law, be held insufficient, but the case should, under such circum- stances, go to the jury to find whether the sale was in good faith or merely colorable. 4 Setting portion apart. A setting apart of a portion of goods to be delivered under an entire contract vests title in the purchaser to such portion, as against a sub- sequent attaching creditor of the vendor, though it be not actually removed. 5 Thing not in existence, etc. And a contract that all the colts to be foaled by certain mares sold by one party to another, and kept in the stables of the former g 247 DELIVERY. 352 under the care of the latter, were to belong to the latter, is a valid contract of sale, and not void as against creditors for want of delivery. 6 Delivery before levy. Bat a sale of personal property ^ not accompanied by an immediate delivery, is void as to existing creditors, though the goods are delivered before levy. 7 Where, however, the owner of wheat in bulk sells the same by parol, receiving at the same time, as part payment, his own promissory note from the vendee, and where transfer of the wheat is after- wards effected by locking the granary, and giving the key to the vendee, the transfer of the title and posses, sion is complete, and a subsequent seizure by the sheriff under a writ of attachment by a creditor of the vendor is illegal, even where the sheriff had levied his writ, though he had performed no other act, before the transfer of the promissory note and the delivery of the key. 8 Other than actual. There has been held to be a suf- ficient change of possession to pass property as against creditors, where one party indorsed certain notes for another, receiving payment therefor in corn, for which a bill of sale was executed, but this bill of sale proved unsatisfactory, and an oral sale of the corn was made, both parties going to the crib when the one formally delivered possession to the other, who nailed up certain holes in the crib. 9 1 Crawford v. Davis, 99 Pa. St. 376, S7S. 2 Crawford v. Davis, 99 Pa. St. 376, 378, citing illustrative case of Du.ilap r. Bournonville, 2 Casey, 72, and stating the same principle to be recognized in Born v. Shaw, 5 Casey. 288 ; McKibbin v. Martin, 14 Smith, P. F. 352 ; Evans v. Scott, 8 Norris, 136 ; Pearson v. Carter, 13 X orris, 156. 3 Uonaflde purchasers in general: See chapter on that subject. 4 Crawford v. Davis, 99 Pa. St. 576, 579. 5 State ?'. Knapp etc. Co. 13 Mo. App. 467 ; citing, Aldridge v. Johnson, 7 El. & B. 885; Story on Sales, 2J9; Thompson v. Conover, a2K.ii.46e, 353 DELIVERY. I 248 <5 Hull i\ Hull, 48 Conn, 250 ; 40 Am. Bop. 1G5. Relying for point that the doctrine as to retention of possession has no application where property not existing or already in possession cf vendee, upon Lucas v. Birdsey,41 Conn. 357 ; Capron v. Porter, 43 Conn. 389 ; Spring v. Chipman, 6 Vt. 66J ; Bellows v. Wells, 36 Vt. 599. Compare gen- erally, Hull v. Sigsworth, 48 Conn. 258 ; 40 Am. Bep. 167 ; Webster v. Anderson, 42 Mich. 554 ; 36 Am. Hep. 452. 7 Edwards v. Sonoma Valley Bank, 59 Cal. 148 ; citing, "Watson v. Bogers, 53 Cal. 401. 8 Sharp v. Carroll, 27 N. W. Bep. (Mich.) 832. 9 Pope v. Cheney, 27 N. W. Bep. (Iowa) 754, with n. 756. Case dis- tinguishes Boothby v. Brown, 40 Iowa, 104; Button v. Ballou, 46 Iowa, 517 ; McKay v. Clapp, 47 Iowa, 418 ; Smith v. Champney, 50 Iowa, 174 ; Hickok v. Buell, 51 Iowa, 655 ; 2 N. W; Bep. 5L2 ; Nuckolls v. Pence, 52 Iowa, 581 ; 3 N. W. Bep. 631. So pointing out hogs which were to be taken in payment for services, but were to remain in pasture until there should be an opportunity for further selling them, has been held a valid delivery as against the seller's creditors : Webster v. Anderson, 42 Mich. 554 ; 36 Am. Bep. 452. Delivery of samples and bill of parcels : Ingalls v. Herrick, 108 Mass. 351 : 11 Am. Kep. 360. $ 248. Delivery to carrier. Putting goods in transit. Delivery to the buyer's accredited agent is equivalent to delivery to the buyer himself. 1 And even if the seller be bound to send the goods, instead of delivering them upon his own premises, 2 the act of performance is usually completed 3 when he has put the goods in transit.* As delivery to buyers agent. For delivery to a common carrier 5 is presumed to be tantamount to de- livery to the buyer's own agent ; 6 though if the seller chooses to keep the carrier his own agent, for his better security or other cause, the act of delivery necessarily remains incomplete while this agency continues. 7 Buyer's directions, etc. A delivery of goods to a common carrier in pursuance of the directions of the purchaser is a delivery to the purchaser ; 8 and ho ia liable to the seller for the price, though they bo lost by the negligence of the carrier before they reach him. 9 And where goods are forwarded by an express company marked C. O. D. by instructions of the purchaser, the sale is complete when the goods are delivered to the carrier. 10 But where a seller is to deliver specified 248 DELIVERY. 354 goods, such as merchantable ice, on shipboard at the place of shipment within a specified period, the buyer must first name the ship and give the seller notice of his readiness to receive the goods on board. 11 Delivery of goods and 'mailing of documents. By the delivery of goods to a railway company to be carried and delivered to creditors, and the taking of the bill of lading for their benefit, and mailing it to them with the invoice or bill of sale, the company becomes the bailee of the goods for the creditors' use and benefit, and by such manifestations of the intention of the debtor, his right to the property, and authority over it, are for the time being at an end, and the title vests in the creditors, subject only to their refusal to accept the consignment when the facts come to their knowledge. 12 Delivery at wharf, etc. In general, a delivery of goods to a common carrier, much more to one specially desig- nated by the buyer, 13 is a delivery to the buyer. 14 But what amounts to a delivery to carriers may sometimes be a question of fact for a jury ; though ordinarily, de- livery at their wharf, freight-house, or warehouse, and bringing it to the notice of the servants of the carrier, should be so considered. 15 Place where sale complete. Where the contract is silent on the subject, and there is nothing in the trans- action indicating a different intention, and a manufac- turer in one city receives through his agent residing in another an order for goods from a customer there, and fills the order by delivering the goods to a common carrier at the place of manufacture, consigned to such customer at his place of residence, or to such agent for him, the sale is complete and the title passes at the place of shipment, 16 even though the customer on re- ceiving the goods at his place of residence pays to such agent there the purchase price. 17 855 DELIVERY. 248 1 2 Schouler on Personal Property, 396. And see Story on Sales, | 305 ; 2 Kent Com. 4J9 ; Bonner v. Marsh, 10 Smedes & M. 376 ; 48 Am. Dec. 7o4, 7C5. 2 See I 228, on DUTY TO DELIVER. 3 Compare Pilgreen v. State, 71 Ala, 368. 4 See 2 K>nt Com. 439 ; 2 Schouler on Personal Property, 396 ; citing, iuso, 'j.uompson v Baltimore etc. It. R. Co. 28 Md 396. 5 Common carriers in general : See 1 Bouvier Law Diet. (14th ed.) 299. 6 See Hobart v. Littlefield, 13 R. 1. 341, 342 ; 2 Schouler on Personal Property, 2$ 272, 806; Bennett's Benjamin oa Sales, 6.,3; 2 Corbi I's Benjamin on Sales, \ 1040, n. 23. And consult Story oa Sales, i>ou; Bradford v. Marbury, 12 Ala. 520 ; 46 Am. Dec. 2G4, 2G8. 7 2 Sohouler on Personal Property, 3f)6 ; citing, Dunlop v. Lam- bert, 6 Clark . Lerch, 56 Cal. 330 ; as cited in support of text, in 2 Schouler on Personal Property, 397. 6 See citations in next note. N^S \ 252. Inspection and acceptance. Receipt and accept- ance. Where an agent comes specially accredited fro in the buyer to receive the goods, 1 the seller should deal with. him according to the scope of his powers. 2 And while the buyer may empower any one not only to receive the goods as agent, but to make acceptance 3 in his be- half, a common carrier 4 is not ordinarily to be regarded as agent for the buyer to any such extent, but only for receiving the goods. 5 Buyer's right of inspection. Inspection of goods sup- plied to order, for ascertaining that they conform to the contract, which is no part of a carrier's duty, is a right reserved to the buyer, 6 and to be regarded by the seller, unless the opportunity has been taken, or waived on the buyer's behalf before the goods reach him. 7 And the rule that in offering delivery the vendor is bound to give the buyer an opportunity of examining the goods, so that the latter may satisfy himself whether they are in accordance with the contract, 8 'has been applied where the buyers received notice that the goods were at a certain wharf ready for delivery on payment of the price, but on going there and making application to in- spect the goods, were shown two closed casks, said to contain them, which the persons in charge refused to allow to be opened. 9 1 Walk. Am. Law (4th ed.) ?? 115-118. Evidence concerning agency: 2 Greenleaf on Evidence, \\ 59-68. Agent in general: See 1 Bouvier Law Diet. (14th ed.) 100. 2 2 Schouler on Personal Property, ? 397. Extent of authority of agents : 1 Bouvier Law Diet. (14th ed.) 101. 3 Acceptance in general: See subsequent chapter on that sub- ject. 4 Common carriers in general : 1 Bouvier Law Diet. (14th ed.) 299. 5 See Astey IT. Emery, 4 Maule & S. 262; Langdell's Cases on Sales, 114 ; Meredith v. Meigli, 2 El. & B. 364, 370 ; Langdell's Casi-s >;i Sales, 203; Bennett's Benjamin on Sales, 160, citing other cases m relation to the statute of frauds; 2 Schouler on Personal Property, 2 307, making these citations in support of text, and referring for divergent decision to Cross v. O'Donnell,44 !N. Y. 661 ; 4 Am. Bep. 721. 6 See Campbell on Sales, 307 ; Bennett's Benjamin on Sales,.? 701. \ 253 DELIVERY. 360 7 See 2 Schouler on Personal Property, \ 397 ; citing, Isherwood v. Whitmore, 11 Mees. & W. 347. 8 See Croninger v. Crocker, 62 N. Y. 151. 9 Isherwood i\ Whitmore, 11 Mees. & W. 347; as stated, Ben- nett's Benjamin on Sales, \ 695 ; referring, also, to Startup v. McDon- ald, 6 Man. & G. 593 ; Boothby v. Scales, 27 Wis. 626. 253, Delivery to pass title, Necessity of . The gen- eral rule is said to be, that delivery of possession is necessary to the conveyance of a title to personal chattels, as against every one except the vendor; 1 and a subsequent purchaser, with no notice of a prior sale, receiving possession, has a better title than one who has before purchased the same thing with no delivery of possession. 2 Buyer's possession for purposes of separation. If the vendee, in the sale of a part of an entire mass of bricks, is allowed to take possession of the whole to enable him to separate the part purchased, the title passes accord- ing to the sale as between the parties. 3 WJien question of fact. On an oral sale of lumber, of unknown quantity, at an agreed price per thousand, nothing being said about measuring it, the question whether there was a delivery intended to pass title or not is one of fact. 4 Though pretense of right to return. There has been held to be a valid sale and delivery of a horse where a present sale having been agreed upon, payment to be made at a future time, the vendor gave the vendee an .oral order upon the person in charge of the horse to let the vendee take it, and on the following day the vendee, without disclosing the bargain made with the vendor, and without notice to the vendor of any such view of the contract, took the horse from the person in charge, giving him to understand that he had got the horse from the vendor on trial, but returned the horse on the same day to the person previously in charge of it. 5 361 DELIVERY. 254 1 CrawTord v. Forristall, 58 N. H. J14. Counting measurement, etc. : See Prescott v. Locke, 51 N. H. 94 ; 12 Am. Rep. 55 ; Hahn v. Fredericks, 30 Mich. 22:5 ; 18 Am. Rep. liy; Pittaburg etc. Ry. Co. v. Heck, 60In. Tupper, 52 N. Y. 5f0 ; as cited in support of text in 2 Schouler on Personal Property, 406. 256, Fetching goods. As buyer's duty. When the vendor has tendered delivery, if there be no stipulated place of delivery, and no special agreement that the vendor is to send the goods, the buyer must fetch them ; * for it is settled law, 2 that the vendor need not in an 256 ACCEPTANCE. 366 action against the buyer aver nor prove anything more than his readiness and willingness to deliver on pay- ment of the price ; 3 and if, in an action for goods sold and delivered, the plaintiff proves a delivery at the place agreed, and that there remained nothing further for him to do, he need not show an acceptance by the defendant. 4 Within reasonable time. Furthermore, if the vendee make default in fetching away goods within a reason- able time 5 after the sale, upon the request made by the vendor, 6 the vendee will be liable for warehouse rent and other expenses growing out of the custody of the goods, or in an action for damages, if the vendor be prejudiced by the delay, 7 though what is a reasonable time is a question for a jury under all the circumstances of the case. 8 1 See 228, on DUTY TO DELIVER. And consult Story on Sales, 404 ; 2 Corbin's Benjamin on Sales, \ 897, n. 23 ; \ 1018, n. G ; \ 1025, n. 10 ; and g 1049, n. 1. 2 According to Bennett's Benjamin on Sales, \ 699. 3 See Jackson v. Alloway, 6 Man. & G. 942 ; Boyd r. Lett, 1 Com. B. 222 ; Lawrence v . Knowles, 5 Bing. N. C. 399 ; Medina v. ]Xornian, 9Mees. & W. 820; Spotswood v. Barrow, 1 Ex. 804 ; Cort ?>. Amber- gate By. Co. 17 Q. B. 127 ; 20 Law J. Q. B. 460 ; Baker r. Firminger, 28 Law J. Ex. 1"0 ; Cutter v. Powell, 2 Smith's Leading Cases, 1, notes ; Ruffee v. United States, 15 Ct. of Cl. 291. 4 Nichols v. Morse, 100 Mass. 523 ; as stated, Bennett's Benjamin on Sales, 699, n. a ; referring, also, to Pacific Iron Works r. Long Island R. R. Co. 62 N. Y. 272 ; Washburn Iron Co. v. Russell, 130 way, 22 N. J. L. 165. 5 Reasonable time : See Bass v. White, 65 N. Y. 565 ; Pinney v. St. Paul R. R. 19 Minn. 2ol ; Stange v. Wilson, 17 Mich. 342, 348 ; 2 Corbin's Benjamin on Sales, \ 1038, n. 2 ; citing, also, Corn v. Spauld- ing, 47 Mich. 162. 6 Compare Jones v. Gibbons, 8 Ex. 920. 7 See Greaves v. Ashlin, 3 Camp. 42G ; Bloxam v. Sanders, 4 Barn. & C. 941 ; Ross' Leading Cases, 48 ; Dcnman v. The Cherokee Iron Co. 56 Ga. 319; all cited in support of text in Bennett's Benjamin on Sales, g 700. And consult Story on Sales, \ 404. 8 Buddie v. Green, 3 Hurl. : Bennett's Benjamin on Sales, g 700 ; referring, also, to Howe r. Huntington, 15 Me. 350. 367 ACCEPTANCE. 257 g 257. Acceptance in general. Supplementing seller^ performance. Whatever be the nature or situation of the property bargained for, the duties of buyer 1 and seller are reciprocal ; 2 and the measure of the buyer's duty of acceptance must be according to the plain intent of the contract, 3 his part being to fill out what the seller's performance has left incomplete toward effect- ing a legal transfer of possession and possessory rights. 4 Taking and not merely receiving, etc. His duty of acceptance may bind him to take, and not merely to receive, 5 though he may have to do neither ; 6 but such as the contract makes it, he must perform his obligation with zeal and discretion. 7 Restrictions on obligations. He is not bound, how- ever, 8 to accept goods in a closed cask which the vendoi refuses to open ; 9 nor to remain at his place of business after sunset on the day fixed for delivery, nor even if he happens to be there after sunset, to accept unless there be time before midnight for inspecting and re- ceiving the goods ; 10 nor to select the goods bought oufc of a larger quantity, or a mixed lot that the vendor had sent him ; n nor, on a sale of rice in " double bags," to accept the goods in single bags, where there was proof that this mode of packing rice made a difference in the sale. 12 1 See preceding section on BUYER'S DUTIES IN GENERAL. 2 2 Schouler on Personal Property, \ 403. 3 Intention governs : See under chapter on TRANSFER OF TITI E. 4 2 Schouler on Personal Property, 403. Bight of possession : See under chapter on TRANSFER OF TITLE. 5 See next section on DISTINCTION BETWEEN ACCEPTANCE AND RECEIPT. Notice to accept : See Cameron v. Wells, 30 Vt. 633 ; E Iwards v. Hartt, 66 111. 71 ; 2 Corbin's Benjamin on Sales, \ 1043, n. 3 (citing these cases) ; 1018, n. 8 ; and \ 1023, n. 11. fi See subdivision of preceding section discussing case where goods already in buyer's custody. 7 2 Schouler on Personal Property, ? 403. 8 According to Bennett's Benjamin on Sales, \ 701. And see 2 Corbiu's Benjamin on Sales, \ 1049. 258 ACCEPTANCE. 368 9 See Isherwood v. Whitmore, 10 Mees. & W. 757 ; 11 Mees. & W. 347. 10 See Startup v. McDonald, 6 Man. & G. 593. 11 See Dixon r. Fletcher, 3 Mees. & W. 146 ; Hart ?>. Mills, 15 Mees. & W. 85 ; Nicholson r, Bradfield Union, Law R. 1 Q. B. 620 ; -35 Law J. Q. B. 176 ; Levy v. Green, 8 El. & B. 575 ; l El. . Dunham, 79 111. 131 ; Pennell v. McAfferty,84 111. '*64 ; Hirschhorn ?>. Stewart, 49 Iowa, 418; Henkel v. Walsh, 41 Mich. 664 ; Shipman v. Graves, 41 Mich. 675. 9 See Bogue v. Newcomb, 1 N. Y Sup. Ct. 251 ; Neaffie v. Hart, 4 Lans. 4 ; Watktns v. Paine, 57 Ga. 50 ; Hamilton v. Myles, 24 Up. Can. Com. P. 309 ; Wilds v. Smith, 2 Ont. App. 8. 259, Receiving or taking possession. Buyer's duty concerning. If the seller has duly tendered delivery of the goods, 1 the buyer must, with reasonable prompt- ness, put himself where the goods shall come into his own possession without further risk or trouble, as by sending for them, 2 or at least holding himself in readi- ness to receive them at the proper time, in the proper place, and in the proper manner, according to the terms of the bargain. 3 Delay in. And for unreasonable delay in receiving or taking possession he subjects himself to liability for such extra charges and expenses as may be incurred in the custody of the goods, besides running the risk of damage and loss ; 4 though for a simple, unexplained delay on the buyer's part in coming to take the thing I 260 ACCEPTANCE. 370 away, the seller would hardly be justified in treating the bargain as rescinded. 5 1 See \ 239, on MODE OF MAKING DELIVERY. 2 See ? 256, on FETCHING GOODS. 3 2 Schouler on Personal Property, ? 405. 4 See Story on Sales, ? 404 ; Bennett's Benjamin on Sales, ? 700 ; g 256, on FETCHING GOODS. 5 2 Schouler on Personal Property, \ 405. \ 260. Right of inspection. After receipt . The buyer is not obliged to carry his receipt of possession to the full extent of acceptance, without that inspection which shall show whether the chattels tendered by the seller are such as were bargained for, where, as in the case of unascertained chattels made or supplied to order, 1 such inspection must necessarily await the actual receipt of the goods. 2 Illustrations. Thus, where the bulk is delivered under a sale by sample, the buj'er ought to be allowed an opportunity to compare and ascertain for himself the substantial correspondence of bulk and sample; 3 and even if specific goods are mutually agreed upon, the seller cannot rightfully deprive the buyer of the opportunity, upon the arrival of the goods, to remove the wrappers, or break the package, so as to make sure that the identical thing is brought him. 4 Mode of examination of wool. But where wool was purchased "subject to grader's rejection," such term meaning that the wool was subject to examination by wool-graders, and to rejection or allowance on contract price for such wool as was of an inferior quality, it was held that if the examination of the wool was not con- ducted fleece by fleece as required by the custom of the place, but by ripping open the sacks, the vendees, after retention of the wool, were liable for the contract price, although they subsequently, after the vendor's refusal 371 ACCEPTANCE. $ 261 to abide by their rejection, offered to have it graded fleece by fleece. 5 1 See chapter on EXECUTORY SALES. 2 Schouler on Personal Property, $ 406. The buyer is entitled before acceptance to a fair opportunity of inspecting the goods, so as to see if they correspond with the contract: Bennett's Benjamin on Sales, 701, n. d ; citing, Pew v. Lawrence, 27 Up. Can. C. P. 402 ; Croninger ?\ Crocker, 62 N. Y. 151 ; Corrigan v. Sheffield, 10 Hun, 2:27 ; Thobburonn v. Lewis, 48 Mich. 6"5 ; Raffee ?'. United States, !"> Ct. . . . , . of Cl. 2 H ; and quoting, Pease v. Copp, 67 Barb. 132. An 1 see 2 Corbin's Benjamin on Sales, 1042, n. 25, and 1049, n. 4 ; citing, Shields v. Reibe, !) 111. App. 598. 3 See Lorymer v. Smith, 1 Barn. & C. 1 ; Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. 187 ; Doane v. Dunham, 79 111. 131 4 See Isherwood r. "Whitmore, 10 Mees. & W. 757 : so cited, 2 Schouler on Personal Property, 400, whence paragraph derived. Right to weigh or measure goods in course of inspection : 2 Schouler on Personal Property, 406 ; referring to Pettit r. Mitchell, 4 Man. & G. 819 ; stated at length in Bennett's Benjamin on Salts, 702. 5 Meherin v. Ball, 8 Pac. Rep. (Cal.) 886 ; 21 The Reporter, 309. 261. What constitutes acceptance. In general. Ac- ceptance of goods in the fullest sense maybe expressed by words or acts, 1 and it is also inferable from the facts. 2 Detention of goods. Thus, a detention of custody by the buyer becomes, by lapse of time, decisive to show acceptance, since if the buyer means for cause not to accept the goods, it is his duty to promptly reject them, and to throw them back upon the seller ; 3 and hence a retention of wool for three days before objecting to de- lay in delivery, and for six weeks before finding out the seller's address, and notifying him of the refusal to ac- cept, has been held to render the buyer liable for the price; 4 and a period of seven weeks, when one would have sufficed, has been thought too long for examining large lots of wine sold by sample. 5 Exercise of acts of ownership. Still more conclusive upon the buyer is a detention of custody accompanied by the exercise of acts of ownership over the chattels, such as the attempt to sell the property over as one's own before giving notice of non-acceptance ; 6 and even where one entirely disclaims that he has ordered goods, 262 ACCEPTANCE. 372 he becomes liable if he exercises acts of ownership over them, instead of returning them, or notifying the sender to take them. 7 Acts conflicting with words. But whether the buyer has accepted the goods or not, must depend upon all the facts, and not upon words alone, which are not borne out by the buyer's own conduct. 8 Xor can the buyer's refusal of acceptance avail him when he has exposed himself to the imputation of playing fast and loose, declaring that he will not accept the goods, but at the same time preventing the seller from dealing with them as his own. 9 1 See 1 Bouvier Law Diet. (14th ed.) 47. 2 2 Schouler on Personal Property, "07, referring for evidence hell insufficient to establish a knowing acceptance by the buyer, to Gowing v. Knowles, 118 Mass. 232. 3 See Bianchi v. Nash, 1 Mees. & W. 545 ; Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. 187 ; Treadwell v. Reynolds, 39 Conn. 31 ; Boughton v. Standish, 48 Vt. 504 ; liirshhorn v. Stewart, 49 Iowa, 418 ; Story on Sales, 404 ; Bennett's Benjamin on Sales, 703 ; 2 Parsons on Contracts, 221 ; 2 Schouler on Personal Property, \ 407, whence paragraph derived. 4 Treadwell v. Reynolds, 39 Conn. 31. Retention of wool not graded rieece by fleece : Meherin v. Ball, 8 Pac. Rep. (Cal.) 836. 5 Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. 187. But a usage of the Liverpool corn market, allowing the buyer but one day to object that corn sold was not equal to the sample, was held to be reasonable : Sanders v. Jameson, 2 Car. & K. 557; stated, Bennett's Benjamin on Sales, 703. 6 See Parker v. Palmer, 4 Barn. & Aid. 387 ; Chapman v. Morton, It Mees. & W. 534 ; Bennett's Benjamin on Sales, f? 70">, 704 ; Story on Sales, 405 ; 2 Schouler on Personal Property, 407, whence para- graph derived ; citing, also, Delamatcr v. Chappoll. 43 Md. 244. A sale of part of the property by the buyer is an acceptance : Hills v. Mc- Donald, 19 "Wis. 97 ; as cited, 2 Corbin's Benjamin on Sales, 1051, n. 5. 7 See Bartholomae r. Paull, 18 \V. Va. 771 ; Wellauer v. Fellows, 48 Wis. 105. 8 2 Schouler on Personal Property, 407. 9 Chapman r>. Morton, 11 Mees. & W. 54 ; Bennett's Benjamin on Sales, 703. See 2 Schouler on Personal Property, 407; stating and quoting, also, Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. I 262, Eight of rejection. For divergence from de- scription. The buyer may reject the goods as soon as 373 ACCEPTANCE. 263 he has time and opportunity to examine them, 1 if they do not 2 answer the description. 3 Not after inspection and acceptance. But after in- spection and acceptance 4 the buyer cannot, in general, change his mind and reject. 5 Where to be exercised. And where the contract was for cedar posts, to be delivered on board of vessels to be provided by the buyer, it was held that the posts must be accepted or rejected at the place of shipment, and that the buyer could not inspect and reject at the end of the voyage. 6 1 Right of inspection : See \ 260. 2 Divergence in quality, etc. : See \ 260. 3 See Boughton v. Standish, 48 Vt. 594 ; Knoblauch v. Kronsch- nabel, 18 Minn. 300; Simpson v. Krumdick, 28 Minn. 852 ; Doane v. Dunham, 7'.) 111. KH ; 2 Corbin's Benjamin on Sales, \ 1051, n. 5, citing these cases in support of text. 4 Acceptance in general : \ 257. 5 See Carondelet Iron Works v. Moore, 78 111. 65, 69; 2 Corbin's Benjamin on Sales, \ 1051, n. 5 ; 977, n. 29 ; and g 966, n. 23. 6 Brownlee v. Bolton, 44 Mich. 218 ; as stated, 2 Corbin's Benjamin on Sales, $ 1051, n. 5. \ 263. Buyer's course on rejection. Getting rid of custody, etc. The buyer should put his refusal of ac- ceptance so plainly and so promptly before the seller, as to leave no doubt of his real intention in the prem- ises, and get rid of the custody of the goods as soon as possible, unless he has concluded to keep them. 1 Thus, it has been laid down that where a party desires to rescind a purchase upon the ground that the quality of the goods does not correspond with the sample, 2 it is his duty to make a distinct offer to return, or in fact, to return the goods, by stating to the vendor that the goods are at his risk ; that they no longer belong to the purchaser; that the purchaser rejects them; that he throws them back on the vendor's hands ; and that the contract is rescinded. 3 NEWMARK SALES. 32. g 264 ACCEPTANCE. 374 When delay alone excusable. And it is only where the buyer, by some artifice of the seller, or under other circumstances imputing to himself no negligence, is really deprived of his proper opportunity to examine, 4 that his right of acceptance, after the seller has tendered delivery, may long remain in abeyance. 5 Informal notice of non-acceptance. But on the other hand, the buyer who means to refuse acceptance for cause is not narrowed to a technical performance of his duty. 6 Thus where the buyer met the seller on the day of deliv- ery, and told him that the goods delivered were still on his premises, that they were bad, that he would not have them or pay for them, and that the seller might do what he liked with them, it was held that he had sufficiently performed his duty, and was not liable for the price. 7 1 Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. 187 ; as cited in support of text in 2 Sohouler on Personal Property, 2 408. And compare Story on Sales, \ 405. 2 Sales by sample : See under chapter on WARRAXTY. 3 Couston v. Chapman, Law R. 2 II. L. S. 250 ; 3 Eng. Rep. 187. 4 See 260, on RIGHT OF IXSPECTIOX. 5 2 Schouler on Personal Property, 408, referring to Putchess Co. v. Harding, 49 N. Y. 321. 6 2 Schouler on Personal Property, g 408. For the real object of the law, with the fulfillment of which it is satisfied, is that the other party shall receive such formal and distinct notice of non-acceptance that he may secure his own interests, and perform seasonably what is incumbent upon him in return : 2 Schouler on Personal Property, g 408. Consult, also, Story on Sales, $ 405. 7 Grimoldby v. Wells, Law R. 10 Com. P. 391 ; 12 Eng. Rep. 451 ; as stated, 2 Schouler on Personal Property, \ 407, where note is made of the statement in this case that the buyer need not offer to send the goods back, nor place them in neutral custody, bnt comparison is suggested in this point, of Couston v. Chapman, Law R. 2 II. L. S. 250 ; .3 Eng. Rep. 187. $ 264, Seller's waiver of notice, etc. Doctrine and illustration. The seller may have waived strict notice of non-acceptance and return of the goods by entering into some special arrangement inconsistent with enforc- ing such requirements. 1 Thus where the buyer and the seller's agent agree that if the goods sent are not 375 ACCEPTANCE. g 265 satisfactory the buyer need not accept them, but shall retain them until the agent returns to the buyer's shop, the buyer is excused from giving an earlier notice of his refusal to accept. 2 Seller's agreement to alter article. And where shutters are put up, to which the buyer objected and the seller agreed to alter them so as to correspond with the order, the seller must do as he promised before suing for payment. 3 1 2 Schouler on Personal Property, ? 409, whence next two para- graphs also derived. And consult 2 Corbin's Benjamin on Sales, g 1052, n. 6 ; citing, Wartmun v. Breed, 117 Mass. 18. 2 Suit v. Bonnell, 33 Wis. 180. See Kahn v. Klabunde, 50 Wis. 235. 3 Belt v. Stetson, 26 Minn. 411 ; also noted, Bennett's Benjamin on Sales, 70-1, n. q. 265, Buyer's waiver of objections. By delay. Waiver of objections turning receipt into acceptance may be inferred from delay to object. 1 Receipt after time limited. And receipt after the time lirm'ted is a waiver of objections and damages, because of the delay to deliver. 2 To delivery of instalment. Although acceptance with- out objection after inspection will preclude the buyer from rejecting the goods or avoiding the contract, yet acceptance of an instalment of inferior goods, 8 will not warrant the seller to continue to deliver inferior goods ; * though if the buyer improperly refuses to accept a de- livery of part, the seller is excused from tendering the whole. 5 1 See Reed v. Randall, 29 N. Y. 358; 36 Am. Dec. 305 ; Gaylord Manuf. Co. v. Allen, 53 N. Y. 515 ; Watkins v. Paine, 57 Ga. 50 ; Owens v. Sturges, 67 111. 66 ; Hadley v. Prather,64 Ind. K7 ; Barton v. Kane, 17 Wis. 87; 18 Wis. 21VJ; Paige v. McMillan, 41 Wis. 337; Kahn v. Klabunde, 50 Wis. 2;i5 ; Gaff v, Hemeyer, 59 Mo. 345; 2 Corbin's Benjamin on Sales, ? 1051, n. 5, citing these cases in support of text. 2 Baker v. Henderson, 24 Wis. 509; Bock v. Healey, 8 Daly, 156 ; 2 Corbin's Benjamin on .Sales, \ 1051, n. 5 ; referring, also, to Adams v. Helen, 55 Mo. 4G8. So delivery after the time is a waiver of daiuair- s for refusal to receive within the time limited : Gibbons v. United States, 2 Ct. of Cl. 421. I 266 ACCEPTANCE. 376 3 See \ 267, on DELIVERY BY INSTALMENTS. 4 See Cahen v. Platt, 69 N. Y. 348 ; 25 Am. Rep. 203 ; Kipp v. Meyer, 5 Hun, 111. 5 Hughes v. United States, 4 Ct. of Cl. 64. See 2 Corbin's Benjamin on Sales, 1051, n. 5, whence paragraph derived. 266. Divergence in quality, etc. Finality of accept- ance. Where the act of final acceptance is once com- pleted under a contract of sale, the buyer is precluded from afterwards asserting that the goods were not of the quality or quantity agreed, 1 unless he can show 2 fraud, 3 or a warranty. 4 Goods of various qualities, etc. And this rule holds true, even though the goods contracted for were to be of various qualities, and situated in various places ; 5 as where in a sale of lumber at so much for "prime," so much for " merchantable," and so much for "refuse," a buyer had receipted for a described quantity of each, after full opportunity to examine the entire lot. 6 Retaining defective goods, etc. Where the contract is executory, it has been held that the assumed implica- tion that the property is of a merchantable quality, is to be treated as a condition rather than a warranty, as to defects obvious upon inspection and discoverable when the contract w r as performed by the delivery of the property. 7 And the receiving and retaining of the prop- erty under the contract with knowledge of such defects, though under objection as to the defective quality of the property, has the effect of an acceptance of the property delivered, as a performance of the executory contract, and a waiver of the implied condition. 8 No waiver of objection. But where one party entered into a written contract with another to sell and deliver to the latter within a specified time, ninety head of smooth and fat hogs, to weigh on an average two hun- dred and forty pounds each, and several days before the seller was to deliver the hogs he informed the buyer 377 ACCEPTANCE. \ 267 that the hogs were too light and too rough to comply with the contract, but the buyer did not object to the hogs on those grounds, it was held that his failure to object at that time was not a waiver by him as to the fatness and smoothness of the hogs, if at the time the seller offered to deliver the hogs, the buyer objected to receiving them under the contract. 9 1 2 Schouler on Personal Property, \ 410. 2 See fetory on Fales, \ 406. 3 See generally chapter on FRAUDULENT SALES. 4 See generally chapter on WARRANTY. 5 See citations in next note. 6 See McCormick v Sarson, 45 N. Y. 265 ; so cited in support of text, in 2 Schouler on Personal Property, 410 ; referring, also, to Gilson v Bingham, 43 Vt 410 7 Thompson v Libby 20 N. W. Hep. (Minn.) 150. 8 Thompson ? . Libby, 29 N. W. Rep. (Minn.) 150 ; relying upon Haase v. Nonnemacher, 21 Minn. 486, and cases cited ; Maxwell v. Lee, 27 N W. Rep 196; Gaylord Manuf. Co. v. Allen, 53 N. Y. 515; Xocke v Williamson, 40 Wis. 377 ; Olson v. Mayer, 56 Wis. 551. 9 Dowell v. Williams, 33 Kan. 319. 267. Where delivery by instalments. When rejection not barred. Where delivery is madfe by instalments, the buyer's acts of acceptance should naturally corre- spond; 1 so that the buyer's acceptance of the first in- stalment will not debar him from rejecting, on proper grounds, the portions subsequently delivered. 2 New terms of acceptance. But of course a buyer may acquiesce in modifications of the original contract of delivery, so as to be bound to new terms of acceptance, as frequently happens under instalment contracts. 3 Return of parcels first received. As a buyer may re- fuse to take less than the quantity delivered, 4 so he may return the parcels first received, where a whole quantity was ordered to be delivered from time to time, and the latter deliveries are not duly made. 5 1 See citations in next note. 2 See Hubbard ? . George, 49 111. 275 ; as cited in support of text, In 2 Schouler on Personal Property, \ 410. Like effect : 2 Corbiu'a \ 268 ACCEPTANCE. 378 Benjamin on Sales, ? 1051, n. 5 ; citing, Cahen v. Plait, 69 N. Y. 848 ; 25 Am. Rep. 203 ; Kipp v. Meyer, 5 Hun, 111 ; Hughes v. United States, i Ct. of Cl. 64. 3 See Haines v. Tucker, 50 N. H. 307 ; A very r. Willson, 81 N. Y. 841 ; 37 Am. Hep. 503 ; 2 Schouler on Personal Property, \\ 390, 410, making these citations in support of text. 4 Consult \ 235, on QUANTITY DELIVERED. 5 See Oxendale v Wetherell, 9 Barn. & C. 386 ; Bowes v. Shand, Law R. 2 App C. 455 ; Reuter v. Sala, Law R. 4 C. P. D. 239 ; 30 Eng. Rep 518, Marlandv Stan wood, 101 Mass. 470; 1 Schouler on Personal Property 390 ; 2 Schouler on Personal Property, \ 410 ; referring, also, in support of text, to Honck v. Muller, 45 L. T. 202 ; S. C. Law R. 7 Q. B D. 92 ; 36 Eng. Rep. 264. But where delivery is tendered for the purpose of fulfilling the seller's contract in part, the buj'er cannot take and hold the goods tendered for any other purpose: Burrill v. Sampson. 73 Me. 286. g 268, Article to be satisfactory, etc. Good faith of rejection. If the rejection of coal condemned as un- satisfactory by a railroad company's masters of ma- chinery and transportation, to whom it was to be satisfactory in quality, is not made in good faith, and in the exercise of an honest judgment, it will not be a sufficient justification to the railroad company for refusing to continue to receive the coal. 1 Rejection after trial. Where the contract by which a village agrees to purchase a steam fire-engine and attach- ments provides for the payment of the first instalment of the purchase money at the date of acceptance of the property, and at the request of the vendee, the vendor sends one of its employees to assist at the trial of the engine, the nature of the machinery making a trial neces- sary to determine its fitness for the purposes required, it was held that the acceptance was to be after trial, not when placed upon the cars at the place of manufacture ; 2 and that upon a rejection of the engine, the vendor could not recover in assumpsit for the purchase money. 3 1 Baltimore . Stahelin, 34 N. Y. 258, 265. 12 See Read 1). Hutehinson, 3 Camp. 352 ; Camidge v. Allenby, 6 Barn. & C. 373 ; Guardians of Litchfield v. Green, 1 Hurl. & N. 884. P- " 13 See Allen v. Buntel, 2 Thomp. & C. 342. Consult for sources of paragraph, Bennett's Benjamin on Sales, ? 739 ; 2 Corbin's Benjamin on Sales, \ lObl, n. 17 ; 2 Schouler on Personal Property, \ 420, I 272 PAYMENT. 382 \ 272. Credit sales. In general. Credit is said to be the time allowed by the creditor for the payment of goods sold by him to the debtor. 1 And there is said to be a sale on credit when property is sold with- out any expectation of immediate payment, irrespect- ive of the length of time for which the payment is deferred. 2 Effect of. If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and right of property vest at once in him, 3 though his right of possession is not absolute, but is liable to be defeated if he becomes insolvent before he obtains possession. 4 Time of payment under. The buyer is not obliged to pay before the expiration of the term of credit, nor is he previously subject to suit upon his note given to the seller in postponement of payment. 5 But where no time of credit definitely fixed by express agreement or custom can clearly be shown, payment is due on the seller's demand, and the seller should put the buyer in default by sending his bill or other notification that he desires settlement for the goods. 6 1 1 Bouvier Law Diet. (15th ed.) 454. 2 Anstfltr. S'ltter, 30 111. 164, 16fi. Authority of agent to sell on credit: See 1 Chitty on Contracts (llth Am. ed.), 2a5, n. y \ Bennett's Benjamin on Sales, \ 143, n. c ; citing, also, Dresden School Dist. v. JEtna Ins. Co. 62 Me. 3."O, und cases cited ; Riley v. Wheeler, 44 Vt. 18J ; Daylight Burner Co. v. Odlin, 51 N. H. 56, 59, 60 ; Parsons v. Mar- ti'i, 11 Gray, 115; Bowman 7-. Brown, 3 Q. B. 511. Term, proof, etc., of credit : 2 Schouler 011 Personal Property, \ 422. 3 Bloxam v. Sanders, 4 Barn. & C. 941 ; Boss' Leading Cases, 4. 4 Bloxam v. Sanders, 4 Barn. & C. 941 ; Ross' Leading Cases, 4 ; citing, Tooke r. Hoi lings worth, 5 Term Rep. 215. And see 2 Kent Com. 4!)3 ; Leonard v. Davis, 1 Black, 476, 483 ; 159, on RIGHT OF POSSESSION. 5 See Story on Sales, \ 422 ; 2 Schouler on Personal Property, ? 422 ; citing, also, Stedman r. Gooch, 1 Esp. 5 ; Rugg v. Weir, 16 Com. B. N. S. 471 ; Rice v. Andrews. 32 Vt. 691. Consult further Bennett's Benjamin oti Sales, 765 ; 1 Chitty on Contracts (llth Am. ed.). 615, n. r, and cases cited. Failure to furnish negotiable security as agreed ; See lust two of cases above cited. Effect of buyer's notice 383 PAYMENT. 273 of inability to pay before expirations of credit : Keller v. Strasburger, 90 N. Y. 379. 6 2 Schouler on Personal Property, \ 422, referring to Hodgson v. Davies, 2 Camp. 530. \ 273. Mode of making. In general. In regard to the mode of making payment, it may be by any lawful method agreed upon between the parties, and fully executed. 1 Not in cash. And the buyer's common obligation to pay cash is capable of being varied by circumstances, according to the different phases of intent in a contract. 2 Thus there may be payment by assumption of certain debts of the seller, 3 by set-off on an account stated, 4 or in chattels at the option of the buyer. 5 Tender, etc. Not only will payment relieve the buyer from liability under the contract, but a tender of what is due may be sufficient; 6 and in regard to payment and tender under a sale, constant application is made of the ordinary rules regulating relations between debtor and creditor. 7 1 2 Greenl. Ev. 519. Payment through agents : 2 Schouler on Personal Property, ? 423-425. Transmission of payment : Bennett's Benjamin on Sales, 710; 2 Corbin's Benjamin on Sales, 1095, n. 5 ; 2 Schouler on Personal Property, 416. And consult following cases cited by these writers: Warwick v. Noakes, Peake, 68, 98; Wake- field ?'. Lithgow, 3 Mass. 249 ; Crane v. Pratt, 12 Gray, 348, 349 ; Gurney v. Howe, 9 Gray, 404, 408 ; First Nat. Bank v. McMonigle, 69 Pa. St. 156 ; Morgan v. Richardson, 13 Allen, 410 ; Williams v. Carpenter, 36 Ala. 9; Gordon v. Strange. 1 Ex. 477 ; Caine v. Coulson, 1 Hurl. & C. 764 ; Holland v. Tyns, 56 Ga. 56 ; Hawkins v. Butt, Peake, 186, 248 ; also, 2 Greenl. Ev. 525 ; 2 Bouvier Law Diet. (14th ed.) 311, 313. 2 2 Schouler on Personal Property, 416. 3 See Soustiby v. Keeley, 11 Fed. Rep. 578. 4 See Livingstone v. Whiting, 15 Q. B. 722 ; 19 Law J. Q. B. 528. 5 See Cummings v. Dudley, 60 Cal. 383 ; 44 Am. Rep. 58. Consult further, Bennett's Beniamin on Sales, $ 1002 ; 2 Corbin's Benjamin on Sales, $ 1062, n. 6, and 1063, n. 7 ; 2 Schouler on Personal Property, g 416. 6 Tender fully discussed : 2 Bouvier Law Diet. (14th ed.) 581 ; 2 Greenl. Ev. 600-611. 7 2 Schouler on Personal Property, ? 416. Appropriation of pay- ments : 2 Greenl. Ev. 529-536 ; Bennett's Benjamin on Sales, 746* 750, notes ; 2 Corbin's Benjamin on Sales, \\ 1104-1109, notes. 274 STATUTE OF FRAUDS. 384 CHAPTER XX. STATUTE OF FRAUDS. 274. In general. \ 275. Contracts covered. 276. Things attached to the soil. g 277. Incorporeal personalty. J 278. Prescribed amount. \ 279. Earnest or part payment \ 280. Delivery. $ 281. Acceptance and receipt. \ 282. Acceptance. J 283. What constitutes acceptance. \ 284. Actual receipt. \ 285. Intervention of carriers, 286. Memorandum in general. \ 287. Form of memorandum. \ 288. Contents of memorandum. \ 289. Parol evidence concerning memorandum. \ 290. Modification of original bargain. 291. Signature to memorandum. \ 292. Compliance by agents \ 293. Broker's memorandum. 274, In general. Changes common law. Although at common law consent alone was sufficient to constitute a valid sale, yet the statute of frauds has now intervened, and other formalities are prescribed to make the transfer valid. 1 Purpose. The purpose of this celebrated enactment, as declared in the preamble, and gathered from its provisions, was to prevent fraud and falsehood, by re- quiring a party who seeks to enforce an oral contract in court to produce, as additional evidence, some written memorandum signed by the party to be charged, 2 or proof of some act confirmatory of the contract relied on. 3 385 STATUTE OF FRAUDS. 274 Provisions respecting personal property. The seven- teenth section of the statute, relating especially to sales of personal property, provides, as originally enacted, that no contract for the sale of goods, wares, or mer- chandises of the price of ten pounds or upwards, shall be allowed to be good, 4 except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memonandum in writing of the said bargain be made, and signed by the parties to be charged by such contract^ or by their agents thereunto lawfully authorized. 5 Prevalence. This famous statute is not only in force throughout the British Empire, but forms the basis of like legislation in many of the States of the American Union. 6 Design and operation. According to one view of the design of the statute of frauds, sometimes embodied in legislative phraseology, an oral contract, unaided by any of the formalties mentioned in the seventeenth section as equivalent to writing, is totally and entirely void. 7 But a different view in vogue in England, which has been deemed the more correct position, is that the contract still exists, but that it cannot be put in force, or in other words, that it is valid but unenforcible. 8 And in this country it has been considered that the statute does not prohibit an oral contract, or declare that it shall be void or illegal, unless certain formalities are observed ; 9 but that it concerns the remedy only as betTveen the parties, and affects the modes of proof as to all contracts within the statute, and not the validity of the contract itself. 10 Subsequent compliance. So it seems to be the better opinion that a contract of sale, where there is no con- temporaneous writing, may be rendered enforcible by NEWMAKK SALES. 33. 274 STATUTE OF FRAUDS. 386 subsequent acts of compliance with the statute, regarded as relating back to the date of the oral agreement. 11 When provision inapplicable. A provision of the statute of frauds declaring contracts involving a speci- fied sum or more to be void in certain cases, has been held to have reference to the sale of goods, the price of which amounts to such sum or more, and to be inappli- cable where no sale of property was involved in the contract in controversy. 12 1 Cunningham r. Ashbrook, 20 Mo. 553, 558. And see Be Fonclear v. Shottenkirk, 3 Johns. 170, 174 ; Fancher v. Goodman, 29 Barb. 315, 318. 2 See later sections of chapter on MEMORANDUM. 3 Townsend v. Hargraves, 118 Mass. 325, 334. And see Williams ?>. Robinson, 73 Me. 186 ; Cusack v. Robinson, 1 Best & Smith, 299 ; Langdell's Cases on Sales, 266, 272. Origin of enactment: See Ash v. Ab<1y, 3 Swanst. 664, Appx. ; Wain ?>. Warlters, 5 East. 17 ; Wyndham v. Chetwynd, 1 Burr. 418 ; Story on Sales, 256 ; 18 Am. Law Rev. 442. 4 Other expressions in the enactments of some of the States: SOP Browne on Statute of Frauds (4th ed.), Appx. ; Brown v. Allen, 35 Iowa, 306 ; 2 Kent Com. 494, n. a. 5 See Stat. 29, Charles II. ch. 3, \ 17 (1677) ; amended by substitu- tion of '' value " for " price," etc., by Lord Tenterden's Act, 9 George IV., ch. 14. Consult 2 Kent Com. 494 ; Stims, Am. Stat. Law, p. 462, H 41 ; 1 Reed on Statute of Frauds, \\ 218, 219; Wood on Frauds, |.282 J 1 Greenl. Ev. (14th ed.j \ 267 ; 3 Parsons on Contracts, 5. 6 S^e Browne on Statute of Frauds (4th ed.), Appx. ; 1 Bouvier Law Diet. tit. Frauds, Statute of (14th ed.), 614 ; 1 Greenl. Ev. (14th ed.) \ 262 ; 4 Kent Com. (4th ed.) 96. n. 6. In some of the States there are mere verbal variations from the English enactment, and changes in the amount prescribed ; in others the statute is thrown into a new form ; and in still others there is no special legislation on the subject : Soe 2 Sehouler on Personal Property, jj 429, p. 430, n. And consult S'ims. Am. Stat, Law, pp. 459. 464, \\ 4140, 4149 ; 1 Reed on Statute of Frauds, 218, 221 ; Wood on Frauds, \ 282. 7 See 1 Smith on Contracts, 177 ; McLean v. Nicoll, 7 Jur. N. S. 999 ; Langdell's Cases on Sales, 487, 489 ; Marsh ?>. Hyde. 3 Gray, 331 ; Langc.leirs Cases on Sales, 313. But compare contra, Hawley v. Keeler, 53 N. Y. 114 ; Brown v. Allen, 35 Iowa, 306. 8 See McLean v. Nicoll, 7 Jur. N. S. 999 ; LangdelPs Cases on S^les, 4S7, 4Sn ; Bailey v. Sweeting, 9 Com. B. N. S. 843, 853 ; 30 Law J. Com. P. 150; Langdell's Cases on Sales, 480, 485; 9 Am. Law Rev. 4^4. Compare, however, Noble v. W r ard, Law R. 1 Ex. 117 ; Langdell's Cases on Sales, 520, 523. 9 Townsend v. Hargraves, 118 Mass. 325, 334. 10 See Townsend v. Hargraves, 118 Mass. 325, 334 ; Norton v. Simonds, 124 Mass. 19, 21 ; Arnsmick v. Am. Ins. Co. 129 Mass. 1H5 ; Williams ?>. Robinson, 73 Me. 186 ; Browne on Statute of Frauds, ? 115, n. Conflict of laws : See Leroux v Brown, 12 Com. B. 801. Prire note unenforcible where contract does not comply with statute : Hooker v. Kuab, 26 Wis. 511. Basis of most of foregoing matter ; 2 Scliouler 387 STATUTE OF FRAUDS. 275 on Personal Property, ?? 42S-435 ; Bennett's Benjamin on Piles, \\ 90, 91, and notes; 1 Corbin's Benjamin on Sales, $ Ml, n. 2 ; citing upon American view of effect of statute, Smith ?-. Smith, 14 Vt. 440 ; Green v. N. C. R. R. Co. 77 N. C. 95 ; Davis v. Inscoe, 84 N. C. 396 ; Chicago Dock Co. ?'. Kenzie, 4!) 111. 25'); and Rickard v. Cunningham, 10 Neb. 417. Consult, also, 2 Kent Com. p. 724, n. 1. 11 Sf>e Bniley r. Sweeting, 9 Com. B. N. S. 843 ; LangrfaU's Cas^s o-i Sales, 480 ; Leather Cloth Co. v. Hieronimus, Law R. 10 Q. B. 140; 12 Eng. Rep. 211 ; Townsend v. Hargraves, 118 Mass. 325. But compare contra, Bill v. Bament, 9 Mees. & W. 36 ; Langdell's Cases on Sales, 161. Basis of paragraph : 2 Schouler on Personal Property, \ 433. And consult Langdell's Cases on Sales, 1035. 12 Hinkle v. Fisher, 104 Ind. 84. \ 275. Contracts covered, Executory sales. In Eng- land, prior to Lord Tenterden's Act, which assumed to expressly cover such cases, there was one line of de- cisions drawing a distinction between executory and executed contracts, and followed in various American rulings, which confined the application of the seven- teenth section of the statute of frauds to contracts for the sale of goods to be immediately delivered, and ex- cluded agreements where the goods were designed to be delivered at some future time, but were not yet exist- ing or fit for delivery. 1 And it appears to be the New York doctrine that an agreement for the sale and de- livery, now or hereafter, of articles already existing, is within the statute, but not an agreement to sell and do- liver articles which have no existence, and are to be made hereafter. 2 But the modern English doctrine fol- lowed in some of the States, seems to consider the ques- tion to be whether the contract was one for the sale of goods or for work and labor, and to hold that if the con- tract be such that when carried out it would result in the sale of a chattel, then the party cannot sue for work and labor, but that if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, then the par v cannot sue for goods sold and delivered/ And in Massachusetts, the distinction is drawn that a con- g 275 STATUTE OF FRAUDS. 388 tract for the sale of articles already existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies, but that the case is not within the statute if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market. 4 Auction sales. Auction sales, as well as execution sa]es and public sales generally, are now settled to be within the policy of the statute of frauds, independent of their inclusion by special phraseology. 5 Various contracts. A chattel mortgage is sometimes deemed to come within the denomination of contracts of sale, as being a species of conditional or defeasible sale ; 6 but not an agreement to be partners in a sale of goods ; 7 nor an oral agreement which involves a loan upon security and not a sale. 8 Mixed contracts. Where a contract includes a sale of goods, and other matters not within the statute, the seventeenth section of the statute will apply if the goods included in the contract be of the prescribed value, though the rest of the contract may perhaps be enforced, if there can be separation of the valid and invalid portions. 9 1 See Towers v. Osborr.e, 1 Strange, 506; LangdctPs Cases on Sales, 1 ; Clayton v. Andrews, 4 Burr. 2101 ; Langdell's Cases on Sales, 2 ; Cii-oves v. Buck, 3 Maule & S. 178 ; Lang-dell's Cases on Sales, 9 ; Eichelberger ?>. McCauley, 5 liar. . Bell. 8 Barn. & C. 277 ; Lang- dell's Cases on .Sales, 801. Compare Clay v. Yates, 1 Hurl. & N. 7-5 ; Langdell's Cases on Sales, 15. Consult, also, Pitkin r. Noyes, 48 N. II. 294 ; 2 A m. Hep. 218. And see Finney v. Apgar, 2 Vroom, 266 ; Prescott v. Locke, 51 N. H. 94 ; 12 Am. Rep. 55. 4 Goddard v. Binney, 115 Mass. 430; 15 Am. Rep. 112. And see Mixer r. llowarth, 21 Pick. 205 ; 32 Am. Dec. 256 ; Langdell's Cases on Sales, 2r> ; Spencer v. Cone, 1 Met. 283 ; Langdell's Cases on Sales, 23 ; Gardner v. Joy, 9 Mot. 177; Langdell's Cases on Sales, 29; Lamb v. Crafts, 12 Met. 8">3 ; Waterman v. Meigs, 4 Cush. 497 ; Clark v. Nichols, 107 Muss. 547 ; May v. Ward, 134 Mass. 127. Similar doctrine in Maine : See Hight v. Ripley, 13 Me. 139; Edwards v. Grand Trunk R. R. Co. 48 Me. 379 ; 54 Me. 105 ; Crockett v. Scribner, 64 Me. 447. And in Wis- consin: Meinclie v. Falk, 55 Wis. 427; 42 Am. Rep. 722. Basis of foregoing matter: 2 Schouler on Personal Property, \\ 4^8-443; Langdell's Cases on Sales, 1025, 1039 ; Cooke v. Millard, 65 N. Y. 352; 22 Am. Rep. 619, 62L-623. And consult Bennett's Benjamin on Sales, ? 92-109, notes ; 1 Corbin's Benjamin on Sales, ? 92-110, notes ; Camp- bell on Sales, 102, 104 ; Story on Sales, \\ 200-260 c, notes ; Milliard on Sales, pp. 464-407 ; Browne on Statute of Frauds, ? 299-308 ; Wood on Frauds, \\ 295-304 ; 2 Kent Com. (13th ed.) p. 724, n. 2 ; Pnget Sound Iron Co. v. Worthington, 7 Pac. Rep. (Wash. T.) 886; Pawleslci v. Hargreaves, 47 N. J. L. 334 ; 54 Am. Rep. 162, with reporter's notes, 164, reviewing cases on subject. 5 See 2 Schouler on Personal Property, 444 ; citing, 2 Kent Com. 540 ; Browne on Statute of Frauds, 293 ; Story on Sales, \ 264 ; Hinde v. Whiten ouse, 7 East, 558 ; Langdell's Cases on Sales, 102, 108, 110 (ques- tioning, Simon v. Motives, 1 Black. W. 509) ; Kenworthy i>. Schofield, 2 Barn. & C. 945; Langdell's Cases on Sales, 373; Morton v. Dean, 13 Met. 3S5 ; Brent v. Green, 6 Leigh, 10 ; O'Donnell v. Leeman, 4'i Me. 358. Like effect: Davis v. Rowell, 13 Am. Dec. 398; Meadows v. Meadows, 15 Am. Dec. 645. 6 See Gleason v. Drew, 9 Greenl. 79 ; Clark v. Duffey, 24 Ind. 271 ; Browne on Statute of Frauds, $ 294. Sale and defeasible sale : Wood on Frauds, \\ 285, 286. 7 Bucker v. Ries, 34 Mo. 354. 8 Brown v. Allen, 35 Iowa, 306. Basis of paragraph : 2 Schouler on Personal Property, 445. Conversation importing a contract of s:;le which must comply with statute : See Bates v. Coster, 3 Thorn p. & C. 580 ; Bowers v. Anderson, 49 Ga. 143. Promise to pay for goods of another, etc. : See Bugbee v. Kendricken, 130 Mass. 437 ; Flanagan v. Hutchinson,47 Mo. 237. Contract not to be performed within a y^iir : See Equitable Gas Light Co. v. Baltimore Coal Tar etc. Co. 63 M'l. 285 ; Gregory v. Underbill, 6 Lea, 207. Consult as to patents, also, Blikeney v. Goode, 30 Ohio St. 350 ; Somerby v. Buntin, 118 Mass. 279. But compare Packet Co. v. Stiles, 5 Wall. 580. 9 See Harman v. Reeve, 18 Com. B. 586; Langdell's Cases on Sales, 90 ; Irvine v. Stone, 6 Cush. 508 ; Rand v. Mather, 11 Cusli. 1,7; 59 Am. Dec. 131 ; Bennett's Benjamin on Sales, 9 i:>7, and cases cited ; 1 Corbin's Benjamin on Sales, 137, n. 4. Entirety of contract dis- cussed : 2 Schouler on Personal Property, 44d 276. Things attached to the soil. Products of the earth. It is now the settled rule of England and Amer- $ 276 STATUTE OF FRAUDS. 390 ica, at least in the absence of manifestations of a different intent, that fructus industriales, or annual crops which are the fruits of periodical industry, such as unsevered corn, potatoes, etc., do not come within the provisions of section four of the statute of frauds relating to interests in land, 1 but that they are chattels which presumably fall within the provisions of the seventeenth section of the statute. 2 But the English decisions seem to justify the position that an oral contract relating to fructus naturales or natural products of the soil, such as timber, fruit trees, grass, etc., which contemplates the transfer of the seller's property while they are still annexed to the soil, is within the fourth section of the statute of frauds as an interest in land, 3 while the oral sale of such products in the ground, but awaiting a severance before property can pass to the purchaser, is only a chattel sale. 4 Growing trees. In New York and several other States, it is, however, emphatically laid down that the sale of growing trees, with the right given to the purchaser to enter and remove them hereafter, must invariably be expressed in writing, as constituting the sale of an in- terest in lands within the statute. 5 But there are said to be numerous opinions among the later cases in this country which justify the inference in regard to all con- tracts for the sale of trees or timber, that irrespective of the circumstance that the purchaser shall cut the trees instead of the vendor, such contracts concern an interest in lands, and must be put in writing if the parties meant to grant a present property to the unsevered trees ; 6 but that it is otherwise if the obvious design of the parties was to sell trees, the title to which should not pass to the purchaser until the thing had been severed so as to exist as a chattel. 7 Fixtures. It has been held in England that an agree- ment for the sale of fixtures between the landlord and 391 STATUTE OF FRAUDS. 276 the outgoing tenant is not a sale of goods, either within the statute of frauds or the meaning of a count for goods sold and delivered ; 8 and it seems that a contract which purports not merely to sell, but to annex the thing so that it shall be permanently incorporated with the soil, cannot be regarded as a mere contract for the sale of goods within the seventeenth section of the statute. 9 1 See Green ?>. Armstrong, 1 Denio, 550 ; Kingsley v. Holbrook, 45 N. H. 313 ; Bryant v. Crosby, 40 Me. 22 ; Boss v. Welch, 11 Gray, 235 ; Punier v. Piercy, 40 Md. 212; 17 Am. Rep. 591 ; Moreland v. Myall, 14 Bush, 474 ; Story on Sales, ? 263 a ; Bennett's Benjamin and 1 Corbin's Benjamin on Sales, \\ 120-122 ; Evans v. Roberts, 5 Barn. & C. 82!) ; Langdell's Cases on Sales, 46 ; Jones v. Flint, 10 Ad. & E. 753 ; Lang- dell's Cases on Sales, 66 ; Dunne v. Ferguson, Hayes, 540 ; Langdell's Cases on Sales, 73. Compare Mayfield v. Wadsley, 3 Barn. & C. 300; Earl of Falmonth v. Thomas, 1 Cromp. & M. 89. English cases relat- ing to unsevered crops in general : Warwick ?;. Bruce, 2 Maule & S. 205 ; Langdell's Cases on Sales, 45 ; Parker v. Staniland, 11 East, 36'"! ; Langdell's Cases on Sales, 42 ; Crosby v. Wadsworth, 6 East, 603 ; Watts v. Friend, 10 Barn. & C. 44 P > ; Langdell's Cases on Sales, 61 ; Sainsbury v. Matthews. 4 Mees. & W. 343 ; Langdell's Cases on Sales, 64. And consult Campbell on Sales, 158-102 ; Langdell's Cases on Sales, 1034. 2 S^e Blackburn on Sales, pp. 19,20. And consult for basis of foregoing matter, 2 Schouler on Personal Property, \\ 44S-4CO. 3 See citations in next note. 4 See Washburn v. Burrows, 1 Ex. 1C7 ; Rodwell v. Phillips, 9 M^es. & W. 501 ; Blackburn on Sales, 0, 10 ; Bennett's Benjamin and 1 Corbin's Benjamin on Sales, ?g 122-126 ; Marshall v. Green, Law R. 1 C. P. D. 35 ; 15 Eng. Rep. 218. And compare Smith v. Lunnan, 9 Born. 561 ; Graves v. Weld, 5 Barn. & Adol. 105 ; Punier v. Piercy, 40 Md. 212, 223 ; 17 Am. Rep. 501. 5 See Green v. Armstrong, 1 Denio, 550 ; Howe v. Batchelder, 49 N. H. 204 ; Huff v. McCauley, 53 Pa. St. 500 ; Harrell v. Miller, 35 Miss. 700. A parol contract for the sale of timber amounts merely to a revocable license: Armstrong v. Lawson, 73 Ind. 498. And see Slocum v. Seymour, 36 N. J. L. 138 ; 13 Am. Rep. 432. 6 See citations in next note. 7 See Kingsley v. Holbrook, 45 N. H. 313 ; 86 Am. Doc. 171, n. 182, fully discussing subject ; Sterling v.. Baldwin, 42 Vt. 306 ; White ?'. Foster, 102 Mass. 375, 378 ; Byassee v. Reese, 4 Met. (KyJ 372 ; 83 Am. Dec. 481 ; Killmore v. Hewlett, 48 N. Y. 569 ; Edwards?'. Grand Trunk R. R. Co. 54 Me. 105. Basis of foregoing matter: 2 Schouler on Per- sonal Property, ? 451. And see Story on Sales, \ 203 a ; 3 Parsons on Contracts, 31. Void oral sale of stumpage, valid as a license : Spald- Jng v. Archibald, 52 Mich. 365 ; 50 Am. Rep. 253. 8 Hallen v. Runder, 1 Cromp. M. & R. 267. And see Lee ?>. Gas- kell, Law R. 1 Q. B. D. 700 ; 18 Eng. Rep. 131 ; Blackburn on Sales. i>. 9 ; Bennett's Benjamin on Sales, 127, 127 a ; Campbell on Sales, 161. 9 See Cotterelt v. Apsley, 6 Taunt. 322 ; Clark v, Bulmer, 11 Mees. cfe W. 243 ; cited, 2 Schouler 011 Personal Property, 453, Consult, also, Wood on Frauds, 284. 277 STATUTE OF FRAUDS. 392 \ 277. Incorporeal personalty. Shares of stock. In England, enforcement is allowed of oral contracts for the sale of corporate shares, 1 and even of shares in un- incorporated joint stock companies, ^ which are not re- garded as coming within the designation of goods, wares, and merchandise in the statute of frauds, 3 or stamp acts, 4 nor as relating to interests in land and so requiring written evidence. 5 But in this country the prevailing doctrine is that a contract for the sale of shares of stock in a manufacturing, 6 mining, 7 or other corporation, 8 must, in the absence of compliance with the other requi- sites of the statute of frauds, 9 and independently of the use of sufficiently comprehensive words in the statute, 10 be proved by some note or memorandum in writing. 11 Negotiable instruments. Yet the inclination in this country appears to be to exclude promissory notes, as to oral contracts for their sale, from the operation of the clause of the statute of frauds relating to goods, wares, and merchandise, 12 though it is held otherwise as to bank bills, 13 treasury checks, 14 and bonds. 15 Things in action. In the statutes of several of the States, things in action, as well as goods and chattels, are included in the designation and application of the statute; 16 and accounts and judgments have been deemed covered by such phraseology. 17 Patent rights. Even where the liberal rule concern- ing incorporeal personalty prevails, it is held that an oral agreement for the sale of an interest in an invention before letters patent are obtained, is not a contract for the sale of " goods, wares, or merchandise," within the statute, but is enforcible by bill in equity. 18 But the legal title to a patent right is affected by United States statutes concerning written assignments. 19 1 See citations in notes after next. 2 Watson ?>. Ppratley, 10 Ex. 222, 235, 238 ; 24 Law J. Ex. 53. And see Powell v. Jessop, 18 Com. B. 336, 354, 355 ; 25 Law J. Coin. P. 199. 393 STATUTE OF FRAUDS. 278 3 Humble v. Mitchell. 10 Ad. & E. 205 ; Langdell's Cases on Sales, 70, 72 ; Duncuft v. Albrecht, 12 Sim. 189 198 ; Watson r. Spratley, 10 Ex. 222, 233, 238 ; 24 Law J. Ex. 53. And see Tempest v. Kilner, 3 Com. B. 249, 251. 4 Knight v. Barber, 16 Mees. & W. 65, 69, 70. And see Bowlby v. Bell, 3 Com. B. 284. 5- Watson 7'. Spratley, 10 Ex. 222, 235 V 238 ; 24 Law J. Ex. 53 ; Powell r. Jessop, 18 Cor-i. B. 336, 354, 355 ; 25 Law J. Com. P. 199 ; Bradley v. Holdsworth, 3 Mees. & W. 422, 424. 6 Tisdale v. Harris, 20 Pick. 9 ; Langdell's Cases on Sales, 75. 7 Mayer v. Child, 47 Cal. 142. 8 Soe citations in second note after next. 9 Soe Fay v. Wheeler, 44 Vt. 292, 233 ; Mayer v. Child, 47 Cal. 142. 10 See South. Life Ins. etc. Co. v. Cole, 4 Fla. 359, 373. 11 Tisdale v. Harris, 20 Pick. 9, 13, 14 ; Langdell's Cases on Sales, 7", 73, 7.) ; Boardman v. Cutter. 128 Mass. 27!), 285 ; North ?. Forest, 15 COMM. -100,404; Pray v. MitchUl, GO Me. 430,434,4:15; Colvin v. Wil- liams, 3 Har. & J. 38, 42 ; 5 Am. Dec. 417 ; Fine ?. Hornsby, 2 M9. App. 61,04; Mayer v. Child, 47 C il. 142. Contra, see Vawter ?\ Griffin, 40 Jnd. 5:13,000,603. And compar- Green v. Brooking, 23 Mich. 48,51; Galsd MI 7'. Lance, 1 McMull. Eq. 87. 88 ; 37 Am. Doc. 548. Question not passed on because contract executed in case of an interest in a stage company claimed to be held in a species of partners hi pi ike shares ia joint stock companies: Huntley v. Huntley, 114 U. S. 394, 399. 12 Whittemore v. Gibbs, 24 N. H. 484, 488. And see Abbott v. Shop- ard, 48 N. H. 14, 17 ; Vawter v. Griffin, 40 Ind. 593, 600, 602. Compare Hudson ?'. Weir, 29 Ala. 294, 298. Contra, see Baldwin v. Williams, 3 Met. 3C5, 367 ; Langdell's Cases on Sales, 82, 84, 85. 13 Pee Gooch v. Holmes, 41 Me. 523, 528 ; Riggs v. Magruder, 2 Crunch C. C. 143. 14 Beers v. Crowell, Dud. (Ga.) 28, 29, 30. 15 ' Hagar v. King, 38 Barb. 200, 205, 206. But compare TTaseltlne v. Siggers, 1 Ex. 856, 858, 859. 16 See Hagar r. King, 38 Barb. 200, 205 ; Artcher v. Zen, 5 Hill, 200, 203, 204 ; Langdell's Cases on Sales, 3:iO. 17 See Walker v. Supple, 54 Ga. 178, 179 ; Armstrong v. Cushney, 43 Barb. 340, 341, 342 ; Truax v. Slater, 86 N. Y 630, 631. But judgments have been held not to come under the statute as an interest in land (Winberry v. Koonce, I Barb. 379, 387) ; nor as goods, wares, and mer- chandise : See Abbott r. Shepard, 48 N. II. 14, 17. 'A contract for the sale of gold as a commodity is within the statute : Peabody v. Speyers, 56 N. Y. 230. 18 Somerby v. Buntin, 118 Mass. 279 ; 2 Schouler on Personal Prop- erty, \ 454, p. 403, n. 4 ; referring, also, to Burke v. Partridge, 58 N. II. 349, 353 ; Blakeney v. Goode, 30 Ohio St. 350. But see Galpin r. Atwater, 29 Conn. 98. 10 See U. S. Rev. Stats. 4898; 1 Schouler on Personal Property, \ 523. Copyright of book : See Gould v. Banks, 24 Am. Dec. 91. \ 278. Prescribed amount. u Price " or" value." Tn England, the effect of Lord Tenterden's Act has been to substitute " value " for " price " in the clause fixing tho \ 278 STATUTE OF FRAUDS, 394 lower limit of sales of goods, etc., subject to the original statute of frauds; 1 but "price" is the word still used in the statutes of most, if not all of the American States. 2 Statutory sum. The sum of "10 or upwards" has always been the English standard of price or value, 3 and in the United States a preference has always been shown for a similar standard, computed in federal money, but the precise amount prescribed varies with local legislation from thirty to fifty dollars, and some- times even reaches as high as two hundred dollars. 4 Proof that standard reached. The price or value is not to be presumed to reach the statutory sum, but on the contrary, the party claiming the protection of the stat- ute must show affirmatively that his case falls under it. 5 Yet a case may, upon proper proof, be brought within the provisions of the statute, at least where the word "value" is substituted for "price" therein, al- though the contract itself leaves it doubtful whether a price less than the statute standard might not have been agreed upon. 6 Purchase of several articles. Where several articles are purchased from the same person at the same time, the criterion for determining the application of the statute is found in the total price or value of all the articles embraced under a single sale transaction. 7 1 See Act 9, George IV. ch. 14, g 7 ; Harman v. Reeve, IS Com. B. 587 ; 25 Law J. Com. P. 257 ; Langdell's Cases on Sales, SO ; Campbell on Sales, 162. 2 See Browne on Statute of Frauds (4th ed.), Appx, 3 See Act 29, Charles II. 17 ; Act 9, Geo. IV. ch. 14, 7. . , . 5 See Crookshank v. Burrell, 18 Johns. 58 ; 9 Am. Dec. 187 ; Lang- dell's Cases on Sales, 32 ; Browne on Statute of Frauds, \ 311. 57 ; Lang- roperty, ring also 395 STATUTE OF FRAUDS. 279 to Watts v. Friend, 10 Barn. & C. 446 ; Langdell's Cases on Sales, ? G3 ; Browne on Statute of Frauds, 312. And consult 1 Corbin's Benja- min on Sales, 137, n. 4 ; Bennett's Benjamin on Sales, \ 136, n. e ; citing, Carpenter v. Galloway, 73 Ind. 418 ; Bowman v. Conn, 8 Ind. 58 ; Brown v. Sanborn, 21 Minn. 402. 7 See Baldey v. Parker, 2 Barn. & C. 37 ; Langdell's Cases on Sales, 85 ; Boss' Leading Cases, 463 ; Story on Sales, \ 261 ; 2 Schouler on Personal Property, 455 ; referring, also, to Oilman?;. Hill, 36 N. H. 311; and comparing Jenness v. Wendell, 51 N. H. 63 ; 12 Am. Rep. 48. Con- sult further,! Chitty on Contracts (11th Am. ed.), 532, 533; Bennett's Benjamin on Sales, \\ 134, 135 ; 1 Corbin's Benjamin on Salos, ? 135, n. 2, and cases reviewed ; 2 Kent Com. (13th ed.) p. 724, n. 3 ; Wood on Frauds, 287. 279. Earnest or part payment. As equivalent acts, etc. The original statute of frauds, in enumerating the acts which would exempt a sale of goods from the requirement of a written note or memorandum of the bargain, provides that the buyer may "give some- thing in earnest to bind the bargain, or in part pay- ment "; l but of the two modes thus presented, the former has so fallen into disuse, 2 that earnest and part payment are often treated at the present day as meaning the same thing ; 3 while in some of the States of the Union the local enactments omit the word "earnest" altogether, and simply require that the buyer shall "at the time pay some part of the purchase money." 4 Thing of value computable in money. It seems to be now well settled, under our statute of frauds, that whatever is given must be parted with in money, or money's worth, and must be something of value, how- ever slight. 5 Subsequent to oral bargain. But it appears that the statute is satisfied although the giving of earnest or part payment takes place subsequently to the oral bargain. 6 Acceptance, etc. A mere offer or tender of earnest or part payment is insufficient, .but the seller must accept and receive the same. 7 Deposit with third party. And there is not such a giving of earnest or part payment as the statute per- g 279 STATUTE OF FRAUDS. 396 mits, by the deposit of money by the parties to an oral sale with a third person, to be by him paid to either of such parties, if the other neglects to fulfill his part of the bargain. 8 Offset stipulation. Where chattels are sold under an oral contract which comes within the purview of the statute, and it is part of the same contract that the buyer shall, in consideration of the sale, offset a debt due him from the seller, and pay the residue, this offset stipulation alone has not the effect of a part payment by the buyer. 9 1 See Stat. 29, Charles II. ch. 3, IT. Concurrence of part pay- ment with acceptance ami receipt : Richardson v. Squires, 17 Vt. 640 ; Allen v. Aguirre, 3 Seld. 543. 2 See 2 Kent Com. 496, n. &. 3 See Howe v. Hayward, 108 Mass. 54 ; 11 Am. Rep. 306 ; Browne on Statute of Frauds, ? 341 ; Story on Sales, 273 ; Bennett's Ben- jamin and 1 Corbin's Benjamin on Sales, 189 ; 1 Bouvier Law Diet, tit. Earnest (14th ed.), 515. Distinction in civil law and under ancient English custom, whereby " earnest" covered a gift or othc r t')U<-n that the bargain was concluded while " part payment" was in money and on account of price: See Dig. 19, 1, 11,^0; Bennett's Benj'imin ort Sales, 139 ; citing illustrative cases of Bach '. Owen, 2 Bhvk. JI. 31'); Goorlall v. Skelton, 5 Term Bep. 400 ; and referring to Eissell r. Balcom, 39 N. Y. '27 \ 4 See Organ r. Stewart, 60 X. Y. 413; Cal. Civ. Code, 17-71 ; Browne on Statute of Frauds (-5th < 3 Ind. 277 ; Howe r. Hay ward, 108 Mass. c4 ; 11 Am. Rep. 306. Compare Sharp r. Carroll, 27 X. W. Rep. (Wis.) 8-2. Crossing buyer's hand with coin under ancient custom, and returni?\g coin to pocket, insufficient as earnest : See Goodall v. Skelton, 2 Black. II. !S; Blenkinsop v. Clayton, 7 Taunt. 597 ; Langdell's Cases on Sales, 117. 6 See Walker r. Xussey, 16 Mees. & W. 302 ; Langdell's Cases on Sales, 326; Thompson v. Alger, 12 M"t. 423; Langdell's Cases on Sales, 32f, n. 1 ; Story on Sales, 273, ; Browne on Statute of Frauds, # 343. Expression "at the time" in New York and Wisconsin statutes: See Bissell v. Balcom, 39 X. Y. 275 ; Ilawley v. Keeler, 53 X. Y. 114 ; Hunter v. Wets?ll, 57 X. Y. 37o ; 84 X. Y. 549 ; 38 Am. Rep. 544; Bates v.' Chesebro, 32 Wis. 594; Paine v. Fulton, 34 Wis. 83. Earnest, etc., does not transfer full title : See Bach r. Owen, 5 Term Rep. 403 ; Xesbitt v. Burrv, 25 Pa. St. 208 ; Groat r. Gile, 51 X. Y. 431 ; 1 Bouvier Law Diet. tit. Earnest (14th ed.),515 ; citing, 2 Blackst. Com. 447; 2 Kent Com. 4!)5. But see Hinde v. Whitehouse, 7 East, 558; Laugdell's Cases on Sales, 102. 397 STATUTE OF FRAUDS. 280 7 See Hicks v. Cleveland, 48 N. Y. 84 ; Hawley v. Heeler, 53 X. Y. 114 ; Edgerton v. Hodge, 41 Vt. 676. 8 See Howe r. Hayward^ 108 Mass. 64 ; 11 Am. Rep. 306 Noakes v. Morey, 30 Ind. 103. 9 See Walker v. Nussey, 16 Mees. & W. 302 ; Langdell's Caes on Sales, 326 ; Artcher ?-. Zen, 5 Hill, 500 ; Langdell's Cases on Sales, 330 ; Matthiessen Refining Co. v. McMahon, 38 N. J. L. />J6 ; Mattice v. Allen, 3 Keyes, 492. But compare Dow v. Worthen, 37 Vt. 108; Cotterill v. Stevens, 10 Wis. 422 ; Paine v. Fulton, 34 Wis. 83. Basis of foregoing matter, further discussing topics treated: 2 Schooler on Personal Property, ? 476-479 ; Bennett's Benjamin and 1 Corbin's Benjamin on Sales, \\ 189-194, and notes ; Campbell on Sales, 195 ; Story on Sales, 273-275. And see Wood on Frauds, \ 294. $280. Delivery. Statutory provisions. In regard to the alternative act of part performance, consisting of the buyer's acceptance and actual receipt of a portion of the subject-matter of the sale, in the original statute of frauds, substantially followed in American legislation in most of the States, the exemption is stated to be, " except the buyer shall accept part of the goods so sold, and actually receive the same." 1 Requisites of delivery. And though the statute is generally silent as to acts of performance by the seller, 2 yet as a basis for actual receipt and acceptance by the buyer, there must be a full delivery by the seller, 3 such as divests him not only of his lien, but the buyer also perhaps of his right of return for divergence of the goods from the contract in kind or quantity, and constitutes a complete and permanent surrender of possession with an intention of vesting the right of possession in the vendee.* Insufficiency of delivery or seller's acts alone. But de- li very alone will not take any case out of the statute, 5 nor can the seller render the contract enforcible by any oral act of his own, 6 independently of the buyer's performance. 7 1 29 Charles II. ch. 3, ? 17. See comments in note to Shindler v. Houston, 49 Am. Dec. 326. But in States whose codes make express mention of Incorporeal chattels, the phraseology is, ' shall accept and receive part of such goods or the evidences, or some of them, of snch things in action": Browne on Statute of Frauds (4th ed.^ Appx.; Cal. Civ. Code, ? 1739. SALES. 34. 281 STATUTE OF FRAUDS. 398 2 See Boardman v. Spooner, 13 Allen, 357 ; Langdell's Cases on Sales, 610 ; Prescott v. Locke, 51 N. H. 94 ; 12 Am. Hep. 55. Compare Bullock v. Tschergi, 13 Fed. Hep. 345 S See note to Shindler v. Houston, 49 Am. Dec. 327. The trans- mission of a bill of lading has been held to amount to the actual de- livery of the property described in it, and is a compliance with the statute of frauds as to the sale and delivery of property : First Is at. Bank v. McAndrews, 5 Mont. 325 ; 51 Am. Hep. 51. 4 See Marsh v. Rouse, 44 X. Y. G43 ; Maxwell v. Brown, 39 Me. 98 Brandt v. Focht, 1 Abb. N. Y. App. 185 ; Phillips v. Bistolli, 2 Barn & C. 511 ; Browne on Statute of Frauds, \\ 316-333 ; Story on Sales $ 276. And consult note on Delivery under Statute of Frauds, t Jamison ?>. Simon, 8 Pacif. Rep. 503. Sufficiency of symbolical de livery : King v. Jarman, 35 Ark. 190 ; 37 Am. Rep. 11, n. 16. Insuffi ciency of delivery to carrier : liausman v. Nye, 62 Ind. 4S5 ; 30 Am Rep. 199. 5 See Maxwell v. Brown, 39 Me. 98 ; 63 Am. Dec. 605, 606, 6 See citations in next note. And consult note to Shindler v. Houston, 49 Am. Dec. 328. 7 See Nichols v. Morse, 100 Mass. 523 ; Marsh v. Rouse, 44 N. Y. 643 ; Hawley v. Keeler, 53 N. Y. 114 ; Maxwell v. Brown, 39 Me. 101 ; 63 Am. Dec. 605. Mere words insufficient : See Shepherd r. Pressey, 32 N. H. 55; Bowers v. Anderson, 49 Ga. 143. And consult note to Shindler v. Houston, 49 Am. Dec. 334. Basis of most of foregoing matter, further discussing subject: 2 Schouleron Personal Property, \\ 459, 460 ; Bennett's Benjamin on Sales, 142, n. g ; 1 Corbin's Ben- jamin on Sales, \ 139, n. 1. To satisfy the statute of frauds, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee liable for the price, which acceptance must be voluntary and unconditional : Caulkins v. Hell- man, 47 N, Y. 452; 7 Am. Rep. 461; as cited, Jamison v. Simon, 68 Cal. 17. 281, Acceptance and receipt. Concurrence. The preponderance of authorities at the present day justi- fies the framers of the statute of frauds by decidedly favoring a discrimination between acceptance and actual receipt. 1 And there must be a concurrence of accept- ance and actual receipt in order to satisfy the statute. 2 Order of time. But though it would usually occur, contrary to the order of the words in the statute, that the actual receipt of the goods would precede accept- ance, yet it is not necessary that the acceptance should follow the receipt of the goods, or be contemporaneous therewith, 3 but acceptance prior to actual receipt will satisfy the statute. 4 Of part of goods. Acts of performance may relate to the whole as well as a part of the subject-matter of sale ; 5 STATUTE OF FRAUDS. g 281 but the acceptance and receipt of a part will satisfy the statute as to the whole, where it is shown to be on ac- count of the whole, if attaching even to the slightest portion of the goods, as a single lot, or a sample not designed as a mere specimen to induce a future bar- gain, 6 and although the rest of the goods are yet to be made to order, or the entire contract covers various lots or articles of different kinds and qualities. 7 Relation to lien and title. There can be no acceptance and receipt while the seller still retains that lien, 8 whereby he intends to prevent his possessory right from passing to the buyer, 9 and on the suggestion that "actual receipt " is to be tested by the loss of the seller's lien, sales in which the transfer of title is conditional upon payment have often and perhaps generally been regarded as involving such a price-lien as must render the statutory compliance impossible; 10 but it has been held that there may be such acceptance and receipt as satisfies the statute, even though the goods were sold upon condition that the property therein sjbould not pass until the price was paid. 11 Buyer's possession and control. Where unbroken horses were gathered in corrals and partly selected, and turned into the seller's pasture after they were broken, it was held that, there was no acceptance and receipt of them withinVhe meaning of the statute of frauds, as none of the horses forming the subject-matter of the contract ever passed into the absolute possession and control of the buyer. 12 1 See Blackburn on Sales, 22, 23; Bennett's Benjamin on Rales, ? 139, 156, b ; 1 Coibin's Benjamin on Sales, ?g 139, 157 : 1 Bouvier Law Diet. tit. Acceptance (14th ed.), 47 ; 2 Kent Com. (13th ed.) 724, n. ; also, note to Shindler i>. Houston, 49 Am. Dec. 327 ; Cooke ?. Mil lard, 63 N. Y. 352 ; 22 Am. Rep. 61!), 630 ; Taylor v. Mueller, 30 Minn. 343 ; 44 Am. Rep. 199, 203. But the terms have sometimes been thought equivalent: See Castle v. Sworder, 6 Hurl. & N. 832; Langdell'a Cases on Sales, 257 ; Marvin v. Wallis,6 El. & B. 7?-6 ; Langdell's ( ascs on Sales, 2'!8. And not only are the terms "acceptance" and "actual receipt" often interchanged in legal discussion, but the statute ia 281 STATUTE OF FRAUDS. 400 construed as though it put as a test the seller's act of delivery, instead of the buyer's performance : See Holmes v. Hoskins, & Ex. 753. 2 See Cusack v. Robinson, 1 Best & Smith, 299, 306 ; Langdell's Cases on Sales, 266 ; Campbell on Sales, 168 ; relying, also, on Smith v. Hudson, 6 Best & Smith, 168 ; Langdell's Cases on Sales, 275. And consult Wood on Frauds, \ 305 ; Cooke v. Millard, 65 N. Y. 352 ; 22 Am. Rep. 619, 630; also, note to Shindler v. Houston, 49 Am. Dec. 327; quoting, Hewes v. Jordan, 39 Md. 480; 17 Am. Rep. 578. Effect of such concurrence : Browne on Statute of Frauds, 339 ; Danforth v Walker, 40 Vt. 257 ; Rappleye v. Arlee, 1 Thomp. 6, 168. notes ; also consult note to 8'iindler v. Houston, 49 Am. Dec. 338, 339, and index to Langdell's Cases on Sales, p. 1021. But see Price v. Lea, 1 Barn. & C. 156; LangJell's Cases on Sales, 129. Giving of sample: See, also, W T ood on Frauds, \\ 309, 310 ; Rohde v. Thwaites, 6 Barn. & C. 388 ; Langdell's Cases on Sales, 138 ; Klinitz v. Surry, 5 Esp. 267 ; Langdell's Cases on Sales, 345 ; Gardner v. Grant, 2 Com. B. N. S. 340 ; Langdell's Cases on Sales, 237 ; Kibble v. Gough, 38 L. T. N. S. 204 ; Rickard v, Moore, 38 L. T. N. S. 841 ; Knight v. Mann. Ir3 Mass. 143 ; Rernick v. Sandf ord, 120 Mass. 309. Taking part on account of whole : See Smith??. Hudson, 6 Best & Smith, 431 ; Langdell's Cases on Sales, 275; Bush v. Holmes, 53 Me. 417; Danforth v. Walker, 40 Vt. 257; Davis v. Eastman, 1 Allen, 422 ; Stone v. Browning, 51 N. Y. 211. Part acceptance and receipt by one of several joint purchasers : Smith v. Milliken, 7 Lans. 336. Actions and obligations of parties after part acceptance and receipt: See Story on Sales, 279 ; Atwood v. Lucas, 53 Me. 508 ; Richardson v. Squires, 37 Vt. 640. 8 Divesting of vendor's lien necessary : See note to Shindler v, Houston, 4^ Am. Dec. 331. 401 STATUTE OF FRAUDS. \- 282 9 See Baldey v. Parker, 2 Barn. & C. 37 ; Langdell's Cases on Sales, 85; Holmes v. lioskins, 9 Ex. 753; Langdell's Cases ou Sales, 215: Saliord v. McDonough, 120 Mass. 2-;0. Compare Dodsley v. Varley, 12 Acl & E G:;2 ; Langdell Cases on Sales. 155; Wright v. Percival, 8 Law J. N. S. Q. B. 258. 10 See Mabberly v. Sbeppard, 10 Bing. 99; Langdell's Cases on Sales. 142 ; Tempest v. Fitzgerald, 3 Barn. & Aid. 680 ; Langdell's Cases on Sales, 121 ; Carter v. Toussaint. 5 Barn. & Aid. 855; Lang- dell's Cases on Sales, 126 ; Castle v. Svvorder, 29 Law J. Ex. 235 ; 30 Law J. Ex. 310 ; Langdell's Cases on Sales, 257 ; Stone v. Browning, 51 N. Y. 2! 1 ; Bennett's Benjamin on Sales, \\ 187, 188. And consult note to Shindler v. Houston, 49 Am. Dec. 329. 11 Pinkham v. Mattox, 51 N. H. 600. Basis of foregoing matter: 2 Bchoulcr on Personal Property, \\ 460-465, and other sources cited in preceding paragraphs. 12 Terney v. Doten, 11 Pac. Rep. (Cal.) 743. $ 282, Acceptance. In general. Acceptance of part of the goods has been said to be an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract. 1 Precluding objection, etc. And while some decisions consider that an acceptance and receipt, to satisfy the statute, need not go so far as to preclude the buyer from objecting to the goods, 2 the more recent cases establish 3 that there can be no acceptance where there has been no opportunity 4 of rejecting the goods. 5 Inspection and examination. Acceptance being an act which, from its nature, requires more deliberation and involves more consequences than receipt, should not, unless given in advance, be inferred before the buyer had reasonable chance and time, greater in the case of unascertained goods, to inspect and examine the goods and determine upon their correspondence with the contract. 6 Receipt by carrier or custodian. And an agent with authority from the buyer to receive is not necessarily the buyer's authorized agent to perform the larger act ol acceptance ; ' so that delivery to a carrier, 8 or to a wharfinger or other similar custodian for the seller, 9 282 STATUTE OF FRAUDS. 402 and his actual receipt of the goods, though transferring title and risks, constitute in the absence of special authority, 10 no such acceptance as would bind the pur- chaser and satisfy the statute. 11 1 Blackburn on Sales, 22, 23. Consult, also, "Wood on Frauds, 305 ; 1 Eouvier Law Diet. tit. Acceptance (14th ed.), 47 ; 2 Kent Com. (13th ed.) p. 724, n. 4 ; Campbell on Sales, 16J ; citing, Bowes v. Pontifex, 3 Fost. & F. 739. Distinction drawn between acceptance satisfying statute and that conclusively showing fulfillment of contract : Mor- ton v. Tibbett, 15 Q. B. 428 ; Langdell's Cases on Sales, 1C5 ; Bennett's Benjamin on Sales, \\ 149, 150, and notes ; Remick v. Samlford, 120 Mass. 300. And see Kibble v. Gough, 38 L. T. N. L. 204 ; Rickard v. Moore, 38 L. T. N. S. 841. But see contra, Simpson v. Krumdick, 38 Minn. 352. A refusal to take the goods, whether on false or frivolous grounds, or none at all, precludes the idea of acceptance ; and the question of acceptance is one of the intention of the buyer as signified by his outward acts: Blackburn on Salrs, 22, 23. Question one of fact for jury, etc. : See Story on Sales, 278 ; Hopton v. McCarthy, 10 Law R. Ir. 2G8, and cases cited. And consult note to Shindler v. Houston, 49 Am. Dec. 339, 340. Acceptance may precede receipt, but especially in the case of goods not yet specified, may be contempo- raneous with receipt or immediately follow it : See Cusack r. Robin- son, 1 Best & Smith, 299 ; Langdell's Cases on Sales, 2r>3; Nicholson v. ' ' , , , . Bower, 1 El. & E. 172 ; Langdell's Cases on Sales, 2.'3; Saunders v. Topp, 4 Ex. 300 ; Langdell's Cases on Sales, 190 ; Smith iv Hudson, 6 Best & Smith, 431 ; Langdell's Cases on Sales, 275 ; Maxwell v. Brown, , , . , 39 Me. 98; 63 Am. Dec. 6C5 ; Gorham v. Fisher, 30 Vt. 5?S; Oilman v. Hill, 36 N. H. 311 ; Knight v. Mann, 118 Mass. 143 ; Stone v. Browning, 51 N. Y. 211 ; Knoblauch r. Kronschnabel, 18 Minn. 300. Contra, com- pare Morton v. Tibbett, 15 Q. B. 428 ; Langdell's Cases on Sales, 195 ; stated at length, Wood on Frauds, 317. 2 See Morton v. Tibbett, 15 Q. B. 42S ; Langdell's Cases on Sales, 195 ; Gurfieid v. Paris, 96 U. S. 657 ; 8 Fed. Dec. 671. 3 Consult Hewes v. Jordan, 39 Md. 472 ; 17 Am. Rep. 578. 4 See Wood on Frauds, \ 325. 5 See Bennett's Benjamin on Sales, 2 149, 155; citing. Castle v. Sworder, 6 Hurl. & N. 8;;2 ; Langdell's Cases on Sales, 257; Huntv. Hecht. 8 Ex. 814 ; Langdell's Cases on Sales, 203 ; Coombs v. Bristol, etc. R. R. Co. 3 Hurl. & N. 5U) ; Langdell's Cases on Sales, 242 ; also, Smith v. Hudson. 6 Best & Smith, 4U1 ; Langdell's Cases on Sales, 275. Contra, Cusack r. Robinson, 1 Best . Aclee, 1 Thomp. & C. 126 ; Janvrin v. Maxwell, 23 Wis. 51. Consult, also, Blackburn on Sales 28, 29; Story on Sales, 278 ; Barrett v. Goddard, 3 Mason, 107 ; Dodsley v. Varley, 12 Ad. . Y.493; 1 Am. Kep. 573; Williams v. Tucker, 47 Miss. 678; 2 Schouler on Personal Property, g 482, whence paragraph derived. And consult Langdeli's Cases on Sales, 1032. 5 See Bennett's Benjamin on Sales, 201. 6 See citations in next note. 7 2 Schouler on Personal Property, ? 483. Whereas, if the original contract itself be in writing, different memoranda, executed ut sub- sequent times, to which both parties were not privy, could h^\v KO effect in varying its terms, but would merely evince or explain them : 2 Schouler on Personal Property, g 483 ; referring to fcieve- wright v. Archibald, 17 Q. B. 10J; Laugdell's Cases on Sales, 452. Discussion of scope of admissible parol, or extrinsic evidence in this connection: See Wood on Frauds, 384-402; Bennett's Benjamin and 1 Corbin's Benjamin on Sales, $, 202-219 ; Blackburn on Sales, p. 45 ; Campbell on Sales, \\ 196-199 ; 1 Chitty on Contracts (llth Am. ed.), 153, n. u. Delivery of note or memorandum : 2 .Schouler on Personal Property, 499 ; citing, Grant v. Levan, 4 Pa. St. 393; John- son v. Dodgson, 2 Mees & W. 653; Langdeli's Cases on Sales, 413 ; Gibson v. Holland, Law R. 1 Com. P. 1 ; Langdeli's Cases on Sales, 51o ; Drury v. Young, 58 Md. 546 ; 42 Am. Hep. 343. 287. Form of memorandum. Formal writing not requisite. The statute requires no formal written agree- 411 fcTATtfTE- OF FUA1JDS. * II } 287 inent of the parties, 1 but simply on the part of him who is to be charged, a writing which consistently imports a contract of sale. 2 Sufficient modes of expression. And the decisions con- cerning the form of the memorandum showthatbesid.es the more formal shape thereof, it may be expressed by letter, 3 or telegram, 4 or acknowledgment of invoice, or bill of parcel^; 5 that by incorporation or reference, it may be gathered from various separate writings, made at different times, which have an intelligent and con- sistent purpose in evincing a concluded bargain; 6 that it may even consist of the defendant's written proposal if supplemented by parol proof of acceptance 7 by the plaintiff; 8 and that the writing need not have been in- tended as a memorandum by the defendant, but may even amount to a repudiation of the oral bargain, 9 nor actually addressed to the plaintiff. 10 1 See Langdell's Cases on Sales, 1032 ; Wood on Frauds, 345 2 2 Sehouler on Personal Property, 485. 3 See Wood on Frauds, \ 347. The uniform doctrine of England and the United States, th.it the party to be charged is the only one who needs to sign, renders this the most convenient method for drawing buyer or seller into a position where the law will hold him, especially as between bargaining parties who live at a distance from one another : See Leather Cloth Co. v. Fieronimus, Law R. 10 Q. B. 140; 12 E:;g. Rep. 211; Wilkinson v. Evans, Law R. 1 Com. P. 407; Langdell's Cases on Sales, 523 ; Gibson v. Holland, Law It. 1 Com. P. 1 ; Langdell's Cases on Sales, 513 ; as cited, 2 Sehouler on Personal Property, g 485. 4 See Trevor v. Wood, 36 N. Y. 307. 5 See Saunderson v. J ackson, 2 Bos. & P. 238 ; Langdell's Cases on Sales, b40 ; \viikinson v. Evans, Law R. 1 Com. P. 407; Langdell's Cases on Sales, 528 ; Buxton v. Rust, Law R. 7 Ex, 1, 27 ) ; 1 Eng. Rep. 13.i, and 2 Er>g. Rep. 675 ; M'Lean v. Nicoll, 7 Jur. N S. 999 Langdell's Cases on Sales, 487. 6 See Langdell's Cases on Sales, 1032, 1033 ; Peck v. North Stafford- Shire It. H. Co, 10 H. L. Cas. 472 ; M'Lean v. Nicoll,_7 Jur. N. f " , . . . . D. lij ; 36 Eng. Rep. 275; Ridgway v.\V barton, 611. L. Cas. 238; Lerned v. Wanuemaeher, 9 Allen, 412 ; Langdell's Cases on Sales, 5J9; Drury v. Young, 53 Md. 516; 42 Am. Rep. 343; Bennett's Benjamin and l('->r bin's Benjamin ou Sales, \\ 222-223 ; Browne ou Statute of Frauds, 288 STATUTE OF FRAUDS. 412 ft 350-353 ; Wood on Frauds, 364, et seq. ; Bill?;. Bament, 9 Mees. & W. 36 ; Langdeli's Cases on Sales, 161 ; Joiinson v. Buck, 6 Vroom, 344 ; 10 Am. Rep. 243 ; Smith v. Stantou, 15 Vt. 685; Brown v, Whipple, 68 IS r . 11. 229; Smith v. Jones, 66 Ga. 33J ; 42 Am. Hep. 72; North v. Mendel, 73 Ga. 4uO ; 54 Am. Rep. 879, 881 ; Beckwith v. Talbot, 95 U. S. 289. Only reference to price in unsigned postscript: Doughty v. Manhattan Brass Co. 4 N. E. Rep. (JS. Y.) 747. 7 See Wood on Frauds, 378. 8 See Himrod Furnace Co. v. Cleveland etc. R. R. Co. 22 Ohio St. 451 , Reuss v. Picicsk'y, Law R. 1 Ex. 342 ; Sanborn v. Flagler, y Allen, 4/4 ; Langdell's Cases on bales, 604; Washington lee Co. v. Webster, 62 Me. 341 ; 16 Am. Rep. 432. i'orrn of mutual agreement, duplicates, etc.. See Justice v. Lang, 42 N. Y. 403; 1 Am. Rep. 570; Lerned t. Wanuemacher, 9 Allen, 4x2 ; Langdell's Cases on Sales, 599. 9 See Wood on Frauds, 360. The latest cases on this point side more strongly than formerly with the plaintiff, who seeks the remedy on the basis of such admission or recognition of the bargain by the defendant: See Bailey v. Sweeting, 9 Com. B. N. S. 843 ; Langdell's Casvjs on Sales, 480 Story on Sales, 272 a ; Wilkinson v. Evans, Law R. 1 Com. P. 4^7 ; Langdell's Cases on Sales, 528 ; Buxton v. Itust, Law R. 7 Ex. 1, 27J ; 1 Eng. Rep. Io5, and 2 Eng. Rep. 67") ; Leather Cloth Co. v. liieroi.imus, Law R. 10 Q. B. 140 ; 2 Eng. Rep. 211. And corn- p^re these c~ses with Richards v. Porter, 6 Barn. & c. 4-7 ; Langdell's Cases on Sales, 383 (1827) ; and Smith v. Surman, 9 Barn. & C. 561 ; Langdell's Cases on Saks, 54(182;>;. Consult, also, Ellis v. Deadinan, 4 jJiob, *U7 ; J ustice v. Lang, 42 N. Y. 493 ; 1 Am. Rep. 576. 10 See Wood on Frauds, 347 ; Gibson v. Holland, Law R. 1 Com. P. 1; Laiigdeil's Cases on iSales, 513; citing, Sugdc-n on Vendors and Purchasers (14th Eng. ed.), 139, 3J ; also, Townsend v. Hargraves, Ii8 Mass. 3;>5; Argus Co. v. Albany, 55 N. Y. 4^5 ; Peabody v. Speyers, 56 >f. Y. 230 ; Drury v. Young, 58 Md. 546 ; 42 Am. Rop. 343 ; Johnson v. Dodgson, 2 Mees & W. 653 ; Langdell's Cases on Sales, 413. Basis of most of foregoing matter: 2 Schouler on Personal Property, H8o- 4S9. And consult Campbell on Sales, 199, 207. g 283. Contents of memorandum. In general. In order to constitute a sufficient memorandum of the bargain under the statute, it should identify the parties to the sale, and contain the essential terms and subject- matter of the oral contract. 1 Designation of parties. And the principle to be gathered from the decisions concerning the sufficiency of the designation of the parties to the contract appears to be, that the buyer and seller must, upon reference to the memorandum, and consideration not merely of literal expressions, but also of the context and the general character of the writing, be distinguishable as bearing that mutual relation, each being indicated iu his own capacity. 2 413 STATUTE OF FRAUDS. 288 Price. So in regard to the consideration of the con- tract, 3 the present rule seems to be, that if the oral con- tract of sale expressly fixed a specific price, and the parties did not depend upon the legal determination of an implied or reasonable one, that definite price must appear on the face of the memorandum or writings connected therewith, as an essential part of the bar- gain ; 4 and that while parol evidence cannot be intro- duced for the purpose of supplying a fixed price to complete the memorandum, yet resort can be had to such evidence in order to show that there was a price fixed, which ought to have appeared in. the memoran- dum, to make it available as a means of enforcing the bargain. 5 Essential terms of bargain. All the terms of the bar- gain which are substantial, material, or essential, must appear in the memorandum, 6 although it need not show, besides the main points of the contract, each particular incident of the bargain, nor the implied terms thereof. 7 Stipulations. But the rule that the enforcing parly's stipulations may be omitted from the memorandum, seems to apply only to the case of stipulations 011 either side which are decidedly special and unusual ; 8 and in the courts of this country fatal insufficiency has been considered to result from such omissions from the memorandum a3 a stipulated term of credit, a fixed date of performance, a condition that the party defend- ant should first approve the quality, or even an express warranty of the quality of the goods. 9 Time and place of delivery. It is not essential to the validity of a contract of sale of goods, that it should specify time or place of delivery ; 10 but if there be a time and place agreed upon, and the memorandum does not specL'y it, the plaintiff testifying to such terms cannot recover upon the contract. 11 288 STATUTE OF FRAUDS. 414 1 2 Schouler on Personal Property, 440. And see Wood on Frauds, g 34-~> ; Langdell's Cases on Sales, 10M3. Insufficient memo- randum : North v. Mendel, 73 Ga. 400 ; 54 Am. Rep. 879, 882. 2 See Allen v. Bennett, 3 Taunt. 169; Langdell's Cases on Sales, 350; Champion v. Plummer, 3 Bos. & P. 252 ; Langdell's Cases on Sales, 343 ; Sari v. Bourdillon, 1 Com. B. N. S. 188 ; Langdell's Cases on Sales, 472; Vandenburgh v. Spooner, Law R. 1 Ex. 316 ; Langdell's Cases on Sales, 531 ; Newell v. Radford, Law R. 3 Corn. P. 52 ; Lang- doll's Cases oa Sales, 534; Harvey v. Stevens, 43 Vt. 6~>3; Brown r. Whipple, 58 N. II. 229 ; Sanborn v. Flakier, 9 Allen, 476 ; Langdell's Cases on Sales, 604 ; Coddington v. Goddard, 16 Grav, 433 ; Langdell's Cases on Sales, 614 ; Bailey v. Ogden, 3 Johns. 393 ; 3 Am. Dec. 50'.); Langdell's Cases on Sales, 588, n. 1 ; Calkins v. Falk, 1 Abb. N. Y. App. 201 ; Salmon Falls Manuf. Co. v. Goddard, 14 How. 446; 8 Fed. Dec. 632 ; Langdell's Cases on Sales, 583 ; Wood on Frauds, \\ 3.54, 359 ; Ben- nett's Benjamin on Sales, gg 2:54-237; 1 Corbm's Benjamin on Sales, %% 233-2'Ifi, and notes ; citing, also, Grafton v. Cummings, 99 U. S. 101, 107 ; Coate v. Terry, 24 Up. Can. C. P. 571. 3 See Wain v. Warlters, 5 East, 10 ; Bennett's Benjamin on Sales, H 232, 233 ; note to MeConnell v. Brillhart, 65 Am. Dec. 603 ; Story on Sales, g 270, p. 263, n. 3. 4 See citations in next note. When price must be stated : Wood on Frauds, g o^l. 5 See Acebal v. Levy, 10 Bing. 376 ; Langdell's Cases on Sales, 300 ; Hoadly v. McLaine, 10 Bing. 582; Langdell's Cases o.i Sales, 40-3 ; Elmore v. Kingscote, 5 Barn. 7 ; Cooper v. S:nith, 15 East, 103 ; Langdell's Cases on Sales, 355 ; Srritli v. Surman, 9 Barn. & C. 5J1 ; Langdell's Cases on Sales, 54 ; Goodman r. Griffiths, 1 Hurl. & N. 571 ; Langdell's Cases on Sales, 478. But compare Wil- liams r. Bacon, 2 Gray, 387; Langdell's Cases on Sales, 504. Party offering memorandum cannot discreditit by showing that it does not covtain essential terms: See M'Mullen v. Helborg, 4 Law R. Ir. 64; 6 Law R. Ir. 463 ; Remick v. Sandford, 118 Mass. 102. 8 See Sari v. Bourdillon, 1 Com. B. N. S. 188 : Langdell's Cases on Salos, 472. And compare Egerton v. Matthews, 6 East, 307 ; Lang- dell's Cases on Sales, 342. It is not necessary that the note or memo- randum should state independent and collateral stipulations which formed no part of the sale : Coddington v. Goddard, 16 Gray, 436, 443 ; Langdell's Cases on Sales, 614. 415 STATUTE OF FRAUDS. \ 289 9 See Davis v. Shields, 26 Wend. 346 ; LangdelPgf Cases on Sales, 5oS; Boardman v. Spoon er. 13 Allen, 35-5 ; Langdell's Cases on Sales. 6LO ; Buck v. Pickwell, 27 Vt. 157 ; Elfe v. Gadsden, 2 llieh. 37;5 ; Soles v. Hlckman, 20 Pa. St. 180 ; O'Donnell v. Leeraan, 43 Me. 158 ; Peltier v. Collins, 3 Wend. 43.) ; 23 Am. Dec. 711 ; Langdell's Cases on Sales, 548; Story on Sales, \ 2,1; 2 Schouler on Personal Property, ? 402, whence paragraph derived. Contents of sufficient memorandum discussed : C'impbell oa Sales, 207-215 ; Bennett's Benjamin and Corbin's Benjamin on Sales, ?3 ff-2 v4, and notes ; 2 Schonler on Per- soual Property, \\ 4JO-4JJ, upon which foregoing matter based. 10 Smith v, S:iell, 82 Mo. 215 ; 52 Am. Hep. 3G5. 11 Smith r. Snell, 82 Mo. 213 ; 52 Am. Hep. 535. And see Browne on Statute of Frauds, \ 384. g 283, Parol ovidonca concorninj memorandum. Gen- eral rule against. The general rule is, that the writing or writings resorted to as a memorandum must, in order to satisfy the statute, so substantially express the bargain as to enable the court to make out what it was, without resorting to parol evidence. 1 To show that writing states bargain. But where the sufficiency of the memorandum is at issue, it is com- petent to show by parol evidence whether or not the writing offered correctly states the material terms of the oral contract, 2 though such evidence cannot be adduced to aid or vary those written terms. 3 Extraneous evidence of trade usage. And the prevail- ing tendency, with regard alike to the parties, the essential terms, the subject-matter of the bargain, and the fact that a sale is constituted, is to admit extraneous evidence of trade usage, 4 in furtherance of the true meaning of the parties, wherever the memorandum furnishes a terse statement of the transaction, such as is usual in mercantile contracts. 5 Removal of ambiguity. So even surrounding circum- stances have been admitted in evidence for the purpose of identifying the subject-matter or explaining some technical expression contained in the memorandum, and in general for removing an ambiguity upon its face. w 290 STATUTE OF FRAUDS. 416 1 See Brown v. Whipple, 58 N. H. 220 ; Washington Ice Co. r. Webster, 62 Me. 341 ; 16 Am. Rep. 462 ; Eggleston v. Wagner, 46 Mich. 610 ; Story on Sales, ? 269 ; Bennett's Benjamin and 1 Corbin's Benja- min on Sales, g 210 ; Campbell 011 Sales, 1M ; 2 Kent Com. 511. 2 See citations in next note. 3 See Langdell's Cases on Sales, 1032 ; Pitts v. Beckett, 13 Mees. & W. 743 ; Langdell's Cases on Sales, 443 ; Acebal v. Levy, 10 Bing. 376 ; Langdell's Casos on Sales, 300 ; Codclington v. Goddard, 16 Gray, 436 ; Langdell's Cases on Sales, 614 ; Wood on Frauds, g 890. 4 See Wood on Frauds, \ 397. 5 See Salmon Falls Manuf. Co. v. Goddard, 14 How. 446 ; 8 Fed. Dec, 6j2 ; Langdell's Cases on Sales, 533 ; Newell ?'. Radford, Law R. 3 Com. P. 52 ; Langdell's Cases o: Sales, 534 ; Coddington v. Goddard, 16 Gray, 4CG ; Langdeil's Cases on Sales, 614. 6 See Spicer v. Cooper, 1 Q. B. 424 ; Miller r. Stevens, 100 Mass. 51S ; \Villiums ?-. Robinson, 73 Me. 186; 40 Am. Rep. 352 ; also, Mac- donald v. Longbottom, 1 El. & E. 977; Johnson r. Raylton, Lnw R. 7 Q. B. D. 438 ; Drury ?'. Young, 58 Md. 546 ; 42 Am. Rep. 343. Source of foregoing matter : 2 Schouler on Personal Property, \ 4;3. And con- sult further, Bennett's Benjamin on Sales, \\ 213-215 ; 1 Corbin's Ben- jamin on Sales, \\ 211-213; Story on Sales, \ 269 ; Wood on Frauds, \ 3;)3. \ 290. Modification of original bargain. Showing sub- sequent oral agreement. In regard to an oral agreement, subsequent to the written memorandum, the doctrine of Massachusetts and some other States appears to be, that the writing ia not conclusive, but that any subse- quent oral agreement may enlarge the time of perform- ance or vary other terms of the contract, or show its waiver and discharge altogether. 1 Exclusive of such agreement. But the doctrine of the lato English cases, which has been deemed the better opinion, is that a written memorandum which falls within the statute of frauds, cannot be varied by any subsequent agreement which is not expressed in writ- ing ; 2 and that parol evidence i3 inadmissible to show a change in the time or place of delivery, or other modifi- cation of the original bargain. 3 Rescission of prior contract. It is also decided in Eng- land that where the parties enter into a new oral agree- ment, whose effect would be incidentally to rescind the previous written contract by essentially modifying its 417 STATUTE OF FRAUDS. \ 291 terms, the modification is inoperative as a rescission of the written contract, and does not prevent its enforce- ment; 4 though it is as yet unsettled whether a com- plete abandonment and rescission of the contract might not appear by oral testimony. 5 1 Cummings v. Arnold, 3 Met. 486 ; Langdell's Cases on Sales, 575 ; Stearns v. Hill, 9 Cush. 31. And see Whittier v. Dana, 10 Allen, 326 ; Langdell's Cases on Sides, 608 ; Kribs v. Jones, 44 Md. 396 ; also, Rich- ardson v. Cooper, 25 Me. 450 ; Negley v. Jeffers, 28 Ohio St. 00 ; Browne ou Statute of Frauds, \\ 40')-428. This view follows the common-law rule, which permits the oral variance of a written contract not under seal : See Goss v. Lord Nugent, 5 Barn. & Adol. 65. 2 See citations in next note. 3 See Stead v. Dawber, 10 Ad. & E. 57 ; Langdell's Cases on Sales, 418 ; Marshall v. Lynn, 6 Mees. & W. 10.) ; Langdell's Cases on Sales, 429 ; Noble v. Ward, Law R. 1 Ex. 117 ; Law R. 2 Ex. 135 ; Langdell's Cases on Sales, 502. Contra, Cuff v. Penn, 1 Mtiule & S. 21 ; Langdell's Cases on Sales, 358 ; Leather Cloth Co. v. Hieronimus, Law R. 10 Q. B. 140; 12 Eng. Rep. 211. And consult Swain v. Semens, Wall. 272 ; Dana v. Hancock, 30 Vt. 616. 4 Noble v. Ward, Law R. 1 Ex. 117 ; Law R. 2 Ex. 135; Langdell's Cases on Sales, 5:0 ; Moore v. Campbell, 10 Ex 323 ; Langdell's Cases on Sales, 4fi >. And see Oglo v. Earl Vane, Law R. 2 Q B. 275 ; Law R. 3 Q. B. 272 ; Stewart v. Eddowes, Law R. 9 Com. P. 397. 5 Bennett's Benjamin and 1 Corbin's Benjamin on Sales, 212 ; Browne on Statute of Frauds, g? 400-428. Source of foregoing matter : 2 Schouler on Personal Property, ?495. Consult, also, Bennett's Benjamin on Sales, \\ 216-218 ; 1 Oorbin's Benjamin on Sales, \\ 214- 218 ; Langdell's Cases on Sales, 1033 ; Wood on Frauds, 403. $ 291. Signature to memorandum, Place of signing or subscribing. The party to be charged, as distinguished from the party electing to enforce the contract, 1 must place his name in some part of the instrument, 2 which may be either at the top or the bottom, or in the body of the instrument, 3 where the statute requires "sign- ing," 4 but must be at the end of the memorandum where, as in some States, the statute departs from the usual phraseology and requires the writing to be "sub- scribed" instead of "signed." 5 Mode of signing. The signature may be in lead-pencil instead of ink, 6 or by printing or stamping, if the cir- cumstances are such as to give it a significance beyond that of an unused blank, and really equivalent to a 291 STATUTE OF FRAUDS. 418 memorandum in actual use with the name as p'art of it ; 7 it may be 8 by mark 9 or by initials ; 10 it may be by the party to be charged himself, or by another, if bona fide, and the authorized signature of such party to the memorandum; 11 but whatever the mode or place of the signature, it must have been intended as such, and not 12 to serve merely by way of personal description. 13 Connected papers. Since the written memorandum may be made up of two or more papers which bear a mutual relation, a signature may suffice if it governs the whole by suitable reference, though it is actually placed only upon one of the papers; 14 but it would appear from the English decisions that the reference to connect two papers or two clauses so as to make one signature apply to both, must be from what is signed to what is unsigned, and not the reverse. 15 Where i\ contract was made up of letters, and the only reference to price was contained in an unsigned postscript to a letter, in answer to which an order was sent, \vhich was acknowledged as "booked," it was held that all the letters were so connected by their contents as to- gether to constitute a valid contract, and avoid the statute of frauds. 16 1 See Allen r. Bennett, 3 Taunt. 169 ; Langdell's Cases on Sales, SSO; Justice t'.LaHg, 42 N.Y. 493; 1 Am. Bep. 67ft ; Bennett's Ben jamln irvl 1 Corbin's Benjamin on Sales, \ 25.) ; Story on Sales, \ 266 ; Blar-k- burn oa Sales, 6J ; Campbell on Sales, 21.3 ; Wood on Frauds, 405. 2 2 Schouler on Personal Property, \ 497, whence paragraph derived. And see Wood on Frauds, \ 415. 3 See Wood on Frauds, \ 416. 4 SPG Johnson v. Hodgson, 2 Mees. & W. 65, ; Langdell's Cases on S-iles, 413 ; Allen v. Bennett, 3 Taunt. 16.) ; Langdell's Cases on Sules, 3."*); Harvey r. Stevens, 43 Vt. 653: Coddington r. Goddard, 16 Gray, 4.1; Langdell's Cases on Sales, 614 ; Clason r. Bailey, 14 Johns. 484 ; Langdeli's Cases on Sales, 541 ; Drury r. Young, 58 Md. 546; 42 Am, Hep. 343 ; Browne on Statute of Frauds, \\ 355, 358. 5 See Browne on Statute of Frauds (4th ed.), Appx. ; Davis v. Shields, 26 Wend. 341 ; Langdell's Cases oa Sales, 558. See Merritt ?'. Clason, 12 Johns. 102; 7 Am. Deo. 286 ; Langdell's Cases on Sales, 5.^7 ; Clason r. Bailey, 14 Johns. 484 ; Langdell's Cases OM Sales, 541 ; Geary v. Physic, 5 Barn. & C, 234 ; Wood on Frauds, 419 STATUTE OF FRAUDS. 7 See Schneider v. Norris, 2 Maule .$ S. 286 ; Langdell's Cases on Sales, 362 ; Wood on Frauds, 412. And compare Hawkins v. Chace. 19 Pick. 502 ; Langdell's Cases on Sales, 554. 8 See Wood on Frauds, \ 413. 9 2 Kent Com. oil ; Bickley v. Keenan, 60 Ala. 293. 10 See Phillimore v. Barry, 1 Camp. 513 ; Langdell's Cases on Sales, 346 ; Caton v. Caton, Law R. 2 H. L. 127 ; stated, Wood on Frauds, 1 419. 11 2 Kent Com. 511 ; Helshaw v. Langley, 11 Law J. Ch. 17. Signa- ture by agent : Wood on Frauds, g 407. 12 See Wood on Frauds, 409. 13 See Selby v. Selby, 3 Mer. 2 ; 2 Schouler on Personal Property, 1497, whence paragraph mainly derived. Consult further concern- ins: signature, Wood on Frauds, 405-41!) : Langdell's Cases on Sales, 10H4 ; Bennett's Benjamin on Sales, \\ 255-264 a ; 1 Corbin's Benjamin on Sales, \\ ?r>r>-2f>4 ; Story on Sales, 266 ; Campbell on Sales. \\ 216- 221, stating that a telegram sent in the ordinary way is sufficiently signed according to the statute of frauds, as held in Godwin v. Francis. Law R. 5 Com. P. 2<)5. 14 See Buxton v. Rust, Law R. 7 Ex. 1, 279 ; 1 Eng. Rep. 135, and 2 Eng. Rep. 67') ; Brown v. Whipple, 58 N. H. 229; Morton v. Dean, 13 Met. 335 ; Browne on Statute of Frauds, \\ 346-348, 371-376. 15 See Caton v. Caton, Law R. 2 H. L. Cas. 127 ; as cited Bennett's Ben j imin on Sales, \ ?64 ; and stated, Wood on Frauds, 419. Basis of paragraph : 2 Schouler on Personal Property, 498. 16 Doughty ?'. Manhattan Brass Co. 4 N. E. Rep. (N. Y.) 747; affirming, 31 Hun, 315, mem. But it was declared that if the letter with the postscript stood alone, as containing the contract, it would be necessary to hold that it was not subscribed within the intent of the statute : Doughty ?>. Manhattan Brass Co. 4 N. E. Rep. 747 ; 101 K. Y. 614 ; referring to James v. Patten, 6 N. Y. 44. \ 292. Compliance by agents. In general. Com- pliance by an agent as legally representing his principal would appear to be justified even where, as in some of the United States, the local enactment makes no special mention of agents, 1 as well as under the express pro- vision of the statute, 2 that the written memorandum may be signed, not only by the parties to be charged, but likewise by "their agents thereunto lawfully authorized." 3 Authority of agent. It is not necessary that there should be an appointment in writing, 4 nor need the authority have been previously conferred, if the agent's act be subsequently ratified ; 5 nor need the authority be specially conferred at all, but it is deducible from the g 293 STATUTE OF FRAUDS. 420 course of the agent's employment, as particularly illus- trated in the case of brokers and auctioneers. 6 AgenVs capacity, etc. A memorandum may be signed by or on behalf of both seller and buyer ; 7 and though a person should sign in his own name, such signature may be binding if he is mutually understood to sign as agent for one of the contracting parties ; 8 but one whose employment is essentially on behalf of the seller will not readily be supposed to have authority to bind the bu3 r er likewise by a written memorandum; 9 nor in general is it enough that the third party is lawfully authorized to sign, but he must sign in the capacity of agent, as may be shown by parol evidence. 10 Auctioneer' 1 s memorandum. While an auctioneer, whose authority to bind the parties is founded on the method of conducting a public sale, is the seller's agent throughout, he is the buyer's agent only from the fall of the hammer, and for a memorandum made con- temporaneous with the acceptance of the bid, and unless his conduct repels the inference of his agency for the buyer for such purpose. 11 1 See Browne on Statute of Frauds (4th ed.), Appx. 2 See 29 Charles II. ch. 3, \ 17. 3 2 Schouler on Personal Property, 500. And consult Wood on Frauds, \ 4'2'y. 4 See Wood on Frauds, ? 420. So as to original authority to buy or sell : See Soames v. Spencer, Dowl. & R. 32 ; Langdell's Cases on Sales, 368 ; Sanborn r. Flagler, 9 Allen, 474 ; Langdell's Cases on Sales, PO I ; Merritt v. Clason, 52 Johns. 102 ; 7 Am. Dec. 286 ; Langdell's Cases on Sales, 537. 5 See Newton v. Bronsen,3Kern.587; Merritt r. Clason, 12 Johns. 102; 7 Am. Dec. 280; Langdell's Cases on Sales, 537 ; Bennett's Ben- jamin on Sales, 9 205; Story on Sales, 267 ; Wood on Frauds, \ 426. Revocation of authority : See Herman ?'. Neale, 2 Camp. 337 ; Lang- doll's Cases on Sales, 348 ; Williams v. Bacon, 2 Gray, 387 ; Langdell's Cases on Sales, 594. 6 2 Schouler on Personal Property, 500, whence paragraph mainly derived. And consult Langdell's Cases on Sales, 1034. Lim- ited or general authority, and delegation of authority: See Pitts r. Beckett, 13 Mees. & W. 743 ; Langdell's Cases on Sales. 443 ; Hender- son r. Barnewall, 1 Younge . Whitehouse, 7 East, 558 ; Langdell's Cases on Sales, lO? ; Bartlett v. Purnell,4 Ad. & C. 42. Source of paragraph : 2 Schouler on Personal Property* \ 286. Payment dependent 0:1 action of third person, etc. : See Mills v. Bayley, 2 Hurl. & C. 36 ; Roberts v. Watkins, 18 Com. B. N. S. 273 ; Thompson v. Ray, 46 Ala. 224 ; Newlan v. Dunham, 60 111. 233 ; Dun- stan v. McAndrew, 44 N. Y. 72. Title vesting primarily in third party : See Worthy v. Cole, 69 X. C. 157. Other instances where co-operation of third party prerequisite to buyer's acquisition of title : See Perkins v. Dacon, 13 Mich. 8t ; De Loarh v. Hardee, 64 Ga. 94. Condition that some act shall be done by a third person further discussed : 2 Corbin's Benjamin on Sales, 870, n. 16 ; Campbell on Sales, 316, 317. 296. Impossibility of performance. In general. The usual exceptions as to waiver 1 and impossibility 2 apply to conditions contained in a contract of sale. 3 Impossi- bility of performance, owing to circumstances which impute 110 fault to the opposite party, affords an excuse for performance within the same narrow and uncertain range marked out for other contracts.* Actual impossibility. Actual impossibility to perform, which arises from extraneous circumstances of inability merely, in the particular instance, does not amount to physical or moral impossibility, as the want of money to make a stipulated payment, etc., 5 cannot excuse one from the legal obligation to perform the condition, or from liability in damages for non-performance ; 6 nor 429 CONDITIONAL SALES. \ 296 does this effect result from the happening of a contin- gency which, from the nature of the transaction, the party binding himself ought to have expressly guarded against. 7 Legal impossibility. But legal impossibility, occa- sioned by the passage of a statute rendering the act illegal, will, by the courts of this country, in further- ance of the local public policy, be deemed a sufficient excuse for non-performance. 8 Act of God or human agency. Yet while many of the modern decisions are less particular than former ones in admitting impossibility as an excuse for not fulfill- ing bargains, 9 and the obligor has been relieved in several instances on the ground that performance had become physically impossible by the act of God, 10 still there are other cases which clearly refuse to extend so sweeping a cause of exemption to an impossibility occasioned by any human agency. 11 1 Waiver in general : 2 Bouvier Law Diet. (14th ed.) 2 See succeeding portions of section. Impossibility of perform- ance of contracts discussed : 12 Cent. L. J. 4. And see City Bank v. Babcock, 1 Holmes, 180-184 ; 8 Fed. Dec. 568, and notes, 570. 3 2 Schouler on Personal Property, ? 287 ; referring in regard to waiver or prevention of performance to Clarke v. Westropp, 18 Com. B. 765 ; and also to Batterbury v. Vyse, 2 Hurl. & C. 42 ; and as to disfavor shown to excuse of impossibility, to Smoot v. United States, 15 Wall. 36. 4 2 Schouler on Personal Property, 287. 5 Further illustrations : James v. Morgan, 1 Lev. Ill ; Thornburn v. Whitacre, 2 Baym. Ld. 1164. And see Gilpins v. Consequa, 1 Peters C. C. 91. 6 2 Schouler on Personal Property, \ 287, whence paragraph de- rived. And consult 2 Corbin's Benjamin on Sales, \ 864, n. 14. 7 See Kearon v. Pearson, 7 Hurl. & N. 386. 8 See Bailey v. De Crespigny, Law R. 4 Q. B. 180; 2 Schouler on Personal Property, \ 287 ; Bennett's Benjamin on Sales, \ 571 ; Camp- bell on Sales, 315 ; citing, also. Newby v. Sharp, Law B. 8 Ch. D. 39 ; 25 Eng. Bep. 99. 9 Compare Barker v Hodgson, 3 Maule & S. 267, with Ford v. Cotesworth, Law B. 7 Q. B. 127 ; Kearon v. Pearson, 7 Hurl. & N. 386 ; and Taylor v. Caldwell, 3 Best & Smith, 826. 10 The seller is held to be relieved from his promise to deliver by the death of the horse sold, or the spoliation of a specific growing 297 CONDITIONAL, SALES. 430 crop from natural causes before the time of gathering it : See Shep. Touch. 173 ; Howell v. Coupland, Law R. 9 Q. B. 462 ; Law R. 1 Q. B. 258 ; 16 Eng. Rep. 312. 11 2 Sehouler on Personal Property, ? 288, whence paragraph de- rived ; citing, Shep. Touch. 173 ; Bennett's Benjamin on Sales, \ 571 ; Mill Dam Foundry t. Hovey, 21 Pick. 441 ; Harmony ?\ Bingham, 2 Kern. 106. Destruction by fire of an unfinished chattel which is being made to order, does not exempt the buyer from obligation to deliver: Jones v. St. John's College, Law R. 6 Q. B. 115; School District ?'. Dauchy, 25 Conn. 530 ; 68 Am. Dec. 371. Compare further on destruction of chattel. Dexter v. Norton, 47 N. Y. 62 ; 7 Am. Rep. 41-5, with Bigler v. Hall, 54 X. Y. 167. And consult 2 Corbin'.s Benja- min on Sales, 862, n. 11 ; Campbell on Sales, 314, 315, $ 297. Stipulation concerning time and place of perform- ance. Time of performance. The question whether stipulations as to the time of performance under a con- tract of sale are in the nature of conditions precedent, depends upon the point whether time appears to have been fairly understood between the parties as an essen- tial element in the performance of the contract. 1 But the prevailing rule, applied frequently in contracts for successive deliveries, goes only to the extent of render- ing the breach of diligent performance with respect to time, a cause of action for damages sustained by the buyer, like other independent stipulations on the sell- er's part, and not an occasion for rescinding the con- tract entirely, on the ground that a condition precedent had failed. 2 Place of performance. So where a contract to sell cotton at a given price to arrive at one place, per ships from another, made these provisions, "cotton to be taken from the quay ; customary allowances of tare and draft ; and the invoice to be dated from date of delivery of last bale," it was held that this clause as to place of delivery was not a condition precedent against the sellers, but a stipulation in their favor, 3 and that the contract in effect placed the cotton at the buyer's risk and charge from the time of landing on the quay. 4 Yet under proper circumstances a stipulation as to 431 CONDITIONAL SALES. g 298 place of performance is to be treated as a condition precedent. 5 1 2 Schouler on Personal Property, ? 289, whence next paragraph also derived. And see Story on Sales, 310. 2 See Jonassohn v. Young, 4 Best & Smith, 296 ; LangdelPs Cases on Contracts (1st eel.). 722 ; Simpson v. Crippin, Law R. 8 Q. B. 14 ; 4 Eng. Rep. 200 ; doubting, Hoare v. Rennie, 5 Hurl. & N. 19 ; Lang- dell's Cases on Contracts (1st ed.), 574 ; Bennett's Benjamin on Sales, \ 593 ; Rogers v. Woodruff, 23 Ohio St. 632 ; 13 Am. Rep. 276. Consult further, discussion of subject in Campbell on Sales, 281-294 ; 2 Cor- biri 's Benjamin on Sales, ? 909, n. 26. Latest leading cases on subject : Honck v. Muller, Law R. 7 Q. B. D. 92 ; 36 Eng. Rep. 264, n. 270 ;. Mersey Steel & Iron Co. v. Naylor, Law R. 9 App. C. 434 ; 36 Eng. Rep. 164 ; Blackburn v. Reilly, 47 N. J. L. 290 ; 54 Am. Rep. 159 ; Nor- rington v. Wright, 115 U. S. 188 ; 21 Am. Law Reg. 395, n. 3i)8 ; Filley v. Pope, 115 U. S. 213; Pope v. Porter, 102 N. Y. 366 ; 7 N. E. Rep. 304. 3 Neill v. Whitworth, Law R. 1 Com. P. 684. 4 Neill v. Whitworth, Law R. 1 Com. P. 164 ; as stated, 2 Schouler on Personal Property, 290, whence next paragraph also derived. 5 Thompson v. Ray, 46 Ala. 224. I 298. Notice. When requisite. Where sales are made, as is sometimes the case, " upon notice," or with reference to a designated time, or the happening of some event, upon notice of which an act is to be per- formed, 1 the general rule is that one who binds himself to do a thing at a designated time, or on the occurrence of a particular event, must take notice at his peril, and perform his promise 2 when the time comes or the event occurs. 3 But if according to a just interpretation of the contract it is the other party who was bound to give notice when the time had arrived or the event hap- pened, the giving of such notice becomes the real con- dition precedent* in the contract, 5 to which other acts like delivery are postponed. 6 Reasonable time after. So if a person has contracted to do a thing on demand 7 or on notice, he will be enti- tled to a reasonable time in which to do the thing, after a demand made or notice given. 8 Terminating agreement. Where a contract for the de- livery of chattels of a certain description from time to time does not bind to any fixed limit, so that it is left g 299 CONDITIONAL SALES. 432 optional with either party to put an end to the agree- ment, the party seeking to terminate should give notice to the other of his intention in the premises. 9 1 Notice in general: 2 Bouvier Law Diet. (14th ed.) 236. Notice in relation to contracts : 1 Wharton on Contracts, \\ 667, 574. 2 See Vyse v. Wakefield, 6 Mees. & W. 442. 3 2 Schouler on Personal Property, 291. And this is the rule not only where the event is of a public character, so that buyer and seller are presumed to have equal opportunity of ascertaining when the condition precedent must be performed, but more particularly whenever the fact upon which the contract turns lies peculiarly within his own knowledge and privity: 2 Schouler on Personal Property, \ 291. And see Watson v. Walker, 23 N. H. 471, 431. 4 Condition precedent : See \ 294, on CONDITIONS IN GENERAL. 5 Notice of name of ship in sales of goods " to arrive " : Campbell on Sales, 296 ; citing, Busk r. Spence, 4 Camp. 329 ; Greaves v. .Legg, 9 Ex. 709 ; 11 Ex. 642 ; 2 Hurl. & N. 110. 6 2 Schouler on Personal Property, 291. And when actual knowledge of the essential fact is peculiarly in the obligee's breast, and particularly where the obligee reserves to himself the control of the fact, so that the exigency for performance shall occur when he so chooses, and not before, he is bound to give notice of the fact before he can compel the obligor to perform his engagement : 2 Schouler on Personal Property, \ 201 ; citing, Bennett's Benjamin on Sales, \ 577 ; Haule v. Heming, 6 Mees. & W. 654 ; Vyse v. Wakefield, 6 Mees. & W. 442 ; Watson v. Walker, 23 N. II. 471 ; Halnes v. Tucker, 50 N. H. 307 ; Quarles v. George, 23 Pick. 400. Consult, further, 2 Cor- bin's Benjamin on Sales, 872, n. 18. 7 Demand or request in relation to contracts : 1 Wharton on Contracts, \\ 575-577. 8 Bennett's Benjamin on Sales, 577, n. e ; referring to Baker v. Mair, 12 Mass. 121 ; Newcomb v. Brackett, 16 Mass. 101 ; Eames v. Savage. 14 Mass. 425 ; and also to Topping v. Root, 5 Cowen, 404 ; San- born v. Benedict, 78 111. 309 ; Watson v. Garren, 6 Up. Can. Q. B. 542. 9 Houston etc. R. Co. v. Mitchell, 38 Tex. 85 ; as stated, 2 Schouler on Personal Property, 291; referring, also, for need of notice where option given, to Kirkpatrick v. Alexander, 44 Ind. 595. g 299. Payment as condition precedent. Transfer of title and risk. It is the settled general doctrine that so soon as a bargain of sale of personal property is struck, the contract becomes complete, without actual payment or delivery, 1 and the property and risk of ac- cident to the goods vests in the buyer, 2 although the payment or tender of the price is often a condition pre- cedent implied in the contract, the performance of which alone entitles the buyer to the possession of the goods. 3 433 CONDITIONAL SALES. 299 Payment and delivery as concurrent conditions. Thus, where the circumstances of the transaction are such as to indicate that the seller agrees to transfer the property in consideration, not of tho buyer's engagement to pay, as in credit sales, 4 but of his actually paying or securing tho price, as in sales for payment on delivery, 5 there are concurrent conditions binding upon each party, con- sisting of the seller's obligation to deliver, and the buy- er's obligation to pay; 7 and neither party can sue the other for breach of contract without averring that lie performed the condition on his part, or offered to do so. 8 Performance or ivaiver of condition. And in this country it has been laid down that where there is a condition precedent attached to a contract of sale and delivery, 9 the property does not vest in the purchaser on delivery until he performs the condition , 01 the seller waives it ; 10 and that the right continues in the vendor, even against creditors and subsequent pur- chasers of the vendee. 11 Delivery with reservation of title. Accordingly, it is well settled that where goods are sold and delivered on condition that the property therein shall not vest in the buyer until the purchase money is paid or secured, such payment or adjustment of the purchase money is subject to the usual exception attending performance, a condition precedent 12 on the part of the buyer to the transfer of title 13 to himself from the seller. 14 1 See citations in next note. 2 Willis v. Willis, 6 Dana, 48. And see 2 Kent Com. 402 ; Morse v. Sherman, 106 Mass. 430, 433 ; Wade v. Moffltt, 21 111. 110 ; 74 Am. Dec. 7) ; Gilmour v. Supple, 11 Moore P. C. C. 551, 650 ; Langdell's Cases <>'i Sales, 632 ; Calcutta Co. v. De Mattos, 32 Law .1. Q. B. 32(5, 320 ; Dixon v. Yates, 5 Barn. & Adol. 313 ; Boss' Leading Cases, 55, 74. 3 Willis v. Willis. 6 Dana, 48, 40. And see Barnes ?'. Bartlett, 15 Pick. 71, 77 ; 224, on TRANSFER OF TITLE WITHOUT DELIVERY. 4 See \ 272, in chapter on PAYMENT. 5 Rules of evidence in determining whether sale for cash on delivery or upon credit : 2 Schouler on Personal Property, \ W7. NEWMARK SALES. 37. 299 CONDITIONAL SALES. 434 6 Concurrent conditions : See 294, on CONDITIONS IN GENERAL. 7 See citations in next note. When nothing is said in a contract for the sale of goods as to the time of payment, the law presumes that the sale is for cash: Fishback t'. Van Dusen, 3:} Minn. Ill, 116. And upon a sale for cash, payment and delivery are concurrent and w-ithout^ contemporaneous performance by the other: Fishback v. mutually dependent acts, and neither party is bound to perform without contemporaneous v. Van Dusen, 33 Minn. Ill, 8 See 2 Schouler on Personal Property, 292 ; citing, Rawson r. Johnson, 1 East, '203 ; Jackson v. Alloway, 6 Man. & G. 942 ; Bennett's Benjamin on Sales, 677. And independently of the question of ownership of the goods, it is a general rule in all executory agree- ments for the s-Ue of chattels, that the seller's obligation to deliver, and the buyer's obligation to pay or render equivalent, are concur- rent conditions in the nature of conditions precedent (see citations next given) ; and that performance, or the offer to perform, or a readiness and willingness to do what he was prevented from doii:g, is a prerequisite on tlie part of him who would enforce the contract against the other : 2 Schouler 0:1 Personal Property, 2,3 ; citing, further, Atkinson v -Smith, 14 Mees. & W. 6',5 ; Langdell's Cases on Contracts (1st ed.), 751 ; Bishop v. Shillito,2 Barn. & Aid. 32;) ; Lang- dell's Cases 0:1 Sales, 710 ; Withers r. Reynolds, 2 Barn. . Waiver of condition of sale discussed : Fishback r. Van Dusen, 33 Minn. Ill, 117. 11 2 Kent Com. 497; as quoted, 2 Schouler on Personal Property, # 2J4 ; referring, also, to Green v. Rowland, 16 Gray, 58. 12 See Cobb v. Tufts, 2 Tex. A pp. (Civ. Cas.) \ 152. 13 Transfer of title in general : See previous chapter on that subject. 14 See Bishop v. Shillito, 2 Barn. & Aid. 329, n. ; Langdell's Cases on Sales, 710; Godts v. Rose, 17 Com. B. 22;); Langdell's Casts on Sales, 970; Brandt v. Bowlby, 2 Barn. & Adol. 932 ; Langdell's Cases on Sales, 925 ; Clark v. Wells, 45 Vt. 4 ; 12 Am. Rep. 187 ; Duncans r. Stone, 45 Vt. 118; Porter v. Pettengill, 12 N. H. 2i)9; Paul v. Reed, 52 N. H 136 ; Tyler r. Freeman, 3 Cush. 201 ; Langdell's Cases on Sales, 712 ; Whitney r. Eaton, 15 Gray, 225 ; Langdell's Cases on Sales. 717 ; Forbes ?>. Marsh, 15 Conn. 384 ; Morris v. Rexford, 18 N. Y. 5 r ,2 ; Has- brouck v. Lounsbury, 26 N. Y. 598; Henderson r. Lauck,21 Pa. St. 359; Thompson r. Ray, 46 Ala. 224; Wabash Elevator Co. v. First Nat. Bank, 23 Ohio St. 311 ; Little v. Page, 44 Mo. 412 ; Ridgeway r. Kennedy, 52 Mo. 24; Shireman r. Jackson, 14 Ind. 459; FifieJcl r. Elmes, 25 Mich. 48. Basis of foregoing matter in paragraph: 2 Schouler on Personal Property, g 29. And consult Story on Sales, 405 CONDITIONAL, RALES. 300 \ ":-} ; Oobb r. Tuft-*, 1 Tex. A pp. (Civ Cas.) ? 152. II is said to be the djotri.io universally sustained in America that a stipulation reserv- ing title until payment, though possession is given under an agree- ment to sell, is valid s\s between the parties, and as against third persons with notico : 1 Corbin's Benjamin on Sales, 425, citing the oases by States. I 300. Condition sustained despite delivery. Delivery through agents. The doctrine that there is no transfer of title before payment, where there is a sale and de- livery on condition of payment, applies where a servant delivers the goods by mistake without receiving the money. 1 and where there is a consignment of a piano 0:1 the previous distinct understanding that it shall re- main the property of the consignor until paid for, and shall be further transferred only with a like reservation of the consignor's rights. 2 Delivery under expectation of payment. So there is no necessary transfer of title where delivery is made and possession allowed to be retained by the buyer even for a considerable period, under the expectation of immedi- ate payment. 3 Credit, notes, etc. And the rule requiring the per- formance of the condition precedent of payment, despite delivery, applies not only to cash sales, but also to those upon a definite credit, 4 and vrherever delivery is made upon the express or implied condition that title shall remain in the seller until the giving of the buyer's notes for the price, with or without indorsement, or the furnishing by him of certain securities. 5 Reservation of title. Possession, given under the general condition that no property in the chattel shall pass until it is fully paid for, is frequently held not to preclude the paramount title of the original bona fide seller, 6 and a chattel may also be delivered with such a condition as to title by sale, while meantime the pur- chaser 5o to use it by way of loan or hire, 1 under the mutual agreement of the parties. 8 301 CONDITIONAL SALES. 436 1 See Bishop v. Shillito, 2 Barn. ; Forbes i Marsh, 15 Conn. 3-54 ; I>wis ?'. McCabe, 40 Conn. 140 ; 44 Am. Rep 217 ; Ballard v. Burgett, 40 N. Y. 314 ; Langdcll's Cases on Sales, 730 ; f 301 CONDITIONAL SALES. 438 Stevens v. Brennan, 79 N. Y. 254; Cole v. Berry, 42 N. J. L. 308 ; 36 Am. Rep. 511 ; Sage r. Sleutz, 23 Ohio St. 1 ; Ridgeway v. Kennedy, 52 Mo. 24 ; Smith v. Lozo, 42 Mich, fi ; Thorpe v. Fowler, 57 Iowa, 541 ; Aultman v. Mallony, 5 Neb. 178 ; 25 Am. Rep. 478. 4 Sometimes otherwise by legislation See Duncans v. Stone, 45 Vt. 118. 5 See Sage v. Sleutz. 23 Ohio St. 1 ; Buckmaster r. Smith, 22 Vt. 203. Basis of paragraph : 2 Schouler on Personal Property, \ 299. 6 See \ r02, on WAIVER, ESTOPPEL, ETC. 7 See Cobb v. Tufts, 2 Tex. App. (Civ. Cas.) f 182. 8 Who is such bonn, fl(*e pur^hnser : See Downs v. Belden, 46 Vt. 674 ; Stevens v Brennan, 7J N. Y. 201. 9 Sec ? 134, on SALE WITH CONDITION PRECEDENT. 10 See citations in next note. For any third party who knows that the original purchaser had come into possession of the goods is bound to inquire whether the title acquired was that of buyer, bor- rower, hirer, etc.: See Forbes v. Marsh, 15 Conn. 384. But compare Leighton v. Stevens, 19 Me. 154. 11 In snles where price payable in instalment: S^e McCombs r. Guild, 9 Lea, 81 ; Summer r/Cottoy, 71 Mo. 121. But compare Car- penter v. Scott, 13 R. 1. 477. 12 Conditions not waived by seller merely taking purchaser's price notes. Heinbockle r. Zugbaum, 5 Mont. 344 ; 51 Am. Rep. 50. 13 See Coggill r. Hartford etc. R. R. Co. 3 Gray, 545 ; Langdell's Cases on Sales, 713 ; Deshon v. Bigelow, 8 Gray, 159 ; Hirschorn r. Cannes*, 93 Mass. 149 ; Hotchkiss r. Hunt, 49 Me. 213 ; Bigelow r. 3Iu:itlev, 8 Vt. 151 ; Clark v. Wells, 45 Vt. 4 ; 12 Am. Rep. 137; Kim- hall v. Jackman, 42 N. H. 242 ; King v. Bates, 57 N. H. 446 ; Hart r. Crpenter, 24 Conn. 427; Brown r. Fitch, 43 Conn. 312 ; Ballard v. Bu-gett, 4') N. Y. 31 1 ; Langdell's Cases on Sales, 700 ; Dows v. Kidder, 81 N. Y. 121 ; Parker r. Baxter, 86 N. Y. 5^6 ; Cole v. Berry, 42 N. J. L. 303 ; 33 Am. R^p. 5!1 ; Price v. Jones, 3 Head, 81 ; Little r. Page, 44 Mo. 412; Southwestern Freight Co. v. Plant, 45 Mo. 517; Ridgeway v. Kennedy, 52 Mo. 24; Wangler v. Franklin, 70 Mo. 65'J ; Fifield v. Elmer 25 Mich 43; Shiremrm r. Jackson, 14 Ind.459; Baker r. Hull, 1") Iowa, 277. Centra, see Michigan Central R. R. Co. t\ Phillips. 60 111. CO; Rose r. Story, 1 Pa. St. 1DO; 41 Am. Dec. 121; Ilussey r. Thornton, 4 Mass. 405 ; 3 Am. Dec. 224 ; Wait r. Green, 36 N. Y. 5">fi ; Lariflfdell'S Cases on Sales, 7-3 ; Leighton r. Stovers, 13 Me. 154. Busis of paragraph : 2 Schouler on Personal Property, I 300 ; Heinboeke r. Z:rybaum, 5 Mont. 344 ; 51 Am. Rep. 59. And s^e Story on Sales, ? 31. ; Sargent r. Metcalf, 5 Gray, 306 ; 66 Am. Dec. .63 ; Burbank ?. Crooker, 7 Gray, 153 ; 66 Am. Dec. 470, n. 472 ; Bailey r. Harris, 8 Iowa, 331 ; 74 A:n. Dec. 312, n. 313. Doctrines in the various States discussed: 1 Corbin's Benjamin on Sales, ^4^7-461. ; Bennett's Benjamin on Sales, ? 370, n. d ; Harkness t. Russell, 118 T T . S. 663, 670-631. And sre Marvin Safe Co. v. Norton, 43 N. J. L. 412 ; 57 Am. Rep. 5^>6, 567. Doctrine in Now York discussed : 24 Alb. L. J. 264. Considering recent case of Comer v. Cunningham, 77 N. Y. 3PI ; 33 Am. Rep. 626 ; and conflicting cases of Wait r. Green, 36 N. Y. 553; Langdell's Cases on Sales, 728; and Ballard r. Bingett, 40 N. Y. 3U ; Langdell's Cases on Sales, 730 ; rlso quoting, Austin v. Dye, 46 N. Y. 500 ; and Smith v. Lynes, 5 N. Y. 41 ; Langdell's Cases on Sales, 7'24. 14 See March v. Wright, 46 111. 487; Vaughn v. Hopson, 10 Bush, 3o7 ; 2 Schouler on Personal Property, g 300, p. 283, n. 15 Se^ f-Tlt statement in Marvin Safe Co. v. Norton, 43 N. J. L. 412 ; 57 Am. Rep. 560-563. 439 CONDITIONAL SALES. \ 392 16 So^ Kranso v. Commonw. 93 Pa. St. 418, 421 ; Dando v. Foulda, 105 Pa. St. 74, 76 ; Edward's Appeal, 105 Pa. St. 103 ; Forrest v. Nelson, irH Pa. St. 481, 488; McCall v. Preseott, 64 Ala. 254, 258. And consult Haak v. Lindeman, 64 Pa. St. 499 501 ; 37 Am. Rep. 601 ; Stadtfield v. Huntsman, 92 Pa. '37; 37 Am. Rep. 661, n. 6">4 ; Brunswick etc. Co. v. H >over, 95 Pa. St. 508 ; 49 Am. Rep. 674 ; \\ 19 and 27, on DELIVERY TINDER CONDITIONAL, SALE, and SALE OR LEASE ; Sumner v. Woods. fi-I Via. 59 ; 42 Am. Rep. 104 ; Dudley v. Abner, 52 Ala. 572, 579. Com- pi- Leigh 7'. Mobile rt. c . R. R. 53 Ala. 165, 177 ; Cole v. Berry, 42 N. J. I, 303 ; 46 Am. Rep. 5il, 517. 17 See Roynton i\ Libby, 62 Me. 253 ; Bugbee r. Stevens, 53 Vt. 3S9 ; White >nib v. Woodworth',54 Vr, 544 ; MoClelland v. Nichols, 24 Mi"n. 17fi; Wiliiims v. Porter, 41 Wis. 422; Kirnball v. Post, 44 Wis. 471 ; Bnnn r. Valley Lumber Co. 51 Wis. 376; Singer Co. v. Holcomb, 40 Iowa, 33 ; Mvor r. Car Co. 102 U. S. 1, 10 ; Hewey ?;. R. I. Locomotive Works, 93 U. S. 6R4 ; Horyford v. Davis, 102 U. S. 235. Basis of para- graph : 1 Corbin's Benjamin on Sales, 4fil ; 22, on SALE OR LEASE. Attaching creditors with actual notice not affected by statute : Dyer ?'. Thorstad, 29 N. W. Rep. (Minn.) 345, discussing construction of such enactments. $ 302. Waiver, estoppel, etc. Effect of waiver , etc. Where goods are sold on condition of paying or secur- ing the price, such condition precedent is subject to the usual exception that acts and conduct on the seller's part, from which an express or implied waiver of the condition may be inferred, 1 or which go to render due performance by the buyer impossible, 2 will excuse the b'lyer from a strict compliance with the condition pre- cedent, 3 besides debarring the seller of his right to re- claim the goods 4 as his own. 5 Whether there has been a waiver is a question of fact, which may be proved by various species of evidence, by declarations, by acts, or by forbearance to act. 6 Existence of waiver. And the important question in determining whether there has been a waiver of a con- dition of sale by delivery, is whether the vendor has manifested by his language or conduct, any intention or willingness to waive the condition and make the dolivery unconditional and the sale absolute, without having received payment or the performance of the conditions of sale. 7 This must depend on the intent of the parties at the time, to be ascertained from their $ 302 CONDITIONAL SALES. 440 conduct and language, and not from the mere fact of delivery alone. 8 Estoppel. The original seller would, under suitable circumstances, be estopped by his own representations, or acts and conduct, from claiming the goods as his own against a third party who had purchased them in good faith without knowledge of the failure to fulfill a con- dition accompanying delivery. 9 And there are decisions to the effect that a seller who not only gives up posses- sion of the goods, but also turns over to the buyer a quasi -negotiable instrument in the nature of a bill of lading, 10 so as to vest the latter with the full indicia of ownership, 11 cannot afterwards recover the goods repre- sented by the instrument, under a claim that the goods were conditionally sold, so as to defeat the title of one who has btna fide purchased or advanced on the secur- ity of the instrument. 12 1 See Fishback \\ Van Dusen, 33 Minn. Ill, 117. 2 Element of impossibility by death : See McGraw v. Gilmes, 83 N. C. 152. 3 Condition precedent: See $ 234, on COXDITIOXS ix GENERAL. 4 See 30o, on RESUMPTION OK POSSESSION. 5 2 Schouler on Personal Property, 304. But as the title to the goods fully vests in the buyer, the unpaid seller's remedies becomes, aside from his lien for the pri^p, those of an ordinary creditor, and subject to the f-imiliar principle that those with legal demands against a debtor who first attach will take the precedence : 2 Schouler on Personal Property, ? 304. 6 Fishback v. Van Dusen, 33 Minn. Ill, lia 7 Fishback v. Van Dusen, 33 Minn. Ill, 117. 8 Fishback r. Van Dusen, 33 Minn. Ill, 118. However the waiver is proved, the question is whether the vendor has voluntarily and unconditionally delivered the goods without intending to claim the benefit of the condition: Fishback v. Van Dusen, 33 Minn. 111,118; citing, Fuller ?>. Bean, 32 N. H. 2 *)-303 ; Smith r. Dennie, (J Pick. 22 ; 17 Am. Doc. 360; Farlow v. Ellis, 15 Gray, 229 ; LangdelPs Cases on Sales, 720 ; llummett r. Linneman, 48 N. Y. 399. 9 2 Schouler on Personal Property, 305. But compare Zucht- mann r. Roberts. 100 Mass. 5'> ; 1"5 Am. Rep. 663. And see Barnard v. Campbell, > N. Y. 456. 10 See I 211, 0:1 SIGNIFICATION or- TEUM " DOCUMENTS OF TITLE." 11 Ostensible or apparent ownership or authority, {% 175, 210. 441 CONDITIONAL SALES. \ 303 12 See Mich. Cent. R. R. Co. ?'. Phillips, 00 111. 100 ; Barnard v. Campbell, 55 N. Y. 450 ; Western Transp. Co. v. Marshall, 4 Abb. N. Y. A pp. 575 ; liawls v. Deshler, 4 Abb. N. Y. A pp. 12. But see Brandt v. Fof!ht, 1 Abb. N. Y. App. 185 ; Dows v. Kidder, 84 N. Y. 121 ; Parker ?'. Baxter, 86 N. Y. 5S(> ; Hirschorn v, Caiiney, tit Mass. 149. Basis of paragraph: 2 Schouler on Personal Property, \ ttOI. In some States this exception would be extended to a sub-sale of stock with a power of attorney indorsed thereon : Cherry v. Frost, 7 Lea, 1. 303. Waiver by delivery. If unqualified and un- conditional. The doctrine is said to be uniform and well established l that if the vendor unqualifiedly and unconditionally delivers the goods to the vendee with- out insisting on performance of conditions, intending to rely solely upon the personal responsibility of the vendee, the title passes to the latter, 2 and that the vendor cannot afterwards reclaim the property, even if the condition is never performed, but his only remedy is upon the contract for the purchase money. 3 Presumption of. And the weight of authority seems to be 4 that a delivery, apparently unrestricted and un- conditional of goods sold for cash, is presumptive evi- dence of the waiver of the condition that payment should be made on delivery in order to vest the title in the purchaser. 5 Inference of conditional delivery. But a sale does not ipso facto become absolute when a delivery is made, unaccompanied by any express declaration that is con- ditional, 6 and it is sufficient if the intent of the parties that the delivery is conditional can bo inferred from their acts and the circumstances of the case. 7 Slight priority of delivery. Nor is there a waiver of the condition of immediate payment where the delivery is intended to be substantially simultaneous with pay- ment, but happens to precede it by a short period. 8 1 According to Fishback v. Van Dusen, 33 Minn. Ill, 118. 2 See citations in next note. 3 See 2 Kent Com. 406; Carleton v. Sumner, 4 Pick. 516 ; Dresser Muauf. Co. v. Wuterston, 3 Met. y; Furlow v. Ellis, 15 Gray, 22'J ; I 304 CONDITION AT. SALES. 442 Langdell's Cases on Sales, 720 ; Goodwin r. Boston & L. K. Co. Ill Mass. 487; Scudder v. Bradbury, 106 Mass. 422 ; Huskins v. Warren, Ho Mass. 514 ; Freeman v. Xiohols, 116 Mass. 30J ; Bowen v. Burk, 13 Pa. St. 1^6; Mixer v. Cook, 31 Me. 40. 4 According to Flsbback v. Van Dusen. 33 Minn. Ill, 118. 5 See Scudder r. Bradbury, 106 Mass. 422 ; Upton v. Sturbridge Cotton Mills, 111 Mass. 4-iG ; Hammett r. Linneman, 48 N. Y. 3 U ; Smith ?\ Lynes, 5 N. Y. 41 ; Langdell's Cases on Sales, 734; Farlow v. Ellis, 15 Gray, 229; Langdell's Cases on Sales, 720. 6 See 2 Kent Com. 4^7; T.even v. Smith, 1 Denio, 571 ; Smith v. Dannie, G Pick. 272 ; 17 Am. Dt-c. 3G8. 7 Fishb:ck ?-. Van Dusen, 3 Minn. 111, 116. Discussion of waiver by delivery: Bennett's Benjamin on Sales, pp. 335, 33C, \ 320, n. rf. And see Story on Sales, 313. 8 Commonw. ?>. Devlin, 6 N. E. Rep. (Mass.) 04: distinguishing Hnskins r. Warren, 115 Mass. 5 1 4 ; and referring to Bussey v. Barnett, 9 Mees. & W. 312 ; Langdell's Cases on Sales, 711. % 301. Seller's delay, etc. Requirement of reason- able diligence. In order that the seller may be able to show that there was no waiver of the condition of pay- ment on his part, he must have pursued his right with reasonable diligence, according to the circumstances, 1 by following up the buyer at once and without inter- mission, if the condition was cash payment or immediate adjustment of the price on delivery, 2 and not abating his vigilance after the maturity of the buyer's obliga- tion, if the allowance of time was a part o* the condition. 3 Insufficiency of mere negligence. But waiver is a voluntary relinquishment of some right which, but for such waiver, the party would have enjoyed; 4 so that voluntar3 r choice is of the essence of such waiver, and mere negligence is insufficient, though from such negli- gence, unexplained, the intention of waiver may be inferred. 5 Justification of delay. And among elements which may justify delay, or be considered in determining whether it amounts to waiver of the condition, are a trade usage, allowing an extended period for payment ; 6 or the circumstance that the parties live far apart, or transact business through third parties who have to CONDITIONAL SALES. g 305 notify the principals; 7 or the character of the chattel, as easil3 r taken back or troublesome to remove. 8 1 See citations in succeeding notes. 2 Delay in calling for buyer's note : Smith v. Dennis, 6 Pick. 262. 3 2 Schouler on Personal Property, \ 304, whence paragraph derived. Allowing buyer to retain possession after time fixed for p.iying price : Hutchings v. Munger, 41 N. Y. 155. And see Mixer v. Cook, 31 Me. 340 ; Bowen v. Burk. 13 Pa. St. 146 ; Scudder v. Bradbury, 10G Mass. 427 ; Goldsmith v. Bryant, 26 Wis. 34. 4 Fishback v. Van Dusen, 33 Minn. Ill, 117. 5 Fishback r. Van Dusen, 33 Minn. 111,117. And see Farlow v. Ellis, 15 Gray, 22J ; Langdeil's Cases on Sales, 720. 6 See Stone r. Perry, 60 Me. 48. But compare Scudder v. Brad- bury, 106 Mass. 422. 7 See Stone v. Perry, 60 Me. 48 ; Whitney v. Eaton, 15 Gray, 225 ; Langdell's Cases on Sales, 717 ; Hirschorn v. Canney, 98 Mass. 149. 8 Goldsmith v. Bryant, 26 Wis. 34. Or the action of the buyer in obstructing the seller in the effort to procure payment: Hill ?'. Mc- Kenzie, 3 Thomp. . Lauck, '21 Pa. St. 3r>; Adams r. O'Connor, 100 Mass. 515; Leven v. Smith, 1 DP nio, 571 ; Paul 7-. Reed, 52 N. H. 136 ; Dashon t>. Bigelow, 8 Gray, 15;) ; Ridgeway v. Kennedy, 52 Mo. 24. $ 306. Sales on instalment plan. In general. If the contract of the parties bo such as to indicate that the seller shall retain his right of ownership after delivery, notwithstanding a partial payment or partial adjust- ment of the price, 1 as in the case where chattels are sold payable in instalments, 2 under a plan which prevails in various parts of this country with regard to pianos, sewing-machines, etc., 3 the condition of payment 4 is enforcible to the extent of making full adjustment a prerequisite to the acquirement of title by the buyer. 5 Discrimination from similar transactions. And it has been suggested that contracts of this uncertain descrip- tion should be reduced to writing, so as to show clearly the respective rights of the parties, and enable the courts to discriminate between a sale conditional upon pay- ment by instalments, and that which is in truth a mort- gage transaction, 6 or a bailment, 7 such as a lease, 8 giving the privilege of purchase. 9 Special provisions. The construction of such con- tracts according to their tenor, gives just scope to the mutual undertaking of the parties if the agreement con- tains an option to buy or hire in favor of the one party, 10 or other special conditions, 11 to be observed by the other. 12 Forfeiture of partial payments. On a sale reserving title till the price is paid, many of the cases hold that 445 CONDITIONAL, SALES. \ 303 partial payments are forfeited on default of the residue ; 13 but in courts possessing equity powers, the modern tendency is to allow the seller who rescinds a contract for default after receiving a part of the price, to retain only so much as will compensate him ; u and if the seller who retains title to property delivered under a con- ditional sale, permits the buyer to retain possession, and receives payments after the default, this operates as a waiver of the forfeiture, 15 and enables the buyer to be- come the owner of the property by making tender of the residue of the price. 16 1 See citations in succeeding notes. Sales upon partial delivery or partial payments discussed: 2 Schouler on Personal Property. 2 ;>os. 2 Instalment in general : 1 Bouvier Law Diet. (14th ed.) 725. Sales upon instalments discussed: 8 South. L. Rev. N. S. 228. 3 Sr>e following illustrative cases : Hine v. Roberts, 48 Conn. 208 ; 40 Am. Rep. 170 ; Singer Manuf. Co. v. Cole, 4 Lea, 439 ; 40 Am. Rep. 21 ; Knittel v. Cushing, 57 Tex. 3."4 ; 44 Am. Rep. 508 ; Lucas r. Camp- bell, S3 111. 447; 31 Am. Rep. 8! ; Sumner v. Cotley, 71 Mo. 121 ; Singer Manuf. Co. v. Graham, 8 Or. 17 ; 34 Am. Rep. 572 ; Hervey v. Locomo- tive Works, 93 U. S. 664. 4 Payment as condition precedent: See preceding section on that subject. 5 1 S^houler on Personal Property, \ 297 ; citing, Sage v. Sleutz, 23 Ohio St. 1 ; Button ?'. Campbell, 2 Thomp. & C. 595 ; Cole v. Mtnn, 3Tli;j:np. ct (.'. aso ; Preston v. Whitney, 23 Mich. 260; Giddey v. Alt- man, 27 Mich. 206 ; Goldsmith v. Bryant, 26 Wis. 34. 6 Sale or mortgage: See Rockwell v. Humphreys, 57 Wis. 410, 414; Cook v. Lion Fire Ins. Co. 7 Pacif. Rep. (Cai.) 784; Russell v. Harkness, 7 Pacif. Rep. (Utah) 865: Glass ?\ Doane, 15 111. App. CI ; Turner v. Kerr, 44 Mo. 41, 431 ; Wilmerding v. Mitchell, 42 N. J. L. 476, 47J ; g 24. discussing this subject. 7 2 Sohoulor on Personal Property, 297 ; referring to Rowan v. Union Arms Co. 36 Vt. 124; Singer Manuf. Co. v. Cole, 4 Lea, 4:'.J; 40 Am. R, p. 21. 8 Sale or lease : See 22. 9 S?e Sumner v. Cotley, 71 Mo. 121. Conditional sale on instal- ment plan, under guise of renting, hiring, letting, et2.: See Greer ?. Church, 13 Bush, 4:!3 ; Knittel ?'. dishing, 57 Tex. 354 ; 44 Am. Rep. 598, 600 ; Singer Manuf. Co. v. Cole, 4 Lea, 439; 40 Am. Rep. 21 ; Lucas v. Campbell, 83 111. 447,449; 31 Am. Rep. 81 ; Prioe ?'. McCallister, 3 Grant Cas. 24S ; Singer Manuf. Co. 11. Graham, 8 Or. 17 ; 34 Am. Rep. 572; Hlno v. Roberts, 43 Conn. 268,269; 40 Ain. Rep. 170; Hervey v. Locomotive Works, 93 U. S. 664. 10 See citations in last note. 11 Resumption of possession, etc.: See Fleck v. Warner, 25 Kan. 492; Moagher i. Hollenberg, 9 Lea, 392; Wheeler Manuf. Co. v. Teetzlaff, 53 Wis. 211. NEWMAKK SALES. 38. 1 337 CONDITIONAL, SALES. 446 12 2 Schouler on Personal Property, I 297. 13 See Angi?r r. Tannto-i Paper Co. 1 Gray, R21 ; Knox ?. Perkins, 15 Gray. 52:) ; Colcord r. McDonald, 128 Mass. 470 ; Brown r. Haynes, 52 Me. 578 ; Everett ?. Hall, 67 Me. 407 ; Haviland ?. Johnson, 7 Daly, 2 )7 ; Duke r. Shackelford, r6 Miss. 552 ; Howe Machine Co. r. Willie, So ill. :c>3; Latham ?\ Sumner, 89 111. 2H3 ; 31 Am. Rop. 7' : Singer Minnf. Co. ?. Treadway, 4 111. App. 57; Fleck v. Warner, 25 Kan. 492 ; Whelun v. Couch, 26 Grant (Out.) 74. 14 S^e Preston v. Whitney, 21 Mi. Dallas, 35 Ind. 2">~> ; nnacon, 13Mlch. 81. 3 See Hot^hkiss v. Higgins, 52 Conn. 205 ; 52 Am. Bep. 5S2, 584 ; Hickman v. Shimp, 109 Pa. St.. 16; 20 The Reporter, 345; $21, on PRIVILEGE OF RETURN. 4 See Colvin v. Weedman, 50 111. 311 ; Cleveland v. Sterrett, 70 Pa< St. 204 ; Snelling v. Hall, 107 Mass. 134. 5 See Hinchcllffe v. Barwick, Law R. 5 Ex. JX 177 ; 31 Eng. Rep, 628. Basis of paragraph: 2 Schouler on Personal Property, ?313; referring on ne^^l of care on seller's part in making such stipulations, to Snelling v. Hall, 107 Mass. 134 ; and Warren v. Kirk, 24 La. An. 150. 6 Exhaust Ventilator Co. v. Chicago etc. Ry. Co. 28 N. W. Rep. ("VVis.) 0*3 ; 22 The Reporter, 381. 7 Se Hickman v. Shimp, 101 Pa. St, Ifi ; 20 The Reporter, 345 ; Hotchkiss. ?'. Higgins, 52 Conn. 205; 52 Am. Rep. 582 ; Bennett's Ben- jamin on Sales, g 586, 595; 104, on SALE WITH CONDITION PRE- CEDENT ; 20, on PRIVILEGE OF PURCHASE. 8 See citations in next note. 9 Compare Ireland v. Livingston, Law R. 2 Q. B. 99; Law R. 5 Q. B. 516 ; Law R. 5 IF. L. 395; 2 Eng. Rep. 424, with Kruger ?>. Hlanck, Law R. 5 Ex. 179. Basis of paragraph : 2 Schouler on Personal Prop- erty, \ 315 ; referring, also, to Bennett's Benjamin on Ral"s, . Higgins, 4 Hurl. & N. 402 ; Langdell's Cases on Sales, 867, 872 ; Turley v. Bates, 2 Hurl. 7-6''> ; Langton v, HJ^Sins, 4 Hurl. & X. 402 ; LangdeU'a Cases on Sales, 867, 872, 308 CONDITIONAL SALES. 448 308, Sales "on trial," In general. A contract which provides for subjection of an article to trial, and becomes absolute only on approval, creates a condition precedent, which must be satisfied before the promise it qualifies becomes effectual. 1 Hence in sales " on trial " or "on approval," 2 there is no sale till the approval is given, 3 either expressly or by implication, 4 resulting from keeping the goods beyond the time allowed for trial, 5 and the title does not pass until the option is thus determined. 6 Time for return of goods. In sales on trial, the mere failure to return the goods within the time specified makes the sale absolute. 7 But the buyer is entitled to the full time agreed on, as he is at liberty to change his mind during the whole term. 8 And if no definite period of trial be stated, a 'reasonable time will be implied. 9 Notice and return. It is the general rule that the buyer should notify the seller of the failure of the article to satisfy on trial, 10 within the reasonable or stated time; 11 but that if he finds the chattel unsuitable and unsatisfactory, lie may exercise the option given him, and return the chattel peremptorily, without giving the seller any opportunity of remedying defects. 12 Consumption of goods. Where tho trial of goods which a party is entitled to make 13 involves the con- sumption or destruction of what is tried, it is a question of fact for the jury whether the quantity consumed was more than necessary for trial, so as to render the sale absolute by the approval implied from thus accepting a part of the goods. 14 1 Ilickinan v. Shimp, 100 Pa. St. 16 ; 20 The Reporter, 345. 2 Siles on trial coupled with a warranty : 2 Corbin's Benjamin on Sales, p. 792, \ 911, n. 27. 3 See citations In note after next. 4 Implication of approval from f nilure to return or give notice of disapproval : 2 Corbin's Benjamin on Sales, p. 7:)2, 911, n. 27 ; citing, Hunt v. Wyman, luo Mass. 1U8 ; Waters Heater Co. v. Mansfield, 48 449 CONDITIONAL SALES. 309 Vt. 378 ; Waters Heater Co. v. Smith, 120 Mass. 444 ; Wetherby v. Sleeper, 101 Muss. 138 ; Kahn v. Klabunde, 50 Wis. 235. 5 Elphick v. Barnes, Law B. 5 C. P. D. 326 ; 30 Eng. Bep. 810 ; 20 Am. Law Keg. N. S. 240 ; Bennett's Benjamin on Sales, \ 5:3 ; citing, also, Mowbray r. Cady. 40 Iowa, 004 ; McCormick v. Basal, 50 Iowa, 5J:J ; C'olton v Wise, 7 111. App. 395 ; Delamater v. Chappell, 48 Md. 244. 6 Hickman v. Shimp, 103 Pa. St. 16 ; 20 The Reporter, 345. 7 Humphries v. Carvalho, 16 East, 45; Bennett's Benjamin on Sales, g 595 ; citing, also, Johnson v. McLane, 7 Blackf. 501 ; Spickler r. Marsh, 36 Md. 222 ; Dewey v. Erie Borough, 14 Pa. St. 211 ; Prairie Farmer Co. v. Taylor, 6.) 111. 440; 18 Am. Bep. 621; Aultmaii . Theirer, 34 Iowa, 272; Waters Heater Co. v. Mansfield, 48 Vt. 37-!; Gibson v. Vail, S3 Vt. 476. Same effect: 2 Schouler on Personal Prop- erty, g 311 ; Story on Sales, g 128. 8 Ellis v. Mortimer, 1 Bos. & P. N. B. 257 ; Bennett's Benjamin on Sales, g 5!)5 ; referring, also, to Elphick v. Barnes, Law B. 5 C. P. D. 32 ( > ; 20 Am. Law Beg. N. S. 240 ; :-JO Eng. Bep. 810 ; Aiken v. Hyde, 99 Mass. 183; Hartford Sorghum Manuf. Co. v. Brush, 4'} Vt. 5'?8. And. consult 2 Schouler on Personal Property, \ 311 ; Story on Sales, 250. 9 Story on Sales, ? 128. 10 Notice of disapproval or rejection: 2 Corbin's Benjamin on Sales, p. 793, \ 911, n. 27 ; citing, Spickler v. Marsh, 36 Md. 222 ; Hall v. Merriwether, 19 Tex. 224 ; Prairie Farmer Co. v. Taylor, 6.') 111. 440 ; 18 Am. Bep. 621 ; Smalley v. Hendrickson, 29 N. J. L. 371. 11 See Dewey v. Erie Borough, 14 Pa. St. 411. But compare Gibson v. Vail, 53 Vt. 476. And consult Kahn v. Klabunde, 50 Wis. 2->5, and cases therein cited. 12 2 Schouler on Personal Property, g 311, whence paragraph derived. And it makes no difference that the chattel after its return to the seller worked well under his management without alteration or repair : Aiken v. Hyde, 99 Mass. 183. 13 Nature of trial discussed : 2 Corbin's Benjamin on Sales, \ 911, n. 27. 14 See Elliott v. Thomas, 3 Mees. 9fi; citing, also, Okell ?>. Smith, I Stark. 107. Pending trial, position of so-called buyer rather that of bailee than of full buyer: 2 Schouler on Personal Property, 311 ; referring to Hunt v. Wyman, 100 Mass. 198 ; Hartford Sorghum etc. Co. v. Brush, 43 Vt, 528 ; Story on Sales, 400. \ 309. Right to return goods. Option to keep or to re- turn. There is a manifest distinction between an op- tional right in the party receiving goods to retain them if he liked them, and an optional right to return the same goods in whole or in part if he did not like them. 1 In the former case the title will not pass till the option is determined, 2 while in the latter it passes immedi- ately to the party receiving the goods, subject to the right to rescind 3 and return. 4 g 309 CONDITIONAL SALES. 450 Variation of alternative. And the principle is the same in regard to the passing of title in the latter case, whether the alternative is to return specifically or in kind, or specifically, or to pay 5 a certain sum. 6 Similar transactions. But there is a class of cases apparently very similar where a different result has been reached ; 7 and in some of these cases the relation of the parties has been considered like that of consignor and consignee, or principal and agent ; 8 while in others the controlling fact was the existence of a general cus- tom, which by implication became a part of the con- tract, whereby it was understood that the title was to remain in the original owner. 9 Independent covenant and failure to return. Where parties agreed to set up a printing-press in the office of a corporation, which was to have thirty days thereafter to determine whether or not it would keep the same, for a sum specified to be paid at certain dates, and such parties also agreed to keep the press in order perma- nently, without charge, it was held that the agreement to keep the press permanently in order was in depend- ent, 10 and that by keeping the press thirty days without electing to return the same, the corporation became liable for the purchase price. 11 1 See Hotchkiss . Rigging, 52 Conn. 205 ; 52 Am. Rep. 532, 583 ; Hunt v. Wyman, 100 Mass. 200. 2 See Hickman v. Shimp, 109 Pa. St. 16 ; 20 The Reporter, 345. 3 See Hickman r. Shimp, 109 Pa. St. 16 ; 20 The Reporter, 345 ; re- ferring to Huntt 1 . Wyman, 100 Mass. 198; Wharton on Contracts, 5jO. 4 Hotchkiss ?'. Higgins, 52 Conn. 205 ; 52 Am. Rep. 5S2, 58.,, stating that the same distinction is recognized and applied in Holbrook ?'. Armstrong, 1 Fairf. 31 ; Dearborn v. Turner, 16 M. 17 : 33 Am. Dec. 6:iO ; Perkins v. Douglass, 20 Me. 317 ; and Hunt r. Wymau, loo Muss. 200. And consult \ 193, on SALE WITH COXDITIOX SUBSEQUEXT. 5 See Crocker v. Gullifer, 44 Me. 393 ; 69 Am. Dec. 118. 6 Buswell ?. Ricknell. 17 Me. 344 ; 35 Am. Dec. 262 ; as cited, Hotchkiss r. Higgins, 52 Conn. 205 ; 52 Am. Rep. 582. And consult \ 21, on PRIVILEGE OF RETURX. 7 See citations in succeeding notes. And consult note to Elphick v. Barnes, 20 Am. Law Reg. N. S. 244. Prairie Farmer Co. v. Taylor, 69 111. 440 ; 18 Am. Rep. 621. 451 CONDITIONAL SALES. \ 310 8 Hotchkiss v. Higgins, 52 Conn. 205 ; 52 Am. Hep. 582, 584. 9 Hotchkiss v. nigglns, 52 Conn. 205 ; 52 Am. Rep. 582, 584 ; refer- ring to Meldrum v. Snow, 9 Pick. 441 ; 20 Am. Dec. 489. 10 Prairie Farmer Co. v. Taylor, 69 111. 440 ; 18 Am. Rep. 621, 622 ; citing, Thorpe v. Thorpe, 1 Salk. 171; Nelson v. Owen, 41 111. 78; White v. Gilman, 43 111. 502 ; Putnam v. Mellen, 34 N. H. 71. : g 310. Sale or return. Status of title. In the class of agreements usually termed "sale or return," 1 the sale is a conditional 2 or defeasible one; 3 and the right of property in the goods passes to the purchaser, subject to be divested out of him and revested in the vendor, 4 by a return of the goods according to the terms of the contract. 5 Effect of failure to return. Usually the condition is that the buyer may return the goods within a fixed or reasonable time, at his option; 6 and it has been held that the goods so sold pass subject to the option in him to return them, 7 and that if he fails to exercise the option within the proper time, the price of the goods may be recovered as upon an absolute sale. 8 Distinguished from similar agreements. But a bargain of " sale or return," in the strict sense, which is subject to a condition subsequent rendering the contract de- feasible after delivery of the chattel, 9 is to be distin- guished from a transaction which amounts to a mere bailment with the privilege of purchase; 10 while the contract which gives the option "to return " in words, generally seems rather to be subject to a condition pre- cedent, and to be a contract for a sale on trial. 11 Exercise of privilege of return. Whether the privilege of returning within a reasonable or the stated time has been duly exercised so as to terminate the sale, is a question of fact to be decided in accordance with the mutual understanding ; 12 and where the seller refused to receive back a machine which failed to work as 310 CONDITIONAL SALES. 452 represented, and which did not stand a further test then made on the seller's premises, the buyer was held justified in driving the machine into his yard, leaving it there, and notifying the seller to take it away. 13 Injury to chattel. If the buyer materially impair the condition of the chattel by misuse or otherwise, while it is in his keeping, and is thus unable to place the seller in statu quo, he cannot in general take advantage of the condition under which it was delivered so as to rescind the contract; 14 but for an injury occasioned without the buyer's fault, as in the case of an animal taken under a bargain of "sale or return," the buyer has sometimes been held not to lose his privilege of return. 15 1 Various applications of term : Soe 2 Schouler on Personal Prop- erty, 312; interring to Meldrum ?'. fenow, 9 Pick. 441 ; 20 Am. Doc. 48!) ; In re Nevill, Law K. 6 Ch. 3:7 ; Story on Sales, \ 24'). Subject discussed : 2 Corbin's Benjamin on Sales, p. 796, \ 915, n. 20 ; 20 Am. Law Reg. X. S. 244. 2 See Hickman v. Shimp, 100 Pa. St. 16 ; 20 The Reporter, 3J5. 3 Hot^hkiss 7'. Higgris, 52 Conn. 205 ; 52 Am. Rep. 582, 534 ; citing, Addison on Contracts (*th ed.), bic. 2, ch. 7, bottom p. 532. 4 See \ 193, on SALE WITH CONDITION" SUBSEQCEXT. 5 Hotchkiss ?'. Iliggins, 52 Conn. 205; 52 Am. Rep. 582; citing, Addison on Contracts ("2 ; and refer- ring, also, to Moss \\ Sweet, 3 Eng. L. & Eq. 311 ; S'-hlesinger t. Btratton, 9 R. I. 578 ; Jameson v. Gregory, 4 Met. (Ky.) 363 ; Kinney v. Bradlee, 117 Muss. 321 ; Martin v. Adams, 104 Mass. 262. 6 Schlesinger v. Stratton, 9 R. I. 578. 7 See citations in next note. 8 Schlesinger v. Stratton, 9 R. I. 578; as quoted, Hotchkiss r. Hi^gins, 52 Conn. 20") ; 52 Am. Rep. 582, note at p. 5o6 ; referring to Moss v. Sweet, 3 Eng. L. & Eq. 311 ; 16 Q. B. 493 ; Bianchi v. Nash. 1 Mees. & W. 545 ; Beverly v. Lincoln Gas Light & Coke Co. 6 Ad. & E. 829. 9 See Hickman v. Shimp, 109 Pa. St. 16 ; 20 The Reporter, 345. Such an agreement may itself contain a condition precedent, KH that of paying or securing the price before the title passes : See ( -rocker v. Gullifer, 44 Me. 431 ; 69 Am. Dec. 118. 10 See Chamberlain v. Smith, 44 Pa. St. 43 ; also, Porter v. Petten- gill, 12 N. II. 2JD. 11 2 Schouler on Personal Property, ? 212, whence paragraph derived, here referring to Elphick v. Barnes, Law H. 5 C. P. D. 321 ; SO Eug. Rep. 810 ; 20 Am. Law Reg. N. S. 240. 12 See Gammon v. Abrams, 53 AVis. 323; Hinchcliffe v. Barwick, Law R. 5 Ex. I). 177 ; 31 Eug. Rep. 628. CONDITIONAL SALES. 13 Hall ?. JEtna Manuf. Co. 30 Iowa, 215. See 2 Schouler o:\ Per- sonal Property, # ai'2 ; referring, also, to Paddeu v. Marsh, 34 Iowa, 5.12. 14 See Hay v. Thompson, 12 Cush. 281 ; 59 Am. Dec. 187 ; also noted. 20 Am. Law Beg. N. b. '245. 15 See Head v. Tattersall, Law R. 7 Ex. 7 ; 1 En.sr. Rep. 140 ; 2 Schouler on Personal Property, 312, whence paragraph derived ; referring, also, to Hunt ?\ Wyman, 100 Mass. 1 ,/S. Death of horse taken upon an option, within time limited for return, without fault of buyer : See Elphick v. Barnes, Law R. 5 C. P. I). 321 ; 30 Kng. Rpp. 810 : 20 Am. Law Reg. N. S. 240. Consult further, Bennett's Benjamin on Sales, \\ 599, 599 a. I 311, Sale of goods to arrive, etc. In general. A sale of goods "to arrive," or on arrival, has been stated to be a sale of goods expected from abroad, which is made before they arrive, upon the condition that the tiling sold shall arrive, and that if it do not arrive, the bargain shall bo void. 1 But the numerous English decisions upon this kind of contracts do not clearly settle when the language used therein shall amount to a condition precedent, or even then, what that condition shall be. 2 Double condition precedent. In such cases two dis- tinct stipulations are often, though not always, blended, namely, one as to the cargo being on the vessel in ques- tion, and the other, as to the safe arrival of that vessel, so that there may be set up, as a prerequisite of full performance under the contract, a double condition precedent, first, that the vessel shall arrive ; and second, that on arrival, the subject-matter shall prove to be on board. 3 American views. The tendency of the American cases is to regard the stipulation for arrival in a sale of goods "to arrive," whether it be by ocean or inland transportation, as conditional, 4 and the contract as ex- ecutory, and not passing the title until the goods actu- ally arrive, 5 so that the contraci is at an end if the goods contracted for do not arrive, either from the ves- sel being lost, or other cause by accident, and without any fraud or fault of the vendor. 6 312 CONDITIONAL SALES. 454 Notice of name of ship. The condition also found in commercial sales of goods "to arrive," that the seller shall give notice of the name of the ship on which the goods are expected, as soon as he finds it out, must bo strictly fulfilled as a condition precedent to the seller's right to enforce the bargain ; 7 but by local usage, notice to the buyer's broker, with whom the contract was made, may constitute sufficient performance of the condition. 8 1 Story on (Bales, ? 240 ; citing, Shields v. Pettoe, 2 Sand. 2G2. Most usually this important class of modern mercantile contracts relates to specific goods, the shipment of which has been advised by mail-steamer or telegraph : Campbell on Sales, 2^5. 2 2 Schouler on Personal Property, "14. Roe statements of (In- cisions in Bennett's Benjamin on Sales, \\ C78-565 ; Campbeil on Sales, 21)5, 21)6. 3 2 Schouler on Personal Property, \ 314. Classification of Eng- lish decisions on subject: Bennett's Benjamin on Sales, g 5bii. S^ e Boyd ?'. Siffkin, 2 Camp. 326 ; Ildo v. Thornton, 3 CVnin. 274 ; Lovrtt r. Hamilton, 5 Mees. & W. 630 ; Johnson r. McDonald, !> Mees. '. S. 485. 8 See Graves ?-. Legg, 9 Ex. 700 ; 11 Ex. 642 ; 2 Schouler on Per- sonal Property, \ 324, whence paragraph largely derived ; Campbell on Sales, 296. \ 312, Salo by sample or description, Comparison of bulk with sample. With regard to a sale by sample, it is frequently laid down in the courts of England and of many parts of this country, as a rule enforced for the buyer's protection and independent of usage, that there is an implied condition that the buyer shall have a fair 455 CONDITIONAL SALES. opportunity of comparing the bulk with the sample, 1 and that he may refuse to carry out the bargain if he is denied such opportunity. 2 Answering description or order. So where a thing is sold by a particular description, the same authorities consider that there is a condition precedent implied that the thing which the seller delivers or tenders shall answer the description; 3 and so generally where the subject-matter of the sale is unascertained and the seller is to fulfill an order. 4 Engagement as conditon rather than warranty. The engagement in such cases is regarded not as a mere warranty or collateral stipulation, 5 but as a condition or integral part of the contract, 6 because the exist- ence of the qualities agreed upon, being part of the description of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted. 7 Different views. But such an implied engagement on the part of the seller is often treated as a warranty, 8 while it is sometimes asserted that it is quite immaterial whether the buyer's action under a supply of goods not corresponding with the description shall be technically considered an action on a warranty, or an action for non-performance of a condition. 9 Need of performance of undertaking. Yet despite the apparent confusion arising from the want of precision in the use of terms in this respect, 10 it is well settled that performance of the seller's stipulation, whether he be a dealer or a manufacturer, 11 is of the essence of the contract, 12 and that the buyer may refuse to perform his part of the bargain, 13 unless the seller who under- takes to supply a chattel of a particular kind or descrip- tion 14 supplies accordingly. 15 J 312 CONDITIONAL SALES. 456 1 See citations in next note. - See Lorymer r. Smith, 1 Barn. & C. 1 ; Grimoldby v. Wells, Law R. 10 Com. P. 391 ; 12 Eng. Rep. 451 ; Uutchess C'o. v. Harding, 4.) N. V. 321 ; as cited in support of text in 2 Schouler on Personal Property, 2 316. And consult Bennett's Benjamin on Sales, \ 594 ; Campbell on Sales, 305-307. 3 2 Schouler on Personal Property, 316, whence paragraph derived. And see Hedstrom r. Toronto Car Wheel, 31 Vp. Can. c. 1*. 42' ; as cited, 2 Corbin's Benjamin on Sales, \ 918, n. 32. Consult, also, Biddle on Chattel Warranties, g 89. 4 See 2 Smith's Lead. Cas. 27. 5 Definition of warranty: Neave v. Arntz, 56 Wis. 174; Jones r. Georg.', 61 Tex. 345 ; 48 Am. Rep. 280, 281 ; Bagley v. Cleveland Rolling Mill Co. 21 Fed. Rep. 159 ; 30 Alb. L. J. 4'.)0, 4J1. And see Dorr v. Fisher, 1 Gush. 273; Harley v. Iron Works, 6fi Cal. 208; 19 The Reporter, 100; Cary v. Gruman, 4 Hill, 626 ; McFarland v. Newman, 9 Watts, 55 ; 44 Am. Dec. 497, 499. 6 Warranty and condition distinguished : Dorr r. Fisher, 1 Cush. 273. But see Boardman v. Spooner, 13 Allen, 3G1 ; Langdell's Cases on Sales, 610. 7 2 Smith's Lead. Cas. 127. And see Chanter v. Hopkins, 4 Mees. . Bartlett, 2 El. & B. 843 ; Wood v. Sheldon, 13 Vroom, 421 ; 36 Am. Rep. 523. 5 See Young v. Cole, 3 Bing. N. C. 724. 6 See Gurney v. Smith, 4 El. & B. 133 ; Aldrich v. Jackson, 5 R. I. 218; Dumont v. Williamson, 18 Ohio St, 215; Terry v. Bissell, 26 Conn. 23; Ledwich v. McKim, 53 N. Y. 307; Worthington v. Cowles, 112 Mass. 30 ; Ward v. Haggard, 75 Ind. 381 ; Cabot Bank v. Morton, 4 Gray, 156. Oontra, Baxter v. Duren, 19 Me. 434 ; doubted in Hussey v. Sibley, 66 Me. 192. Consult, also, Bennett's Benjamin on Sales, 607, n. e. 7 See Gurney v. Womersley, 4 El. . Hilton, 9< N. Y. 517 ; 52 Am. Rep. 63 ; Kent v. Friedman, 3 N. K. Rep. (N. Y.) 905 ; Maxwell v. Lee, 27 N. W. Rep. (Minn.) 1% ; 21 The Reporter, 727. And see 2 Schouler on Personal Property, g 323 ; Gibson v. Stevens, 8 How. 384. Compare Foot v. Bentley, 44 N. Y. 166 ; 4 Am. Rep. 652. 11 Osborn v. Gantz, 60 N. Y. 540. And see 2 Smith's Lead. Cos. 33 ; Harley v. Iron Works, 66 Cal. 2;i3 ; 19 The Reporter, 10J. 316 WARRANTY IN GENERA!,. 462 g 316. Kinds. Express and implied. A warranty may be express or implied. 1 Express warranty arises where one party to a contract of sale specially under- takes to make sure to the other that the thing sold is as represented ; 2 but an implied warranty is a guaranty which the law deduces as an inevitable consequence of the contract, even if there has been no special under- taking in the matter. 3 An express warranty may ex- clude any implied warranty ; 4 and an implied warranty will not cover unforeseen contingencies. 5 Warranty of title. In this country there is an implied warranty of title from the mere sale of a chattel, at least if it be in the seller's possession ; 6 and in England the tendency of the recent cases has been considered to decidedly favor an implied affirmation of ownership, unless the transfer is merely of the seller's interest. 7 Warranty of quality. In the absence of fraud 8 or express warranty, 9 the common-law rule, 10 under the maxim caveat emptor, which throws all risks of qualify upon the purchaser of a specific chattel, 11 is that the seller of personal property is subject to no implication of a warranty of quality; 12 but the exceptions to the rule are extended to admit various warranties implied from the nature and circumstances of the sale, as those of correspondence with sample or description, fitness for particular purposes, merchantable character, against latent defects, etc. 13 1 See Neave r. Arntz, 56 Wis. 174 ; Osgood r. Lewis, 2 Har. & G. 495; 18 Am. Dec. 317, 318; Borrekins v. Bevan, 3 Rawle, 2t; 23 Am. Dec. 85. 2 See citations in next note. In express warranties there is a direct stipulation , or something equivalent to it : Borrekins v. Bevan, 3 Bawle, 23 ; 23 Ani. Dec. 85. 3 2 Schouler on Personal Property, ? 328. And see 2Bouvier Law Diet. (14th ed.) 652 ; Biddle on Chattel Warranties, p. 3, ? 3 ; quoting, Otts v. Alderson, 10 Smedes & M. 476, 481 ; Osgood r. Lewis, 2 liar. & G. 41)5 ; 18 Am. Dec. 317, making classification. Inference of warranty from words, acts, and circumstances: 2 Schouler on Personal Prop- erty, l\ 337, 343 ; Terhune v. Dever, 36 Ga. 643. Implied warranties 463 WARRANTY IN GENERAL. g 317 are conclusions and inferences of law, from facts which are admitted or proved before the jury : Borrekins v. Bevan, 3 Ravvle, 23 : 23 Am. Dec. 85. 4 See McGraw v. Fletcher, 35 Mich. 104 ; Jackson v. Langston, ri Ga. 392 ; Lainer v. Auld, 1 Murph. 138 ; 3 Am. Dec. 6*0. But com pan* Houston v. Gilbert, 3 Brev. 63 ; 5 Am Dec. 542 ; Merriam ?. Field, 24 Wis. 640; Boothby v. Scales, 27 Wis. 62fi, 633. Express warranty, in writing, intent, evidence, uncertain expressions, etc. ; 2 Schouler on Personal Property, \\ 335-337. Rules 01 construction : Campbell on Sales, 322. 5 See Mann v. Everston, 32 Ind. 355. 6 See Whitney v. Heywood, 6 Cush. 86 ; Scranton v. Clark, 39 N. Y. 220 ; Long v. Hickingbotham, 28 Miss. 772 ; Fletcher v. Drath, 66 Mo. 126; 2 Kent Com. 478 ; Story on Sales, g 367 ; 2 Schouler on Personal Property, ? 378 ; Biddle on Chattel Warranties, \\ 236-243 ; quoting, Byrnside v. Burdett, 15 W. Va. 502 ; People's Bank v. Kurtz, {>!) Pa. St. 344 ; 44 Am. Rep. 192 ; Shattuck v. Green, 104 Mass. 45. And consult note to Scott v. Hix, 2 Sneed, 192 ; 62 Am. Dec. 46:Mf>5 ; note to Reynolds v. Palmer, 21 Fed. Rep. 457 ; Johnson v. Powers, 65 Cal. 173; Baker r. McAllister, G Pac. Rep. (Wash. T.) 581. 7 See Eichholz v. Bannister, 17 Com. B. N. S. 708 ; Chapman v. Speller, 14 Q. B. 621 ; Bennett's Benjamin on Sales, \ 639 ; Campbell on Sales, 328; Biddle on Chattel Warranties, 232, 2.'J3 ; note to Reynolds v. Palmer, 21 Fed. Rep. 456; note to Soott v. Hix, 62 Am. Dec. 460. And consult Page v. Cowasjee, Law R. 1 P. C. 127 ; Bagneley v. Havvley, Law R. 2 Com. P. 625. Compare Sims r. Marryat, 17 Q. B. 281 ; Morley v. Attenborough, 3 Ex. 500. Canadian vi\vs: See Brown v. Cockburn, 37 Up. Can. Q. B. 598, reviewing English author- ities ; Somers v. O'Donohue, 9 Up. Can. C. P. 208 ; Biddle on Chattel Warranties, # 234, 235 ; note to Scott v. Hix, 62 Am. Dec. 463. 8 See Irving v. Thomas, 18 Me. 418 : Otts v. Alderson, 10 Smedes & M. 476. 9 See Warren v. Phila. Coal Co. 83 Pa. St. 437. 10 See Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547 ; 5 Atl. Rep. 253, fully discussing subject. 11 See Bowman v. Clemmer, 50 Ind. 10. 12 See Warren v. Phila. Coal Co. 83 Pa. St. 437 ; 2 Schouler on Per- sonal Property, $% 322, 346 ; Story on Sales, 349. 13 See Jones v. Just, Law R. 3 Q. B. \?7 ; CM*s ?>. Alderson, 10 Smedes . Suffolk County Mills, 11 Cush. 586, 59 Am. Dec. 163; Boothby v. Scales. 27 Wis. 626 ; Story on Agency, ?? 102, 443 ; Bennett's Benjamin on Sales, \ 024 ; Story on Sales, \ 350. And consult Biddle on Chattel Warranties, 15 ; 2 Corbin's Benjamin on Sales, 945, n. 16 ; citing, Herring v. Skaggs, 62 Ala. 180, 185 ; 34 Am. Rep. 4. 3 See Andrews v, Kneeland. 6 Cowen, 354 ; Schuchardt v, Allen, 1 Wall, 359. 467 WARRANTY IX GENERAL. g 320 4 Se^ Boothby v. Scales, 27 Wis. 626. 5 2 Schouler on Personal Property, ? 324 ; citing, also, Upton t. Suffolk County Mills, 11 Gush. 580; 59 Am. Dec. 1( ; Story on Agency, g 1U2 ; Palmer r. Hatch, 46 Mo. 585. And consult Story on Sales, 330. p. 403, n. 3 ; Cooley v. Perrine, 41 N. J. L. 322 ; 32 Am. Rep. 210. 6 2 Sohouler on Personal Property, 324. And see Biddle on Chattel Warranties, ? 15 ; Story on Sales, 350 ; Decker y. Fredericks, 47 X, J. L. 469. Compare Deming v. Chase, 48 Vt. 382. 7 See Bartholomew t>. Warner, 32 Conn. 98; Blood ?. French, 9 Gray, 197; Dodd v. Farlow,ll Allen, 426; The Monte Allegre,!) Wheat. 644 ; Mink v. Jarvis, 8 Up. Can. Q. B. 397 ; 13 Up. Can. Q. B. 84. 8 See Brady v. Todd, fl Com. B. N. S. 592; Cooley <'. Perrine, 41 N. J. L. 322 ; 32 Am. Rep. 210 ; S. C. 42 N. J. L. 623 ; Wilcox v. Hender- son, 64 Ala. 5S5 ; Hngueley v. Norris, 65 Ga. 666 ; Meister v. The Cleve- land Dryer Co. 11 111. App. 227 ; Bennett's Benjamin on Sales, 65 ; Campbell on Sales, 324. Otherwise in England if sold at a fair : Brooks v. Hassall, 49 L. T.*N. S. 569. And see 18 Cent. L. J. 223. 9 Howard v. Sheward, Law R. 2 Com. P. 148. And see Bryant v. Moore, 26 Me. 84, 87 ; 45 Am. Dec. 96. 10 Shordan v Kyler, 87 Ind. 38. $ 320. Patent defects. Known or patent defects A general warranty does not ordinarily include defects which are known to the buyer, or patent defects which are apparent upon mere inspection, and demand no special skill for their discovery. 1 And it has even been held that where a fire-engine is warranted to be as effi- cacious for all the purposes of such an apparatus as any in a specified section of the country, there is no breach of warranty if it is inferior to others larger and more costly, where such inferiority is patent to every ordinary observer 3 Need of skill, etc. But it seems to be now well settled that the rule of law which exempts a seller from lia- bility upon a general warranty, like that of soundness, where the defect is known or perfectly visible and obvious to the unaided senses, does not extend to an apparent defect whose true nature and extent can be determined only with the aid of skill, experience, or judgment. 3 Artifice to conceal defects, etc. Nor must the seller claiming exemption have resorted to artifice to conceal g 320 WARRANTY IX GENERAL,. 468 the defects, or to throw the purchaser off his guard and arrest thorough examination. 1 Covering patent defects. So the warranty may be framed in such a way as to insure against a patent de- fect as well as against one not manifest. 5 And where the seller of a kiln of brick warranted them " to be good brick and all right," and it turned out that some of the bricks beneath the exterior were imperfectly burned, but that the 4 cold spot " where this was the case could not have been discovered by the buyer without going on top of the kiln and removing the bricks therefrom, it was held that the buyer could rely upon the warranty as the basis of a counter-claim for damages in an action on the price note. 6 Liability for latent defects. But to render the seller liable for latent defects unknown to him in a specific thing sold, there should be clear evidence of an express warranty on his part. 7 Patent churn. Where on the sale of a patent right to a churn, manufactured by the seller, he exhibited a sample churn, which was inspected by one of the buy- ers, and stated that it would produce butter in from one to five minutes, that it could be operated lay a child five or six years old, that it \vas made of juniper-wood, and that the dasher was nickel- plated, whereas in fact it would not produce butter in less than ten minutes, was too heavy for children to work it, and was made of white ash, painted, while the dasher was of polished iron, it was held that the representations made amounted to a warranty, 8 and that the court could not pronounce the discrepancies so plain and obvious on inspection that they were not covered by the warranty given by the manufacturer. 9 1 See Pinney v. Andrus, 41 Vt. 631 ; Gaylord Man. Co. v. Allen, 53 N. Y 515; McCormick v. Kelly, 28 Mi'nn. 185; Vandewalker v. Osmer, 65 Barb. 556, 561 ; Fox v. Emerson, 27 Hun, 355 ; Schuyler v. 469 WARRANTY IN GENERAL. \ 321 Russ, 2 Caines, 202 ; 2 Schouler on Personal Property, ? 333 ; Story on Sales, ? 3->l ; Bennett's Benjamin on Sales, g 616, 2 Corbin's Benja- min on Sales, 938 ; Biddle on Chattel Warranties, \\ 79, 80. Consult, further, Tabor v. Peters, 74 Ala. 90 ; 49 Am. Rep. 804, 807, SOS. And compare Vates ?'. Cornelius, 69 Wis. 615 ; Meickley v. Parsons, (k> Iowa, 63 ; 55 Am. Rep. 261, 262. 2 President etc. v. Wadleigh, 7 Blackt 102 ; 41 Am. Dec. 214. 3 See Pinney v. Andrus, 41 Vt. 631 ; Brown v. Bigelow, 10 Allen, 242 ; Margetson v. Wright, 7 Bing. 603 ; 8 Bing. 454 ; Tye v. Flnmprt, 3 Camp. 462 ; Henshavv v. Robins, 9 Met. 83; 43 Am. Dec. 367; Ben- nett's Benjamin on Silos, \\ 616-618; Story on Sales, 355; Fletcher v. Young, 69 Ga. 591, 593, 594. 4 See Ch^dsey v. Green, 24 Conn. 562, 573; Pinney v. Andras, 41 Vt. 031 ; Beals v. Olmstead, 24 Vt. 114 ; 58 Am. Dec. 130; 2 Schouler 0:1 Personal Property, 333 ; Bennett's Benjamin on Sales, 616, n. e ; 2 Corbin's Benjamin on Sales, 933, n. 9 ; Kenner v. Harding, 85 111. 264 ; 28 Am. Rep. 615 (mul^ shown in dark stall) ; Tabor v. Peters, 74 Ala. 90 ; 49 Am. Rep. 804, 808, 5 See Marshall ?. Drawhorn, 27 Ga. 275, 279 ; McCormick v. Kelly, 28 Minn. 135; 2 Corbin's Benjamin on Sales, 038, n. 10; citing, also, Shewalter v. Ford, 34 Miss. 417, 422 ; Bank: of Kansas City v. Grind- staff, 45 Ind. 158 ; Brown v. Bigelow, 10 Allen, 242, 244 ; Hill v. North, 34 Vt. 604. Consult, also, 2 Schonler on Personal Property, g 341 ; Bennett's Benjamin on Sales, 616, n. e; Biddle on Chattel War- ranties, M 81, 82 ; Meickley v. Parsons, 66 Iowa, 63 ; 55 Am. Rep. 621, 622. 6 Meickley v. Parsons, 66 Iowa, 63 ; 55 Am. Hep. 621. 7 See Kingsbury v. Taylor, 29 Me. 508 ; Frazier v. Harvey, 34 Conn. 4K9; 50 Am. Dec. 607 ; Lord v. Grow, 39 Pa. St. 88 ; 80 Am. Dec. 504 ; Hadley v. Clinton etc. Co. 13 Ohio St. 502 ; 82 Am. Dec. 454 ; Parkinson y. Lee, 2 East, 314 ; so cited, 2 Schouler on Personal Prop- erty, ? 324. 8 Tabor v. Peters, 74 Ala. 90 ; 49 Am. Rep. 804, 806 ; citing follow- ing cases concerning statements on sales of patents : Chalmers v. Harding, 17 L. T. N. S. 571; Elkins . Kenyon, 34 Wis. 93; Nelson ?\ Wood, 62 Ala. 195 ; Bigler v. Thicking^r, 35 Pa. St. 279, noted as a strikingly similar case ; Rose v. Hurley, 39 Ind. 77 ; Allen v. Hart, 72 111.104. 9 Tabor v. Peters, 74 Ala, 90 ; 49 Am. Rep. 804, 807. 321. Soundness or other qualities of animals. Lule concerning unsoundness. In regard to a warranty using the word "sound" in the sale of horses, and who-o scope may depend upon local usage and special circum- stances, the rule as to unsoundness is, 1 that a hor><- is unsound when it is afflicted with any disease, or has undergone any alteration of structure which citlu-r presently does, or in its ordinary progress eventually will diminish the natural usefulness of the animal, so NEWMAKK SALES. 4O. 321 WARRANTY IN GENERAL. 470 as to make it less than reasonably fit for present use in work of any description. 2 Permanence of injury, etc. It is no longer deemed necessary 3 that the disease calculated to cause un fitness for use or diminished usefulness should be of a per- manent character ; 4 though the rule denning unsound- ness does not appear to extend to a merely temporary and curable injury, which exists at the date of sale, and does not really disqualify the animal for present service. 5 Stumbling horse, etc. A warranty that a horse is sure-footed and all right every way, shape, or manner, except only stumbling from temporary causes, is broken if he has such an organic defect as that his stumbling can be avoided only by a peculiar mode of shoeing, which the buyer, using reasonable diligence, cannot discover. 6 Construction of phraseology. Effect should be given to any qualification or limitation in the phraseology of a warranty of soundness or other qualities of animals, 7 and precise wording is requisite to raise a warranty out of expressions concerning the age, breed, previous use, etc., of the animal. 8 Where a horse that was partially blind was sold with a warranty, that " he was all right, except that he would sometimes shy," it was held that there was not a fatal variance between the evidence of such a warranty and an allegation that he was war- ranted to be sound. 9 Expressions covering character, etc. Where an animal is warranted "sound and right," "sound and kind," "sound and perfect," "all right in every respect," etc., these phrases, which should be construed according to their natural import, would seem in substance to superadd a warranty of good character to that of good physical condition, though it would always be a fair 471 WARRANTY IN GENERAL. \ 322 subject of inquiry how far vicious behavior on a horse's part was directly traceable to bodily unsound ness. 10 1 See Kenner v. Harding, 25 111. 264 ; 28 Am. Rep. 615, 617 ; 2 Schouler on Personal Property, 339 ; Story on Sales, g 362 ; Bennett's Benjamin on Sales, ?6I'J; 2 Corbin's Benjamin on Sales, \ *MO ; (.'amp- bell on Sales, 323; Biddle on Chattel Warranties, p. 55, \ 62 ; note to Roberts y. Jenkins, 53 Am. Dec. 173, fully discussing subject. 2 See Coates v. Stevens, 2 Moody & R. 157 ; Kiddell v. Burnard, 9 Mees. & W. 663 ; Holliday v. Morgan, 1 El. & E. 1 ; Roberts v. Jen- kins, 21 N. H. 116 ; 53 Am. Dec. 16J ; Schurtz v. Kleinmeyer, 36 Iowa, 392 ; Kenuer v. Harding, 85 111. 264 ; 28 Am. Rep. 615, 617. 3 See Kiddell v. Burnard, 9 Mees. & W. 608. 4 As held in Bolden v. Brogden, 2 Moody & R. 113. Time of ex- istence of defects : See note to Roberts v. Jenkins, 53 Am. Dec. 175 ; Finley v. Quirk, 9 Minn. 194 ; 86 Am. Dec. 93. 5 2 Schouler on Personal Property, 339 ; citing, Roberts v. Jen- kins, 21 N H. 116 ; 53 Am. Dec. 169 ; Brown v. Bigelow, 10 AJlen, 242. Defects constituting unsoundness : See Hanover on Horses, pp. 57, 69 ; Oliphant's Law of Horses (ed. 1882), p. 70, et seq. pp. 457, 461, Appx. ; Thompson's Law of the Farm, 133 ; Bennett's Benjamin on Sales, { 620 ; 2 Corbin's Benjamin on Sales, 941 ; 2 Schouler on Personal Property, 9 341, p. 338, n. 2 ; 1 Chitty on Contracts (llth Am. ed.), 655, n. r ; Biddle on Chattel Warranties, n. 55, 63, and p. 57, 64 ; note to 6 Morse v. Pitman, 4 Atl. Rep. (N. H.) 880. Effect of receipt guaranteeing a pair of horses to be perfectly sound and without blemish, but stating that one of them now has a cold or little dis- temper : Fletcher v. Young, 69 Ga. 691. 7 S^e \Vason v. Rowe, 16 Vt. 525 ; Chapman v. Gwyther, Law R. 1 Q. B. 404 ; Bywater v. Richardson, 1 Ad. & E. 508. 8 See Budd v. Fairmaner, 8 Bing. 48 ; Richardson v. Brown , 1 BIng. 344 ; Willard ?. Stevens, 2 1 N. H. 271. Basis of paragraph : 2 Schculer on Personal Property, \ 339. 9 Kingsley v. Johnson, 49 Conn. 462. 10 2 Schouler on Personal Property, 340 ; citing, Walker v. Hois- ington,43 Vt. 608, and other cases next noted. Warranty not pro- tecting against consequences of animals' pregnancy : See Whitney v. Taylor, 54 Barb. 5T.6 ; Brown v. Bigelow, 10 Allen, 242. Warranty that horse" well broke" : Bodurthav. Phelon,2 Allen, 347. Inference of warranty without express phraseology: See Cook v. Mosely, 13 Wend. 277. Fitness for use in harness : Smith r. Justice, 13 Wis. 600. And see Bodurtha v. Phelon, 2 Allen, 347. Defects open or latent, etc.: 2 Rchouler on Personal Property, # 341 ; citing, Brown r. P.ig"- low, 10 Allen, 242; Liddard v. Kain, 2 Bing. 183 ; Margetson v. Wright, 7 Bing. 603 ; 8 Bing. 4M ; Chadsey v. Greene, 24 Conn. 5G2 ; Mulvany v. Rosenberger, 18 Pa. St. 203. I 322. Qualified or conditional warranty. In general. A statement which can be construed as constituting a warranty, may be found to amount to no more than a conditional or qualified warranty j 1 as where there are modifying expressions in regard to the soundness of \ 322 WARRANTY IN GENERAL. 472 animals ; 2 and in general, effect must be given to all restrictions and limitations to which any express war- ranty is clearly subjected. 3 Rules of sale and limitations of continuance. Thus an absolute warranty may prove to be modiried by general rules, which the seller promulgates as applied to all ,ales of this description, and which are duly brought to the buyer's knowledge before the bargain is struck ; 4 and a seller who expressly warrants for a limited period alone, as against all defects for a certain space of time, or provided notice be given of a defect without a speci- fied number of days, is liable only for faults discov- ered and pointed out by the buyer within the stated period. 5 Test and trial of article. It would seem to be the doctrine of the authorities that if, accompanying a sale, there is a warranty that the article, if set up in a certain manner and location, and operated in a certain way, will prove satisfactory, as that exhaust fans for a black- smith shop would exhaust the smoke and gases in a satisfactory manner, such warranty is conditional upon the test and trial agreed to be made, and the purchaser must make his determination in regard to the fulfill- ment of the warran'y, not upon mere investigation, but only after test and trial based upon setting up and operating the article in the mode agreed. 6 1 2 Schonler on Personal Property, ? 330. And see Bennett's Ben- jamin on Sales, 615. Proof of a conditional warranty will not sup- port an allegation of an absolute warranty: Deming v. Foster, 42 N. H. 185. 2 Sf>e Smith ?'. Borst, 63 Barb. 57 (directions to cure defect) ; Wood v. Smith, 5 Moody & R. 124 (refusal to positively warrant). 3 2 Schouler on Personal Property, \ 330. 4 See By water v. Richardson, 1 Ad. & E. 508. 5 See By water ?. Richardson, 1 Ad. & E. 508 ; Chapman v. Owyther, Law R. 1 Q. B. 463 ; Story on Sales, \ 363. Basis of para- graph : 2 Schouler on Personal Property, 330. Like effect : Camp- bell on Sales, 320 ; Biddle on Chattel Warranties, g 75. Notice of defects : See next section on that subject. 473 WARRANTY IN GENERAL. 323 6 Exhaust Ventilator Co. v. Chicago etc. Ry. Co. 28 N. W. Rep. (W is.) 343; 22 The Reporter, 381 ; reviewing Manny v. Glonclenning, 15 \Vis. 50 ; Manuf. Co. v. Brush, 43 Vt. 528 ; Daggett v. Johnson, 49 V t 345. \ 323. Notice of defects. Keeping machinery without. Where a warranty in a written and printed order on a sale of machinery contains a condition that written notice of any failure on the part of the machinery to fill the warranty should be given within the first ten days of its use, and that continued use or possession thereof after the expiration of the ten days should be conclusive evidence of the fulfillment of the warranty to the satis- faction of the buyer, there is no breach thereof, of which the purchaser can take advantage, when it appears that the machinery had been used for two months, and that no written notice had ever been given, although the machinery failed to work satisfactorily on the very first day of use. 1 Not given ivithin stipulated time. But the omission of the purchaser of an engine and belt designed to run a threshing-machine, who relies as a defense to a price note upon the failure of the engine to fulfill the terms of a warranty, to give written notice of the failure to do its work properly within the time specified in the con- tract of purchase, is not conclusive that the engine per- formed properly; 2 nor will it prevent such defense, where it appears that the delay was occasioned by the desire and efforts of the seller to remedy the defects, that written notice was given within a reasonable time, and that there was ample justification for a finding of waiver by the seller of his right to insist upon such notice within the stipulated time. 3 Waiver, etc. And it has been held that the seller might waive the written notice where there was a con- dition in a warranty of an agricultural machine, sold in Minnesota, that written notice stating wherein the 323 WARRANTY IN GENERAL. 474 machine failed to satisfy the warranty was to be im- mediately given by the purchaser to the seller at a place in Michigan, and reasonable time allowed to get to it and remedy the defect, unless it was of such a nature that the seller could advise by letter. 4 1 Brown v. Russell. 105 Ind 46, 54 ; 4 N. E. Rep. 428. 2 Nat. Bank . Dunn, 106 Ind. 110, 118, 119; citing, McCormick etc. Co. v. Gray, 100 Ind. 285 ; and distinguishing Brown v Russell, 105 Ind. 46. 4 Nichols v. Root, 29 N. W. Rep. (Minn.) 160 ; following Nichols v. Knowles, 31 Minn. 489 ; 18 N. W. Rep. 413. In such a case, it was further held, the purchaser might give the notice by properly mail- ing it, and through an agent writing in his behalf, a'though such agent was for other purposes agent for the seller : Nichols v. Root. 29 N. W. Rep. 160. 475 WARRANTY OF TITLE. g 324 CHAPTER WARRANTY O^\TlTLE. 2 324. In general. 1 325. Transfer of interest, \ 326. Transfer of incorporeal pen g 327. General doctrines. 2 328. Seller's possession. 2 329. Breach by dispossession, etc. 2 330. Existence and removal of encumbrances. \ 324. In general. Derived from seller's language, conduct, etc. The courts are quite ready to construe, as constituting an express warranty, language, acts, and conduct of the seller, amounting to an affirmation of anything concerning the specific subject-matter of the sale, which might reasonably be the basis of a war- ranty upon the assumption that they were relied upon by the buyer, and were so designed ; l and this principle has been thought quite broad enough to include many of the cases which might involve the question whether there was a warranty of title or not. 2 On executory sale. It is also well settled that in an executory agreement for a sale of personal property, 3 the vendor warrants, by implication, his title to the goods which he promises to sell, 4 since the contract would not be fulfilled by the transfer of the possession of another's goods, instead of a transfer of the title to goods which he could enjoy and use as his own. 5 Effect of fraud. So where the seller knows that the chattels which he offers for sale do not belong to him, and conceals his want of title from the buyer, the latter is not liable for the price of goods whose transfer was infected with fraud. 6 Implied warranty. But where there is no express t^ 324 WARRANTY OF TITLE. 476 warranty, and in the absence of fraud, the maxim caveat emptor 1 was originally deemed applicable to present sales of personal property ; 8 though in England, it has been declared that the exceptions " well nigh eat up the rule"; 9 and in this country it is the settled law that the vendor of personal property in his posses- sion warrants his title to the same by implication. 10 Transfer of interest. In both countries, however there is no implied warranty of title upon a transfer merely of the interest in a chattel held by the party selling or directing the sale ; n though the bargain and sale of a specific chattel, where nothing further remains to be done according to the intent of the parties to pass the title, undoubtedly transfers all the property the vendor has. 12 Rebutting presumption. And whether the sale be by written bill of sale or oral transfer, the implied war- ranty of title may be rebutted by parol, and the vendor may thus overcome the legal presumption by proof that he did not warrant the title. 13 1 See citations in next note. Express and implied warranty: See 2 316, on KIXDS OF WARRANTY. 2 Schouler on Personal Property, \ 371 ; citing, Burgess ?'. Wil- kinson, 13 K. I. 6-46 ; Adamson v. Jarvis, 4 Bing. 66 ; 1 Schouler on Personal Property, \\ 330, 331. So it is said to be universally conceded that an affirmation by the vendor of an ascertained specific chattel, that the, chattel is his, which is equivalent to warranty of title, may be implied from the conduct of the seller, as well as from his words, and may also result from the nature and circumstances of the sale : Bennett's Benjamin on Sales, 627. See Eichholz v. Bannister, 17 Com B. N. S. 70S ; Bagueley v. Hawley, Law R. 2 Com. P. 625 ; Sims v. Marryat, 17 Q. B. 281 ; Brown v. Cockburn, 37 Up. Can. Q. B. 592 ; note - to Scott v. Ilix, 62 Am. Dec. 461. And compare 2 Blackst. Com. 451. 3 See generally chapter on EXECUTORY SALES. 4 See Brown v. Cockburn, 37 Up. Can. Q. B. 592. 5 See Morley v. Attenborough, 3 Ex. 500 ; Bennett's Benjamin on Sales \l 627, 6>0 And in the case of such an executory sale, the pur- chaser has the right to refuse to accept the chattel under a defective title not made clear bv the seller, and to recover any portion of the purchase money which he may have advanced, or to escape liability for payment of the unpaid price if the chattel be recovered from him : S-e Morley v Attenborough, 3 Ex. f>00, 509 ; Story on S^les, $ 367 b ; 2 Schouler on Personal Property, g 36i) ; Brown v'. Cockburn, 37 Up. Can. Q. B. 592, 477 WARRANTY OP TITLE. \ 325 6 See Sweetman ?>. Prince, 62 Barb. 256, 257 ; Morley v. Attenbor- ough, 3 Ex. 500 ; Bennett's Benjamin on Sales, ? 627, n. i, and \ (i20 ; Story on Sales, \ 367 b ; 2 Schouler on Personal Property, ? 370. 7 See Fawcett v. Osborn 32 111. 411 ; 83 Am. Dec. 278, 282 ; Long v. Hickingbottom, 28 Miss. 772; 64 Am. Dec. 118, liy; 2 Kent Com. 608, 60J. 8 See Morley v. Attenborough, 3 Ex. 500 ; Noy's Maxims, ch. 42; Co. Lict. 102 a ; note to Scott v. Hix, 62 Am. Dec. 460. But compare, contra, 2 Blackst. Com. 451. 9 Sims v. Marryat, 17 Q. B. 281 , 290. And consult Eichholz v. Ban- nister, 17 Com. B. IS T . S. 708; Brown v. Coekburn, E7 Up. Can. Q. B. 592, very fully reviewing English authorities ; note to Scott v. Hix, 62 Am. Dec. 461, 462. 10 See Johnson v. Powers, 65 Cal. 179 ; Baker t>. McAllister, 3 Pac. Rep. (Wash. T.) 5J1 ; Byrnside v. Burdett, 15 W. Vu. 702 ; Whitney v. Heywood, 6 Cush. 82 ; Shattuck v. Green, 104 Mass. 4"> ; People's Bank v. Kurtz, U9 Pa. St. 344 ; 44 Am. Bep. 112 : note to Scott v. Hix, 62 Am. Dec. 463; note to Reynolds v. Palmer, 21 Fed. Rep. 457. Consult also, Somers v. O'Donohue, 9 Up. Can. C. P. 210. So on an exchange Of chattels : See Hunt v. Sackett, 31 Mich. 18 ; Patee r. Pel ton, 48 Vt. 182 Byrnside v. Burdett, 15 W. Va. 702 ; note to Scott v. Hix, 62 Am. Dec. 467, so citing these cases, and referring, also, to Gaylor ?>. Copes, 16 Fed. Rep. (La.) 4'J (payment in chattels). And consult Sargent v. Currier, 49 N. H. 310, 311 ; 6 Am. Rep. 524. 11 See Chapman v. Speller, 14 Q. B. 621 ; 19 Law J. Q. B. 241 ; Hoc v. San born 21 N. Y. 556 ; 78 Am Dec. 163; First Nat. Bank v. Mass, etc. Co. 123 Mass. 330 ; Biddle oa Chattel Warranties, \\ 258-262 ; note to Scott v. Hix. 62 Am. Dec. 466. 12 Morley v Attenborough, 3 Ex. 500. 13 Johnson v Powers, 65 Cal. 179 ; citing, Miller v. Van Tassel, 24 Cal 458 And consult note to Scott v. Hix 62 Am. Dec. 466. I 325. Transfer of interest, etc. In general. A war- ranty of title will not be implied where it is expressly negatived, or where the circumstances clearly show that there was no warranty intended or understood. 1 Thus one may bargain merely for the seller's quit claim of tille, 2 as where one buys goods knowing that they are claimed by a third party, 3 and meaning to take the risk ; 4 and generally where the facts are equally well known to both parties, and the sale is made under circumstances indicating that the vendor int3nds to transfer only his interest. 5 Official sales. Upon this ground or that of the official character of such sales, 6 it is held that there is no war- ranty of title implied in the case of judicial sales or others made in a fiduciary or representative capacity, 326 WARRANTY OF TITLE. 478 as in the instances of sales made by sheriffs and other officers of the law, or by executors, administrators, or other trustees. 7 Sales of pledged or mortgaged chattels. And the same rule applies to the sale by the pledgee or mortgagee of a chattel of the property which he holds as security for his debt. 8 1 See Story on Sales, \ 367 a ; 2 Schouler on Personal Property, 2372. 2 See Morley v. Attenborough, 3 Ex. 500. 3 See Bogart i. Chrystie, 24 X. J. L. 57, 60. 4 2 Schouler on Personal Property, \ 372, suggesting that to this general principle should perhaps be assigned numerous cases which are differently distinguished by the courts, and referring to Page r. Cowasjee Eduljee, Law R. 1 P. C. 127, and Baguely v. Hawley, Law R. 2 Com. P 625. 5 Hopkins v. Grinnell,28 Barb. 5-"3 ; as cited in note to Scott v. Hix, 62 Am Dee. 4Gfi ; referring Klso, to Jones -. If ungerford, 3 Met. 515; and First Nat. Bank v. Maps. etc. Co. 123 Mass, srx); and to con- trary view in Dresser v. Alnsworth, 9 Barb. 620. S"e, also, Krumb- haar v. Birch, 8T Pa. St. 42G, 427, 423 ; Brown v. Cockburn, 37 L'p. Can Q. B. 591, 603, 604, 606. 6 See Hoe v Sanborn, 21 X. Y. 552, 556 ; 78 Am. Dec. 163. 7 See Chapman v. Speller, 1 1 Q. B. 621 ; Blood v. French, Gray, 197 ; Bartholomew?-. Warner '.'.1 Conn. J8 ; Scranton ?. Clark, 39 N. Y. 220 ; Baker v. Arnot,67 N. Y. 448 ; Fore v. McKenzie, 58 Ala. 115 ; Har- rison v. Shanks, 13 Bush, 6 JO ; Henslewv. Baker, 10 Mo. 157 ; Stephens v Ells, 65 Mo. 456 ; Mechanics' Assoc. ?. O'Conner, 29 Ohio St. 651 ; Brigham ?. Maxey, 15 111. 2;,5 : 2 Schouler on Personal Property, \ 372, so citing these cases ; Storv on Sales, \ 367 a : 2 Corbin's Benjamin on Sales, \ 961, n. 20; citing, also, Mockbee v. Gardner, 2 Har. & G. 176; Storm v. Smith, 4, Miss. 4' 7 ; Hicks v. Skinner, 71 N. C. 539; Corwin v. Benham 2 Ohio St. ?6 ; Brunner . Br^nntin, 40 Ind. 98 ; Neal v. Gil- laspy,56 Ind. 451 ; The Mont Allegre.9 Wheat. 6'6 ; Blddle on Chattel Warranties, \\ 261, 2P2 ; quoting, Hoe v. Snnborn, 21 N. Y. 552, 556; 78 Am. Dec. 163. Consult, also, note to Scott ?'. Hix, 62 Am Dec. 466. 8 See Morley v. Attenborough, 3 Ex. 500; Sh^pp^rd ?>. Earles, 13 Hun, 651, 653 ; nbfe to Scott ?-. Hix, 62 Am. Dec. 4*56 ; Sims ?'. Marryat, 17 Q. B. 281, 290 ; Brown v. Cockburn, 37 Up. Can. Q. B. 591, 604. $ 328. Transfer of incorporeal personalty. Warranty of title. The doctrine that the vendor of chattels in possession impliedly warrants the title extends to choses in action, 1 whether negotiable or otherwise, 2 as well as to other descriptions of personal property. 3 Scope and application. And the import of the war- ranty in such a case is said to be that the chose in action 479 WARRANTY OF TITLE. g 327 is genuine, and not spurious, false, or counterfeit. 4 This principle applies to transfers of notes, bonds, stock, warrants, accounts, etc. 5 Patent rights. In the transfer of patent rights it has also been laid down that the seller impliedly makes the same warranty of tUle as if he were disposing of any other species of personal property; 6 though the exact scope of this warranty as covering the existence, or also the validity of the patent, and under various forms and subjects of assignment, seems to be a matter of some uncertainty." 1 Flynn v. Allen, 57 Pa. St. 482 ; as quoted in note to Scott v. Hix, 62 Am. Dec. 4G7. And see People's Bank v. Kurtz, 9!) Pa. St. 344 ; 44 Am. Bep 112 ; Boyd v. Anderson, 1 Over. 438 ; 3 Am. Dec. 762,768 769 ; Woods v. Sheldon, 13 Vroom, 4'Jl ; 36 N. J. L. 521, fully discussing subject ; Porter v. Bright, 82 Pa. St 441, 443. 2 See Boyd v Anderson, 1 Over. 438 ; 3 Am. Dec. 762, 769 ; Wood v. Sheldon, 13 Vroom, 421 ; 3G Am. Rep. 523. 3 People's Bank v. Kurtz, 99 Pa. St. 344 ; 44 Am. Rep. 112, holding that on a sale of stock there is an implied warranty of title and genuineness, but not that the stock is not part of a fraudulent over- issue. Compare State v. North La. etc. R. R. Co. 34 La. An. 947, 953 ; Currie v. White, 6 Abb. Pr. N. S. 352, 376, 377. 4 See Flynn v. Allen, 57 Pa. St. 482 ; note to Scott v. Hicks, 62 Am. Dec. 4(>7 ; Swanzoy v. Parker, 50 Pa. St. 441, 450. Compare Baker v. Arnot, 67 N. Y. 448. 5 See Swanzey v. Parker, 50 Pa. St. 441, 4oO ; Chambers t\ Union Nat. Bank, 78 Pa. St. 205, 209 ; Donaldson v. Newman. 9 Mo. App. 235, 242 ; Porter v. Bright, 82 Pa. St. 441, 443 ; Gilchrist ?>. Billiard, 53 Vt. 592 ; 38 Am. Rep. 706, holding that warranty implied that accounts exist and are due. Consult, also, cases in note before last. 6 Darst v. Brockway, 11 Ohio, 4G2, 471. 7 Compare Smith ?'. Neale, 2 Com. B. N. S. 67, and Hall v. Conder 2 Com. B. N. S. 22, with Pacific Iron Works v. Newhall, 34 Conn. 67, 77, and Croninger v. Paige, 48 Wis. 229, 232, 233. Consult 2 SchouU-r on Personal Property, ? 373 ; Biddle on Chattel Warranties, g? 24 s -2", fully discussing subject, and reviewing, also, Geiger v. Cook, 3 Watts . 2sl, 2 >0 , Eichholz v. Bannister, 17 Com. B. N. S. 708 ; 34 Law J. Com. P. 105 ; Brown v. Cock burn, 37 Up. Can. Q. B. 592, 604. 2 Morloy Vm Attenborough, 3 Ex. 500 ; as stated, Sims v. Marryat, 17 Q. B. "261 : "0 L:iw J. Q. B. 431. And see Chapman r. Speller, 14 Q. B. 6-1 ; lb Law J. Q. B. 241 ; 2 Schouler on Personal Property, 9 37(5 ; \ 325, on TrtAXsyKH OF INTEREST, ETC. ; Hoe v. Sanborn, 21 N. Y. 552, 555 ; 78 Am. Dec. 1G3. 3 Eiphholz v. Bannister, 17 Com. B. N. S. 703 ; 34 Law J. Com. P. 10o ; noted ia Urown v. Cock burn, 37 Up. Can. Q,. B. 532, 604, G05. 4 S^e Morlpy v. Attenborough, 3 Ex. 500 ; Chapman v. Speller, 14 Q. B. 021 ; lia*l v. Conder, 2 Com. B. JN T . S. 22. 5 Eichholz v. Bannister, 17 Com. B. N. S. 70S. See Bennett's Ben- jamin on Sales, ft 3, 6-,6 ; citing, L'Apostre ?'. L'Plaistier, as cited H Kyall v. Bowles, 1 Ves. Sr. 351, and Tudor's Leading Cases in Equity (5th e-1.), 7H3; also reported as Ryall v. Rolle, 1 At:*. 1G5. Consult Brown v. Cbckburn, 37 Up. Can. Q. B. 502, 602. 6 Eichholz v. Bannister, 17 Com. B. N. S. 70S ; S4 Law J. Com. P. 105. See 2 Schouler on Personal Property, ? 77. 7 See Brown v. Cockburn, 37 Up. Can. Q. B. 592, 605 ; note to Reynolds v. Pulmer, 21 Fed. Hep. 45G; note to Scott v. Uix, J ; Biddle on Chattel Warranties, \\ 227-233. But com- pare con?m,Chitty on Contracts (11th od.)t418; Broom's Legal Maxima (5th ed.), 7JJ-801 ; Leuke L>ig. Contr 402 ; 2 Taylor on Evidence, Ua4. 8 Brown v. Cockburn, 37 Up. Can. Q. B. 5!)2, 606. And in another instance, whore evidence of KH express warranty was found suni- cicnt, an inc-Jination was expressed toward the opinion that where a man sells us his own a chattel which is then in his* actual possession, NEWMARK SALES. 41. g 328 WARRANTY OF TITLE. 482 and delivers it to the purchaser, from whom it is taken by the right- ful owner, the vendor is to be treated as impliedJy warranting that he has a right to sell, and is therefore bound to compensate his vendee for the loss: Somers v. O'Donohue, 1) Up. Can. C. L\ 203. But compare Johnston v. Barker, 20 Up. Can. C. P. 223,221, 232; note to Scott v. Hix, 02 Am. Dec. 463. 9 See McKnight v. Devlin, 52 N. Y. 401 ; 11 Am. Rep. 715 ; Hoe ? Sanborn, 21 N. Y. 552, 555; 78Am. Dec. 164 ; distinguishing, Morley r. Attenborongh, 3 Ex. 500 ; Ricks ?-. Dillahanty, 8 1'or*. 137. But con- sult Huntingdon v. Hall, 36 Me. 501 ; 58 Am. Dec. 765, 766. 10 People's Bank 7'. Kurtz, 09 Pa. St. 344 ; -14 Am. Rep. 112. And see note to Scott r. Hix, 62 Am. Dec. 46:} ; note to Reynolds r. Palmer, 21 Fed. Rep. 457 ; also, Johnson v. Powers, 65 Cal. 179 ; Baker i\ Mc- Allister, 3 Pac. Rep. (Wash. T.) 581. 11 People's Bank v. Kurtz, 99 Pa. St. 344; 44 Am. Rep. 112. See Biddle on Chattel Warranties, \\ 236-238 ; note to Reynolds v. Palmer, 31 Fed. Rep. 457. g 328. Seller's possession. As determining feature. The courts of the United States have repeatedly recog- nized a distinction between the transfer of chattels which are in the seller's possession, where there is con- sidered to be an implied warranty of title on the seller's part, and the transfer of chattels which are in the pos- session of another party, where no such warranty is implied, and the vendee buys at his peril. 1 Distinction established. This distinction, which ap- pears to have been repudiated by the later English decisions, 2 is said to be too deeply rooted in our law to be easily eradicated, even if it were shown to be mis- conceived in its origin. 3 Qualification of doctrine. Some of the recent cases, however, tend to establish the doctrine that the sale of personal property implies a warranty of ownership in the seller, unless the circumstances are such as to give rise to a contrary presumption, as is particularly the case where the goods are absolutely in a third person's possession, and neither absolutely nor constructively in the possession of the seller. 4 Constructive possession. But constructive possession through a servant or agent of the vendor, or of a tenant 483 WARRANTY OF TITLE. g 329 in common with him, is sufficient to raise an implied warranty of tLle. 5 Inference of possession. And i: - the absence of evi- dence to the contrary, it may be presumed that the seller had possession at the time of the sale, as well as that the sale was for a fair price. 6 nolds v. Palmer, 21 Fed. Rep. 457 ; note to Scott v. Hix, 62 Am. Dec. 433 ; Johnson v. Powers, 65 Cal. 179 ; Baker v. McAllister, 8 Pac. Rep. (Wash. T.) 531. Compare Huntingdon v. Hall, 36 Me. 501 ; 5.8 Am. Dec. 705,763; Long v. Hickingbottom, 28 Miss. 772; 64 Am. Dec. 118, IK); note to S-ott v. Hix, 62 Am. Dec. 4t>3, 464. Like view favored in Canada: See Somers v. O'Doaohue, 9 Up. Can. C. P. 210. 2 See Pasley v. Freeman, 3 Term Rep. 58 ; Morley v. Attenbor- ough, 3 Ex. 5;;0; EIohho:z ?>. Bannister, 17 Com. B. IS T . S. 7(H ; Ben- nett's Benjamin o-i S:iU>s, 6'1 ; Byrnsicle v Burdett, 15 W. Va. 702. And consult note to Scott v. Hix, 62 Am. Dec. 465. 3 See Byrnside ?'. Burdett, 15 W. Va. 702 ; Story on Sales, 367, n. on p. 4-Jfi ; 2 Kent Com. 478; Biddle on Chattel Warranties, 242;<2 Schouler on Personal Property, 378. 4 See Gross v. Kierski, 41 Cal. ill, 114; Shattuck v. Green, 104 Mass. 42, 44 ; Sherman v. Champlain Transp. Co. 31 Vt. 1(52, 175 ; 2 Schouler on Personal Property, 2 378 ; Whitney v. Heywood, 6 Cush. 82, 56. 5 See Huntingdon v. Hall 36 Me. 501 ; 58 Am. Dec. 765, 766 ; Shat- tuck v. Green, 104 Mass. 42, 45. 6 See Long v. Hiekingbottom, 28 Miss. 772 ; 64 Am. Dec. 118, 120 ; note to Scott v. Hix, 62 Am. Dec. 465. \ 329. Breach by dispossession, etc. Need of eviction, or disturbance of possession. It seems to be the rule in many of the States that in the absence of fraud on the part of the seller, a purchaser of personal property can- not defeat an action for the price, by showing that the property is owned by another, unless he has been ousted, or there has been a recovery by the true owner ; l and that there is no breach of the implied warranty of title, such as would, for instance, initiate the running of the statute of limitations, until the vendee is dis- turbed in his possession of the chattels. 2 Deprivation of possession unnecessary. But in some of the States it seems to be held,, that if a chattel be sold 329 WARRANTY OF TITLE. 484 to which the vendor has no title, the implied warranty of title is broken at the time of sale, and that the pur- chaser may immediately maintain his action for dam- ages, whether he has been deprived of the possession of the chattel or not. 3 Express and implied warranty of title. And it is said to be the settled rule in Kentucky, making a distinction between an express warranty of title to chattels and the warranty of title implied by law, 4 that in case of the former there is a breach of the warranty, and the stat- ute of limitations commences to run from the time when the vendee is disturbed in his possession, while in case of implied warranty the statute is set in motion instantly upon the sale and delivery of the goods. 5 Surrender of property, etc. In Missouri, it is held that a purchaser of personal property is not required to wait for an actual deprivation by the true owner, but may surrender the property voluntarily, though he must then be able to show conclusively that his sur- render was to the true owner. 6 1 Soe Sweetman v. Pririco, 62 Barb. 256, 257; nnd consult Case ?>. Hall, 24 \Venrt. Hfi ; 35 Am. Dec. 605; as quoted, 22 Am. Law Keg. N. S. % ; or Riddle on Chattel Warranties, \ 2!>5, which also refers to Vibhard r. Johnson, 19 Johns. 77. Compare, also, Krumbhuar r. Birch, 83 Pa. St. 428, with Flynn v. Allen, 57 Pa. St. 485. 2 See Gross v. Kierski, 41 Cal. 111. And consult Linn v. Porter, 31 111. 107. 3 See Perkins v. Whelan, 116 Mass. 542; Grose v. Hennessy, 13 Allen, 389. Compare Gay v. Kiugsley, 11 Allen, 345 ; Word i>. Cavin, 1 Head, 507. 4 See Gross v. Kierski, 41 Cal. Ill ; 22 Am. Law Reg. N. S. 96 ; or Biddle on Chattel Warranties, \ 296. 5 S<>e Payne r. Hodden, 4 Bibb, 304; 7 Am. Dec. 739; Scott v. Scott, 2 Marsh. A. K. 217 ; Tiptart v. Triplett, 1 Met. 570 ; Chancellor v. Wiggins, 4 Mon. B. 202 ; 3D Am. Dec. 499. 6 Drvden v. Kellogg, 2 Mo. App. 92. And see Matheny v. Mason, 73 Mo. 677, fiss ; 3 ) Am. Hep. 541, 545, and cases cited ; also McGiffen v. Baird, 62 N. Y. 3!!). Compare, generally, Estelle v. Peacock, 48 Mich. 40 1. Condemnation of liquor for violation of revenue law : Compare McKnight ?'. Devlin, 52 N. Y. 300,11 Am. Rep. 715, with Palmer v. Hatch, 4fi Mo. 585. On subject of section, consult further following souses of foregoing matter : 2 Schoulor on Personal Property, 378, p. o78 ; Bennett's Benjamin on Sales. \ 627, n. i ; 2 Corbin's Benjamin 485 WARRANTY OF TITLE. 330 on Sales, ? 948, n. 18 ; Story on Sales, 367 6 ; 22 Am. Law Reg. N. S. 96-98 ; Biddle on Chattel Warranties, gg 294-302 ; Gross v. Kierski, 41 Cal. Ill ; Matheny v. Mason, 73 Mo. 677 ; 39 Am. Rep. 541. Proof of breach where no eviction : Plummer v. Newdigate, 2 Duval, 1 ; 87 Am. Dec. 479. And compare Bergen v. Riggs, 34 111. 170 ; 85 Am. Dec. 330, Existence and removal of encumbrances. War- ranty extends to encumbrances. The warranty of title which arises under the settled law of this country, on the sale of property in the possession of the vendor, 1 extends to encumbrances. 2 Refusal to retain goods. And it has been held that where a sale is made with warranty of title, of property upon which there was at the time a lien of any kind, not known to the vendee, by reason whereof the property is taken and kept from the vendee, without any negli- gence or fault on his part, such taking will of itself, at the option of the vendee, work a rescission of the contract of sale, and be a good defense to an action for the purchase price, 3 even after the goods have been delivered, upon tendering them back to the vendor.* Paying off encumbrances. The buyer may, however, pay off encumbrances on property sold him, and bring suit for damages for breach of the warranty of title, or set up the amount paid in reduction of the price on a suit for the purchase money, 5 though the right of action will not accrue until the money is paid. 6 Express warranty. The liability of the seller is even more definitely fixed where there is an express war- ranty of title against encumbrances. 7 And there may be redress for breach of warranty in paying off an en- cumbrance without actual eviction, where there was a sale to a stranger, under foreclosure, of store-fixtures originally disposed of with a covenant to " warrant and defend the sale," etc., and agreement on the part of the seller to satisfy a chattel mortgage. 8 330 WARRANTY OF TITLE. 486 1 See Baker v. McAllister, 3 Pac. Rep. (Wash. Tj 581 ; referring to following cases: Brown v. Pierce, 97 Mass. 46; Williamson v. Sam- kuoiis, 34 Ala. 691 ; Word v. Cavin, 1 Head, 50G ; Linton v. Porter, 31 11. 107 ; Fawcett v. Osborn, 32 111. 411 ; 83 Am. Dec. 278 ; Boyd v Whitfield, 19 Ark. 447 ; Chism v. Woods, Hardni,541 ; 3 Am. Dec. 740 ; Heermance v. Vernoy, 6 Johns. 5 ; Swett v. Colgate, 20 Johns. 196 ; 11 Am. Dec. 266 ; McCoy r. Artcher, 3 Barb. 323 ; Doe ?'. Stanion, 1 Mees. & W. 701 ; Vibbard v. Johnson, 19 Johns. 78 ; Coolidge r. Brigham, 1 Met. 551 ; Willing v. Peters, 12 Serg. & R. 181 ; Dean ?-. Mason, 4 Conn. 428 ; 10 Am. Dec. 162; Tipton v. Triplett, 1 Met. (Ky.) 570; Bayse v. Briscoe, 13 Mon. B. 474. 2 Baker v. McAllister, 3 Pacif. Rep. 581. 3 See Defreese v. Trumper, 1 Johns. 274 ; 3 Am. Dec. 329 ; Dresser v. Ainsworth, 9 Barb. 619 ; Blusrlale r. Babcock, 1 Johns. 518 ; Read v. Staton, 3 Hayw. (N. C.) 159 ; & Am. Dec. 740. 4 Baker v. McAllister, o Pacif. Rep. 581. 5 See Sargent v. Currier, 40 N. H. 310 ; 6 Am. Rep. 524 ; Harper ?'. Dotson, 43 Iowa, 232 ; Lane v. Romer, 2 Chand. 61 ; Baker v. McAllis- ter, 3 Pacif. Rep. 581. 6 See Burt v. Dewey, 40 N Y. 283 ; Sargent v. Currier, 49 N. II. 310 ; 6 Am. Rep. 524 ; 2 Corbin's Benjamin on Sales, 2 948, 11. 18. 7 Atkins v. Hosley ; 3 Thomp. & C. 322 ; Hahn ?>. Doolittle, 13 Wis. 196 ; 2 Schouler or Personal Property, \ 378, p. 378, n. 1 ; referring, also, to Michel r. Ware, 3 Neb. 22!) ; Burgess v. Wilkinson, 13 R. I. 646. But words in a written contract importing a quit claim cannot be construed into a warranty of title : See First Nat. Bank v. Loan & Trust Co. 123 Mass. 330 ; Johnston Harvester Co. v. Bartley 81 Ind. 406. 8 Cahill v. Smith, 4 N. E. Rep. (N. Y.) 739 ; affirming, ,11 Hun, mem.; referring to Bordwell v. Colie, 45 N. Y. 494; McGiffia v. Baird, 62 N. Y. 329. 487 WARRANTY OF QUALITY. g 331 CHAPTER XXIV. WARRANTY OF QUALITY. g 331. Caveat emptor. 3-2. Opportunity for Inspection. g 333. Implied warranty of quality. 331. Caveat emptor. English doctrine. In England, the decisions enunciate or favor the general principle that the seller is not liable for defects of any kind in the thing sold, so that there is no implied warranty of the quality of a known, ascertained article, unless there is an express warranty or fraud. 1 Sound price. And in this country there is in most of the States a repudiation of the doctrine of the civil law, 2 which was at one time recognized and adopted in at least two of the States, 8 that a sale for a sound price implies a warranty of the thing sold. 4 Application of maxim. But it is laid down that the rule of the common law is well established, 5 that upon a rale of goods, if there is no express warranty of the goods, and no actual fraud, the maxim caveat emptor applies and the goods are at the risk of the buyer ; 6 and iL is declared that the doctrine of caveat emptor is of such universal acceptance in this country that it is sanctioned, with one exception, 7 by the courts of all the States in the Union where the common law prevails. 8 Latent defects. Even where there are latent defects in the chattel sold, such as fatal diseases in animals, yet in the absence of fraud on the part of the seller, and special knowledge beyond that of the buyer, the con- sequences must fall upon the buyer, if ho has not pro- tected himself by an express warranty. 9 But the doctrine of caveat emptor does not apply, although the article 331 WARRANTY OF QUALITY, 488 was inspected before purchase, and it is not shown that the sellers manufactured it, if it was sold for a specific use, and the defect was latent and known to the sellers and concealed by them from the buyers at the time the sale was made. 10 Extent of exceptions. And so many exceptions to the common-law rule of caveat emptor have arisen and become recognized, that the tendency of the decisions is toward the opposite doctrine of the Homan law, that of caveat venditor, and the present law seems to occupy a ground between those embodied in these conflicting maxims. 11 1 See Hall v. Condor, 2 Com. B. N. S. 40 ; Harvey v. Young, Yel. 21 ; Parkinson v. Leo, 2 East, 3_'0 ; us cit^d, Warren Glass Works Co. i'. Keystone Coal Co. 65 Md. 547 ; 5 Atl. Hop. 2.A Consult, also, Campbell on Sales, 321 ; 2 Sohouler on Personal Propertv, ? 4 > ; citing, Hopkins v. Tanqueray, 15 Com. B. LJO ; Jones v. Just, Law R. 3 Q. B. 2 See Seixas v. Woods, 2 Caines. 48 ; Hart v. Wright, 17 Wend. 269. 3 See Bailey r. Nickolls, 2 Root, 407 ; 1 Am. Dec. 83 ; Whitefield v. M?Leod, 2 Bay, 3SO ; 1 Am. Dec. 600. Still prevails in South Carolina : See Thomas v. Sexton, 15 S. C. 93. 4 Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547 ; 5 Atl. Hop. 253. And s^e 2 Schouler on Personal Property, \ :;:">; ci-ing, Story on Sales, \ 370 ; Mixer v. Cohurn, H Met. 65.) ; 45 Am. 1) >e. 2-0; Maso-i r. Cliappcll, 15 Gratt. 57 1 ; Weimar v. Clement, o7 Pa. St. 147 ; 78 Am. D^c. 41 1. But see Pease v. Sabin, 38 Vt. 432. 5 See Lukens v. Freiund, 27 Kan. 604 ; 41 Am. Rep. 420, 430 ; Getty v. Rouatree, 2 Pinn. 37J ; 2 Chund. 28 ; 54 Am. Dec. Kx*, 1*0. 6 M ixer v. Coburn, 11 Met. 561 ; 45 Am. Dec. 2"0. And see Ryan v. TJlmer, 103 Pa. St. 3.JJ ; 56 Am. R :-p. 210, 2i3 ; Maxwell v. Lee, 27 N. W. Hop. (Minn.) 1%; 21 The Reporter, 727. At least in the case of a specific ascertained chattel already inspected : 2 Schouler on Per- sonal Property, \ o4G ; referring to Bennett's Benjamin on Sales, \ 041 ; Dem In? v. Foster, 42 X. H. 105 ; Mixer v. Coburn, 11 Met. 559 ; 45 Am. Doc. 2..0 ; Pacific Iron Works v. Newhall, 34 Conn. 67 ; Frazier v. Harvey, 34 Conn. 4GJ ; Moses v. Mead, 1 Denio, 378 ; 43 Am. Dec. 670 ; Woleott v. Mount, 3(i N. J. L. 2C2 ; 13 Am. R~p. 4-?3 ; S. C. 3S N. J. L. 4%; 20 Am. Rep. 4; 41 Am. Rep. 429, 430; Getty v. Rountree, 2 Pian. 379; 2 Chanel. 28 ; 54 Am. Dec. 138, 141. And see Howard v. Jloey, 23 Wend. 350; 35 Am. Dec. 572,574, n. 5;;5; quoting, Harmons v. Stone, 5 ]N T . Y. 83. Consult, also, discussion in Hoe v. Sanborn, 21 N. Y. 552 ; 78 Am. Dec. 103, 1C8, 171, 172. I 332. Opportunity for inspection, Want of, etc. The maxim caveat emptor does not apply where there is no opportunity to inspect the commodity, 1 or perhaps where from the nature of the article, or the peculiar character of the business in which it is sold, and the reliance that must be placed on the dealer as an expert, as on a sale of drugs by a druggist, it is shown that an examina- tion would not be of any avail to the purchaser. 2 Specific existing goods. But as to specific existing goods capable of inspection, the buyer has the oppor- tunity of exercising his judgment upon the matter, and if the result of the inspection is unsatisfactory, or if the buyer distrusts his own judgment, he may, if he chooses, require a warranty ; 3 and there is no implied warranty of quality as to such goods, whose actual condition ia equally open to the inspection of either party. 4 g 333 WARRANTY OF QUALITY. 490 Poisonous fodder for cattle. Where without the sell- er's negligence, copper clasps fell into a sack of bran which had been bought for feeding cows, and were swallowed by one of the cows and poisoned and killed her, it was held that the case did not come within any of the exceptions to the rule of caveat cmp'or as to fitnecs for special purpose, wholesomeness of food, etc., and that the seller was not liable. 5 Conformity of goods to order. But where a party at Mobile, Alabama, ordered from another at Council Eluffs, Iowa, through the agent of the latter at Mobile, "choice sugar-cured canvassed hams," and the buyer had no opportunity to inspect them, but they were shipped at Council Bluffs, and payment demanded and made while they were in. transit, it was held that the hams were warranted to conform to the order, and that the seller was liable if they did not. 6 1 Gardiner v. Gray, 4 Camp. 144 ; as quoted, Bennett's Benjamin on Sales, 6.33. And see 2 Sehoulor on Personal Property, ".7 ; r forrirg to Bea!s v. Olmstcud.'Jl Vt. 114; iS Am. Doc. 150; Lord r. Grow, 8.) Pa. St. 8 J ; 80 Am. Doc. 504 ; Pease v, Sabin, 38 Vt. 432. Con- sult, also, Story on Sales, g 363. 2 Jones v. George, 50 Tex. 143 ; 42 Am. Rep. 689, 690. 3 Jones v. Just, Law R. 3 Q. B. 197. 4 2 Schouler on Personal Property, ? 347 ; citing, Turner v. Muck- low, S Jur. N. S. 870 ; explained in Jones v. Just, Law II. 3 Q. B. li/7 ; B-rr v. Gibson, 3 Mees. & W. 3'^0 ; stated and quoted, Bennett's Benja- min on Sales, l\ 6-56, G!7 ; Frazivr r. Harvey, 34 Conn. 46.); Rocchi v, S -liwabacher, 33 La. An. 1364 ; Slaughter v. Gerson, 13 Wall. 379. Cor.- S'.ilt, also, 2 Corbiu's Benjamin on Sales, 1)66, n. 23 ; considering, Carson v. BaiUie, 10 Pa. St. 375, 330 ; 57 Am. Dec. 65!) ; Lord v. Grow, 39 Pa. St. 388 ; 80 Am. Dec. 504 ; Byrne v. Janson, f.O Cal. 624 ; Hunger v. Evans, 38 Ark. 334, 340. And compare Brantley v, Thomas, 22 Tex, 270 ; 73 Am. Dec. 264, 266. 5 Lukens?\ Froinnd,27 Kan. 664; 41 Am. Rep. 429. But compare French v. Vining, 102 Mass. li! ; 3 Am. Hep. 440. 6 Forcheimer v. Stowart, fi5 Iowa, 504 ; 54 Am. Rep. 30, 35. And consult Brantley v. Thomas, 22 Tex. 270 ; 73 Am. Dec. 264, 266. 333. Implied warranty of quality. In general. There are various recognized cases, at least originally regarded as exceptional, where a warranty of quality is implied in sales of personal properly. 1 491 "WARRANTY OF QUALITY. \ 3?3 On sales by sample. Thus in the case of sales by sample, 2 there is an implied warranty that the bulk shall correspond with the sample. 3 On sale by description. So on a sale of an article by a particular designation or description, there is an implied warranty or undertaking, 4 whose scope is not always definitely determined, of correspondence with such designation or description. 5 Of fitness for intended purpose. And in the case of an unascertained chattel, or where a chattel is to be made or supplied to the purchaser's order, there is an implied warranty that it is reasonably fit for the purpose for which it is ordinarily used, or that it is fit for the special purpose intended by the buyer, if that purpose be communicated to the vendor when the order is given. 6 Of merchantable character of goods. Furthermore, in the case of goods not inspected by the buyer, and particularly where the sale is by description, there is generally considered to be an implied warranty or undertaking that they are of a merchantable character. 7 Wholesomeness of provisions. So the law is frequently expressed to be that on a sale of provisions for domestic use, there is an implied warranty that they are sound and wholesome. 8 Supplying exact thing ordered. But the law is declared to be well settled that when a known, described, and de- fined article is ordered, even of a manufacturer, al- though it is stated to be required by the purchaser for a particular purpose, yet if the known, defined, and de- scribed thing be actually supplied, there is no implied warranty that it shall answer the particular purpose intended by the buyer, 9 but in such case the purchaser takes upon himself the risk of its effecting its purpose. 10 And where the contract was to supply Keystone coal, \ 333 WARRANTY OF Q.UALITY. 492 fine, and the run of the mine, and there was nothing else in the terms of the contract to indicate the quality stipulated for, it was held that there was no foundation for an implied warranty, as when the coal was delivered the buyer had ample opportunity to ascertain the quality by an inspection. 11 Sale of specific fertilizer, etc. So on a sale of a specific fertilizer, there is in the absence of fraud, usually, no implied warranty of quality, 12 except so far as such a warranty may arise under the statutes of some of the States. 13 1 See succeeding paragraphs of section. And compare Jones v. Just, Law R. 3 Q. B. 197 ; Getty v. Rountree, 2 Finn. b7J ; 2 Chand. Works Co. v. Keystone Coal Co. 65 Md. -547 ; 5 At!. Rep. 253. War- ranty implied from usage of trade : 22 Am. Law Reg. X. S. 226, or BLldle on Chattel Warranties, \\ 219, 223; reviewing Clark v. Baker, 11 Met. 1S6 ; 45 Am. Dec. 199 ; Snowden v. Warden, 3 Rawle, 101 ; Fat- man ?'. Thompson, 2 Disn. 4S2 ; Boorman v. Jenkins, 12 Wend. 5G6 ; 27 Am. Dec. 153 ; Dodd r. Farlow, 11 Allen, 426 ; Wetherill v. IS'eilson, 20 Pa. St. 448 ; 59 Am. Dec. 741 ; Barnard v. Kellogg, 19 Wall. 383. 2 There may be what is termed falsa demonstratio, as in the sale of goods by samples : Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547 ; 5 At!. Hop. 253. .Sale by sample discussed: Brantlcy v. Thomas, 22 Tex. 270 ; 73 Am. Dec. 264, 265, 266, n. 268 ; Barton v. Kane, 17 Wis. 38 ; 84 Am. Dec. 723; note to Bradford v. Manly, 13 Mass. 1S8 ; 7 Am. Dec. 125-1:52 ; note to Brigg r. Hilton, 3 N. E. Rep. 58 ; Reynolds v. Palmer, 21 Fed. Rep. 433, 435, n. 454. 3 See Bradford v. Manly, 13 Mass. 138; 7 Am. Dec. 122, n. 125; Brantlcy v. Thomas, 22 Tex. 270 ; 73 Am. Dec. 264, 2U5, 2;>6 ; 1 Parsons on Contracts, 585 ; Parkc r v. Palmer, 4 Barn. p. 19 ; Pope v. Allis, 115 U. S. 363, 372 ; 6 Sup. Ct. Rep. 69. 5 See Jones v. George, 61 Tex. 345 ; 48 Am. Rep. 280, 281, 282 ; Wol- cott v. Mount, 36 N. J. L. 262; 13 Am. Rc-p. 4J8, 440-442; S. C. 38 N. .T. L. 457 ; 20 Am. Rep. . And consult Hawkins v. Pemberton, 51 X. Y. 198, 204 ; 10 Am. Rep. 595; Henshaw v. Robins, 9 Met. 83 ; 43 Am. Dec. 367, n. 372 ; Borrekins v. Bevan, 3 Rawle, 23 ; 23 Am. Dec. 85 ; Osgood v. Lewis, 2 Har. & G. 495 ; 18 Am. Dec. 317 J 2 Schouler on 493 WARRANTY OF QUALITY. 2 333 6 See Bennett's Benjamin on Sales, g 645 ; 2 Schouler on Personal Property, $ 34(>; 22 Am. Law Reg. N. S. 225. Consult further, note to Reynolds v. Palmer. 21 Fed. Hep. 443; Jones v. Just, Law It. 3 Q. B. 197; Randall v. Newson, Law K. 2 Q,. B. 1). 102 ; 1J Ei:g. llcp. 24,;; Bragg v. Morrill, 49 Vt. 45 ; 24 Am. Hep. 102, n. 10-1 ; Lukens v. Fix ir.;:d, 27 Kan. 634 ; 41 Am. Hep. 429, 431 ; Port Carbon Iron Co. v. Groves, 68 Pa. St. 149, 151; Robinson Machine Works v. Chandler, 56 Ind. cr.> ; Getty v. Rountree, 2 Finn. 379 ; 2 Chand. 23 ; 54 Am. Dec. O, Ml ; 1 'I -Ic v. Tank, 12 Wis. 276; 78 Am. Dec. 737, 744; Beals v. Olmstead, 21 Vt. 114 ; 53 Am. Dec. 150 ; Best v. Flint, 58 Vt. 543 ; 56 Am. Rep. 570, 572 ; Bartlett v. Hoppock, 34 N. Y. 118 ; 88 Am. Dec. 428, 431. 7 See noto to Reynolds v. Palmer, 21 Fed. Rep. 4-11 ; Gardiner v. Gray, 4 Camp. 1-14 ; Jones v. Just, Law R. 3 Q. B. li/7 ; Merriara v. Fial J, 24 Wis. 640 ; 29 Wis. 040 ; 29 Wis. 593 ; 39 Wis. 578 ; Bennett's Benjamin on Sales, \\ 65-6CO ; 2 Corbin's Benjamin on Sales, $ W3, n. 32 ; 2 Schouler on Personal Property, \\ 354-357. Thus it is said to have been held that under a contract to supply goods of a specified description, which the buyer has had no opportunity of inspecting, the goods must not only in fact correspond to the specific description, but must be salable or merchantable under that description : Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547; 5 Atl. Rep. 253. And consult Reed v. Randall, 29 N. Y. 358 ; 86 Am. Dec. 3C5, 307, n. 312 ; Kohl v. Lindlev, 39 111. 195 ; 89 Am. Dec. 294, 301 ; Ryan v. Ulmer, 108 Pa. St. 332 ; 56 Am. Rep. 210, 211. 8 See Lukene v. Freiund, 27 Kan. 664 ; 41 Am. Rep. 420, 4C2 ; note to Reynolds v. Palmer, 21 Fed. Rep. 449 ; Van Bracki in v. Fonda, 12 Johns. 468 ; 7 Am. Dec. 3C9 ; referring to note to Emerson v. Brigham, 10 Mass. 107 ; 6 Am. Dec. 117. And consult full discussion of subject in note to Hunter v. State, 1 Head, 160 ; 73 Am. Dec. 165. 9 See citations in next note. 10 Rasin v. Conley, 58 Md. 65 ; as stated, Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547 ; 5 Atl. Rep. 253 ; declaring rule of caveat e.nptor to have been sanctioned in Hyatt v. Boyle, 5 Gill & J. 120 ; 25 Am. Dec. 273 ; Gunther v. Atwell, 19 Md. 171 ; Rice ?>. Forsyth, 41 Md. 404. And see note to Reynolds v. Palmer, 21 Fed. Rep. 446. 11 Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547 ; 5 Alt. R^p. 253 ; relying upon Jones v. Just, Law R. 3 Q. B. 197. 12 Walker v. Pue, 57 Md. 155. 13 Wilcox v. Owens, 64 Ga. 601. And see Jones v. George, 56 Tex. 14J ; 42 Am. Rep. 639 ; S. C. 61 Tex. 345 ; 48 Am. Rep. 280 ; 2 Schouk r on Personal Property, 347, p. 344, n. Sale of defective or second- hand chattel as such : Loop v. Litchfield, 42 N. Y. 351 ; 1 Am. Rep 543 ; 2 Schouler on Personal Property, 366 ; referring, also, to Holden v. Clancy, 58 Barb. 590. And see Lukens v. Freiund, 27 Kan. 6-4 ; 41 Am. Rep. 429, 4:>o, 4-">4. Express warranty may sometimes re-enforce implied (See Bigge v. Parkinson, 7 Hurl. ) ; but generally excludes implied : See Parkinson v. Lee, 2 East, 314 ; Dickson v. Ziziana, 10 Com. B. 602 ; Bennett's Benjamin on Sales, g 662 ; 2 Schouler on Personal Property, \ 367 ; citing, also, Derning v. Foster, 42 N. H. 165. NEWMAKK SALES. 42. LES BY SAMPLE. 494 CHAPTER XXY. SALES BY SAMPLE. ? 334. Exhibition of sample. \ 335. Opportunity to examine bulk. 336. Scope of warranty or undertaking. ? 337. Conclusiveness of acceptance. g 338. Finality of inspection. \ 339. Liability of manufacturer. \ 340. Buyer's remedies. I 3S4. Exhibition of sample. Correspondence of bulk iviili sample. A sale by sample is said to be made where a small quantity of any commodity is exhibited by the vendor as a fair specimen of a larger quantity called the bulk, which is not present, and there is no opportunity for a personal examination. 1 And one of the most gen- eral of implied warranties in sales of personal property, is that of correspondence of the bulk with the sample, 2 in the case of sales by sample. 3 When does not make sale by sample. But the mere ex- hibition of a sample at the time of the sale, does not neces- sarily make the transaction a sale by sample, 4 so as to subject the seller to an implied warranty as to the nature and quality of the goods ; 5 for the sample may be ex- hibited merely to enable the purchaser to form a judg- ment upon the character of the commodity, 6 and the production of the sample may amount only to a repre- sentation that the sample exhibited has been taken from tlie bulk of the commodity in the usual way. 7 So the vendor may show a sample, but decline to sell by it, and require the purchaser to inspect the bulk at his own risk ; 8 or the buyer may decline to trust to the sample and the implied warranty, and require an express war- ranty, 9 which excludes any implied warranty. 10 495 SALES BY SAMPLE. g 334 When makes sale by sample. But if the contract be connected with the sample by the circumstances attend- ing the sale, and refer to the sample, which is exhibited as an inducement to the contract, the transaction may be a sale by sample, 11 so that as a necessary consequence the seller warrants the bulk of the goods to correspond with the specimen exhibited as a sample. 12 And i* is said that there must be an agreement to sell by sample, or al; least an understanding of the parties that the sale is to be by sample. 13 Question for jury. Whether a sale be a sale by sample or not, is a question of fact for the jury to find from the evidence in each case ; 14 and to authorize such a finding, it is said that the evidence must satisfactorily show that the parties contracted with sole reference to the sample exhibited. 15 1 Reynolds v. Palmer, 21 Fed. Rep. 428, 435. But compare Beirne v. Dord, 5 N. Y. 95; 55 Am. Dec. 321; 335, on OPPORTUNITY TO EXAMIN-K BULK. And consult 2 Bouvier Law Diet, (,15th eel.) 611; WUfieid's Words etc. 551 ; quoting, Webber's Case, 33 Gratt. 904. 2 See Bradford v. Manly. 13 Mass. IDS; 7 Am. Dec. 122, 123, with note, 125 ; Bruntley v. r i nonius, 22 Tex. 270 ; 73 Am. Dec. 264, 2G5, 266. 3 See Parker v. Palmer, 4 Barn. & Aid. 387 ; Parkinson v. Lee, 2 East, 314; Bennett's Benjarni.i on Sales, 26-18; referring, also, to Azv;mar v. Casella, Law R. 2 Com. P. 44(5, and McMulJcu r. Helberg, 4 Law R. Ir. 100. Consult, also, Campbell on Sales, 305; 22 Am. Law R'g. N. S. 239; Story on Sales, 376; 2 Schouler on Personal Prop- erty, \ :W) ; citing, Gunther v. Atwell, 19 Md. 157 ; Williams v. Spaf- f jrd,8 Pi3k. 250 ; Day v. Raguet, 14 Minn. 273 ; Beirne v. Dord, 5 N. Y. 95 ; f>5 Am. Dec. 321 ; Hanson v. Busse, 45 III. 4r,G. But compare Boyd ?>. Wilson, 83 Pa. St. 319 ; 24 Am. Rep. 176 ; Mining Co. v. Jones, 108 Pa, St. 55, 65. 4 Ilargous v. Stone, 5 N. Y. 73, 85. And see Barnard v. Kellogg, 6 Blutchf. 27J; 10 Wall. 383; Ames v. Jones, 77 N. Y. 614; Atv/atc r v. Clancy, 107 Muss. ?.c:) ; note to Bradford v. Manly, 7 Am. Dec. 12(5 ; note to Reynolds v. Palmer, 21 Fed. Rep. 455. 5 Beirne v. Dord, 5 N. Y. 95 ; 55 Am. Dec. 321. 6 See Gardiner v. Gray, 4 Camp. 144 ; Beirne v. Dord, 5 N. Y. 95 ; 55 Am, Dec. 321. 7 Hargous v. Stone, 5 N. Y. 73, 85. 8 Compare Salisbury v. Stainer, 19 Wend, 159 ; 32 Am. Dec. 407. S-.ilo by sample itself claimed to constitute an express warranty : Note to Bruuiord v. Manly, 7 Am. Dec. 126. 10 See M'Mullen v. Helberg, 4 Law R. Ir. 100 ; Tye v. Finmore, 3 Camn. : ; Powell v. HortoM, 2 Bin?!:. N.c. 60^. Ahs-'iicc of reference to sample in memorandum of contract : Meyer v. EvertA, 4 Camp. 22, 3S5 SALES BY SAMPLE. 496 11 Beirne v. Dord, 5 N. Y. 95 ; 55 Am. Dec. 321. And see Day v. R. guet, 14 Minn. 273. 12 Beirne v. Dord, 5 N. Y. 95 ; 55 Am. Dec. 321. 13 Ilargous v. Stone, 5 N. Y. 73, 85. To constitute a sale by sample, it must appear that the parties contracted solely with reference to the sample, and mutually understood that they were so dealing wi:h regard to the quality of the bulk : Reynolds r. Palmer, 21 Fed. Hep. 433, 4."5. And see Day v. Raguet, 14 Minn. 273, 232. 14 See Atwood v. Clancy, 107 Mass. 369. Parol evidence to show that sale was by sample : See Bradford v. Manly, 13 Mass. 138 ; 7 Am. Dec. 122, 123, n. 129. 15 Beirne v . Dord, 5 X. Y. 95 ; 55 Am. Dec. 321. The evidence must show that the parties mutually understood that they were dealing with the sample as an agreement or understanding that the bulk of the commodity corresponded with it ; or in other words, the evi- dence mr.st be such as to authorize the jury, under all the circum- stances of the case, to find that the sale was intended by the partic s as a sale by sample : Beirne v. Dord, 5 N. Y. 9> ; 55 Am. Dec. 321. And see Day v. Baguet, 14 Minn. 273. Consult further upon subject of section, following sources of most of foregoing matter : 22 Am. Law Reg. N. S. 243, 244, or Biddle on Chattel Warranties, \\ 213-218 ; Ben- nett's Benjamin on Sales, 649 ; 2 Corbin's Benjamin on Sales, G70, n. 27. And see Campbell on Sales, 3C7 ; Story on Sales, r,7G ; 2 R"houlor on Personal Property, \ 359 ; note to Reynolds v. Palmer, 21 Feel. Rep. 455 ; note to Bradford v. Manly, 7 Fed. Dec. 126. $ CC5. Opportunity to examine bulk. Examination not practicable or convenient. 1 It furnishes no suffi- cient ground of itself to say that a sale is by sample, because a personal examination of the bulk of the goods by the purchaser at the time of sale is not practicable or convenient. 2 For though the want of an opportunity, from whatever cause, for such an examination, is doubtless a strong fact in reference to the question of the character of the sale, as to whether it is made by sample or not, yet it is never- theless true that a contract of sale by sample may bo made, whether such examination bo practicable or not, if the parties so agree. 3 Examination of sample as essence of transaction. And if the examination merely of the sample be shown to be the point on which the transaction turns, there may bo a sale by sample, although the chattels in bulk were where the buyer might have inspected them, or the sample was drawn by the seller from the bulk in 497 SALES BY SAMPLE. \ 336 the buyer's presence, or the buyer even inspected the bulk pending the negotiation in a casual way, and without relying upon such inspection as the induce- ment of his purchase, or being understood so to rely. 4 1 Sales by sample are commonly made when it is not convenient for the purchaser t~> ree the bulk of the commodity, and one of the main reasons why the law implies a warranty is said to be that there is not an opportunity for a personal examination cf the article which the sample is shown to represent: Reynolds v. Palmer, 21 Fed. Rep. 4J3, 4^5. And see note to Bradford v. Manly, 7 Am. Dec. 129. 2 Beirne v. Dord, 5 N. Y. 95 ; 54 Am. Dec. 321. 3 Beirne v. Dord, 5 N. Y. 95 ; 55 Am. Dec. 321. But where the acts and declarations of the parties in making the contract for the sala of the goods are of doubtful construction, evidence that it was impracticable or inconvenient to examine the bulk of the goods would be proper, and in connection with evidence of other circum- stances attending the transaction, might aid in coming to a correct conclusion in respect to the true character of the contract : Beirne v. Dord, 5 N. Y. 95; 55 Am. Dec. 321. See quotation of this case in 22 Am. Law Reg. N. S. 244, or Biddle on Chattel Warranties, \ 213. 4 2 Schouler on Personal Property, 3"O. And compare Wil- liams v. Spafford, 8 Pick. 259, with Salisbury v. Haines, I'J Wend. 159 ; 32 Am. Dec. 437. $ 336. Scope of warranty or undertaking. Correspond- ence in quality. By offering the specimen or sample alone for present inspection, the seller undertakes to assure the buyer that the bulk will be found like it in kind and quality. 1 Thus in a sale of goods "by sample, 2 a warranty is quite universally held to be implied, that the bulk shall correspond in quality with the sample. 3 Correspondence in kind. And there is said to be in the case of unascertained goods, the further undertak- ing by the seller, 4 sometimes regarded as a condition rather than a warranty, 5 that the bulk shall correspond With the sample in kind 6 and character. 7 Opportunity of comparison. So it is an implied term of the contract that the buyer shall have a fair oppor- tunity to compare the bulk with the sample, 8 so as to test the substantial correspondence between them in nature and quality. 9 336 SALES BY SAMPLE. 498 Merchantable character. But in Pennsylvania, the peculiar doctrine 10 seenis to be maintained that a sale of chattels by the production of a sample, in the absence of fraud or circumstances to fix the character of the sample as a standard of quality, is not attended by any implied warranty of the quality, but the sample merely becomes a guaranty that the articles to be delivered shall follow its kind and be simply merchantable, 11 though a stipulation that the quality of ore to be delivered should be up to sample, may become a term of the con- tract and enforcible as such. 12 And on a sale by sample, there may also be an implied warranty of merchantable character deducible from the facts and circumstances of the case. 13 Warranty concerning analysis. So in a sale of guano, where the buyer had asked for a *' guaranteed analysis " to accompany the sample, and a printed analysis signed by the vendor had been sent with the sample, the vendor was held to have warranted not only that the bulk was equal to sample, but that the analysis, at the time it was made, was a fair analysis of the bulk out of which the guano was supplied. 14 Mistake in drawing sample. And where by mistake a sample was taken from the cargo of the wrong vessel, it was held that as the vendor intended to sell one bulk, and the purchaser to buy another, there was no contract between them. 15 " Average sample." In the case of sales by " average sample," where samples or specimens drawn from various packages are mixed by the seller, there is no right of rejection or recovery of purchase price because some of the packages are inferior to the average ; but the true test is whether, if the contents of all the pack- ages were mixed together, the quality of the bulk so formed would equal the average sample. 16 499 SALES BY SAMPLE. g 336 1 2 Schonler on Personal Property, 360. Thus it is said that stri?tly speaking in a contract of sale by sample there is not a war- ranty of quality, but an agreement of the seller to deliver, and of the buyer to accept goods of the same kind and quality with the sample : Gtmther r. Atwell, Is) Md. 157. So it is declared that when a contract far>the sale of goods is made by sample, it amounts to an undertak- ing on the part of the seller with the buyer that all the goods are similar, both in nature and quality, to those exhibited : Pope v. Allis, 115 U. S. 363, 372; 6 Sup. Ct. Rep. 69, 72, 73. Construction of written contract in favor of view that bulk of cargo corresponds with samples : Bussel v. Nicolopulo, 8 Com. B. N. S. 362. 2 See generally note to Dickinson v. Gay, 83 Am. Dec. 663. 3 See Parker v. Palmer, 4 Barn. & Aid. 357 ; Parkinson v. Lee, 2 East, 314; Williams v. Spafford, 8 Pick. 2,50 ; Boirne v. Dord, 5 N. Y. 93 ; 55 Am. Dec. 321 ; Gunther v. Atwell, 19 Md. 157 ; Hanson v. Busso, 45 111. 4J6 ; Day v. Raguet, 14 Minn. 273. Sources of these citations : 2 Schouler on Personal Property, 360. And see Bennett's Benjamin on Sales, 64S; 2 Corbin's Benjamin on Sales, 069, n. 26; Story en Sales, :-:76 ; 22 Am. Law Reg. N. S. 239, or Biddle on Chattel War- ranties, 208 ; note to Reynolds v. Palmer, 21 Fed. Rep. 454. 4 See Gunther v. Atwell, 19 Md. 157. 5 Compare Campbell on Sales, 306. 6 See Bradford v. Manly, 13 Mass. 138 ; 7 Am. Dec. 122. 7 2 Schouler on Personal Property, \ 360. And see Bannerman v. Wright, 10 Com. L>. N. iS. 8^4. Consult, also, Azemar v. Casella, Law R. 2 Com. P. 431, 677 ; Buck r. Levy, 101 N. Y. 511, 514 ; 5 N. E. Rep. 3^5. But compare Carter v. Crick, 4 Hurl. & N. 412. 8 See Lorymer v. Smith, 1 Barn. & C. 1. 9 2 Schouler on Personal Property, \ 360. And see Bennett's Ben- jamin oa Sales, 648. Jf the buyer refuses to accept goods sold by sample, the seller in a suit for the price, must prove that the goods tendered were equal to the sample : Merriman r. Chapman, 32 Conn. 146 ; as stated, 2 Corbin's Benjamin on Sales, g 92J, n. 26. 10 See Mining Co. v. Jones, 108 Pa. St. 55, 65. 11 Boyd v. Wilson, 83 Pa. St. 319; 24 Am. Rop. 376 ; as quoted, 22 Am. Law Reg. N. S. 240, or Biddle on Chattel Warranties, g 2Us. Deducing result from following cases : Borrekins v. Bevan, 3 Rawle, 23 ; 23 Am. Dec. 85 ; Jennings v. Gratz, 3 Rawle, 168 ; 23 Am. Dec. Ill ; Kirk r. Nice, 2 Watts, 367; McFarland v. Newman, 9 Watts, 55; 34 Am. Dec. 4.)7 ; Fraley v. Bispham, 10 Pa. St. 320 ; 51 Am. Dec. 486 ; Carson v. Baillie, 19 Pa. St. 375; 57 Am. Dec. 6.39 ; Wetherill v. Neil- son, 20 Pa. St. 4-18 ; 59 Am. Dec. 741 ; Eagan v. Call, 34 Pa. St. 236 ; 75 Am. Doc. 6.33 ; Weimer v. Clement, 1 Wright, 147 ; Whitaker v. East- wick, 75 Pa. St. 229. See note to Bradford v. Manly, 7 Am. Dec. 127. 12 Mining Co. v. Jones, 108 Pa. St. 55, 64-66. 13 See Moody v. Gregson, Law R. 4 Ex. 49. And consult note to Bradford v. Manly, 7 Am. Dec. 128, 129 ; note to Reynolds r. Palmer 21 Fed. Rep. 454. 14 Towerson v. Aspatria Agricultural Society, 27 L. T. N. S. 276. 15 Mogaw v. Molloy, 2 Law R. Ir. 530. See statements of these oases in Bennett's Benjamin on Sales, \\ 650 a, 667. 16 See Leonard v. Fowler, 44 N. Y. 289; 2 Schouler on Personal Property, \ .""I ; Bennett's Benjamin on Sales, \ 654 ; citing, also JS3hnitzer v. Oriental Print Works, 114 Mass. 123. g 337 SALES BY SAMPLE. 500 $ 337. Conclusiveness of acceptance. After final ex- amination. In a sale of goods by sample, the rights of the buyer under the contract are concluded after he has made such final examinations as he thinks fit, no matter how careless in character, and knowingly ac- cepted the goods as being of the kind and quality called for by the contract. 1 Fraudulent prevention or hindrance of examination. But the buyer's rights under the contract are left un- impaired by any acceptance which is induced by fraud or artifice, such as prevented or hindered a proper examination. 2 Acceptance of part. Nor can the buyer's acceptance of part on delivery, as corresponding with the sample, prevent him from rejecting w T hat is subsequently de- livered under the same contract. 3 Under executory contracts. So where there was an executory contract for the sale of cloths by samples which were sound and perfect, the cloths being repre- sented to be of similar fabric and similar quality, equal in every respect to the samples, it was held that accept- ance of the cloths after opportunity for their examina- tion did not preclude a claim and recovery of damages for breach of warranty. 4 And the doctrine that a warranty upon an executory contract of sale survives acceptance, 5 has also been applied to an action to re- cover damages for breach of warranty upon a sale of tobacco by sample, where it was represented that the sample was a true sample of the tobacco sold, and that tlie tobacco was not only as good as the sample, but good, sound, and all right. 6 2 See Dutchess Co. v. Harding, 49 N. Y. 321 ; Mody v. Gregson. Law K. 4 Ex. 49. 501 SALES BY SAMPLE. $ 338-339 3 Hubbarcl v. George, 49 111. 275 ; as stated, 2 Schouler on Personal Property, \ ^62, whence preceding paragraph also derived. And see Farmer v. Gray, 20 Neb. 401, 403. 4 Briggs v. Hilton, 99 N. Y. 517 ; 52 Am. Hep. 63. 5 Briggs v. Hilton, 99 N. Y. 517 ; 52 Am. Kep. 63. 6 Kent v. Friedman, 101 N. Y. 616 ; 3 N. E. Kep. 905 ; affirming, 30 Hun, 222, mem. \ 38. Finality of inspection. By official inspector. Under some circumstances, it may be a reasonable inference from the contract that the sale shall take full effect upon the completion of inspection by some third person, such as an official inspector, without awaiting any special examination by the buyer himself. 1 Subsequent to original delivery. And in a case of a contract between private parties for the sale by manu- facturers of shoes for army use, where the soles turned out to contain paper, it was laid down that if the time of inspection, as agreed on, be subsequent to the time agreed upon for the delivery of the goods, or if the place of inspection, as agreed upon, be different from the place of delivery, the purchaser may, upon inspection at such stipulated time and place, if the goods be not equal to the sample, return them then and thereon the hands of the seller. 2 1 See Gunther v. Atwell, 19 Md. 157. 2 Heilbutt v. Hickson, Law R. 7 Com. P. 438; 3 Eng. Rep. 328; stated at length, Bennett's Benjamin on Sales, (J51. Basis of fore- g./hig matter: 2 Schouler on Personal Property, \ 363, referring to the si me head the following case, where bullets were sold to State authorities under an agreement which allowed an opportunity for full Inspection of the property, even after its formal delivery : Mess- more v. N. Y. Shot Co. 40 N. Y. 422. 339, Liability of manufacturer, Fraudulent knowl- edge of defects. In regard to the bearing of intentional fraud upon sample sales of defective goods, there seems to be a distinction in favor of an inference of knowledge of defects in the case of a manufacturer or grower as distinguished from a dealer supplying goods. 1 f 340 SALES BY SAMPLE. 502 Unknown and undiscoverable defect. And the state- ment has been made that if a manufacturer agrees to furnish goods according to sample, the sample is to be considered free from a secret defect not discoverable on inspection, and unknown to both parties. 2 Goods rendered unmerchantable. Where shirtings sold by sample by a manufacturer were so weighted b} r clay as to be unmerchantable, it was maintained by the court that under the peculiar circumstances of the case, the sale carried with it an implied warranty of merchantable quality, besides that of correspondence with the sample. 3 1 Compare Heilbutt v. Hickson, Law R. 7 Com. P. 438, 3 Eng. Rep. 323, with Barnard r. Kellogg, 10 Wall. 383. Consult, further, Eickiuson v. Guy, 7 Allen, 29 ; 83 Am. Dec. 656, 638. And see gener- ally, Hoe v. Sanborn, 21 N. Y. 552 ; 78 Am. Dec. 163, 175 ; White r. Mil- ler, 71 N. Y. 118 ; 27 Am. Rep. 13, 17 ; S. C. 78 N. Y. 303 ; 34 Am. Rep. 54-1. Seller's knowledge of defects: See note to Bradford v. Manly, 7 Am. Dec. 127. 2 See Bennett's Benjamin on Sales, 651; reviewing Heilbutt v. llbkson, Law R. 7 Com. P. 438 ; 3 Eng. Rep. 828. And consult gen- erally, Randall v. Nevvsom, Law R. 2 Q. B. D. 102 ; 19 Eng. Rep. 243 ; Hoe v. Sanborn, 21 N. Y. 552 ; 78 Am. Dec. 163, 175. 3 See Mody v. Gregson, Law R. 4 Ex. 47 ; as stated, 2 Schouler on Personal Property, 364, whence foregoing paragraph also derived. g 340. Buyer's remedies. Right of returning goods, etc. Among the incidents attaching to a sale by sample is this, that such contract always contains an implied term that the goods may under certain circumstances be returned, 1 or sold by the purchaser, if the purchaser will not accept a return. 2 Mode of rejection. Where a party desires to rescind a purchase upon the ground that the quality of the goods does not correspond with the sample, it has been said to be his duty to make a distinct offer to return, or in fact, to return the goods by stating to the vendor that the goods are at his risk, and that they no longer belong to the purchaser, but that the purchaser rejects them, and throws them, back on the seller's hands, and 503 SALES BY SAMPLE. g 340 that the contract is rescinded. 3 But where the sale is by sample, and inspection is to be at some place after de- livery, it has been considered that if the goods are fou nd on such inspection not to be equal to sample, the pur- chaser has a right to reject them then and there, 4 for which purpose no particular form is essential, but it is sufficient if he does any unequivocal act showing that he rejects them ; 5 and that though he may in fact return them, or offer to return them, yet the more usual course is to signify his rejection of them by stating that the goods are not according to the contract, and that they are at the vendor's risk. 6 Effect of acceptance. In New York, in a case where the contract was for the sale of sumac, "quality to be like sample in every respect," and the buyer inspected part of the lot tendered and accepted the whole, but afterwards sued for damages for breach of warranty, it was held that under such circumstances the vendee must immediately rescind the contract, and return, or offer to return the goods, or he will be foreclosed from all claim ; 7 and that he cannot retain the property, and afterwards sue for damages on account of the inferior quality. 8 But later cases in the same State have modi- fied the former rule, so that an action or defense may be sustained on the warranty implied in a sale by sample, or on an express warranty in an executory contract of sale, 9 though the buyer accepts and does not offer to return the goods. 10 And the latest cases apply to a sale by sample the doctrine that a warranty upon an executory contract of sale survives acceptance. 11 1 Heilbutt v. Hickson, Law R. 7 Com. P. 438 ; 3 Eng. Rep. 328. And see Couston v. Chapman, Law R. 2 H. L. S. 250; 3 Eng. Rep. 187; Bennett's Benjamin on Sales, g 651 ; citing, also, Freeman v. Clute. 3 Barb. 424 ; Parke v. Morris Axe Co. 4 Lans. 103. 2 Messmore v. N. Y. Shot Co. 40 N. Y. 4'J2 ; as noted, Bennett's Benjamin on Sales, \ 6ol. If goods sold by sample do not correspond with the sample, the buyer may refuse to receive them, or if received, he may return them in a reasonable time allowed for examination . 340 SALES BY SAMPLE. 504 and thus resc-ind the contract : Pope v. Allis, 115 IT. S. 363, 372 ; citing, Loryrner v. Smith, 1 Barn. & C. 1 ; Magee v. Billingsley, 3 Allen, 679. 3 Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. 187. And consult \ 263, on BUYKH'S COURSE ox REJECTIOX. 4 See Heilbutt v. Hickson, Law R. 7 Com. P. 438 ; 3 Eng. Rep. 428. 5 Grimoldby v. Wells, Law R. 10 Com. P. 3H1 ; 12 Eng. Rep. 451. 6 Grimoldby v. Wells, Law R. 10 Com. P. 391 ; 12 Eng. Rep. 451. See Bennett's Benjamin on Sales, 652 a ; citing, also, Lucy r. Mouflet, 5 Hurl. & N. 233 ; Gill v. Kaufman, 16 Kan. 571 ; Brown v. Corp. of Lindsay, 35 Up. Can. Q. B. 509. 7 Dutchess Co. v. Harding, 49 N. Y. 321. And see Barton v. Kane. 17 Wis. 38 ; 84 Am. Dec. 728, 731. 8 Dutchess Co. v. Harding, 49 N. Y. 321. Compare Brantley ?'. Thomas, 22 Tex. 270 ; 73 Am. Dec. 264, 267. So as to acceptance of unmerchantable goods: See Reed v. Randall, 29 X. Y. 358, 368; 86 Am. Dec. 305 ; Sprague v. Blake, 20 Wend. 61. 9 See Day v. Pool, 52 N. Y. 416. 10 See Gurney v. Atlantic Ry. Co. 58 N. Y. 358 ; Gautier v. Douglass etc. Co. 13 linn, 514 ; 2 C'orbin's Benjamin on Sales, \ 977, n. 29 ; stating, also, Marshuetz v. McGreevy, 23 Hun. 408. 11 See Briggs v. Hilton, 99 N. Y. 517; 52 Am. Rep. 63; Kent v. Friedman, 101 N. Y. 616 ; 3 N. E. Rep. 905 ; \ 337, on COXCIAJSIVKXKSS OF ACCEPTANCE. SALES BY DESCRIPTION. 341 CHAPTER XXVI. SALES BY DESCRIPTION. 341. Seller's liability. 342. Undertaking as condition or warranty. \ 343. Remedies as affecting construction. 344. Liability of manufacturer. \ 345. Words of description. 311. Seller's liability, Nature of undertaking. Without express warranty or actual fraud, every per- son who sells goods of a certain denomination or de- scription, undertakes as part of his contract that the thing delivered corresponds to the description, and is in fact an article of the species, kind, and quality thus expressed in the contract of sale. 1 Such an undertak- ing is usually treated as a warranty, because the de- scription of the article is deemed a representation that it answers the description. 2 But it is sometimes re- garded as a condition, 3 or rather as an engagement whose breach constitutes a non-performance of the contract. 4 Agreement to Jill order. And where a vendor agrees to fill an order sent for an article of a particular quality, his liability is the same as when the proposition to sell an article of that description comes from him in the- first instance, and he is liable if the goods sent do not correspond with the description. 5 Doctrine governing sales by description. The doctrine that on the sale of a chattel as being of a particular kind or description, a contract is implied that the article sold is of that kind or description, has been sustained 6 by various English cases, 7 and has been generally approved by decisions in the courts of this country. 8 But it was NEWMAKK SALES. 43. 342 SALES BY DESCRIPTION. 506 formerly held in New York, that no warranty whatever would arise from a description of the article sold. 9 1 Winsor v. Lombard, 18 Pick. 57, 60 ; relying upon Hastings v. Lovering, 2 Pick. 214 ; 13 Am. Dec. 420 ; Hogins v. Ply mp ton, 11 Pick. 97. 2 Bagley v. Cleveland Rolling Mill Co. 21 Fed. Rep. 159, 162. 3 See Pope v. Allis, 115 U. S. 363, 371, 372. 4 See Jones v. George, 61 Tex. 345 ; 43 Am. Rep. 280, 281 ; Bagley v. Cleveland Rolling Mill Co. 21 Fed. Rep. 159, 162. And consult Wol- cott v. Mount, 36 N. J. L. 26J ; 13 Am. Rep. 438, 441. 442. 5 Bagley v. Cleveland Rolling Mill Co. 21 Fed. Rep. 159, 163 ; citing, Dailey v. Green, 13 Pa. St. 118. 6 According to Wolcott v. Mount, 36 N. J. L. 262 ; 13 Am. Rep. 438, 442 7 See Powell r. Horton, 2 Bing. IS". C. 668 ; Barr v. Gibson, 3 Mees. & \V. 8SX) ; Chanter v. Hopkins, 4 Mt-es. & W. 3;i9 ; tsichol v. uodts, 10 Ex 191 ; Goinpertz v. Bartlett, 2 El. & B. 849 ; Azemar r. Casella, 2 Com. P. 431, 677 ; Bridge v. Wain, 1 Stark. 504 (scarlet cuttings) ; Allen v. Lake, 18 Q. B. 560 ("Skirving's Swedes" turnip seeds) ; Josling ?. Kingsford, 13 Com. B. N. S. 447 (oxalic acid) ; Wieler v. Shillizi, 17 Com. B. 610 (Calcutta linseed). 8 See Henshaw v. Robins, 9 Met. 83; 43 Am. Dec. 367 ; Borrekins ii. Bevan, 3 Rawle, 23 ; 23 Am. Dec. 83 ; Osgood v. Lewis, 2 liar. & G. 415 ; 18 Am. Dec. 317 ; Hawkins v. Pemberton, 51 N. Y. 198 ; 10 Am. Rep. 595 ; Pope v. Allis, 115 U. S. 363, 372. 9 See Seixas v. Woods, 2 Caines, 48 ; 2 Am. Dec. 215 ; Snell v. Moses, 1 Johns, 9fi ; Swett v. Colgate, 20 Johns. 196 ; 11 Am. Dec. 260 ; as cited in support of text in Wolcott v. Mount, 32 N. J. L. 262 ; H Am. Rep. 438, 440. But see Hawkins v. Pemberton, 51 N. Y. 198, 204 ; 10 Am. Rep. 595. 342. Undertaking as condition or warranty. As warranty. There is said to be no doubt that in a con- tract of sale, words of description are held to constitute a warranty that the articles sold are of the species and quality so described. 1 But in the later English cases, and in various American decisions, some criticism has been made of the application of the term "warranty " to representations in contracts of sale, descriptive of articles which are known in the market by such description. 2 As contract. And it has been said that in many cases the circumstance of a party selling a particular thing by its proper description has been called a warranty, and the breach of such a contract, a breach of warranty, 507 SALES BY DESCRIPTION. g 342 while it would be better to distinguish such cases, as where a party offers to buy an article of one kind, and the other party sends him an article of an entirely different kind, as a non-compliance with the contract which the party has engaged to fulfill. 3 As condition. So it is laid down that when the subject- matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract ; * because the existence of those qualities being part of the description of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted. 5 And a statement in a mercantile contract descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is said to be ordinarily regarded as a war- ranty in the sense in which that term is used in insur- ance and maritime law, that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract. 6 Other views. But some of the cases either avoid the use of the terms "warranty" and "condition" in this connection, 7 or else regard it as immaterial whether the action bought for variance from the description shall be technically considered an action on a warranty, or an action for the non-performance of a contract. 8 1 Ilogins v. Plympton, 11 Pick. 97, 99. 2 See Wolcott v. Mount, 36 N. J. L. 262 ; 13 Am. Rep. 438, 444 ; referring to Chanter v. Hopkins, 4 Mees. . Palmer, 21 Fed. Rep. 44fi. Compare Dounce ?>. Dow, 64 N. Y. 411 ; Rolgers v. Niles, 11 Ohio St. 4S ; Gerst ?'. Jones, 32 Gratt. 521 ; Demirg v. Foster, 42 N. H. 165 ; Lukens v. Freiund, 27 Kan. 664 ; 41 Am. Rep. 429, 430, 431. 7 Thompson v. Libby, 29 N. W. Rep. (Minn.) 150* referring to Cosgrove v. Bennett, 32 Minn. 371 ; 20 N. W. Rep. 359, Whitrnore ?'. South Boston Iron Co. 2 Allen, 52, 5S ; Hight r. Bacon, I2f> Mass. 10 ; Port Carbon Iron Co. ?'. Groves, 68 Pa. St. 149; Mason v. Chappell, 15 Gratt. 572, 584 ; Rasin r. Conloy, 58 Md. 59 ; Gachet r. Warren, 72 Ala. 288 ; Jones v. Just, Law R. 3 Q. B. 197, 202. 8 See Carreio v. Lynch, 65 Cal. 273 ; Hoult v. Baldwin, 8 Pac. Rep. 440, 442. 9 Carreio v. Lynch, 65 Cal. 273. \ 347, Merchantable character. Connection with other warranties. The implied warranty of merchantable character 1 is generally connected with that 011 sales by description, or of fitness for special purpose. 2 Thus it is said that under a contract to supply goods of a speci- fied description, which the buyer has had no oppor- tunity of inspecting, the goods must not only in fact correspond to the specific description, but must be salable or merchantable under that description. 3 So it is laid down that a contract to manufacture and deliver an article at a future day, carries with it an obligation that the article shall be merchantable, 4 or if sold for a par- ticular purpose, that it shall be suitable and proper for such purpose. 5 Limitations of scope. But it has been held that in the case of logs so situated that they could not be inspected by the vendee at the time of an executory contract for their sale, any undertaking which may be implied on WARRANTY OF FITNESS. 348 the part of the vendor as to their merchantable quality, is to be treated as a condition rather than as a warranty as to obvious defects, discoverable on delivery. 6 And some of the decisions refer to a warranty of merchant- able quality as concerning executory contracts only, 7 or attempt to distinguish such a warranty as indicating 'that the article shall be marketable any where as a sound article of merchandise, from a mere warranty that it was merchantable and fit for the use for which it was bought. 8 1 See generally, Reed v. Randall, 29 N. Y. .358 ; 86 Am. Dec. 305, 307, n. 312 ; Kohl v. Lindley, 39 III. 195 ; 89 Am. Dec. 294, 300, 301 ; Rymnn v. Ulmer, 108 Pa. St. 332; 56 Am. Rep. 210,211; Rodgers v. Kiles, 11 Ohio St. 48. 2 See succeeding portions of section. And consult note to Rey- nolds .. Palmer, 21 Fed. Rep. 441. 3 Warren Glass Works Co. v. Keystone Coal Co. 65 Md. 547 ; 5 Atl. Rop. 253. And see Gardiner v. Gray, 4 Camp. 144 ; Bennett's Benja- min on Sales, \ Gofl, and cases cited and reviewed. 4 " Where a manufacturer undertakes to supply goods manu- factured by himself, or in which he deals, but which the vendee luis not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a nierchantable article : " Jones v. Just, Law R. 3 Q. B. I'M ; citing, Laing v. Fidgem,4 Camp. 1fi9 ; 6 Taunt. 108. Impracticability of examination, etc.: Rodgers v. Niles. 11 Ohio St. 48. 5 Gay lord Manuf. Co. v. Allen, 53 N. Y. 515, 518 ; Bennett's Benja- min on Sales, C>."7, n. I ; citing, also, Beals v. Olmstead, 24 Vt. 114 ; 58 Am. Dec. 150 ; Brown v. Sayles, 27 Vt. 227 ; Walton v. Cody, 1 Wis. 420 ; Leopold v. Van Kirk, 27 Wis. 152. See, also, Jones ?. Bright, 5 Bing. 544 ; note to Reynolds v. Palmer, 21 Fed. Rep. 441 ; Randall v Newson, Law R. 2 Q. B. 102 ; 19 Eng. Rep. 243. 6 Thompson v. Libby, 29 N. W. Rep. (Minn.) 150. 7 See Reed v. Randall, 29 N. Y. 358 ; 86 Am. Dec. 305, 307, n. 312. 8 Kohl v. Lindley, 39 111. 195 ; 89 Am. Dec. 294, 301. Continuance of warranty : See Bull v. Robinson, 10 Ex. 341 ; Leggatt r. S:imls Ale etc. Co. 60 111. 158 ; Mann v. Everston, 32 Ind. 3"5 ; does not extend to receptacle : Gower v. Van Dedalzen, 3 Bing. N. C. 717 ; 2 Schouler on Personal Property, \ 355. $ 348, Warranty on sale of provisions. English view. In England, apart from special statutory enactments concerning dealers in victuals, and notwithstanding declarations of a contrary tendency, there does not seem to be any implied warranty on sales of food, that it shall be sound or wholesome or fit for food. 1 348 WARRANTY OF FITNESS. 516 American view. But in the United States, 2 it seems to be generally considered that there is an implied war- ranty that provisions directly sold for immediate domestic consumption are sound and wholesome ; 3 but that there is no such warranty, if any exists at all, upon a sale of provisions to dealers as merchandise.* 1 See Burnby v. Bollett, 16 Mees. & W. 044 ; 2 Corbin's Benjamin on Sales, p. 875 ; Wharton on Contracts, p. 329 ; Bicidle on Chattel Warranties, \\ 187-191 ; 2 Schouler on Personal Property, \ 348; note to Reynolds v. Palmer, 21 Fed. Rep. 449. And consult Moses ?\ Mead, 1 Demo, 378 ; 43 Am. Dec. 676 ; Emmerton v. Matthews, 7 Hurl. ; ."4 Am. Rep. 544. 5 See Hoe v. Sanborn, 21 N. Y. 552 ; 78 Am. Dec. 163, 175. 6 Rodgers v. Niles, 11 Ohio St. 43, 57. 7 Rodgers v. Niles. 1 1 Ohio St. 48, 56. 8 Randall v. Newson, Law R. 2 Q. B. D. 102; 19 Eng. Rep. 243; distinguishing, Redhead v. Midland By. Co. Law R. 4 Q. B. 24a. 9 See Parkinson v. Lee, 2 East, 314 ; Kingsbury v. Taylor, 29 Me. , 50S ; 50 Am. Dec. 607 5 Hartley v. Clinton etc. Co. 13 Ohio St. 502 ; 82 Am. Dec. 454 ; Frazier v. Harvey, 34 Conn. 469 ; Lord v. Grow, 39 Pa. St. 88 ; 80 Am. Dec. 504 ; Hoe v. Sanborn, 21 N. Y. 552 ; 78 Am. Dec. 163 ; 2 Schouler on Personal Property, \ 365, so citing these cases. 10 See Hoult v. Baldwin, 8 Pac. Rep. (Cal.) 440, 442 ; Cal. Civ. Code, g 1769. \ 350. Seller's knowledge or fault lacking. Question in England. In England, the question has been raised whether the law lays upon the seller or manufacturer, an obligation to warrant in all cases that the article which he sells shall be reasonably fit and proper for the purpose for which it is intended, 1 and renders him re- sponsible for all the consequences which may result if it shall be found not to answer the purpose for which it was designed, in consequence of some latent defect of which he was ignorant, and which is not proved to have arisen from any want of skill on his part, or the use of improper materials, or any accident against which human prudence might have been capable of guarding him. 2 Breaking of carriage pole. And where a carriage builder supplied a pole for a carriage which broke when the buyer was driving, so that his horses were injured, it was held that the carriage builder must be taken to luivo warranted the pole to be reasonably lit for the particular purpose, and that it was immaterial that the fracture was caused by a latent defect in the wood which he could not have discovered by the exercise of any reason- able care or skill. 3 American view. But in this country the result of the cases on implied warranty has been considered 350 LATENT DEFECTS. 520 to be, that the vendor of an article for a particular pur- pose does not impliedly warrant it against latent defects unknown to him, and which have been produced through the unskillfulness of some previous manu- facturer or owner without his knowledge or fault, 4 ex- cept in those cases where the sale of the article by him. is in and of itself legally equivalent to a positive affirma- tion that the article has certain inherent qualities incon- sistent with the claimed defects. 5 1 Warranty of fitness : See g 346. 2 See argument in Kandall v. Newson, Law R. 2 Q. B. D. 102 ; 19 Eng. Rep. 243 ; referring to dictum in Gray v. Cox, 4 Barn. & C. 115. 3 Randall v. Newson, Law R. 2 Q. B. D. 102, 109 ; 19 Eng. Rep. 243 ; relying upon Gray v. Cox, 4 Barn. & C. 108, 115, and Jones v. Bright, 5 Bing. 533, 540 ; distinguishing, Redhead v. Midland Ry. Co. Law R. 2 Q. B. 412 ; Law R. 4 Q. B. 379. 4 Compare Rodgers v. Niles, 11 Ohio St. 48, 56. 5 Bragg r. Morrill, 49 Vt. 45 ; 24 Am. Rep. 102. Basis of foregoing matter: Bennett's Benjamin on Sales, 657, n. k, and 6fil . On defects not discoverable by inspection : Consult, also, 2 Corbin's Ben- jamin on Sales, 9-'*6, n. 33 ; Story on Sales, \\ 374, 375. 'VVarranty of fitness and latent defects : See note to Hoult v. Baldwin, 8 Pacif. Rep. 443. 521 REMEDIES FOB BREACH OF WARRANTY, \ 351 CHAPTER XXIX. REMEDIES FOR BREACH OF WARRANTY. ? 351. In general. \ 352. Return of goods. 353. Damages. | 351. In general. Where 'warranty of quality. It has been declared to be a general proposition that on a sale of a chattel with a warranty, the purchaser, in case the chattel turns out not to be of the kind or quality represented, may have one of two remedies. 1 One remedy is that he may rescind the contract and return the property, restoring whatever has been paid or de- livered by either party, and thereby placing the parties in the same position they occupied before the purchase. 2 The other remedy is that the purchaser may affirm the contract, retain the property, and recover damages from the vendor for a breach. 3 But this statement of the law in regard to the absolute right of rescission, conforms only to the view in some of the States, 4 while in others, such right is subject to various limitations ; and in England as well as in various parts of this country, the right to return the goods does not appear to exist at all, in the absence of fraud or special stipu- lation, in the case of a specific chattel, where the prop- erty has passed to the buyer. 5 On the other hand, the buyer may not only accept the goods and bring a cross- action for the breach of the warranty, but he may now in England, as well as in many parts of this country, plead as a set-off, or set up by way of counter-claim, damages for breach of warranty in the action brought by the vendor for the price. 6 Where warranty of title. If the breach be of warranty 351 BEMEDIES FOR BREACH OF WARRANTY. 522 of title, 7 the buyer may either bring his action for the return of the price, on the ground of failure of the con- sideration for which the price was paid, 8 or he may sue in damages for breach of the vendor's promise, as in all other cases of breach of contract. 9 Evidence. Where the failure of an engine, bought to run a threshing-machine to fulfill the terms of the warranty, is relied upon as a defense to a suit upon the price note, evidence of how the owner of an engine and machine of the same make and pattern would thresh in a day with his engine and thresher is not improper. 10 1 Weybrich v. Harris, 31 Kan. 92 ; referring to McCormick v. Roberts, 32 Kan. 68. Waiver of remedies for breach : 2 Schouler on Personal Property, \ 588 ; Adder v. Robert Partner Brewing Co. 2 Atl. Rep. (Pa.) 918. 2 Weybrich v. Harris, 31 Kan. 92. 3 Weybrich v. Harris, 31 Kan. 92. It Is said, however, that these two are the only remedies that the purchaser has under the circum- stances, and that he may not set aside an express contract and have the courts create a new and implied one, but must cither rest on the contract as made, or rescind and repudiate it : Weybrich v. Harris, 31 Kan. 92. 4 Avoidance of contract in various States : See 2 Corbin's Benja- min on Sales, 13-43, n. 17 ; citing, Wright r. Davenport, 44 Tex. 164 ; Churchill v. Price, 44 Wis. 540, 541 ; Kimball etc. Co. v. Vrooman, 35 Mich. 310, 326; Mendell v. Buttles, 21 Minn. 391, 31)7 ; Clarke v. Mc- Gatchie, 49 Iowa, 437 ; Jack v. Des Moines etc. R. R. 53 Iowa, 399, 402 ; Dike v. Reitlinger, 23 Hun, 241, 243 ; Lyon v. Bertram, 20 How. 149, 5 See 2 Schouler on Personal Property, ? 579 ; citing, Street v. Blay, 2 Barn. & Adol. 456 ; Dawson v. Collis, 10 Com. B. 530 ; Mondell v. Steel, 8 Mees. & \V. 858 ; Heyworth v. Hutchinson, Law R. 2 Q. B. 447. Compare Heilbutt v. Hickson, Law R. 7 Com. P. 43S ; 3 Eng. Rep. 328 ; Couston v. Chapman, Law R. 2 H. L. S. 250 ; 3 Eng. Rep. 187 ; Grim- oldby v. Wells, Law R. 10 Com. P. 391 ; 12 Eng. Rep. 451. And consult next section on RETURN OF GOODS. 6 See Bennett's Benjamin on Sales, \ 894 ; citing, Coventry ?;. M'Eniry, 13 Ir. Com. Law Rep. 160; Smith v. Dunham, 2 Kerr, 630 ; Morrill r. Nightingale, 39 Wis. 247. And consult Biddle on Chattel Warranties, g 303 ; 2 Schouler on Personal Property, U 582-584 ; Getty v. Rountree. 2 Pinn. 379 ; 2 Chand. 28 ; 54 Am. Dec. 138, 143. Compare Carey v. Guillone, 105 Mass. 18 ; Odom v. Harrison, 1 Jones (X. C.) 402 ; Gillespie v. Torrance, 25 N. Y. 306 ; 82 Am. Dec. 355. 7 Breach by dispossession, etc. : 329. 8 As in Eichholz v. Bannister, 17 Com. B. N. S. 708 ; 34 Law J. Com. P. 108. 9 Bennett's Benjamin on Sales, 893. And see Biddle on Chattel Warranties, g 293 ; 2 Schouler on Personal Property, 589. 523 BEMEDIES FOR BREACH OF WARRANTY. 352 10 Nat. Bank & Loan Co. v. Dunn, 6 N. E. Rep. (Ind.) 131 ; refer- ring to rule concerning comparison of machinery in McCormick H. M. Co. v. Gray, 100 Ind. 285. Error to reject evidence of trifling cost and trouble of putting new tension in defective machine: Wheeler & Wilson Manuf. Co. v. Thompson, 33 Kan. 491. Evidence of alter- ation of written warranty when inadmissible: Bowker v. De Long, 4 N. E. Rep. 834. Incompetency, as too remote, of low price paid for molasses claimed to have been sold with warranty: Ockerhauser v. Durant, 5 N. E. Hep. (Mass.) 523. Irrelevant questions as to purchase and rejection of other horses in action on a warranty of a horse : Russell v. Cruttenden, 53 Conn. 564. Wrong general design of machine, and failure of other like machines : Lyon v. Martin, 31 Kan. 411. Evidence against warranty of purity, etc. : Sliatto ?'. Abernethy, 29 N. W. Rep. (Minn.) 325. Fitness, parol proof concern- ing : Warren Glass Works Co. v Keystone Coal Co. 65 Md. 547. 352. Return of goods. Not necessary to obtaining damages. The law is well settled that where there is an express or implied warranty in the sale of goods, it is not necessary that the vendee should return, or offer to return them, to enable him to recover or recoup the damages which he has sustained by a breach of the warranty. 1 Conflict concerning permissibility of. But there is a conflict of authority in this country upon the question whether the buyer may return the goods, thus treating the contract as rescinded, and yet recover or recoup his damages for the breach of warranty, thus treating the contract as subsisting. 2 View against right to return. Thus, it seems to be re- garded as settled in New York, at least as to executed contracts of sale, and in the case of specific ascertained goods, that the buyer has no right to return goods sold with warranty of quality, unless there was fraud in the sale, or an express contract conferring such right; 3 and similar views receive support in other States. 4 View favoring right to return. But the rule in many of the United States, including Massachusetts, 5 Maine, 6 Maryland, 7 Iowa, 8 and other States, 9 is that to avoid circuity of action, a warranty may be treated as a con- dition subsequent at the election of the buyer, who is accordingly entitled, upon the seller's breach of such 353 REMEDIES FOB BREACH OF WARRANTY. 524 warranty, to rescind the contract and return the goods. 10 1 Best v. Flint, 58 Vt. 543 ; 56 Am. Rep. 570. And in an action for the purchase price of the goods, the buyer may show the breach of warranty in diminution of the price or reduction of damages : Best v. Flint, 58 Vt. 543; 5 Atl. Rep. 192; referring to Cutter v. Powell, 2 Smith's Lead. Cas. 25, 26; Waring v. Mason, 18 Wend. 425; West v. Cutting, 19 Vt. 5S6. Consult, also, Getty v. Rountree, 2 Finn. 279 ; 2 Chand. 28 ; 54 Am. Dec. 138, 144. 2 See succeeding portions of section. And consult Brantley v. Thomas, 22 Tex. 270 ; 73 Am. Dec. 264, 267. Compare Johnson v. McLane, 7 Black; 501 ; 43 Am. Dec. 102, n. 106. 3 See Day v. Pool, 52 N. Y. 416 ; 11 Am. Rep. 719 ; Parks v. Morris etc. Co. 54 N. Y. 586 ; Messmore v. N. Y. Shot etc. Co. 40 N. Y. 422 ; Russ v. Eckler, 41 N. Y. 488 ; Lawton v. Keil, 61 Barb. 558. Warranty on executory sales survives acceptance: See Briggs v. Hilton, 99 N. Y. 517 ; 52 Am. Rep. 63 ; Kent v. Friedman, 3 N. E. Rep. 905. 4 See Freyman v. Knecht, 78 Pa. St. 141 ; Bunce v. Beck, 43 Mo. 279. And consult Story on Sales, 455 ; 2 Sehouler on Personal Prop- erty, \ 579, whence paragraph mainly derived ; Lyon v. Bertram, 20 How. 149. 5 See Dorr v. Fisher, 1 Cush. 271 ; Bryant v. Isburgh, 13 Gray, 637 ; Morse v. Brackett, 98 Mass. 209. 6 See Marston v. Knight, 29 Me. 341 ; Marshall v. Perry, 67 Me. 78. 7 See Hyatt v. Boyle, 5 Gill & J. 121. 8 See Rogers v. Hanson, 35 Iowa, 283 ; Jack v. Des Moines R. R. 53 Iowa, 399. 9 See citations in next note. 10 2 Schouler on Personal Property, 578, whence paragraph derived ; citing, also, Gates v. Bliss, 43 Vt. 299 ; Butter v. Northum- berland, 50 N. H. 33; Osborn v. Gantz, 60 N. Y. 540; Youghiogheny Iron Co. v. Smith, 6(> Pa. St. 340 ; Dill v. Ferrell, 45 Ind. 268 ; Marsh v. Lo\y, 55 Ind. 271 ; Ralph v. Chicago etc. Co. 32 Wis. 177. Prompt notice of return required : See Paulson v. Osborn, 27 N. W. Rep. (Minn.) 203 ; 21 The Reporter, 783 ; citing, on need of notice, Smalley v. Hendrickson, 29 N. J. L. 371 ; Dewey v. Erie Borough, 14 Pa. St. 211 ; Moral School Township v. Harrison, 74 Ind. 93. Consult further, on effect and limit of right to reject, 2 Schouler on Personal Property, 580. 353. Damages. In general. Generally speaking, when personal property is sold, and it is not of the kind represented and warranted, the measure of damages is the difference between the contract price and the value of the article delivered. 1 Enhancement of damages. Yet the measure of dam- ages may sometimes be enhanced by proof that the property was purchased for a specific purpose, and that 525 REMEDIES FOR BREACH OF WARRANTY. 353 the sale was made by the vendor with the knowledge that the property was intended for such specific purpose. 2 JVb knowledge of special purpose. But if the vendor knows nothing of the contract made by the vendee, or the specific purpose for which the property is intended, and knows simply that the purchaser is seeking for an article of the kind and quality named, his liability is limited to the difference between the value of the article already delivered, and that of the article which the parties intended to purchase and contracted for, 3 Place of computation, etc. Where goods are to be used in a distant place, and the parties so understood, damages for breach of warranty may be ascertained there.* 1 We yb rich v. Harris, 31 Kan. 92 ; Wheeler & Wilson Manuf. Co. v. Thompson, 33 Kan. 491. And see Sedgwick on Damages (5th ed.), 318 ; Story on Sales, \\ 449, 454, 455 ; 2 Schouler on Personal Property, y35 ; citing, also, Jones v. Just, Law B. 3 Q. B. 197 ; Moulton v. ruton, 9 Me. 287 ; Whitmore v. South Boston Iron Co. 2 Allen, 52 ; Merrimack Manuf. Co. v. Quintard, 139 Mass. 127 ; Muller v. Eno, 14 N. Y. 597 ; Howie v. Bea, 70 N. C. 559. 2 Weybrich v. Harris, 31 Kan. 92. Expenses, interest, etc.: See Murry v. Meredith, 25 Ark. 134 ; Furlong v. Polleys, 20 Me. 491 ; Moul- ton v. Scruton, 39 Me. 287 ; 2 Sedgwick on Damages (7th ed.), 185. 3 Weybrich v. Harris, 31 Kan. 92. And see Wheeler & Wilson Manuf. Co. v. Thompson, 33 Kan. 491. 4 Phila. etc. Coal Co. v. Hoffman, 4 Atl. Bep. (Pa.) 848. Consult further on full value, agreed price, natural consequences, sale to sub- buyer, delivery by instalments, etc.; 2 Schouler on Personal Prop- erty, \\ 585-587. 354 FRAUDULENT SALES. 626 CHAPTER XXX. FRAUDULENT SALES. 2 354. Fraud in general. (J 355. Fraud on buyer and caveat emptor. g 356. Reliance upon seller's representations. \ 357. What constitutes seller's fraud. \ 358. Buyer's remedies for fraud. \ 359. Fraud 011 seller. 360. Buyer's fraudulent devices. \ 361. Fraud upon creditors. 354. Fraud in general, Distinguished from mistake. Fraud, as a ground of avoidance of the contract of sale, differs from mistake in relying upon misconduct of the opposite p'arty, rather than upon one's own innocent error, as a motive for setting aside the transaction. 1 Phases of fraud. Among the leading causes which justify the interference of the courts for fraud are mis- representation, 2 wrongful concealment, 3 the abuse of confidence, 4 and employment of force ; 5 and it is said that the modes of fraud are infinite, so that courts are indisposed to lay down any definition 6 of the word. 7 Effect, remedies, etc. Fraud is good ground for the non-enforcement or avoidance of a contract at the instance of the innocent party who is thereby injured, 8 ars it prevents real assent arid renders the contract void- able ab initio; 9 and the fraud to be remedied in a sale ma3 r be that of the seller on the buyer, or that of the buyer on the seller, or that of both buyer and seller upon some third party. 10 Voidable and void transactions. Fraud goes to the motives for making the contract, not to its execution, and only becomes important as such when a sale or contract is complete in its formal elements, and there- 527 FRAUDULENT SALES. . 354 fore valid until repudiated, though the right is claimed to rescind it. 11 But when one of the formal constituents of illegal transactions is wanting, as the identity of the supposed party dealt with, it is said that there is no question of rescission, but that the contract is void ab initiOj and fraud does not impart to it, against the will of the defrauded party, a validity that it would not have if the want was due to innocent mistake. 12 Failure to disclose defects. A failure on the part of the vendor to disclose unsoundness or faults, has been ruled 13 not to be fraud at law. 14 Fraud of agent. And a principal is an innocent vendor where he neither authorized any representations to be made, nor artifice to be used by his agents in effect- ing the sale of a mare which he knew to be lame and balky. 15 1 2 Schouler on Personal Property, ? 602. And compare Rodliff v. Dallinger, 141 Mass. 1 ; 55 Am. Rep. 439. The one party must do wrong intentionally, and the other act because of such fraud : 2 Schouler on Personal Property, 602. Discussion of various phases of subject : 1 Abbott's Law Diet. 520 ; 1 Bouvier Law Diet, (loth ed.) 688. 2 See Bigelow on Fraud, 4-9. 3 See Kohl v. Lindley, 39 111. 195 ; 89 Am. Dec. 294, 298, 299. Com- pare Decker v. Fredericks, 47 N. J. L. 469, 472. 4 Bigelow on Fraud, 10. Reliance on confidential relations in sale of oyster-bed : Hemingway v. Coleman, 49 Conn. 390 ; 44 Am Rep. 243. 5 2 Schouler on Personal Property, g 602, on which paragraph mainly based. 6 See collection of definitions in Winfield's Words etc. 274. 7 See Story's Eq. Juris. 386 ; 2 Parsons on Contracts (5th ed.), 769 ; 1 Corbin's Benjamin on Sales, ? 636 ; Story on Sales, 158, et seq. Action for deceit by defrauded party : See Clarke v. Dickson, El. B. & E. 148 ; Queen v. Saddlers Co. 10 H. L. Cas. 621. 8 2 Schouler on Personal Property, \ 602 9 See 1 Corbin's Benjamin on Sales, 636 ; citing, Bank of Georgia v. Higginbottom, 9 Peters, 48 ; Duncan v. McCullough, 4 Serg. & R. 483. Compare Rodliff v. Dallinger, 141 Muss. 1 ; 55 Am. Rep. 805. Requisites of representations for such effect: See Gregory v. Schoenell, 55 Ind. 101, 106. Evidence in action of tort for false and fraudulent representations in sale : Bowker v. De Long, 4 N. E. Rep. (Ind.) 834, with note, 835. Requisites of recovery for representations of solvency of bank ; knowledge, etc. : Cole v. Cassidy, 138 Mass. 437 ; 52 Am. Rep. 284. Fraudulent purpose to deceive : Cowley v. Smith, 46 N. J. L. 380 ; 50 Am. Rep. 432. 355 FRAUDULENT SALES. 528 10 2 Schouler on Personal Property, ? 602. Indictment for obtain- ing money by false pretenses ; sufficiency of proof: Commonwealth v. Blood, 6 N. E. Rep. (Mass.) 763. Evidence of similar pretenses in other recent independent sales: Commonwealth v. Jackson, 132 Mass. 16. 11 RodlifF v. Dallinger, 141 Mass. 1 ; 55 Am. Rep. 439. Rescission and return of goods : See Vogel v. Demarest, 97 Ind. 440. Divisible sale by sample : Meyer v. Wheeler, 19 The Reporter (Iowa), 302. 12 Rodliff v. Dallinger, 141 Mass. 1 ; 4 X. E. Rep. 805. 13 According to Decker v. Fredericks, 47 N. J. L. 469, 472. 14 See Beninger v. Corwin, 4 Zab. 257. 15 Decker v. Fredericks, 47 N. J. L. 469, 472 ; referring to doctrine of Kennedy v. McKay, 14 Vroom, 288. \ 355. Fraud on buyer and caveat emptor. Failure to disclose qualities of thing sold. A purchaser may avoid the contract of sale for false and fraudulent representa- tions of the seller. 1 But it is a general proposition of the law upon this subject that fraud cannot be imputed to one who fails to inform the person with whom he is . dealing of that which he was under no obligation to impart to him,' 2 but that the rule of caveat emptor, which governs in such cases, puts upon a purchasing party the necessity of informing himself concerning the qualities of any specific chattel, or incorporeal secur- ity which constitutes the subject-matter of the sale, and of drawing no inference from outside appearances, from the price demanded for the thing, or from the seller's failure to point out defects, but of exercising his own judgment so far as possible, and asking for a war- ranty if he desires further assurance. 3 When fraud not made out. Hence, the buyer cannot allege fraud where he inspects what he purchases, and the defect is apparent; 4 nor where a defect was not known to be such by the seller, from appearances, and no concealment in order to deceive was practiced ; 5 nor, of course, where the buyer takes the thing with all faults ; 6 nor where it appears that instead of trusting to the seller's statements on the point, the buyer veri- 629 FRAUDULENT SALES. $ 355 fiea by his own experts, or consummated the bargain upon the report of his own agents; 7 nor where he makes his own fair examination as to the point, and relies upon his judgment ; 8 nor, in general, where the matter was open to the buyer's observation, so that, by exercising ordinary diligence and prudence, he could have ascertained the defect. 9 Seller's silence. So, in general, the seller's silence, even though amounting to a passive acquiescence in the buyer's self-deception as to the quality or intrinsic value of the subject-matter bargained for, does not avoid the contract for fraud, but comes within the pro- tection of caveat emptor. Seller's active conduct. But where the seller is guilty of wilful misrepresentation as to material points, and thereby induces a party to purchase on terms that would otherwise have been withheld, or where there is wrongful concealment, exercise of force, or fraudulent conduct generally, caveat emptor does not apply, and the sale is so far vitiated that the deceived party may disaffirm it. 11 1 Taylor v. Mississippi Mills, 1 Southw. Rep. (Ark.) 283 ; citing, Plant v. Oondit, 22 Ark, 454 ; Morton v. Scull, 23 Ark. 289 ; Bight v. Holler, 31 Ark. 170. 2 See citations in next note. " 3 2 Schouler on Personal Property, g 603 ; citing, Bennett's Ben- jamin on Sales, 430 ; Smith v. Hughes, Law B. 6 Q. B. 597 ; Jackson v Wetherel, 7 Serg. & B. 422 ; Gossler v. Eagle Sugar Beflnery, 103 Mass. 331 ; Benton v. Maryott, 21 N. J. Eq. 113. Failure to disclose latent defect: Hadley v. Clinton etc. Co. 13 Ohio St. 502 ; 82 Am. Dec. 454. And see Cecil v. Spurger, 32 Mo. 462 ; 82 Am. Dec. 140. 4 Morse v. Bathburn, 49 Mo. 91. 5 Cogel v. Knisely. 89 111. 598 ; 85 111. 16. 6 Pearce v. Black well, 12 Ired. 49. 7 Howell v. Biddlecorn, 62 Barb. 131. 8 Pattison v. Jenkins, 33 Ind. 87 ; Stephens v. Orman, 10 Fla. 9. 9 Brown v. Leach, 107 Mass. 364 ; Bocchi v. Schwahacher, 33 La. An. 1364. And compare Poland v. Brownell, 131 Mass. 38. Source of paragraph : 2 Schouler on Personal Property, 603. 10 Smith v. Hughes, Law B. 6 Q. B. 579, as cited in support of text In 2 Schouler on Personal Property, 603. NEWMABK SALES. 45. 35Q FRAUDULENT SAL.ES. 530 11 2 Schouler on Personal Property, 2 604 ; citing, Story on Sales, gg 378-380 ; Bennett's Benjamin on Sales, 430 ; Regina v. Kenrick, 5 Q. B. 49; Paddock v. Strobridge, 29 Vt. 470; Manning v Albee, U Allen, 522. Fraud on buyer in general : inadequate price (Wood v. Boynton, 64 Wis. 265; 54 Am. Rep. 610); procuring signature to order (Gross v. Dryer, 28 N. W. Hep. (Wis.) 141) ; by-bidding and puffers at auction sales (Miller v. Baynard, 83 Am. Dec. 168 ; Peck v. List, 23 W. Va. 338; 48 Am. Rep. 398); false representations (Morehouse v. Northrop, 89 Am. Dec. 211) ; burden of proof in action for false representations : Faville v. Shehan, 26 N. W. Rep. (Mich.) 131, n. \ 356. Reliance upon seller's representation. In gen- eral. In order to avoid the sale on the ground of the seller's false representations, the party purchasing must have been deceived by the representation, and, in general, it must appear that the buyer trusted to the inducement which proves fraudulent, and bought on the strength of it. 1 Determining circumstances. And among important circumstances in determining the issue as to whether the buyer relied upon the seller's alleged false repre- sentations, are the buyer's opportunity to be present and examine the thing for himself before concluding the sale ; 2 the character of the thing, as in the case of a patent machine bought of an expert by a purchaser not skilled in mechanical matters, where the qualities of the article may be well known to the seller > but must be taken by the buyer in trust ; 3 or the resort by the seller to some trick or artifice for the purpose of check- ing examination, or diverting the buyer from the line of inquiry which he would otherwise most likely have pursued. 4 1 See Smith v. Hughes, Law R. 6 Q. B. 597 ; Bennett's Benjamin on Sales, 429 ; Morse v. Rathburn, 49 Mo. 91 ; 2 Schouler on Personal Property, \ 605, whence paragraph derived. But the buyer's right to r ly upon the seller's false statements is favored: Redgrave v. Hurd, Law R. 20 Ch. D. 1 ; Collins v. Dennison, 12 Met. 549. 2 Vandewalker v. Osmer, 65 Barb. 556 ; Smith v. Richards, 13 Peters, 26 ; Bendurant v. Crawford, 22 Iowa, 40. 3 See Page v. Dickerson, 28 Wis. 694 ; Kendall v. Wilson, 41 Vt. 567. 4 See Story on Sales, g 381 ; Smith v. Hughes, Law R. 6 Q. B. 597 ; Roseman v. Canovan, 43 Cal. 110 ; 2 Schouler on Personal Property, g 604, whence paragraph derived. 531 FRAUDULENT SALES. g 357 357. What constitutes seller's fraud. Fraudulent concealment. There are circumstances under which a seller's concealment of facts known to him becomes fraudulent, notwithstanding he says nothing. 1 Thus among the instances where silence on the part of the seller carries with it the legal consequences of positive misrepresentation "because it was the seller's duty to speak out, is that of selling fodder upon which poison has been spilled ; 2 that of putting out a prospectus or advertisement with artful concealments, so as to give a false impression; 3 and that of wilfully hiding some internal defect which rendered the thing worthless. 4 Positive misrepresentations. Confidence should not be placed in mere statements of the seller, not amount- ing to warranty. 5 But a buyer has a right to trust the seller as to matters not within his knowledge ; 6 and as any seller may make an express warranty, so he is held to responsibility for false statements by way of induce- ment, even though the buyer might have ascertained the falsehood by inquiry. 7 Statements concerning price. The principle has been recognized that a misrepresentation as to the market price of an article of general commerce, made falsely and fraudulently by one party to induce a sale, and re- lied upon by the other, will not avoid a contract there- for, when there are no circumstances making it the special duty of the one party to communicate the knowl- edge he possesses, and none giving him the peculiar means of ascertaining such market price. 8 But where the seller agreed to sell a stock of staple groceries suit- able for the buyer's trade, of first-class quality, at prices greatly below the current rates for such goods, and the buyers relied upon these representations and permitted the seller to select and ship the goods, 9 evi- dence is relevant, 10 which tends to show that the stock 358 FRAUDULENT SALES. 532 of goods had been fraudulently billed and charged at current rates, and in some instances above current rates. 11 1 2 Schouler on Personal Property, ? 604. 2 French v. Vining, 102 Mass. 135. 3 Oakes v. Turquand, Law R. 2 H. L. 235. 597. 5 See Manning v. Albee, 11 Allen, 522 ; Walker v. Pue, 57 Md. 155 ; 2 Hehonlor on Personal Property, 603, making these citations in support of text. 6 2 Schouler on Personal Property, 604. man, 1 Atl. Rep. (Pa.) 40. Representat man, i AH. nep. ifu; *u. .tvepi iminon oy director mat oonas 01 corporation good: Drake v. Grant, 36 Hun, 464. Misrepresentations by executor concerning sale of stock : Keen v. James, 39 N J. Eq. 527 ; 51 Am. Rep. 29. 8 See Graffenstein v. Epstein, 23 Kan. 443. 9 Cavender v. Roberson, 33 Kan. 626. 10 See Lord v. French, 61 Me. 420. p: q 358. Buyer's remedies for fraud. Choice of remedies. Upon the discovery by the buyer of fraud in the repre- sentations inducing a sale of personal property, such as a stock of goods and the good-will of the business, he has his election to rescind the sale and return the property, 1 or to retain the property and prosecute his claim for damages either by an original action or as a counter-claim to an action against him for the purchase money, brought by the party committing the fraud. 2 Uode of rescission. An acceptance of goods under a contract, when induced by the seller's fraud, leaves the 533 FRAUDULENT SALES. $ 358 buyer still at liberty to rescind upon discovering the fraud; 3 but within a reasonable time after discovering the fraud, he must act upon his discovery by refusing to complete the purchase, if the goods are already de- livered, or else returning or offering to return them, and demanding a return of the price if the goods are already paid for ; 4 though the buyer is relieved from the obligation to return where the goods are of no value to seller or buyer, 5 or were destroyed in making the test necessary to show the fraud. 6 It has been recently held in substance that where the contract has been in- duced by fraud, it is not necessary that the buyer should absolutely tender what he has received, though he ought to give notice of his intention to rescind, and that he will not abide by the contract, and ought to be in a situation upon the trial to put the other party in the situation in which he was at the time of the discovery of the fraud. 7 Measure of damages. The rule for the estimation of damages resulting from fraudulent representations in the sale of real and personal property is, to ascertain the difference between the value of the property as it actually existed on the day of sale and its value as it was represented to be. 8 1 See citations in next note. 2 Herefort v. Cramer, 7 Colo. 483 ; citing, Whitney v. Allaire, 4 Demo, 536 ; Lilly v. Bandall, 3 Colo. 298. And see Cavender v. Bober- BO n, 33 Kan. 626 ; 7 Pacif. Bep. 152 ; citing, Weybrich v. Harris, 31 Kan. 92 ; 1 Pacif. Kep. 271 ; Lord v. French, 61 Me. 420; Wheeler & Wilson Manuf. Co. v. Thompson, 33 Kan. 491 ; 6 Pacif. Bep. 902. 3 Dutchess Co. v. Harding, 49 N. Y. 321. Bescission for fraud on buyer : Gaty v. Holcomb, 44 Ark. 216. 4 See Gatling v. Newell, 9 Ind. 572 ; Matteson v. Holt, 45 Vt. 336 ; Pence v. Langdon, 99 U. S. 578 ; Hall v. Fullerton, 2 Hill, 292 ; Mana- han v. Noyes, 52 N. H 232 ; Garland v. Spencer, 46 Me. 528 ; Collins v. Townsend, 58 Cal. 608 ; Story on Sales, 458 ; Bennett's Benjamin on Sales, 452. Consult, also, on return of consideration, Johnson v. Frew, 33 Hun, 193. 5 See various citations in last note, and Brewster v. Burnett, 125 Mass. 68 ; Pence v. Langdon, 99 U. S. 578. 359 FRAUDULENT SALES. 534 6 See Pacific Guano Co. v. Mullen, 66 Ala. 582. Source of para- graph : 2 Schouler on Personal Property, 605. 7 American Wine Co. v. Brasher, 13 Fed. Kep. 595, 603. And gen- erally the latest decisions are quite lenient to the buyer in dispensing with a strict tender and other formalities of rescission, so long as he has not exercised acts of ownership while delaying, and so far as the informalities or delay are not set up by the defrauding party him- self: 2 Schouler on Personal Property, \ 605 ; referring to Van Trott v. Wiese, 36 Wis. 439; Hendrickson v. Hendrickson, 51 Iowa, 68; Potter v. Taggart, 54 Wis. 395; and quoting, Spence v. Langdon, 99 U. S. 578. Placing in statu quo, exercise of election, fraud, and war- ranty, liability for agent's acts, etc.: 2 Schouler on Personal Prop- erty, ?? 605-307. Fraudulent warranty suit: See, also, Sweeney ?, Vroman. 60 Wis. 278. Freedom of principal for liability for unauthor- ized representations, etc., of agent : Decker v. Fredericks, 47 N. J. L. 469 ; stating doctrine of Kennedy v. McKay, 14 Vroom, 288. 8 Herefort v. Cramer, 7 Colo. 483 ; citing, Morse v. Hutchins, 102 Mass. 439 ; Wright v. Roach, 57 Me. 600. 359. Fraud on seller. Passing of title or possession. Whenever property is obtained from the owner by fraud, it is important to determine whether the facts show a sale to the party guilty of the fraud, or a mere delivery of it into his possession as a result of the fraudulent devices practiced. 1 In the former case, where the title passes and not the bare possession only, there is a contract of sale which is voidable only and not void, 2 so that the defrauded seller may at his option confirm or repudiate it, as the contract only becomes void after it has been avoided. 3 Seller's remedies. Therefore in the case of a sale of goods induced by fraud of the vendee, the vendor may sue in assumpsit for the price, in affirmance of the con- tract, or in trover or replevin, in disaffirm ance of it.* Protection of bona fide purchaser. But until the vendor has done some act to disaffirm the transaction the property vests in the vendee, and hence an inno- cent transferee, for value, takes the title, 5 as the mere fact that the contract may be afterwards rescinded does not affect its intermediate efficiency. 6 False personation. In cases of false personation, however, it has been held that no title passes, 7 but this distinction arises out of the consideration that no con- 535 FRAUDULENT SALES. \ 359 tract is in such case made with the party personated , and none is contemplated with the false personator, so that the title remains in the vendor, and the transac- tion is wholly inoperative even as to third persons. 8 Burden of proof, creditors, etc. One who claims to be a bona fide purchaser from the fraudulent buyer has the burden of showing that such is the case, as against the defrauded seller ; 9 and no such claim can be main- tained by the attaching or execution creditors of the buyer, who merely stand in his place in regard to the title he acquired. 10 1 Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. 180. And see Neff v. Landis, 1 Atl. Kep. (Pa.) 177 ; 21 The Reporter, 60. 2 See 200, on VOIDABLE OB DEFEASIBLE TITLE. 3 See Neff v. Landis, 1 Atl. Rep. (Pa.) 177 ; 21 The Reporter, 60. But fraud held to vitiate sale in Amer v. Hightower, 11 Pac. Rep, (Cal.) 697. 4 See Old Dom. Steamship Co. v. Burckhardt, 31 Gratt. 664 ; Neff v. Landis, 1 Atl. Rep. (Pa.) 177 ; 21 The Reporter, 60. Seller's reme- dies for fraud : 2 Schouler on Personal Property, \ 613 Return of goods: Sharp v. Ponce, 76 Me. 350. Return of consideration before replevin suit : Doane v. Lockwood, 4 N. E. Rep. (111.) 500. Where sale under value, no waiver of action by taking price : Mallory v. Leach, 82 Am. Dec. 625. Effect of rescission : Doane v. Lockwood, 4 N. E. Rep. (111.) 500. 5 See Stevenson v. Newnham, 13 Com. B. 285 ; Mears v. Waples, 3 Iloust. 581 ; Williams v. Given, 6 Gratt. 268 ; 202, on TITLE OF FRAUDULENT VENDEE. 6 Neff v. Landis, 1 Atl. Rep. (Pa.) 177 ; 21 The Reporter, 60. And see Old Dom. Steamship Co. v. Burckhardt, 31 Gratt. 664 ; Alexander v. Swackhamer, 105 Ind. 81 ; 55 Am. Rep. 180 ; citing, Curme v. Rauh, 100 Ind. 247 ; Parrish v. Thurston, 87 Ind. 437. Protection of b f ma fide purchaser fully discussed: See #197-203. prevalence of exemption : 204, citing the cases on the subject. And see Perkins v. Anderson, 19 The Reporter (Iowa), 112. 7 See 2 205, on LIMITATIONS OF EXEMPTION. 8 Neff v. Landis, 1 Atl. Rep. (Pa.) 177 ; 21 The Reporter, 60. 9 See Devoe v. Brandt, 53 N. Y. 462 ; McLeod v. First Nat. Bank, 42 Miss. {).") ; Lynch v Beecher, 38 Conn. 41)0 ; Porter v. Parks, 49 N. Y. 5G4. But compare contra, Mears v. Waples, 3 Houst. 581. 10 See Sargent v. Sturm, 23 Cal. 350 ; 83 Am. Dec. 118 ; Jordan v. Parker, 56 Me. 557 ; Thompson v. Rose, 16 Conn. 71 ; Hartt v. Mc- Neil, 47 Mo. 526; Field v. Stearns, 42 Vt. 106; Devoe v. Brandt, 53 N Y. 462; Oswego Starch Factory v. Lendrum,57 Iowa, 573 ; 42 Am. Hop. 53 ; Ensign v Hoffield, 4 Atl. Rep. (Pa.) 189. Sources of para- graph : 2 Schouler on Personal Property, 609 ; Oswego Starch Fac- tory ?'. Lendrum, 57 Iowa, 573 ; 42 Am. Rep. 53 ; Sargent v. Sturm, 23 Cal. 350 ; 83 Am. Dec. 118; "Title from Fraudulent Vendees," etc. 7 JSont'i. L. Rev. N. S. 519, 569. Purchaser from fraudulent vendor may give title to bona fide purchaser : Sharp v. Jones, 81 Am. Dec. 389. 360 FRAUDULENT SALES. 536 360. Buyer's fraudulent devices. Inducements to contract. The fraudulent devices of the buyer, embrac- ing any of the infinite phases of deceit, which make a sale voidable, except against a further innocent pur- chaser, may be the inducement to the contract, as in the case of misrepresentations of pecuniary standing, 1 forged recommendations, 2 and the like. 3 Concerning consideration. So the fraudulent devices may touch the consideration, as where payment is made in worthless securities, fictitious bills, counterfeit money, or stolen property. 4 Design not to pay. And the fraud may also arise from the intent of the vendee, as a preconceived design never to pay for the goods, if distinctly shown, is by the weight of American authority deemed sufficient ground for the vendor to avoid the sale, though there were no false representations or fraudulent pretenses. 5 1 See Luckey v. Roberts, 25 Conn. 486; Devoe v. Brandt 53 1ST. Y. 462 ; Ensign v. Hoffleld, 4 Atl. Rep. (Pa.) 189. Representations as to credit : See Lyon v. Briggs, 14 R. I. 222 ; 51 Am. Rep. 372 ; Genesee County Savings Bank v. Mich. Barge Co. 52 Mich. 164. Buyer's false representatipns of ability to pay: Cain v. Dickenson, 60 N. H. 371. Representations through mercantile agency : DeickerhofF v. Brown , 21 The Reporter (Md.) 583; citing, Victor v. Hanlien, 33 Hun, 549. Concealing indebtedness: Newell v. Randall, 32 Minn. 171 ; 50 Am. Hop. 562. Failure to disclose extent of borrowed capital: Deicker- hofF?;. Brown, 21 The Reporter (Md.) 583. Buyer's fraud as to credit of a third party : 2 Schouler on Personal Property, 612. 2 Mowrey v. Walsh, 8 Cowen, 238. 3 "Title from Fraudulent Vendees," etc. 7 South. L. Rev. N. S. 540, 563. Concealment of information, etc. : 2 Schouler on Personal Property, 611. 4 See Manning v. Albee, 17 Allen, 520 ; White v. Garden, 10 Com. B. 919 ; Cochrau v. Stewart, 21 Minn. 435 ; Arnott ?;. Cloudas, 4 Dana, 300 ; Williams v. Given, 6 Gratt. 2G8 ; Green v. Humphrey, 50 Pa. St. 212 ; Titcomb v. Wood, 38 Me. 5(53 ; Lee v. Portwood, 41 Miss. 103 ; Arendale v. Morgan, 5 Sneed, 783. Obtaining goods by false pretenses : 206. 5 "Title from Fraudulent Vendees," etc. 7 South. L. Rev. N. S. 549,563, and cases collected. Consult, also, Belding v. Frankland, 8 Lea, 67 ; 41 Am. Rep. 630 ; Oswego Starch Factory v. Lendrum, 57 Iowa, 573 ; 42 Am. Rep. 53 ; Bump on Purchases by Insolvents, 6 South. L. Rev. N. S. 481, 485 ; Thompson v. Taylor, 15 Phila. 250 ; Carnahan v. Bailey, 28 Fed. Rep. 519 ; Lee v. Simmons, 27 N. W. Rep. (Wis.) 174, n. 176 ; Hanchett v. Mansfield, 16 111. App. 407 ; Catlin v. Warren, 16 111. App. 418 ; Burrill v. Stevens, 73 Me. 395 ; 40 Am. Rep. 36S ; Des Farges v. Pucrh, 93 N. C. 31 ; 53 Am. Rep. 446 ; Taylor v. Mississippi Mills, 1 South. Rep. (Ark.) 283. FRAUDULENT SALES. g 361 361. Fraud upon creditors. In general. The fraud of parties to sales upon their creditors, 1 presents few questions peculiar to the law of sales. 2 Retention of possession. Retention of possession of chattels by the seller is, in the United States, evidence more or less conclusive of fraud upon the rights of third parties ; 3 but the main point of difference is whether such retention is only prima facie evidence of fraud or fraud per se. 4 Collusiveness of presumption of fraud. And while the general principle favored in England and in Amer- ica is, 5 that possession affords only prima facie evidence of fraud, which may be sustained or rebutted by proof of other circumstances, yet the stricter doctrine has pre- vailed in the federal courts and in some of the States, that an absolute bill of sale unaccompanied by a cor- responding change of possession, is of itself a fraud in law. 6 Statutory regulation. Statute provisions on this sub- ject exist in various States, as in New York, Maryland, Delaware, Missouri, Indiana, Iowa, Minnesota, Wis- consin, Nebraska, and California. 7 Requisites of delivery. It is said to be now well settled that a change of location of the property is not in all cases essential, on the sale of a chattel, to consti- tute a valid delivery as against third persons, but that due regard must be had to the character of the property, the nature of the transaction, the position of the parties, and the intended use of the property. 8 And a transfer of personal property, accompanied by an actual, im- mediate, and continued change of possession, is not fraudulent as to creditors because made in consideration of a promise by the transferee to use the property in a certain manner, which would confer pecuniary profit on the transferrer. 9 But it has been held that the circum- 361 FRAUDULENT SALES. 538 stances that the creditors knew of a sale, and practically conceded that the purchase was in good faith, in no manner operated as a waiver so as to relieve the pur- chaser from compliance with the peremptory terms of a statute, raising a conclusive presumption of fraud from want of the requisite change of possession. 10 1 Consult generally on this subject. "Walden v. Murdock, 23 Cal. 540 ; 83 Am. Dec. 135, n. 141. Bills of sale acts: See 2 Schouler on Personal Property, 616, note on p. 629. ISIo fraud in law: Wall v. Wall, 3 Atl. Rep. (Pa.) 25. Preference by insolvent : Boss v. Sedgwlck, 10 Pacif. Rep. (Cal.) 400. Hindering, etc.: Beck with v. Burrough, 14 R. I. 366 ; 51 Am. Rep. 392. Selling goods at dis- count not badge of fraud : Barnes v. Foxen, 53 Mich. 475. Selling on unusually long credit: Spaulding v. Adams, 63 Iowa, 437. Buyer's knowledge of fraudulent purpose insufficient : Holmes v. Braidwood, 82 Mo. 610. 2 Vendor's statements, etc.: Gallagher v. Williamson. 23 Cal. 331 83 Am. Dec. 114, n. 117. Return of excess: Reeves v. Seeburn, 16 J;AV:I 2:)4 ; 85 Am. Dec. 513. Preference, counter-branding cattle, etc.: Walden v. Murdock, 23 Cal. 540 ; 83 Am. Dec. 135, n. 141. Intent to avoid liability for support of bastard child : Schuster v. Stout, 30 Kan. 529. 3 See Bennett's Benjamin on Sales, \ 675, n. d, reviewing the cases ; Fairfield Bridge Co. v. Nye, 60 Me. 372 ; Coburn v. Pickering, 3 N. H. 415 ; Rothchilfl v. Howe, 44 Vt. 389 ; Ingalls v. Herrick, 108 Mass. 351 ; Clow v. Woods, 5 Serg. & R. 275 ; Capron v. Porter, 43 Conn. 283 ; Robbins v. Oldham, 1 Duval, 28 ; Gilbert v. Decker, 53 Conn. 401. 4 2 Schouler on Personal Property, 615. No presumption of fraud : Jones v. Simpson, 6 Sup. Ct. Rep. 538. 5 But see Pregnall v. Miller, 21 S. C. 385 ; 53 Am. Rep. 684, 685. 6 See 2 Kent Com. 520-532 ; Story on Sales, ?? 510-529 ; Bennett's Benjamin on Sales, 675, n. d; 2 Schouler on Personal Property, 616 ; citing, also, Stats. 13 Eliz. ch. 5, and 27 Eliz. ch. 4 ; Stats. 17, 18 Viet. ch. 36 ; Edwards v. Harben, 2 Term Rep. 587. Concurrent possession : Brawn v. Keller, 43 Pa. St. 104 ; 82 Am. Dec. 554 ; Hall v. Parsons, 17 Vt. 271. Pre-existing debt, etc.: Sargent v. Sturm, 23 Cal. 350 ; 83 Am. Dec. 118, n. 122 ; Pregnall v. Miller, 21 S. C. 385 ; 53 Am. Rep. 684 ; Dolan v. Van DAnark, 10 Pacif. Rep. (Kan.) 848. 7 2 Schouler on Personal Property, ? 616. See Harter v. Donahoe, 9 Pacif. Rep. (Cal.) 651 ; Bassinger v. Spangler, 10 Pacif. Rep. (Colo.) 809, 818 ; O'Gara v. Lowry, 5 Mont. 427 ; McKee v. Bassick Min. Co. 8 Pacif. Rep. (Colo.) 501. 8 Cessna v. Nimick, 4 Atl. Rep. (Pa.) 193. And see Chase v. Gar- rett, 1 Atl. Rep. (Pa.) 912. Delivery of animals and chattels gener- ally: Williams v. Lerch,56 Cal. 330. Insufficiency of stenciling of vendee's name on sides of railroad cars: Rafferty v. McKenna, 1 Atl. Rep. (Pa.) 546. Retaining old sign, etc.: Brown v. Kimmel, 67 Mo. 430 ; Bassinger v. Spangler, 10 Pacif. Rep. (Colo.) 809, 816. Actual and continued change of possession: Stevens v. Irwin, 15 Cal. 503 ; God- chaux v. Mulford, 26 Cal. 316 ; Bassinger v. Spangler, 10 Pacif. Rep. 809, 816 ; O'Gara v. Lowry, 5 Mont. 427. And see Norton v. Doolittle, 32 Conn. 405. Leaving carpets in brother's house : Evans v. Scott, 89 Pa. St. 136. Bill of sale Saturday and possession taken early Sunday FRAUDULENT SALES. 361 morning : Kleinschmidt v. McAndrews, 6 Sup. Ct. Rep. 761. Insuffi- ciency of selecting, packing, marking, charging, etc. : Davis v. Meyer, 1 Southw. Rep. (Ark.) 95, n. 96. Brother's control of furniture in. lodging-house: Ross v. Sedgwick, 10 Pacil Rep. (Gal.) 400. Brother driving team sold: O'Gara v. Lowry, 5 Mont. 427. No change of custody or situation of cattle : James v. Fulkerth, 7 Pacif. Rep. (Cal.) 768. Exempt property: Barton v. Brown, 8 Pacif. Rep. (Cal.) f'~ Notice to custodian : Lufkins v. Collins, 7 Pacif. Rep. (Idaho) 95. * 9 Lewin v. Hopping, 8 Pacif. Rep. (Cal.) 73, n. 75, fully discussing subject of fraudulent transfer. Belief of vendee that price to be used in settling debts: St. Louis Coffin Co. v. Rubelman, 15 Mo. App. 280. . . . , . . . Employment of vendor in subordinate capacity : O'Gara v. Lowry, 5 Mont. 427 ; Godchaux v. Mulford, 29 Cal. 325. Employment of vend or's brother: Steele v. Miller, 1 Atl. Rep. (Pa.) 434 ; 21 The Reporter 92; citing, Billingsley v. White, 59 Pa. St. 464, 467; McKibben v'. Martin, 64 Pa. St. 352. See, also, Goldstone v. Nunan,19The Reporter, (Cal.) 680. Sale by husband to wife: Leavitt v. Jones, 54 Vt. 423 ; 41 Am Rep. 849 Insolvent father's sale to daughter of mare kept on farm for a time : McClure v. Torney, 107 Pa. St. 414. Business carried on under same name : Wolf v. Kahn, 62 Miss. 814. Sufficient change of possession through day's delay, etc. : O'Gara v. Lowry, 5 Mont. 4:27. Wagon left in seller's possession, etc.: Parker v. Mar veil, 60 N. H. 30. Storer of goods stating that they belonged to seller : W T ing ?>. Peabody, 57 Vt. 19. Delivery unnecessary where logs on low, wet land: Kingsley v. White, 57 Vt. 565. Horse, etc., kept in barn of seller's house: Ziegler v. Handrick, 106 Pa. St. 57. Symbolical deliv- ery, good transfer of possession : Sharp v. Carroll, 27 N. W. Rep. (Wis.) 82. Nailing up holes in corn-crib : Pope v. Cheeney, 27 N. W. Rep. (Iowa) 754, citing cases and discussing requisites. Delivery not practicable : Kingsley v. White, 57 Vt. 565 ; 20 The Reporter, 671, dis- cussing cases. Transfer of coal-pits: Tognini v. Kyle, 45 Am. Rep. 442. Property in possession of bailee: Steele v. Miller, 1 Atl. Rep. (Pa.) 434 ; 21 The Reporter, 92. And see Campbell v. Hamilton, 63 Iowa, 293. 10 Bassinger v. Spangler, 10 Pacif. Rep. (Colo.) 809, 816; citing. Perrin v. Reed, 35 Vt. 2 ; Lawrence v. Burnham, 4 Nev. 361. Bill of sale not enough: Comaita v. Kyle, 19 The Reporter (Nev.) 345. No change of possession ; absolute changed to conditional sale : Wagner v. Commonw. 19 The Reporter (Pa.) 696. 362 ILLEGAL SALES. 540 CHAPTER XXXI. ILLEGAL SALES. $ 362. In general. $ 363. Knowledge of guilty purpose. 2 364. Insufficiency of mere knowledge. 365. Participation and aiding. $ 366. Executory and executed contracts. % 367. Sales illegal at common law. \ 368. Violation of public policy. f 369. "Wagering contracts. \ 370. Concerning public offices and officers. \ 371. Concerning litigation. 372, Restraint of trade. \ 373. Transfer of good-will. 374. Violation of statutes. g 375. Sales of intoxicating liquors. 376. Sunday sales. g 362. In general. As utterly void. A contract of sale which the law makes illegal, is not merely voidable, as it is when infected with fraud, but is utterly* void and cannot be enforced on either side j 1 so that an innocent person who has been led into a bargain which he finds to be illegal, has no option but to drop it, as he can neither defend nor sue upon the bargain, and may render him- self criminally liable if he goes on with the transaction. 2 At common law and under statute, etc. There are ille- gal sales at the common law, and illegal sales founded in statute, 3 the effect of the illegality in the latter sense merely being liable to special regulation. 4 Mala in se and mala, prohibita. But the ol d distinction taken between mala in se and mala prohibita, though it has been said that the moral feeling and common sense of men do discriminate, 5 is not countenanced 6 by the later authorities. 7 Ml ILLEGAL SALES. 362 Unlawful scope of contract. And it is regarded as now well settled that any promise, contract, or undertaking, the performance of which would tend to promote, ad- vance, or carry into effect an object or purpose which is unlawful, is in itself void, and will not maintain an action, 8 as the law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect. 9 Knowledge or participation. The doctrine sustained by the great weight of authority is said to be to the effect that knowledge alone by the vendor of the in- tended unlawful use of the property by the vendee, is not sufficient 10 to defeat the vendor's action against the vendee for the purchase price of goods sold and de- livered; 11 but that it must further be shown that the vendor sold the goods for the purpose that the law should be violated, or that he had some interest in the violation of the law, or that he participated in some manner 12 in the unlawful purpose. 13 Executed and executory contracts. In fact, courts do not like to relieve parties from their contracts after the contracts have been executed and performed on the other side, 14 and after the parties asking to be relieved have received and enjoyed all the fruits and benefits which they expected to receive or enjoy from their con- tracts ; 15 and especially do courts not like to relieve those parties in such cases who have committed the principal wrongs themselves, and who plead their own wrongs for the purpose of being so relieved. 16 Want of moral turpitude. But the various qualifica- tions of the general rule are chiefly applied, by way of indulgence, to cases where the transaction involves no moral turpitude on the part of the party seeking a remedy, but is a violation of some statute against which public policy pronounces with some hesitation. 17 NEWMAKK SALES. 46. 362 ILLEGAL, SALES. 542 1 See Story on Sales, \ 485. 2 2 Schouler on Personal Property, \ 617. Illegal sale as considera- tion for note : Bowen v. Webber, 28 N. \V. Rep. (.Iowa) 600. 3 See Story on Sales, 486. 4 2 Schouler on Personal Property, ? 617. It is a principle apply- ing to contracts generally, that consent cannot receive legal effect so as to confer an active title upon one of the persons concerned, if the proposition consented to by him is either directly prohibited by authority, or involves conduct subversive of good morals or public policy: Campbell on Sales, 145. And see Greenhood on Public Policy, p. 1. The maxim i in pari, delicto potior est conditio defen- .dentis: In re Maplebuck, Ex purte Caldicott, Law R. 4 Ch. D. ISO. And see Bennett's Benjamin, 504, n. c. 5 See Hill v. Spear, 50 N. H 253 ; 9 Am. Rep. 205. 6 See White r. Buss, 3 Cush. 448, 450 ; 2 Bouvier Law Diet. tit. Mala Prohibits (14th ed.), 91. 7 2 Schouler on Personal Property, \ 617 And see Story on Sales, 430; Greenhood on Public Policy, p. 1; citing, Evans v. City of Trenton, 24 N. J. L. 764, 771. 8 White v. Buss, 3 Cush. 448. Illegality of some of the promises does not affect consideration of whole contract, unless it be indivisi- ble : feee Carleton v. Woods, 24 N. H. 290 ; Boyd v. Eaton, 44 Me. 51 ; McKnight v. Devlin, 52 N. Y. 399 ; Thurston v. Percival, 1 Pick. 415 ; Gelpkev. Dubuque, 1 Wall. 321; Hanauer v. Gray, 25 Ark 350; Erie R. R. Co. v. Union Express Co. 35 N. J. L. 240; Crookshank v. Rose, 5 Car. & P. 19 ; Hinde v. Gray, 1 Man. & G. 195 ; Lange v. Work, 2 Ohio St. 519; Pecker r. Kennison, 28 N H. 290; Waite v. Jones,! Bir.g. N. C. 656; Filson v. Hines, 5 Pa. St. 452; Story on Sales, 5C1; 2 Schouler on Personal Property, g 618 ; referring, also, to Kottwitz v Alexander, 34 Tex. 689; Chandler v. Johnson, 39 Ga. 85; Hanauer v. Doane, 12 Wall. 342 ; More v. Bonnet, 40 Cal. 2.",l ; Ladd v. Dillingham, 34 Me. 316. And consult Campbell on Sales, 145, 146. 9 White v. Buss, 3 Cush. 448, 450. And see 2 Corbin's Benjamin on Sales, \ 787, n. 1 ; Story on Sales, \\ 485-488 ; 2 Schouler on Personal Property, G17 ; citing, Montefion v. Montefiori, 1 Black. W 363 ; Caiiaan v. Bryse, 3 Barn. & Aid. 179 ; Concord v. Delany, 58 Me. 309 ; Watrous v. Blair, 32 Iowa, 58 ; Cameron v. Peck, 37 Conn. 555 ; Myers v. Meinrath, 101 Mass. 366 ; Brackett v. Edgerton, 14 Minn. 174 ; Hanauer v. Doane, 12 Wall. 302; Oscanyan v. Arms Co. 103 U. S. 261 ; 8 Fed. Dec. 205; Sampson v. Shaw, 105 Mass. 149; Horton v. Buffing- ton, 101 Mass. 400 ; Peterson v. Christensen, 26 Minn. 377. 10 See 364, on INSUFFICIENCY OF MERE KNOWLEDGE. 11 Distilling Co. r. Nutt, 34 Kan. 724, 730,731; 10 Pacif. Rep. 163. And see Fein em an r. Sachs, 3*] Kan. 621 ; 52 Am. Rep. 547. Compare \ 363, on KNOWLEDGE OF GUILTY PURPOSE. 12 See g 365, on PARTICIPATION AND AIDING. 13 Distilling Co. r. Nutt, 34 Kan. 724, 731 ; 10 Pacif. Rep. 163. 14 See \ 366, on EXECUTORY AND EXECUTED CONTRACTS. 15 Distilling Co. v. Nutt, 34 Kan. 724, 731 ; 10 Pacif. Rep. 163. 16 Distilling Co. v. Nutt, 34 Kan. 724, 731 ; 10 Pacif. Rep. 163. Besides the distinction made between mere knowledge and knowledge with something more, there is also a well recognized distinction between executed and executory contracts ; Distilling Co. v. Nutt, 34 Kan. 724, 731. 17 2 Schouler on Personal Property, 2 617. See \ 363, on KNOWL- EDGE OF GUILTY PURPOSE. ILLEGAL SALES. \ 363 363. Knowledge of guilty purpose. Want of. The seller of goods may recover therefor, if he had no knowledge whatever of the buyer's guilty purpose, or merely reasonable cause to believe therein ; * and hence to a certain extent, a transaction may be illegal on one side and not on the other, because of the different motives of the respective parties to the sale, the one being innocent and the other guilty. 2 Guilty party and purpose. So the guilty party and the guilty purpose must often be separated ; 3 for while it is unlawful for one to let premises for purposes of prostitution, or sell tools for the purpose of house-break- ing, it is not unlawful to furnish a person with neces- saries of any kind because she happens to be a prostitute, or to make an innocent contract with a professional house-breaker. 4 Transactions clearly immoral. But it is said that the best of the late English and American cases utterly repudiate the qualification in favor of requiring some- thing more than guilty knowledge on a seller's part, save as applied to contemplated acts of inferior crimin- ality, and completed criminal acts which the party sanctions, not assists, by his conduct. 5 Upon this dis- tinction, whereby those sales alone are upheld in which the seller may possess knowledge of the buyer's illegal purpose, and yet sell without aiding to accomplish some heinous public offense, 6 are founded decisions which render the seller's guilty knowledge fatal to his rights, where he sells poison knowing that the buyer means to drug another with it, 7 or supplies goods for sustaining rebels in arms, 8 or vends a carriage to a prostitute to be used in aid of her vocation. 9 1 S^e Kottwitz v. Alexander, 34 Tex. 680 ; Prescott v. Norris, 32 JT. H. 101 ; Buck v. Albee, '26 Vt. 184 ; Hotchkiss v. Finan, 105 Mass. 86. 2 g Schouler on Personal Property, a 617, whence paragraph derived. I 364 ILLEGAL SALES. 544 3 2 Schouler on Personal Property, 617, whence paragraph derived. 4 See Story on Sales, 488 ; Bowry v. Bennett, 1 Camp. 348. But see Pearce v. Brooks, Law B. 1 Ex. 212. 5 2 Schouler on Personal Property, 619. 6 See citations in succeeding notes. 7 Langton v. Hughes, 1 Maule & S. 593. And see McFarlane v. Taylor, Law R. 1 H. L. 8. 245. 8 Martin v. McMillan, 65 N. C. 199; Hanauer v. Doane, 12 Wall. 342, 347. And see McGavock v. Puryear, 6 Cold. 34. 9 Pearce v. Brooks, Law R. 1 Ex. 212. It follows that the bargain for a thing i:i itself proper may become void from regard to the pur- pos-"* for which it is to be applied, and one's guilty knowledge of that purpose : 2 Schouler on Personal Property, \ 6I<>, whence para- graph derived ; here referring to Story on Sales, 506, n. ; Adams v. Coulliard, 102 Mass. 167 ; Sprott v. United States, 20 Wall. 459. 364, Insufficiency of mere knowledge. In general. The mere knowledge by the one party of the other's guilty purpose, where his own act may consistently be innocent, is often held insufficient to deprive him of his legal remedies, unless it further appear that he meant to enable the buyer to do the illegal act. 1 Of unlawful use in another State. Thus mere knowl- edge by the vendor of goods lawfully sold in one State, that the vendee intends to use them in violation of law in another State, will not 2 defeat an action brought in such other State by the vendor against the vendee for the purchase price of the goods. 3 Counter-views discussed. About the only authorities which are seemingly contrary to this proposition 4 are said not to furnish much opposition to the general doc- trine stated. 5 Thus the Vermont decisions make a distinction between mere knowledge by the vendor of the illegal purpose of the vendee, and knowledge with the intent by the vendor to assist in carrying out such illegal purpose ; 6 and declare it to be a recognized rule, now generally adopted both in this country and in Eng- land, that mere knowledge by the vendor of goods, sell- ing them in a foreign state, that the vendee intends to 45 ILLEGAL SALES. 364 use them in violation of the laws of another State, is not sufficient to invalidate the contract, when sought to be enforced in the courts of the latter State. 7 So the later decisions in Massachusetts do not purport to overrule the previous decisions made in that State, but attempt to make a distinction, 8 by holding that it is not knowl- edge alone of the intended illegal sale which will de- feat the action, but it is knowledge of such intended illegal sale, " with a view" that the intended illegal sale shall be consummated ; 9 and "reasonable cause of belief " of such intended illegal sale is not sufficient. 10 And though the decisions in Iowa are made under a special statute, yet even in that State it is held that mere knowledge of the law alone will not render the contract invalid, 11 and it is stated that it is not held that mere knowledge on the part of the seller of the in- tended violation of the laws by the purchaser would necessarily vitiate or avoid the contract. 1 ' 2 Further- more, in a Maine case, also decided under an express statute, it was merely held that knowledge on the part of the vendor, and "acts beyond the mere sale, which aided the purchaser in his unlawful design,'' would defeat the action. 13 1 See Curtis v- Leavitt, 15 N. Y. 9 ; Bishop v. Honey, 34 Tex. 245 ; Armstrong 1 1>. Toler, 11 Wheat. 258 ; Hodgson v. Temple, 5 Taunt. 181; Tuttle v. Holland, 43 Vt. 542 ; Tracy v. Talmadge, 11 N". Y. 1G2 ; 67 Am. Dec. 132 ; Story on Sales, 506 ; 2 Schouler on Personal Prop- erty, 9217; citing, also, McGavock v. Puryear, G Cold. 34. Consult further succeeding portions of section. But see Hanauer v. Doane, 12 Wall. 342. 2 According to Distilling Co. v. Nutt, 34 Kan. 724. 3 Feineman ?<. Sachs, 31 Kan. 621,625, 626 ; 52 Am. Kep. 547 ; 7 Pacif. Rep. 222, and following cases therein cited ; Hill v. Spear, 50 N. H. 253 ; 9 Am. Rep. 205 ; Holman v. Johnson. 1 Cowp. 341 ; Gaylord v. Soragen, 32 Vt. 110; Mclntyre v. Parks, 3 Met. 207; Smith v. God- frey, 28 N. II. 379; Orcutt v. Nelson, 1 Gray, 536; President etc. v. Spaulding, 12 Barb. 302 ; Tracy v. Talmage, 14 N. Y. Ifi2 ; 07 Am. Dec. 132. And see Webber v. Donnelly, 33 Mich. 469; McKinney v. Andrews, 41 Tex. 363 ; Dater ?> Earl, 3 Gray, 482 ; Tegler v. Shipman, 33 Iowa, 195; Pellecat v. Angell, 2 Cromp. M. & R. 311 ; Sortwell v. Hughes, 1 Curt. 244. 4 Territt ?. Bartlett, 21 Vt. 184 ; McConih^ ,1. McMann, ?.7 Vt. 95; Webster v. Muuger, 8 Gray, 584 ; Adams v. Coulliard, 102 Mass. 167 ; ? 365 ILLEGAL SALES. 546 Davis v. Bronson, 6 Iowa, 411 ; Second Nat. Bank v. Cnrren, 36 Iowa, 555 ; Banchor v. Munsel, 47 Me. 58. 5 Distilling Co. v. Nutt, 34 Kan. 724 ; 10 Pacif. Rep. 163. 6 See Territt v Bartlett, 21 Vt. 184, 189, 190 ; McConihe v. Mc- Mann,27 Vt. 95,99. 7 Gaylord v. Soragen, 32 Vt. 112. 8 See citations in succeeding notes. 9 r. , 74 Mass. 584. 10 Adams v Coulliard, 102 Mass. 167. 11 Second Nat. Bank v. Curren, 3fi Iowa, 555. 12 Tegler v. Shipman, 33 Iowa, 1(15, 2CO. 13 Banchor i. Munsel, 47 Me. 58 ; Samuel Bowman Distilling Co. v. Nutt, 10 Pacif. Rep. 163. See, also, Torrey v. Corliss, 33 Me. 333. $ 365. Participation and aiding. Parties in pari de- licto. Participating in a guilty purpose, and being in pari delictOj must put the party altogether outside the law as to the guilty transaction : l for it has been said that no man shall set up his own iniquity as a defense any more than as a cause of action ; 2 and with regard to the illegal contract, the law will leave the parties where it finds them. 3 Aiding vendee in unlawful purpose. Thus, if a sale of intoxicating liquors be made in Massachusetts, where the sale is legal, to a dealer in New Hampshire, for the purpose of resale there, in violation of the law, and the vendor agrees to aid, and does actually aid the vendee in his unlawful purpose, as by assisting him to conceal the contents of packages containing the liquors, such vendors can maintain no action in New Hampshire to recover the value of the liquors. 4 The mere knowl- edge of the unlawful intent of the vendee by the vendor would not bar him from enforcing his contract, and recovering in the courts of the State where the sale is illegal; 5 but if the vendor in any way aids the vendee in his unlawful design to violate the laws of such State, such participation will prevent such vendor from maintaining an action. 6 547 ILLEGAL SALES. 365 Extent of participation. Yet the participation must be active to some extent, and the vendor must do some- thing in furtherance of the vendee's design to violate the laws of the State where the sale is illegal, though positive acts in aid of the unlawful purpose, even if slight, are sufficient. 7 And it is declared that a con- tract of sale of liquors in one State for use in another, contrary to the law of the latter State, should he held void, and not enforcible if the liquors were packed by the seller in such a manner as to conceal the con- tents of the package, and thus enable the buyer to accomplish his unlawful purpose ; or if the illegal dis- position of the goods by the purchaser in any way en- tered into the contract, and a greater price was agreed to be paid for the goods ; or if the seller were to derive any advantage or share in the fruits of the buyer's wrong. 8 Relief for parties not in pari delicto, etc. But where, in an extreme case, the parties to an illegal contract are not in pan delictof the party who has been oppressed, or of whose situation the other takes undue advantage, has been recognized as not without a remedy for re- covering what was extorted from him. 10 1 2 Schouler on Personal Property, 617, whence paragraph derived. 2 Montefiori v. Montefiori, 1 Black. W. 363. 3 See White v. Buss, 3 Cush. 448. 4 Fisher v. Lord, 3 Atl. Hep. (N. H.) 927. And see Feineman v. Sachs, 33 Kan. 621 ; 52 Am. Rep. 547, 550. 5 See \ 364, on INSUFFICIENCY OF MERE KNOWLEDGE. And a sale of intoxicating- liquors in Missouri to be sold in Kansas contrary to the laws of that State may be enforced in Kansas, although the seller knew the illegal purpose of the buyer, provided he did not engage actively to promote or share in it : Feineman v. Sachs, 33 Kan. 621 ; 52 Am. Hep. 547. 6 Fisher v. Lord, 3 Atl. Hep. (N. H.) 927. In order to render void the sale of intoxicating liquors in one State to be disposed of in another contrary to its laws, and defeat a recovery of the price of the liquors, there must be some participation or interest of the seller in the act itself : Feineman r. Sachs, 32 Kan. 621 ; citing, Hill . Speer, 50 N. H. 253 ; 9 Am. Bep. 205 ; Holman v. Johnson, Cowp. 348 ; Gay- H 366-367 ILLEGAL SALES. 548 lord v. Soragen, 82 Vt. 110 ; Aiken v. Blaisdell, 41 Vt. 656 ; Mclntire v. Parks, 3 Met. 207; Smith v. Godfrey, 8 Fost. 379 ; Orcutt v. Nelson, 67 Mass. 5-T> ; President etc. of the Merchants' Bank v. Spnulding, 12 Barb. 302 ; Tracy v. Talmadge, 14 N. Y 162 ; 67 Am. Dec. 132. 7 Fisher v. Lord, 3 Atl. Kep. (N. H.) 927. A principal cannot reap the benefits of an illegal transaction which a third party, whom he employed, carried out, and wherein he participates by knowingly sanctioning the sale : 2 Schouler on Personal Property, \ 6-0 ; citirg, Nicholson r. Gooch, 5 El. & B. 999 ; Galligan i\ Fonnan, 7 Allen, 2'5. And in whatever capacity one unintentionally furthers the viola- tion of hi w, his rights in the illegal transaction are excluded: See Story on Sales, \\ 505, 506. 8 Feineman v. Sachs, 23 Kan. 621 ; 32 Am. Rep. 547, 550. 9 See Story on Sales, 496 a. 10 2 Schouler on Personal Property, ? 617 ; citing Jacques v. Go!ightlv,2 Black. W. 1073; Worcester v. riaton, 11 Mass. 3(58 ; Con- rorrl r. Delaney, 58 Me. 309 ; Butler v. Northumberland, cO N. H. r ; Whit ?'. Franklin Bank, 22 Pick. 231; Tracy v. Talmage, 14 N. Y. 162 ; G7 Am. Dec. 132. \ 330. Executory and executed contracts. Disaffirm- ance before execution. The disaffirmance of the con- tract in its initial stage, and before the transaction is completely executed, might leave a party in favorable situation for resorting to the courts ; l for it is the tenor of late decisions, 2 that money or goods are reclaimable where the unlawful agreement is executory only. 3 Complete execution. But neither law nor equity will reopen the transaction whenever an illegal contract of sale has been carried out fully, 4 all acts of delivery completed, and the price paid. 5 1 Tracy ?\ Talmage, 14 N. Y. 162 ; 67 Am. Dec. 132. Comity or the conflict of 'laws is sometimes set up as a cause of indulgence in this connection : See Hill r. Spear, 50 N.H. 253; 9 Am. Rep. 205; Castuque v. Imrie, Law R. 4 H. L. 414. 2 According to 2 Schouler on Personal Property, 617, whence paragraph derived. 3 Sf>e Taylor v. Bowers, Law R. 1 Q. B. D. 291 ; Spring Co. v. Know] ton, 103 U. S. 49. 4 See Distilling Co. v. Nutt, 34 Kan. 724, 731 ; 10 Pacif. Rep. 163. 5 2 Sohouler on Personal Property, 6/8 ; citing, White v. Buss, 3 Cush. 448 ; Story on Sales, 488. g 367, Sales illegal at common law. Ingeneral. There are a number of classes of sales which may be pro- nounced illegal at common law, irrespective of legisla- 549 ILLEGAL SALES, 368 tion, although the offense may likewise be recognized in statutory enactments. 1 Immoral objects. Thus whatever contravenes public decency and good morals, as sales for purposes of prostitution, 2 and sales of obscene books or pictures, 3 must be pronounced clearly illegal and void. 4 Dangerous things. So the sale of poison, or of murder- ous or burglarious implements, is illegal when in aid of felonious designs against life or property. 5 Treasonable and smuggling transactions. And among other classes of sales void at common law, though con- cerning offenses largely regulated by statute, are sales to a public enemy, 6 or in aid of treason, 7 as well as smuggling contracts of sale, 8 though as to these in particular, the English law has ever been more solicit- ous of offenses against its own enactments than against those of other countries. 9 1 2 Schouler on Personal Property, g 621. Forestalling, etc. : See 4 Blackst. Com. 148. 2 See Pearce v. Brooks, Law K. 1 Ex. 213. Compare Bowry v. Bennett, 1 Camp. 348. And consult (Story on Sales, ? 2 206,4>S8. Knowl- edge of purpose ; sale equivalent to lease of bawdy-house : Sprague v. Rooney, 82 Mo. 493 ; 52 Am. Rep. 383. 3 See Poplett v. Stockdale, Ryan & M. 337 ; Fohres v. Johnes, 4 Esp. 407. 4 2 Schouler on Personal Property, g 621. And see Bennett's Ben- jamin on Sales, g 504 ; Campbell on Sales, 146 ; Story on Sales, g 433. 5 See Langton v. Hughes, 1 Maule & S. 593 ; Roberts ?>. Egerton, Law R. 9 Q. B. 494 ; as cited in support of text ia 2 Schouler on Personal Property, 621. 6 See Brandon v. Nesbitt, 6 Term Rep. 23. 7 See Hanauer v. Doane, 12 Wall. 342 ; Hanauer v. Woodruff, 15 Wall. 439 ; Sprott v. United States, 20 Wall. 459. 8 See Pellecat v. Angell, 2 Cromp, M. & R. 311; Creekmore v. Chitwood, 7 Bush, 317 ; Story on Sales, ft 507, 508. 9 2 Schouler on Personal Property, ? 621. And see Campbell on Sales, 146; Bennett's Benjamin on Sales, ?? 510, 511 ; citing, Biggs ?. Lawrence, 3 Term Rep 454 ; Clugas v. Pentaluna, 4 Term Rep. 466 ; Holman v. Johnson, 1 Cowp. 341 ; Waymell v. Reed, 5 Term Rep. 59^ ; Pellecat v. Angell, 2 Cromp. M. & R. 311. g 368, Violation of public policy. In general. Many classes of contracts are against public policy, and there- 368 ILLEGAL, SALES. 550 fore illegal, 1 so that the courts will neither enforce them while executory, nor relieve a party from loss by part performance. 2 What constitutes public policy. And though public policy is a variable thing, 3 which is in its nature uncer- tain and indefinite, fluctuating with the changes of habits and opinions.with the growth of commerce, and with the enlargement of international intercourse, 4 yet it is said that this rule may be safely laid down, that whatever contravenes an actual rule of policy, or is clearly shown to interfere injuriously with the true interests of society, is against public policy. 5 Combinations concerning commodities. The change which takes place in views of what constitutes public policy, is shown by the fact that at present it is a com- mon practice to form combinations concerning the supply of commodities, and that these are not usually regarded as illegal, except where they amount to wag- ering contracts ; 6 while the common law, abhorring all attempts on the part of speculators to control the market, and following narrow views of trade formerly entertained, pronounced ** forestalling, regrating, and engrossing," 7 contrary to public policy, and illegal. 8 Nor do the classes of transactions void a.3 against pub- lic policy include "gold" sales in a period of paper money as legal tender, or stock sales, though these are sometimes akin to gambling. 9 1 2 Schouler on Personal Property, 621. Illustrative Instances : agreement to construct railroad through particular place (Balti- more etc. R. R. Co. v. Ralston, 41 Ohio St. 57-'>) ; railroad pooling con- tract (Central Trust Co. v. Ohio Cent. R. R. Co. 2.J Fed. Rep. 306) ; exclusive telegraph privilege: West. "Union Tel. Co. v. Bait. etc. Tol. Co. 23 Fed. Rep. 12 ; Bait. etc. Tel. Co. v. West. Union Tel. Co. 24 Fed. Rep. 319. 2 Story on Sales, \ 489 ; citing, Foote v. Emerson, 10 Vt. 344. 3 See Richardson v. Mellish, 2 Bing. 242; Hilton v Eckersley, 6 "El. & B. 47; Printing etc. Co. v. Sampson,!!) Eq. 465; Rousillon ?'. Rousillon, Law R, 14 Ch, D. 365 ; Bennett's Benjamin on Sales, \\ 512, 513 a. 551 ILLEGAL SALES. 369 4 Story on Sales, ? 489. 5 Story on Sales, \\ 4S9, 490. And see 2 Schouler on Personal Property, \ 6JI ; citing, Richardson v. Mellish, 2 Bing. 242 ; Crawford v. Russell, 62 Barb. 92. 6 See i 360, on WAGERING CONTRACTS. 7 See these titles in Bouvier Law Diet. 8 See 4 Blackst. Com. 158 ; Story on Sales, \ 490; Bennett's Ben- Jariiin on Sales, 514, 515; Stats. 7, 8 Viet. ch. 24 ; 2 Schouler on Per- sonal Property, 62. 9 2 Schouler on Personal Property, ? 621 ; citing, Brown v. Speyers, 20 Gratt. 296 ; Appleman v. Fisher, 34 Md. 540. $ 369. Wagering contracts. Payment of differences. It makes no difference that a bet or a wager is made to assume the form of a contract, as gambling is none the less such because it is carried on in the guise of legiti- mate trade. 1 And if under the guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is non-actionable. 2 Illegal intent. But in order to affect the contract, the alleged illegal intent must have been mutual, 3 and the intent of one party will not avail if not communicated to the other, or concurred in by such other.* So the law presumes the true intention of parties is that which is expressed upon the face of their contracts, and also that men in their business transactions do not intend to violate the law or to make contracts for the enforce- ment of which the law refuses a remedy. 5 Hence, when one party charges that the contract is infected with an illegal intent, the burden of proof is imposed upon him to establish this allegation. 6 Subsequent settlements. Furthermore, the validity of the contract depends upon the state of things existing 369 ILLEGAL SALES. 552 at its date, 7 and is not affected by subsequent agreements under which the parties voluntarily assent to a settle- ment on the basis of differences in price. 8 And parties to such contracts have the same liberty to settle their transactions by common consent according to their own discretion, which is accorded to parties to other contracts. 9 Future delivery. The law is now perfectly settled that an executor} 7 ' contract for the sale of goods for future delivery, is not infected with the quality of a wager by reason of the fact that at its date the vendor had not the goods, and had not entered into any arrange- ment to provide them, and had no expectation of re- ceiving them except by subsequently going into the market and buy ing them ; 10 and the contrary doctrine n has been distinctly and repeatedly overruled. 12 It there- fore necessarily follows that the failure to identify the particular goods sold does not affect the matter, 13 be- cause, from the very nature of the contract, the sale is not of ascertained goods, but of articles of a designated kind and quality to be selected hereafter. 14 And a con- tract for the sale of goods to be delivered in future is not of itself void, though the vendor neither has the goods nor has provided for their delivery, when by the rules of the exchange in which the transaction is made, it is provided that there shall not be a settlement of differences, but that the contract shall be performed. 15 1 Conner v. Robertson, 37 La. An. 814, 818 ; 55 Am. Rep. 521, whence succeeding paragraphs derived. Stocks, wagering contracts, etc.. Budland v. Smith, 139 Mass. 492; Earl v. Howell, 14 N. C. 474. 2 See Irwin v. Williar, 110 TJ. S. 459, 508, 509. 3 See citations in next note. 4 See Grizewood v. Blane, 11 Com. B. 536 ; Knight v. Cambers, 15 Com. B. 562 ; Ashton ?'. Dukin,4 Hurl. & N. 867 ; Kingsbury v. Kirwan 77 N. Y. 613 ; Cassard v. Himman, 1 Bosw. 207 ; Bosw. 8 ; Smith r. Bouvier 70 Pa. St. 325 ; Rumsey v. Berry, 65 Me. 570 ; Sawyer v. Taggart, 14 Bush, 720 ; Williams r. Tiedeman. 6 Mo. App. 269 ; Pixley v. Bovnton, 79 111. 351 ; Clark v. Foss, 7 Biss. 540. 553 ILLEGAL SALES. \ 370 5 Conner r. Robertson, 37 La. An. 814, 818 ; 55 Am. Rep. 521, whence succeeding paragraph derived. 6 See Irwin v. Williar, 110 IT. S. 499 ; Frost v. Clarkson, 7 Cowen, 24; Dykers r. Tovvnsencl, 24 N. Y, 57; Plxley v. Boynton,79_ 111. 3ol ; Williams v. Tiedeman, 6 Mo. App. 269 ; Rumsey v. Berry, 65 Me. 570. 7 Conner v. Robertson, 37 La. An. 814, 819. 8 See citations in next note. X 9 Clark v. Foss, 7 Biss. 540 ; Williams v. Tiedeman, 6 Mo. App. 263 ; Sawyer v. Taggart, 14 Bush, 729 ; Fareira v. Gabell, 89 Pa. St. 8H. 10 Conner v. Robertson, 37 La. An. 814, 819 ; 55 Am. Rep. 521, whence paragraph derived. 11 Announced in Lorymer v. Smith, 1 Barn. n. 323-330, fully discussing general subject of champerty. \ 372. Restraint of trade. In general. No contract of sale is good which is in general restraint of trade, as this is in derogation of private rights, and tends to monopoly, 1 though a contract is valid which imposes upon consideration a partial restraint, if the restraint be kept within reasonable bounds. 2 Restraint in time. While the restraint stipulated for might be in time instead of space, 3 yet it would appear that restraint in space is now the only decisive cause of avoidance, 4 since partial restraint as to space is fre- quently upheld, though unlimited 5 as to time. 6 Restraint in space* A restraint is generally regarded as void because general, where it is intended to operate through the realm, as in Great Britain, or through the whole State, as it would be ruled in this country ; 7 but it has been considered that there is no rule laid down as to the invalidity of a restraint which is un- limited in point of space, but that the sole test is the reasonableness or unreasonableness of the restraint at issue. 8 It is only in partial restraint of trade, and therefore permissible for a seller to stipulate that he will not carry on the business within the circuit of his usual custom as then definable, or of a particular municipality. 9 1 Vending of patent rights or copyrights does not contravene this rule : See Leather Cloth Co. v. Lorsent, Law B. 3 Eq. 3-45 ; Bry- Bon v. Whitehead, 3 Sim. & St. 74 ; Morse Twist Co. v. Morse, 103 Mass. 73. 2 2 Schouler on Personal Property, 2 623. And see Story on Sales. # 492 ; Campbell on Sales, 150. It is said that contracts in restraint of trade, if upon a sufficient consideration, are good as to particular localities when reasonable, but such a contract without limitation us to time or place is declared to have never been sustained either in this country or in England : Taylor v. Saurman, 1 All. Hep. (Pa.) 40 ; citing, Keeler v. Taylor, 53 Pa. St. 4f>7 ; Gompera v, Rochester, 5G Pa, St. iid ; Harkwsou's Appeal, 73 Pa. St. 1 ( J6. 373 ILLEGAL SALES. 556 3 See Ward v. Byrne, 5 Mees. & W. 548 ; Bennett's Benjamin on Sales, 524. 4 But it has recently been said that an agreement not to engage in the same business at any time is void and unenforcible, as against public policy, since the law will not allow a man to strip himself of the means of livelihood : Taylor v. Saurman, 1 Atl. Hep. (Pa.) 40. 5 See Story on Sales, \ 493. 6 2 Schouler on Personal Property, 623 ; citing, Bennett's Benja- min on Sales, 524 ; Hitchcock v. Coker, 6 Ad. & E. 438 ; Guerand v. Bandelet, 32 Md. 561. 7 See Mallan v. May, 13 Mees. & W. 511 ; Hinde v Gray, 1 Man. & G. 195 ; Taylor v. Blanchard, 13 Allen, 370 ; Lange v. Werk, 2 Ohio St. 519 ; More v. Bonnet, 40 Cal. 251. 8 Leather Cloth Co. v. Lorsent, Law R. 9 Eq. 345 ; Rousillon v. Rousillon, Law R. 14 Ch. D. 351. Source of paragraph : 2 fechouler on Personal Property, 623. 9 See Guerand v. Bandelet, 32 Md. 561 ; Warren v. Jones, 51 Me. 146 ; Jenkins v. Temples, 39 Ga. 655 ; Whitney v. Slay ton, 40 Me. 224 ; 2 Schouler on Personal Property, G23, so citing these cases. Agree- ment not to practice dentistry within certain limits : Bowers v. Whittle, 63 1ST. H. 147 ; .56 Am. Rep. 499. Agreement not to manu- facture or sell friction matches outside of one State or Territory : Diamond Match Co. r. Roeber, 35 Hun, 421. Engagement not to carry on s:ime business: for five years, without limitation of place (see Wiley ?>. Baumgardner, 97 Ind. 60; 49 Am. Rep. 42" ; and com- pare Johnson ?. Gwinn, 100 Ind. 46fi); within city and vicinity : Tim- merman v. Davis, 52 Mich. 34; 50 Am. Rep. 240. And compare Paxson's Appeal, 106 Pa. St. 429. \ 373, Transfer of good-will. Not illegal. A sale of one's "good-will " is not illegal, 1 nor even, as it is held, is the promise to influence the public to deal with the buyer as the seller's successor. 2 Engaging in same business. And the right of one who has sold out the good-will of his business to carry on the same business in the buyer's immediate vicinity is a matter for reasonable interpretation, according to the sense of the parties, with the qualification that the seller should not be allowed to overreach the buyer in such a bargain. 3 Remedies. A breach of stipulations in an agreement for the sale of a business, assuming that thev amount to a parting with the good-will and a covenant not to engage in business again, is no ground for rescinding the contract and suing in tort for deceit in making it. 557 ILLEGAL SALES. \ 374 but the remedy is by action for damages for breach of contract. 4 1 "Good-will" discussed : 14 Am. Law Beg. N. S. 1, 329, 649, 713 ; 19 Cent. L. J. 362. And see Barber v. Conn. Mut. Life Ins. Co. 15 Fed. Rep. 312, n. 315 ; Herefort v. Cramer, 7 Colo. 483 ; 15 The Reporter, 581, 582; Wallingford v. Burr, 17 Neb. 137, 138, 139; Bergamini v . Bastian, 35 La. An. 60 ; 48 Am. Rep. 216, n. 2:>3. 2 See Hoyt v. Holly, 39 Conn. 226 ; Warfield v. Booth, 33 Md. 63 ; as cited, 2 Schouler on Personal Property, \ 623. 3 See Mouflet v. Cole, Law R. 7 Ex. 70 ; Bradford v. Peckham, 9 R. I. 250 ; Labouchere v. Dawson, Law R. 13 Eq. 322 ; so cited, 2 Schoulcr on Personal Property, 623. The rule precluding the seller of a good-will from soliciting former customers does not extend to compulsory sales, such as those made by trustees in bankruptcy : Walker v. Mottram, Law R. 19 Ch. D. 355. 4 Taylor v. Saurman, 1 Atl. Rep. (Pa.) 40. Evidence of damages by impairment of good-will: Burckhardt v. Burckhardt, 42 Ohio St. 474 ; 51 Am. Rep. 842. 374. Violation of statutes. Various instances. Sales whose illegality depends more especially upon legisla- tion include various classes, such as those in violation of acts against lotteries, acts requiring licenses, 1 or otherwise imposing taxes, acts regulating the sale of noxious articles, acts enforcing certain requirements as to weight and measure, inspection acts, and the like, 2 some of which pursue a theory of morals which the common law did not clearly sanction, while others are rather to facilitate the operations of government. 3 Imposing penalty, etc. The courts have distinguished between statutes which expressly prohibit the trans- action, and those which only prohibit it by implication, as by imposing penalties for disobedience, though every such question must be tested by the true intent of the parties to render the contract illegal or not ; * and even the imposition of a penalty, as in a case where one is required to take out a license on the basis of his average sales, may sometimes justify an inference that the party general business should bear the consequences of non-compliance with the legislative enactment, and not particular sales with individuals. 5 375 ILLEGAL SALES. 558 1 Illegal sales without license: Mandelbaum v. Gregovich, 17 Kev. 87 ; 45 Am. Hep. 433. Sale to licensed. Indian trader sustained : Dunn v. Carter, 30 Kan. 294. 2 Unsurveyed lumber : Richmond v. Foss, 77 Me. 590, 591 ; dis- tinguishing Abbott v. Goodwin, 37 Me. 203, and Rogers v. Humphreys, 39 Me. 302. Fertilizer not branded, etc. : Conley v. Sims, 71 Ga. 101. English Food and Drugs Act ; misrepresentation corrected before sale : Kirk v. Coats, Law R. 16 Q. B. D. 49. Bread in carts without weights or scales : Riclgway v. Ward, Law R. 14 Q. B. D. 110. And see Daniel v. Whitfield, Law R. 15 Q. B. D. 408. 3 2 Schouler on Personal Property, 624. And see generally, Story on Sales, # 499 ; Bennett's Benjamin on Sales, 540 ; Campbell on Sales, 152, 153. 4 See Cope v. Rowlands, 2 Mees. & W. 149 ; Forster v. Taylor, 5 Barn. & Adol. 887 ; Coombs v. Emery, 14 Me. 404 ; Aiken v. Blaisdell, 41 Vt. 655 ; Miller v. Post, 1 Allen, 434 ; Larned v. Andrews, 106 Mass. 4-15; Tracy r. Talmage, 14 N. Y. 162; 67 Am. Dec. 132; Harris v. Runnels, 12 How. 79; 1 Schouler on Personal Property, ? 2G5 ; Story on Sales, 498 ; Bennett's Benjamin on Sales, 530 ; Campbell on Sales, 152. 5 See Larned v. Andrews, 106 Mass. 435 ; Aiken v. Blaisdell, 41 Vt. 655. So cited, 2 Schouler on Personal Property, 624, whence para- graph derived. Usury as tainting sale: See Schermerhorn v. Tal- man, 11 N. Y. 93. \ 375. Sales of intoxicating liquors. In general. Prom- inent among the classes of sales made illegal by statute are those of spirituous and intoxicating liquors, 1 con- cerning which legislation is constantly changing in the various States, so that the numerous decisions possess little more than local importance. 2 Scope of legislation. It is settled that these statutes are not in contravention of the fundamental law of the land ; 3 and a broad issue for all such legislation is, 4 as to whether the sale of liquor shall be altogether illegal, or only illegal where the seller has taken out no license. 5 Conflict of State laws. Where goods which have been ordered, such as intoxicating liquors, are forwarded by a vendor in one State, where then* sale is lawful, through a common carrier, with instructions to collect the price thereof from the vendee in another State, where their sale is illegal, and the carrier is not to de- liver the goods without receiving the price, the sale is 559 ILLEGAL SALES. \ 376 not complete until the condition precedent of the pay- ment of the price is fulfilled, 6 and hence the vendor becomes subject to any penalties prescribed by law in the second State for such illegal sale. 7 So where intox- icating liquors are sold in a State under whose laws the sale is illegal and void, and such sale is made for the purpose of enabling the buyer to violate the law of the State, an action brought in another State against the acceptor of a note given for the price of the liquor cannot be sustained ; 8 and this is the case, although the sale was made by an agent of the payee of the note, without the knowledge of the principal. 9 1 Sale of liquors without license : United States ?>. dine, 26 Fed. Bep. 515. Place of sale : Garbracht v. Commonwealth, 96 Pa. St. 449; 42 Am. Bep. 5oO. Knowledge of unlawful purpose : Feineman v. Sachs, 33 Kan. 621 ; 52 Am. Bep. 547. And see Distilling Co. v. Nutt, 64 Kail. 724 ; 10 Pac. Bep. 163. 2 2 Schouler on Personal Property, 625. 3 Bartemeyer v. Iowa, 18 Wall. 129. 4 According to 2 Schouler on Personal Property, \ 625, whence paragraph derived. 5 See Butter v. Northumberland, 50 N. H. 33 ; Yaeger Milling Co. v. Brown, 128 Mass. 171; Jameson v. Gregory, 4 Met. (Ky.) 3GS ; Dol- son v. Hope, 7 Kan. 161. English Tippeng Acts : See Bennett's Ben- jamin on Sales, \\ 543, 544. 6 State v. O'Neil, 58 Vt. 140 ; 56 Am. Rep. 557. And see TJ. S. v. Shriver, 23 Fed. Bep. 134 ; 31 Alb. L. J. 163. 7 State v. O'Neil, 58 Vt. 140 ; 2 Atl. Bep. 486 ; 22 The Beporter, 58. 8 Weil v. Golden, 6 N. E. Bep. (Mass.) 229. 9 Weil v. Golden, 6 N. E. Bep. (Mass.) 229. 376. Sunday sales. At common law and^in Eng- land. At common law, sales on Sunday seem not to have been void, but under English statutes for the past two centuries or more, the prohibition against Sunday trading has remained in force to this day. 1 In United States. Similar enactments, more or less comprehensive in scope, are to be found in nearly all of the United States, usually making works of necessity and charity 2 the basis of an excepting proviso. 3 376 ILLEGAL SALES. 560 Liberal construction of enactments. But the disposition is frequently shown at the present day, to mitigate the severity of such legislation by liberally construing the Sunday laws; 4 and a sale void under such an enact- ment would appear good wherever a fresh promise passes between the parties on a subsequent day, or the execution of the bargain 5 made on Sunday occurs on some other day of the week, 6 while the bargain may hold in favor of an innocent party, as where the exe- cution of the contract by the one in violation of the Sunday law was unknown to the other. 7 1 2 Schouler on Personal Property, ? 625. And see Bennett's Ben- jamin on Sales, \\ 552-004 ; Campbell on Sales, 155, 156, and cases reviewed ; Drnry v. Defontaine, 1 Taunt. 131 ; Bloxsome v. Williams, 6 Barn. & C. 232. 2 Sunday subscription for work of charity held not void : Allen v. Duffie, 43 Mich. 1. And see Dale v. Knapp, 98 Pa. St. 389. But compare contra, Catlin v. Trustees etc. 62 Ind. 365. 3 See Lyon v. Strong, 6 Vt. 219 ; Smith v. Bean, 15 N. H. 577 ; Cransen v. Goss, 107 Mass. 439 ; Allen v. Gardiner, 7 R. 1. 22 ; Northrup v. Foote, 14 Wend. 248; Murphy v. Simpson, 14 Mon. B. 419; Pate v. Wright, 30 Ind. 476 ; Mueller v. State, 76 Ind. 310 ; Sayre v. Wheeler, 32 Iowa, '-.-)') ; Finley v. Quirk, 9 Minn. 194 ; 86 Am. Dec. 93 ; Story on Sales, \\ 500-502. 4 2 Schouler on Personal Property, g 625, whence preceding para- graph also derived, 5 Where a Sunday contract Is fully executed, the law leaves the parties where it finds them : Meyers v. Meinrath, 101 Mass. 336 ; Green v. Godfrey, 44 Me. 25; Thompson v. Williams, 58 N. H. 248. Compare, as to replevin, Kinney v. McDermott, 55 Iowa, 674. 6 The contract is not illegal where the price is agreed upon on Sundaj', but delivery was not to take place till the next day : Rosen- blatt v. Tounsley, 73~Mo. 536. 7 2 Schouler on Personal Property, ? 625 ; citing, Simpson v. Kicholls, 5 Mees. & W. 702 ; Harrison v. Colton, 31 Iowa, 16; Dickin- son ?-. Richmond, 97 Mass. 45 ; Sumner v. Jones, 24 Vt. 817 ; Cameron r. Peck, 37 Conn. 555; Winchell v. Carey, 115 Mass. 560; Snyles v. Wellman, 10 R. I. 4G5 ; Viuton v. Peck, 14 Mich. 287 ; Story on Sales, \\ 500-502. 561 MISTAKE. 377 CHAPTER XXXII. MISTAKE. 377. Concerning terms of contract. 2 378. Touching essence of contract. 379. As to subject-matter. I 380. Concerning identity of article. \ 381. Concerning price. \ 382. Concerning quantity. 383. Concerning quality. g 384. Concerning person. \ 385. Remedies of parties. g 377. Concerning terms of contract. No meeting of minds. When the minds of the parties to a contract do not meet upon the whole and exact terms of such con- tract, the same is void. 1 Hence, where there is a mutual mistake as to the price of an article, there is no sale, and neither party is bound. 2 Different ships meant. And to an action for not ac- cepting cotton' 4 to arrive ex Peerless from Bombay," it is a good defense that the buyer meant a ship called the Peerless, which sailed from Bombay in October, and that the seller was not ready to deliver any cotton which arrived by that ship, but only cotton which ar- rived by another ship called the Peerless, which sailed from Bombay in December. 3 Part delivery. So whatever is done between the parties, under a supposed agreement of sale, when there is a mutual misunderstanding as to its terms, is not binding ; 4 and though both parties consent at the time to the delivery of a portion of the property agreed to be sold, each supposing that such delivery is to be a part performance of the conditional contract of sale, the law will not imply that either of the parties intended 378 MISTAKE. 562 that the property was to be absolutely the purchaser's in case he failed to comply with the whole agreement. 5 Mistake of one party. But a mistake of one party cannot be set up by him as a ground for rescinding a sale or other contract, 6 or for resisting its enforcement, when his manifested intention misleads the other party, 7 except where advantage is taken of an obvious blunder. 8 1 Fullerton v. Dalton, 58 Barb. 236, 239. And see Ketchum v. Cntl1n,2l Vt. 101, ISH; Greene v. Bateman, 2 Wood. & M. 359, 361 ; Cutts v. Guild, 57 N. Y. 229, 234. 2 Rupley t. Daggett, 74 III, 851, 853. And see Harran v. Foley, 62 Wis. 5*4, 588 ; Rovegnov. Defferuri, 40 Gal. 459, 462 ; $ 381, oil MISTAKE PBJCE. 3 Raffles r. Wichelhaus, 2 Hurl. 5; Thomas v. Brown, Law R. 7 Q. B. D. 714, 722. 8 Harran v, Foley, 62 Wis. 584, 586. And see Stoddard v. Ham, 129 Mass. 383, 385 ; 37 Am. Rep. 369 ; Webster v. Cecil, 30 Beav. 6J ; Tamplin v. Jarues, Law R. 15 Ch. D. 221. 378. Touching essence of contract. False representa* tion. If a purchaser buys on the faith of a false rep- resentation by the seller, touching the essence of the contract, the sale will be set aside in equity, 1 whether the misrepresentation was the result of fraud or of mistake. 3 Substantial failure of consideration. But an innocent misrepresentation or misapprehension does not author- ize a rescission of the contract, unless it is such as to show that there is a complete difference in substance between the thing supposed to be taken and that actu- ally taken, so as to constitute a failure of consideration. 3 Matter merely collateral. And though a mutual mis- take of the parties as to the subject-matter of the con- tract, or the price or terms, may be interposed as a defense, 4 it is otherwise where the mistake is in relation 563 MISTAKE. 379 to a fact wholly collateral, and not affecting the essence of the contract itself. 5 1 Doggett v. Emerson, 3 Story, 700, 733. 2 Doggett v. Emerson, 3 Story, 700, 733. And see Torrance v. Bolton, Law R. 8 (Jh. App. 118, 123 ; Jnzan v. Toulmin, 9 Ala. 662 ; 44 Am. Dec. 449, 453 ; Miles v. Stevens, 3 Pa. St. 21 ; 45 Am. Dec. 621, 624. 3 Kennedy v. Panama Mail Co. Law R. 2 Q, B. 580, 587. Failure of consideration : 386-390. 4 See 379-382, on SUBJECT-MATTER, IDENTITY OF ARTICLE, PRICK, etc. 5 Wheat v. Cross, 31 Md. 99, 104 ; 1 Am. Rep. 28, 30. I 379, As to subject-matter. As avoiding contract. A contract which is made while the parties are under a mutual mistake as to material facts affecting the sub- ject-matter is invalid, 1 and may be avoided in a court of law as well as in equity. 2 Identity or existence of thing sold. Thus, where in a negotiation for the sale of property, the seller has reference to one article and the buyer to another, 3 or where the parties supposed the property to be in exist- ence, when in fact it had been destroyed, 4 the contract is ineffectual because the parties did not in fact agree as to the subject-matter, or because it had no existence. 3 Situation of property. And when it is discovered that the parties, in making a contract of sale, had pro- ceeded upon a mutual mistake as to the situation, the contract is invalid, the parties may be remitted to their original rights, and any portion of the price paid may be recovered back by the purchaser. 6 Buyer's ability to pay. But when the mistake does not concern the article sold, or the identity of the per- son purchasing, but the ability of the purchaser to pay for the goods, such mistake will invalidate the contract of sale and furnish ground for relief in equity. 7 Quality. And a mere mistake as to the quality of specified goods will not invalidate the contract of sale. 8 ? 380 MISTAKE. 564 1 Ketchum v. Catlin, 21 Vt. 191, 194. 2 Ketchum v. Catlin, 21 Vt. 191, 194. And see Flight v. Booth, 1 Bing. X. C. 370 ; Mowatt v. Wright, 1 Wend. 355, 362 ; 19 Am. Dec. 508. 3 See Harvey v. Harris, 112 Mass. 32, 37. 4 See Thompson v. Gould, 20 Pick. 134, 139. 5 Gardner v. Lane, 9 Allen, 492, 499; 85 Am. Dec. 779. And see Kice v. Dwight Manuf. Co. 2 Cush. 80, 8fi ; Ketchum v. Bank of Com- merce, 19 N. Y. 499, 502 ; Allen v. Hammond, 11 Peters, 63, 71, 72. 6 Ketchum v. Catlin, 21 Vt. 191, 195. And see Mowatt v. Wright, 1 Wend. 355 ; 19 Am. Dec. 508. 7 Lupin v. Marie, 6 Wend. 77 ; 21 Am. Dec. 256, 258. 8 Wheat v. Cross, 31 Md. 99, 104 ; 1 Am. Bep. 28, 30 ; Gardner v. Lane, 9 Allen, 492, 500 ; 85 Am. Dec. 779. See 383. 380. Concerning identity of article. Reference to different articles. If there is a mistake as to the identity of the article sold, and not merely as to its quality, such as occurs where the seller and buyer have reference to different articles, 1 the contract which the parties intended to make fails of effect, and the title does not pass, because the parties did not in fact agree as to the subject-matter. 2 Misplacement of damaged flour. Thus, where the highest bidder for the second-class flour at a sale of flour, part disposed of as slightly damaged and part as considerably damaged, selected as the flour he would take two rows of flour of the first class, which had been accidently misplaced without the knowledge of the owner or auctioneer, the same being outside the auction- room, it was held that the minds of the parties had not met so as to make a sale. 3 Contents of receptacle. And where a party purchased at an administrator's sale a drill machine, which unknown to all parties, contained money and other valuables secreted there by the decedent, it was held that the sale passed to the purchaser the right to the machine, and to every constituent part of it, but not to the valuables contained in it. 4 So the purchaser of a safe at an execution sale acquires no title to its contents. 5 ffrr 565 MISTAKE. If U JN X I 381 \&A 1 See citations in next note. ^^^"^^ Y ^ 2 Harvey v. Harris, 112 Mass. 32, 37. And eee Gardner ??. Lane, 9 Allen, 4J2, 499; 85 Am. Dec. 779 ; Bice v. Dwiglit Manuf. Co. 2 Cuah. 80, 86 ; Chapman v. Cole, 12 Gray, 141, 142 ; Sheldon r. Capron, 3 11. I. 171 ; Thornton v. Kempster, 5 Taunt. 786, 788 ; Fullerton v. Dulton, 58 Barb. 236. v 3 Harvey v. Harris, 112 Mass. 32. Compare Hills v. Snell, 104 Mass. 173 ; Fear v. Jones, 6 Iowa, 169, 173. 4 Hutmacher v. Harris, 38 Pa. St. 401, 498, 499. Such valuables on discovery were declared to be held as treasure-trove for the repre- sentatives of the deceased owner : Hutmacher v. Harris, 38 Pa. St. 491, 498, 499. 5 Bay v. Light, 34 Ark. 421, 427. But it is his duty to preserve them and restore them to the owner when called for : Bay v. Light, 34 Ark. 421, 427. g 381. Concerning price. Effect of mistake concerning. It is an elementary principle that where there is a mutual mistake as to the price of an article, 1 there is no sale, and neither party is bound, 2 since there has been no meeting of the minds of the contracting parties. 3 Vendor's subsequent sale. And where there is a mutual misunderstanding between the parties, as to the amount of the consideration to be paid on a sup- posed contract of sale, of an interest in a copartnership, a subsequent sale by the apparent vendor to a third party is valid. 4 Snapping up offer. So if personal property is by mistake, as through a slip of the tongue, offered for sale at a lower price than was intended, and the offer is accepted by one who knows or has reason to believe that it was a mistake, there is no sale which is binding upon the vendor. 5 1 Mistake concerning price : See, also, Wilkinson v. Williamson, 76 Ala. 163, 168. 2 See citations in next note. 3 Bupley v. Daggett, 74 Ell. 351, 353. And see Bovegno v. Deffe- rari, 40 Cal. 459, 462 ; Greene v. Bateman, 2 Wood. & M. 359, 361 ; Calk- Ins v. Griswold, 11 Hun, 208, 212, 213 ; Harran v. Foley, 62 Wis. 548 ; 22 N. W. Bep. 837 ; Phillips v. Bistolli, 2 Barn. & C. 511. Compare Star Glass Co. v. Longley, 64 Ga. 576, 578 ; Fear v. Jones, 6 Iowa, 169, 170. 4 Bovegno v. Defferari, 40 Cal. 459, 462. 5 Harran v. Foley, 62 Wis. 584 ; 22 N. W. Bep. 837. And see Web- ster v. Cecil, 30 Beav. 62 ; Tampliu v. James, Law B. 15 Ch. D. 221. NEWMARK SALES. 48. g? 382-383 MISTAKE. 566 I 382. Concerning quantity. Recovery of excess of price paid. In sales of goods, a mutual mistake on such a material point 1 as the quantity of goods sold, will entitle the buyer to recover back any excess of price which he may have paid under the misap- prehension. 2 Setting off amount of shortage. And a person buying milk, who pays for the same, counting each can as con- taining eight gallons, and supposing the cans to hold that much, when in fact they do not, may set off the money paid by him for the shortage out of any sum he may owe the seller, in a suit for the price. 3 Duties not recoverable. But though the vendor may recover the excess paid by him where there has been a mutual mistake as to the mode of measurement, and the quantity delivered was supposed to be greater than it really was, 4 or may compel the seller to make good the defieienc3 r , he cannot recover remote damages re- sulting from the deficiency, such as excessive duties on the chattels, paid while laboring under the mistake. 5 1 See g 378, on MISTAKE TOUCHING ESSKXCE OF CONTKACT. 2 Scott v. Warner, 2 Lans. 49. And see "Wheadon v. Olds, 20 Wend. 174 ; Cox ?'. Prentice, 3 Maule See Allen v. Jarvis, 20 Conn. 38, 49 ; Gordon v. Norris, 49 N. H. 376, 383, 384 ; Bement v. Smith, 15 Wend. 493, 497. 6 See Knowlton v. Oliver, 28 Fed. Bep. 516. 393. Notice not to manufacture. General doctrine. It has been regarded as settled law that where there is a contract for the manufacture and delivery of goods at a definite future period, and before the time of perform- ance arrives, the purchaser repudiates the contract and notifies the vendor that he will not accept the goods if manufactured, such refusal and notice is a breach of the contract, which excuses the vendor from manufacturing 579 SELLER'S REMEDIES. 394 the goods, 1 and furnishes him if he shows himself to have been ready, willing, and able to perform on his parfc, a good cause of action on which he may sue, if not at once, at least as soon as the period of performance fixed by the contract has elapsed. 2 Applications. These principles have been applied to a contract for the manufacture and supply of railway chairs ; 3 to a contract to take malt in specified monthly quantities ; 4 to a contract to manufacture phosphate by a special process; 5 and to an order for a designated number of hoes to be manufactured and delivered within a certain time. 6 1 Eckenrode v. Chemical Co. 51 Md. 51, 59. 2 Eckenrode v. Chemical Co. 55 Md. 51, 59. And see Cort v. Ambergate By. Co. 17 Q. B. 127, 148 ; Black v. Woodrow, 39 Md. 194, 216; Haines v. Tucker, 50 N. H. 307; Clement etc. Manuf. Co. v. Meserole, 107 Mass. 362. Consult, also, Bennett's Benjamin on Sales, ? 760 ; Campbell on Sales. 336 ; Silkstone Coal Co. v. Joint Stock Coal Co. 35 L. T. N. S. 668; Hochster v. De La Tour, 2 El. & B. 678 ; 22 Law J. Q. B. 455 ; Frost v. Knight, Law B. 5 Ex. 322 ; Law B. 7 Ex. Ill ; Parker v. Pettit, 43 N. J. L. 512, 517. 3 Cort v. Ambergate By. Co. 17 Q. B. 127. See Black v. Woodrow, S9 Md. 196, 216. 4 Haines v. Tucker, 50 N. H. 307. 5 Eckenrode v. Chemical Co. 55 Md. 51. 6 Clement etc. Manuf. Co. v. Meserole, 107 Mass. 362. So on ex- change of real estate (Smith v. Lewis, 24 Conn. 624; 26 Conn. 110); and on sale of grain (Hughes' Case, 4 Ct. of Cl. 64, 73); and on con- tract to furnish hay to government : Yates v. United States, 15 Ct. of Cl. 119, 125. \ 394. Forms of action. Special declaration. Where the property in the goods has not passed, the declara- tion must be special for non-acceptance j 1 and a special declaration may also be requisite where payment was to be wholly or in part by bill or note. 2 Common counts for goods sold. But where the prop- erty has passed to the buyer, it is laid down that the seller may recover the price of the goods on the common counts for goods bargained and sold, or for goods sold and delivered, as the rule of damages and the proof 394 SELLER'S REMEDIES. 580 requisite to authorize recovery of the price is the same in each. 3 And it has been recently held that there may be a bargain and sale of goods, sufficient to transfer the title, and thus to support an action for goods bargained and sold, without any such delivery as will amount to a transfer of possession. 4 Election of remedies. The doctrine that if one elects between two inconsistent remedies the right to pursue the other is forever lost, has been applied so as to hold that where the seller treats the sale as rescinded for fraud, and recovers in replevin for the goods, they can- not a year afterward sue again upon the contract. 5 Suit for price. In an action on the common counts to recover the price of property sold and delivered, when the delivery is not denied and the price is fixed by the written contract, the plaintiff will be entitled to recover the value of the goods actually furnished, subject to deductions to be made therefrom to the extent of the damages sustained by defendant by reason of plaintiff's non-performance of all the conditions of the contract. 6 1 See Bailey v. Smith, 43 N. H. 141, 143 ; Gordon v. Norris, 49 N. H. 376, 382 ; Stearns v. Washburn, 7 Gray, 187, 189 ; Ganson v. Madigan, 13 Wis. 67, 72. And consult 1 Chitty on Contracts (llth Am. ed.), 6i5, and cases in note p ; Bennett's Benjamin on Sales, \ 765 ; Story on Sales, \ 433. 2 2 Schouler on Personal Property, \ 527. 3 See Bennett's Benjamin on Sales, \ 765, And consult 1 Chitty on Contracts (llth Am. ed.), 614, and note n ; 2 Chitty on Contracts (llth Am. ed.), 1330; 1 Sedgwick on Damages (5th ed.), 312 ; Wood's Mayne on Damages, ? 200 ; Bailey v. Smith, 43 N. H. 141, 143 ; Thomp- son v. Alger, 12 Met. 428, 443 ; Nichols v. Morse, 100 Mass. 523 ; Morse r. Sherman, 106 Mass. 430, 432. But compare Gordon v. Norris, 49 N. H. 376, 382, 383. 4 Frazier v. Simmons, 139 Mass. 531, 535. And see Morse v. Sher- man, 106 Mass. 430, 432 ; distinguishing, Atwood v. Lucas, 53 Me. 508 ; 89 Am. Dec. 713. But compare Messer v. Woodman, 22 N. H. 172 ; 53 Am. Dec. 241,243 ; Newmarket Iron Foundry v. Harvey, 23 N. H. 395, 406. 5 Farwell v. Myers, 26 N. W. Rep. (Mich.) 328, 329 ; citing, Thomp- son v. Howard, 31 Mich 309 ; Wetmore v. McDougall, 32 Mich. 276 ; Dunks v. Fuller, 32 Mich. 243; Neild v. Burton, 49 Mich. 53 ; 12 N. W. Rep. 906. Waiving tort and suing in assumpsit : See Berkshire Glass Co. v. Wolcott, 2 Allen, 227, 228 ; Jones v. Hoar, 5 Pick. 285, 290. Com- pare Kraus v. Thompson, 30 Minn. 64 ; 44 Am. Rep. 182. 581 SELLER'S REMEDIES. 395 6 Gage v. Myers, 26 N. W. Hep. (Mich.) 522 ; citing, Begole v. McKenzie, 26 Mich. 470 ; Mitchell v. Scott, 41 Mich. 108 ; 1 N. W. Hep. 963 ; Moon v. Harder, 38 Mich. 566 ; McQueen v. Gamble, 33 Mich. 344 ; Hoagland v. Moore, 2 Blackf. 167 ; Dubois v. Delaware etc. Canal Co. 4 Wend. 235 ; Moulton v. Trask, 9 Met. 577. Like effect: Flanders v. Putney, 28 N. H. 358 ; citing, Britton v. Turner, 6 N. H. 481 ; Horn v. Batchelder, 41 N. H. 86. And see Coit v. Schwartz, 29 Kan. 344. Suit for price: Consult further, Moline Scale Co. v. Beed, 52 Iowa, 307; McAllister v. Safely, 65 Iowa, 719, 723 ; 20 The Beporter, 6, 7 ; Hosley V. Scott, 26 N. W. Rep. (Mich.) 659, 660; McLennan v. McDermid, 52 Mich. 468, 470 ; Bullock v. Finley,28 Fed. Bep. 514, 515; Overstreet v.. Gallaher, 42 Ark. 208 ; McBain v. Austin, 16 Wis. 87 ; 82 Am. Dec. 705 ; Cheney-Bisrelow Wire Works v. Sorrell, 142 Mass. 442 ; 8 N. E. Rep. 332 ; Wineman v. Walters, 53 Mich. 470, 472 ; Compton v. Parsons, 76 Mo. 455, 457 ; Rodman v. Guilford, 112 Mass. 405, 406, 407. \ 395. Waiting for expiration of credit. In general. If the sale is not for cash, but credit is given for a definite period, either absolutely or by taking a negotiable se- curity like a bill or note, the seller cannot ordinarily bring his action against the purchaser for the price of the goods, until the period of credit has expired, or until the note or bill has matured. 1 Refusal to give security. But it is fully settled that where goods are sold upon credit, and the purchaser agrees, as part of the contract, to execute notes, pay- able at a future day, for the purchase price, the refusal of the purchaser to execute the notes according to the contract entitles the seller to maintain an action for such refusal, and the measure of damages is the full price of the goods sold. 2 Buyers fraud. Yet even if the vendee obtains pos- session of the goods fraudulently, or without giving the security agreed upon, this does not enable the vendor to sue for goods sold and delivered before the expira- tion of the term of credit, but his immediate remedy is by an action for breach of the special agreement, or in tort. 3 Retention of goods sent. If, however, there is a par- tially executed contract for a sale on credit, and the vendee gives notice that he will not carry out, but yet' retains the goods already sent, it has been held that the 396 SELLER'S REMEDIES. 582 vendor has the legal right to consider the contract as rescinded, and may at once bring action on the new contract resulting from the buyer's conduct, and re- cover on the common counts the value of the goods delivered. 4 1 Story on Sales, ? 434. And see Magrath v. Tinning, 6 Up. Can. Q. B. (O. S.) 484, 4S5 ; Wakefield v. Gorrie, 5 Up. Can. Q. B. 159, 163 ; Silliman v. McLean, 13 Up. Can. Q. B. 544, 545, 546 ; 2 Schouler on Per- sonal Property, 527 ; Keller v. Strasburger, 23 Hun, 625, 626. 2 Carnahan ?;. Hughes, 9 N. E. Rep. (Ind.) 79; citing, Hays v. 2 Carnahan ?;. Hughes, 9 N. E. Rep. (Ind.) 79; citing, Hays v. Weatherman, 14 Ind. 341 ; Clodtfeldter v. Hulett, 72 Ind. 137, 140 ; Barrow v. Mullin, 21 Minn. 374; Hanna v. Mills, 21 Wend. 90 ; 2 Cor- bin's Benjamin, par. 1127. Compa $ 7G5 ; citing, 1 Chitty on Contracts Bass v. White, 7 Lans. 171. re Bennett's Benjamin on Sales, its (llth Am. ed.), 615, n. r, and cases ; 3 See Kellogg v. Turpie, 2 111. App. 55, 60-70, reviewing the authorities : Bennett's Benjamin on Salt's, 1 320, n. d, p. 335 ; 433, r.. h, p. 575 ; 765, n. z, p. 872. And consult Ferguson v. Carrington, 9 Barn. & C. 59 ; Strutt v. Smith, 1 Cromp. M. & R. 312 ; Sheriff v. McCoy, 27 Up. Can. Q. B. 597, 601 ; Auger v. Thompson, 3 Ont. App. 19,22,23; Dellone v. Hull, 47 Md. 112, 115; Moriarity v. Stofferan, 89 111. fi28, 529 ; Bicknell v. Buck, 58 Ind. 354. But see contra, Dietz r. Sntcliff, 80 Ky. 650 ; 15 The Reporter, 713 ; Rice v. Andrews, 33 Vt. 691, 694. 4 See Bartholomew v. Marwick, 15 Com. B. N. S. 711, 716 ; 33 Law J. Com. P. 145. But see Wayne's Merthyr Steam Co. v. Morewood, 47 Law J. Q. B. 746, 748, 749. Consult Bennett's Benjamin on Sales, 765, whence paragraph derived. $ 396. Remedies against the goods. Lien and stoppage* A suit for goods bargained and sold, is not the sole remedy of the seller for default in payment for goods remaining in his possession after the title thereto has passed to the buyer, 1 for the common law recognizes a lien of the seller upon the goods for their price, so long as he does not part with them ; 2 and in aid or extension of this comes the right of stoppage in transitu given by the law to an unpaid vendor, where the goods have been put in transit for delivery to the buyer, so that they are in actual possession of neither party to the contract, and under which the seller may intercept the goods if he can, so as to prevent them from reaching the possession of an insolvent buyer. 3 Eight of resale. The right of resale of the goods is a 583 SELLER'S BEMEDIES. 396 further privilege generally allowed to the vendor in this country. 4 1 Right to such action : See Frazier v. Simmons, 139 Mass. 531, 535 ; 394, on FORMS OF ACTION. 2 See Clark v. Draper, 19 N. H. 419, 421 ; Parks v. Hall, 2 Pick. 206, 212 ; Arnold v. Delano, 4 Cush. 33 ; 50 Am. Dec. 754 ; Barrett v. Pritch- ard, 2 Pick. 512,515; White v. Welsh, 38 Pa. St. 396,420; Haskins v. Warren, 115 Mass. 514, 533 ; Millikeii v. Warren, 57 Me. 46, 50 ; Griffiths v. Perry,! El. . Cummings, 52 Mich. 492, 4D7. Compare Argensinger v. Cline, 28 N. W. Rep. 435. 404 BESALE. 594 CHAPTER XXXVI. RESALE. \ 404. Right of resale. \ 405. Mode of resale. 2 406. Recovery after resale. 404. Right of resale. In general. K a vendee of goods unreasonably refuses to accept the goods, the vendee is under no obligation to allow them to perish on his hands, or to become reduced in value ; 1 but he may sell them at auction, 2 and hold the buyer respon- sible for the difference between the price which the goods actually brought and the price which the pur- chaser agreed to give. 3 Election of seller. And it has been considered to bo at the election of the seller whether he will resell, or treat the property as the vendee's, and sue for the entire contract price. 4 English doctrine. But in England, a resale in the absence of an express reservation thereof, is a technical breach of contract and ground for at least nominal damages, though it does not rescind the sale, and is not so tortious that the buyer can recover back any deposit of the price, or resist payment of any balance thereof, or sue the vendor in trover except for a premature re- sale 5 before default. 6 1 Van Horn v. Rucker, 33 Me. 391, 392 ; 84 Am. Dec. 52. And see Maclean v. Dunn, 4 Bing. 722 ; Langdell's Cases on Sales, 390, 394. 2 Compare 405, on MODE OF RESALE. 3 Van Horn v. Rucker, 33 Mo. 391, 392 ; 84 Am. Dec. 52. And see 2 Kent Com. 505 ; Atwood v. Lucas, 53 Me. 508, 511 ; 89 Am. Dec. 713 >* Crooks v. Moore, 1 Sand. 297, 302, 303 ; Sands v. Taylor, 5 Johns. 3055 Lewis v. Greider, 49 Barb. 606 ; Bogart v. O'Regan, 1 Smith, E. D. 590> 592 ; Adams i\ Mirick, cited, 5 Serg. & R. 32 ; Kosenbaums v. Weeden, 18 Gratt. 785, 790-792 ; White v. Kearney, 9 Rob. (La.) 405, 501, 502 ; Judd etc. Oil Co. v. Kearney, 14 La. An. 352 ; Williams v. Godwin, 4 Sneed, 595 RESALE. 405 557, 558, 559 ; Johnson v. Powell, 9 Ind. 566 ; Saladin ?>. Mitchell, 45 111. 85. Compare West v. Cunningham, 9 Port. 104, 107 ; Schmertz v. Dwyer, 53 Pa. St. 335, 339. No recovery where refusal to accept goods which the evidence indicates were not merchantable or according to samples : See Duncan v. Holt, 21 La. An. 235. Resale by buyer : See Barnett v. Terry, 42 Ga. 283, 289 ; Youghiogheny Iron Co. v. Smith, 66 Pa. St. 340,344; Walker v. Gooch, 10 Biss. 15'J, 163; Bach v. Levy, 50 N. Y. Sup. Ct. 519, 522 ; S. C. 5 N. E. Rep. 345. 4 Hunter v. Wetsell, 84 N. Y. 540, 555. Waiver of right to either course by not setting apart the article bought as the property of the rejecting buyer: Ganson v. Madigan, 13 Wis. 67; 15 Wis. 144, 151. Resale without buyer's stipulation or consent : O'Brien v. Jones, 47 N. Y. Sup. Ct. 67, 75. Seller's choice of remedies: Dunstan v. McAndrew, 44 N. Y. 72, 78 ; Hayden v. Demets, 53 N. Y. 426 ; 2 Kent Com. 504 ; 1 Sedgwick on Damages (7th ed.). 596, n. a. And see Gordon v. Norris, 49 N. H. 376, 383 ; Haines ?>. Tucker, 50 N. H. 307, 313 ; Whit- ney v. Boardman, 118 Mass. 242-248; Schultz v. Bradley, 4 Daly, 29, 36 ; Barr v. Logan, 5 Har. (Del.) 52, 55 ; Camp v. Hamlin, 55 Ga. 259 ; Bell ?'. Offutt, 10 Bush, 632, 639 ; Shawhan v. Van Nest, 25 Ohio St. 4!X), 499 ; 15 Am. Law Reg. N. S. 153, 160 ; Rickey v. Tenbroeck, 63 Mo. 567. 5 In this country it has been held that on a premature resale, the buyer can recover in trover only the amount of his part payment, without costs, after refusing to receive it back : Bowser v. Birdsell, 49 Mich. 5. 6 See Maclean v. Dunn, 4 Bing. 722; Langdell's Cases on Sales, 390, 394 : Stephen v. Wilkinson, 2 Barn. & Adol. 320 ; Gillard v. Brittain, 8 Mees. & W. 575 ; Page r. Cowasjee, Law R. 1 P. C. 127, 145 ; Lamond i>. Davall, 9 Q. B. 1030 ; Chinery v. Viall, 5 Hurl. & N. 288 ; Martindale v. Smith, 1 Q. B. 395 ; Ogg v. Shuter, Law R. 1 C. P. D. 347; 15 Eng. Rep. 231 ; Valpy v. Oakeley, 16 Q. B. 491 ; Griffiths v. Perry, 1 El. & E. 680. 405. Mode of resale. In general. There is no rule of law which requires resales, made by the seller in case of the purchaser's failure to take and pay for the articles sold, to be made at auction, or in any particular mode. 1 But the seller may sell the article which the buyer re- fuses to receive, at private sale, through a broker or in any other reasonable manner sanctioned by usage or custom, and best calculated to produce the value of the goods. 2 Restrictions on seller. And all that is required of the seller, if he elects to resell, is that he should act with reasonable care and diligence, such as would be re- quired from any other agent of the owner, put in pos- session of the goods, with instructions to sell them to tbe best advantage. 3 \ 405 KESALE. 596 Place of resale. If a sale cannot be made to advantage in the place of delivery fixed by the contract, the seller should go where he can get the best price and readiest sale, not out of the usual course in marketing such property. 4 Time of resale. It is sufficient if the resale be made within a reasonable time after rejection ; 5 and notice that goods would not be received or paid for does not oblige the seller to resell before the day fixed for delivery. 6 But when the property is kept after the buyer's default in order to profit by a rise in the market, the seller cannot charge the expense of keeping it to the buyer. 7 Notice. In order to entitle the vendor to proceed by resale, instead of by rescission or by action for the whole price, he must manifest his election by pre- liminary notice of his intention to sell, stating in terms or effect that he will assert his right of resale, and bind the buyer by the price obtained and hold him for the loss sustained. 8 But it is now generally assumed that no notice of the time and place of the resale itself is necessary, in the absence of special stipulation or cir- cumstances, where the extent of the vendee's liability is not to be materially decided by the price obtained. 9 1 Crooks r. Moore, 1 Sand. 297. But resale at auction customary : 2 Ken t Com. 504 ; Sands v. Taylor, 5 Johns. 395. Justified where goods perishable, expensive to keep, or likely to go out of season : Camp v. Hamlm, 55 Ga. 259. And see Ullman v. Kent, 60 111. 271. Account- ing for conduct and proceeds of auction : Camp v. Hamlin, 55 Ga. 25 i. And see Smith v. Pettee, 70 N. Y. 13, 18 ; Brownlee v. Bolton, 44 Mich. 213; Knowlton v. Banlgan, 51 N. Y. Sup. Ct. 521, 527. Title through resale at auction : O'Brien v. Jones, 47 N. Y. 67, 75, 76. 2 Crooks v. Moore, 1 Sand. 297. And see Haines v. Tucker, 50 N. H. 307, 313 ; Pollen v. Le Hoy, 30 N. Y. 549. 3 See Dunstan v. McAndrew, 44 N. Y. 72 ; Bagley v. Findlay, 82 III. 524. And consult White r. Kearney, 2 La. An. 641. Seller directly or indirectly buying in goods: Judd etc. Oil Co. v. Kearney, 14 La. An. 352. And compare Cullen v. Blmm, 37 Ohio St. 236, 238. 4 Lewis v. Grelder, 49 Barb. 606. And see McGibbon v. Schlesinger, 18 Hun, 225. But compare Chapman v. Ingram, 30 Wis. 290, 295; Bickey v. Tenbroeck, 63 3Io. 563, 567. 5 Smith t. Pettee, 70 "N". Y. 13, 18. And see Linden ?>. Eldred, 49 Wis. 305, 313, 314 ; Bosenbaum v. Weeden, 18 Gratt, 785, 797. Compare 597 RESALE. I 406 Salarlin v. Mitchell, 45 111. 79, 85, 86. And see Tilt v. La Salle Silk Co. 5 Daly, 19, 26, 27. 6 Kadish v. Young, 108 111. 170 ; 48 Am. Hep. 548, 549. When seller held to have waited a reasonable time : Bogart v. O'Rogan, 1 Smith, E. D. 590, 592. Compare Crooks v. Moore, 1 Sand. 293, 303. 7 Thurman v. Wilson, 7 111. 312, 314. Effect of too great delay in making resale: Pickering v. Bardwell, 21 Wis. 562, 566 ; Brow alee v. Bolton, 44 Mich. 218, 220. 8 Holland v. Kea, 48 Mich. 218, 224. And see Fancher v. Goodman, 29 Barb. 315 ; Redman v. Smock, 28 Ind. 365, 370. Consult, also, Gran- berry v. Frierson, 2 Baxt. 326. Compare Ashbrook v. Kite, 9 Ohio St. 357. Presumption of rescission : See Sloane v. Van Wyck, 4 Abb. ST. Y. App. 250. Sufficiency of commencement of action for breach of contract in failing to take the goods : Saladin v. Mitchell, 45 111. 79, 85. Sufficiency of one day's notice : Crooks v. Moore, 1 Sand. 297. 9 Holland v. Rea, 48 Mich. 218. And see Rosenbaums v. Weeden, 18 Gratt. 785; Lewis v. Greider, 49 Barb. 606; Hickock v. Hoyt, JJ3 Conn. 553, 558. Consult, also, Pollen v. Le Roy, 30 N. Y. 54:), 556 ; Gaskell v. Morris, 7 Watts & S. 32 ; West v. Cunningham, 9 Port. 104, 107 ; Hughes v. United States, 4 Ct. of Cl. 64 ; George v. Kimball, 14 Up. Can. Q. B. 514. Notice of public sale held sufficient: Linden v. Eldred, 49 Wis. 305, 315. Failure to give notice held not injurious: Ball v. Campbell, 30 Kan. 177. \ 406. Eecovery after resale. Ordinary view. After a resale the seller may ordinarily recover the difference between the contract price and the net proceeds of the resale, exclusive of expenses. 1 Special view. But some of the cases hold that a re- sale, though the usual, is not the only or decisive mode of ascertaining damages, and that, however fair, it does not exclude other evidence of the market price. 2 Goods not separately resold, etc. And where the goods cannot be separately resold, but are mingled with others, the sellers should account for the highest price obtained. 3 1 See Crooks v. Moore, 1 Sand. 297; Whitney v. Boardman, 118 Mass. 242, 248. And consult Springer v. Berry, 47 Me. 330, 339 ; 1 Serlg- wick on Damages (7th ed.), 593, n. &, and cases cited. Commissio: s allowed seller where found that buyers had no right to return goods: Stone i>. Browning, 49 Barb. 244, 249. Count for goods bar- gained and sold not maintainable : Hass v. Thompkins, 2 Pa. L. J. 17. And see Hagedorn v. Laing, 6 Taunt. 162, 166. 2 McCombs v. McKennan, 2 Watts & S. 216, 219 ; Andrews v. Hoover, 8 Watts, 239 ; Girard v. Taggart, 5 Serg. 2, 466. But compare Minzesheimer v. Heine, 4 Smith, E. D. 65, 67 J Merchant Banking Co. v. Phoenix Bessemer Steel Co. Law R. 5 Ch. D. 205 ; 22 Eng. Rep. 33, 46. Vendor's privilege in Louisiana : See Whiston v. Stodder, 8 Mart. (La.) 135 ; 13 Am. Dec. 281 ; Copley v. Sanford, 2 La. An. 335 ; 46 Arn. Dec. 548 j Converse v. Hill, 14 La. An. 89 ; Flint v. 11,-uvlings, 20 La. An. 557 ; Loeb v. Blum, 25 La. An. 232, 233 ; Furnlss' Succession, 34 La. An. 1013. 2 Palmer v. Hand, 13 Johns. 439 ; 7 Am. Dec. 392. Lien where agreed mortgage on goods for price not executed: Alexander v. Heriot, 1 Bail. Eq. 223, 225. And see Husted v. Ingraham, 75 N. Y. 251. No lien where agreement by buyer against further sale of . chattel until price pail: Welsh v. Parrish, 1 Hill (S. C.) 155, 163. Seller not bound to relinquish lien whore terms of public sale not complied with : Wade v. Moffitt, 21 111. 110. 3 Parks v. Hall, 2 Pick. 206, 212. And see Jenkins v. Eichelberger, 4 Watts, 121 ; 28 Am. Dec. 691, n. 694. 4 Blackshear v. Burke, 74 Ala. 239, 242. And see James v. Bird's Adm'r, 8 Leigh, 510 ; 31 Am. Dec. 668, 669 ; Beam v. Blanton, 3 Ired. Eq. 53 ; Lupin v. Marie, 6 Wend. 77 ; 21 Am. Dec. 256, 259, 261 ; Wilkie v. Day, 6 N. E. Rep. (Mass.) 542. Cases illustrating requisites of de- livery to destroy seller's lien : See Arnold v. Delano, 4 Cush. 33 ; 50 Am. Dec. 754, 757. After the goods coine into the possession of the I 408 SELLER'S LIEN. 600 buyer the Hen is extinguished : Parks v. Hall, 2 Pick. 206, 212. And see Freeman v. Nichols, 116 Mass. 309 ; Lupin v. Marie, 6 Wend. 77 ; 21 Am. Dec. 256, 259-261 ; Welsh v. Bell, 32 Pa. St. 12, 17 ; Johnson v. Farnum, 56 Ga. 144, 145 ; Boyd t>. Mosely, 2 Swan, 6f5l. 662 ; Barnett v. Mason, 7 Ark. 253, 256. Compare Musson v. Elliott. 30 La. An. pt. 1, 147, 151. 5 Gwyn v. Richmond etc. R. R. Co. 85 N. C. 429 ; 39 Am. Rep. 70S, 710. Lien lost where delivery to buyer's servant on express condition t Mat title to remain in seller until payment of note for balance of price : Helm v, Dumars, 3 Cal. 454. 6 Blackshear v. Burke, 74 Ala. 239, 242. But compare Husted v. Ingraham, 75 N. Y. 251. Marked distinction between delivery to pass title and to destroy lien : Arnold v. Delano, 4 Cush. 33 ; 50 Am. Dec. 754, 756. See Thompson v. Baltimore etc. R. R. Co. 23 Md. 396, 406. 7 See Parks v. Hall, 2 Pick. 206, 212. And consult Arnold v. Delano, 4 Cush. 38; 50 Am. Dec. 754; Mason v. Hutton, 41 Up. C'an. Q. B. 610. But see White v. Welsh, 38 Pa. St. 396, 420 ; Southwest Freight Co. v. Stanard, 44 Mo. 71, 84 ; Southwest Freight Co. v. Plant, 45 Mb. 517, 519 ; Thompson v. Baltimore, etc. R. R. Co. 28 Md. 396, 407. Delivery of part : See Hamberger v. Rodman. 9 Dalv, 93 ; Hewlett v. Flint, 7 Cal. 264. 8 Boyd v. Moseley, 2 Swan, 661, 663. 9 Sawyer v. Fisher, 32 Me. 28. Liens in general: See Arnold V. Delano, 4 Cush. 33 ; 50 Am. Dec. 754 ; 2 Bouvier Law Diet. tit. Lien ; Bradeen v. Brooks, 22 Me. 462, 471, 472. 10 Sawyer v. Fisher, 32 Me. 28. 11 Gregory v. Morris, 96 U. S. 619, 623. Instrument reserving lien as notice : Bumi v. Valley Lumber Co. 51 Wis. 376. Reservation of lien upon articles as fast as they are manufactured from property sold : Dunning v. Stearns, 9 Barb. 630, 633. Compare Burn bam v. Marshall, 56 Vt. 365. Reservation of lien on timber-trees, remaining after possession authorized by contract, taken by buyer : Bradeen v. Brooks, 22 Me. 453, 471. But compare Douglas r. Shumway, 13 Gray, 498. And see generally, Barnett v. Mason, 7 Ark. 253 ; Obermeier v. Core, 25 Ark. 562, 564. Oral reservation of lien : See Gay v. Harde- man, 31 Tex. 245, 250 ; Burnhani v. Marshall, 56 Vt. 365. 12 See Bugbee t. Stevens, 53 Vt. 389, 391 ; Barber v. Richardson, 57 Vt. 303 ; McClenney r. McClonney, 3 Tex. 102, 197 ; Bunn v. Valley I umber Co. 51 Wis. 576 ; Naylor v. Young, 7 Lea. 735 ; Loeb v. Blum, 25 La. An. 232. \ 408. Withholding or countermanding delivery. Gen- eral doctrine. The rule is said to be, that so long as the vendor has the actual possession of the goods, or as they are in the custody of his agents, and while they are in transit from him to the vendee, he has a right to refuse or countermand the final delivery, if the vendee be in failing circumstances. 1 And where personal prop- erty is sold on credit, if before the possession is deliv- ered the vendee becomes insolvent, the vendor may 601 SELLER'S LIEN. $ 408 protect himself, if payment has not been made when the credit expires, by refusing to deliver possession. 2 Applications. This doctrine of the seller's right to withhold or recall delivery has been applied to a sale of wood marked off and identified, but not taken away by the purchaser, 3 and of iron pointed out for purposes of delivery. 4 So where the vendors were also warehouse- men of the goods sold, under an arrangement with the purchasers to pay warehouse rent, it was held that the vendor's lien revived upon the insolvency of the vendees. 5 Giving delivery order, etc. And in England, the vendor of goods may stop their delivery under his lien for the price, even if he has given a delivery order for the goods, if such order has not been presented to the ware- houseman or other custodian of the goods, and recog- nized by him. 6 In this country, it has also been held that the indorsement and transfer of a delivery order does not divest the seller of his lien over goods still in his agent's possession and not yet paid for. 7 1 White v. Welsh, 38 Pa. St. 396, 420. And see Arnold v. Delano, 4 Cush. 33 ; 50 Am. JDec. 754, 757 ; Hunter v. Talbot, 3 Smedes & M. 754 ; Valpy v. Oakeley, 16 Q. B. 941, 950. But compare Dodsley v. Varley, 12 Ad. . Wiffen, Law R. 5 Q. B. 660, 665, 667 ; LangdelPs Cases on Sales, 766, 771, 772 ; following Woodley v. Coventry, 2 Hurl. & C. 164 ; LangdelPs Cases on Sales, 760. 8 Voorhis v. Olmsted, 66 N. Y. 113. But compare Hamburger v. Rodman, 9 Daly, 93, 100. 605 STOPPAGE IN TRANSIT!!. \ 411 CHAPTER XXXVIII. STOPPAGE IN TRANSITU. \ 411. In general. \ 412. Buj-er's insolvency. 2 413. Duration of transit. \ 414. Capacity of middleman. 415. Delivery terminating transit. 5 416. By whom right exercised. 417. Mode of exercising right. \ 418. Mode of defeating right. \ 411. In general. Nature and requisites. Stoppage in transitu is a resumption by the seller of the posses- sion of goods not paid for, while on their way to the buyer and before he has acquired actual possession. 1 And to enable the vendor to exercise the right, the goods sold must be unpaid for, the vendee must be in- solvent, and the goods must be in transit. 2 This right does not proceed on the ground of rescinding but of continuing the contract of sale, by way of extension of an equitable lien on the goods. 3 Non-payment of any part of price. If there be any part of the purchase money unpaid, and the purchaser becomes insolvent, the vendor has the right of stop- ping the chattels in transitu, at any time before actual delivery. 4 Giving credit, taking notes, etc. Nor will the seller be deprived of his right of stoppage in transitu because the goods were, sold on credit, 5 nor by reason of the taking or even the negotiating of promissory notes, bills of exchange, or other like instruments, if not received by way of absolute payment of the price. 6 1 2 Bonvier Law Diet. tit. Stoppage in Transitu. And see Loeb v. Peters, 63 Ala. 243 ; 35 Am. Hep. 17, 18 ; 2 Kent Com. 540 ; Atkins v. Colby, 20 N. H. 154, 155 ; O'Brien v. Norris, Ifi Mel. 12, 130 ; Inslee v. Lane, 57 N. H. 454, 457 ; Hause v. Judson, 4 Dana, 7 ; 29 Am. Dec. 377, 412 STOPPAGE IN TRANSITU. 606 380. Distinguished from rescission by mutual consent : Ash. v. Put- nam, 1 Hill, 302. Exact character stated : Walsh v. Blakely, 9 Pacif. Hep. (Mont.) 809. Basis in reason of justice, etc. : See Loeb v. Peters, 63 Ala. 24:5 ; 35 Am. Hep. 17, 19 ; 2 Kent Com. 542 ; Symns v. Schotten, 10 Pacif. Rep. (Kan.) 828. May be exercised upon negotiable paper : Muller v. Pondir, 55 N. Y. 325 ; 14 Am. Rep. 259, 268, 270. 2 More v. Lott, 13 Xev. 376, 379. And see Wood v. Roach, 2 Ball. ISO ; 1 Am. Dec. 276 ; Cooper v. Bill, 3 Hurl. & C. 722, 727 ; Chandler v. Fulton, 10 Tex. 2 ; 60 Am. Dec. 188, 100; Walsh v. Blakely, 9 Pacif. Rep. (Mont.) 809. But if the goods pass from the hands of the carrier or other middleman into the actual possession or control of the buyer, the seller's right over them is gone: See Cooper ??. Bill, 3 Hurl. & C. 722, 727 ; Walsh v. Blakely, 9 Pacif. Rep. (Mont.) 809. And consult The St. Joze Indiana,! Wheat. 208, 212 ; Chandler v. Fulton, 10 Tex. 2 ; 60 Am. Dec. 188, 190. 3 See Jordan v. James, 5 Ohio, 88, 98 ; Patten's Appeal, 45 Pa. Sf 151, 158, 15'J ; Kemp v. Falk, Law R. 7 App. C. 573, 5S1 ; 35 Eng. Rep 1 395, 403. And consult Rowley v. Bigelow, 12 Pick. 307; 23 Am. Dec' 607; 2 Kent Com. 541 ; Babcock v. Bonnell, 83 N. Y. 214 ; Xewhall v s, 15 Me. 314, 319 ; 33 Am. Dec. 617. Insolvency of buyer does not revoke contract : McElroy v. Seerey, 61 Md. 389 ; 48 Am. Rep. 110. 4 Jordan v. James, 5 Ohio, 88, 99. Like effect : Xewhall v. Vargas, 13 Me. 93, 108 ; 29 Am. Dec. 4tfJ ; 2 Kent Com. 541. And see Hodgson v. Loy, 7 Term Rep. 440 ; Feise v. Wray, 3 East, 93, 102 ; Edwards v. Brewer, 2 Mees. & W. 37"> ; Van Casfeel v. Booker, 2 Ex. 6f)l, 702 ; Atkins v. Colby, 20 X. H. 1-^4; Haven v. Place, 28 Minn. 551, 553. Compare Kewhall r. Vargas, 15 Me. 314, 324 ; 33 Am. Dec. 617. Actual delivery : Compare 415. 5 Clapp v. Peck, 55 Iowa, 270. And see Clapp v. Sohmer, 55 Iowa, 273 ; Babcock v. Bonnell, 80 X. Y. 244, 249 ; Stubbs v. Lund, 7 Mass. 453, 456 ; 5 Am. Dec. 63. Unsettled accounts between consignor and consignee: Wood v. Jones, 7 Dowl. & R. 126. And see Kinloch i\ Craig, 3 Term Rep. 119 ; Stanton v. Eager, 16 Pick. 467. But compare Vertue v. Jewell, 4 Camp. 31. And see Patten v. Thompson, 5 Maule & S. 350, 360, 361. 6 See Stubbs v. Lund, 7 Mass. 453; 5 Am. Dec. 63; Xewhall v. Vui-LT-is, 13 Me. 93, 103; 2-) Am. Dec. 489; Clapp v. Sohmer, 55 Iowa, 273 ; Boll r. Moss, 5 Whart. 189, 200 ; Hays v. Mouille, 14 Pa. St. 48, 54 ; Lewis 7'. Mason, 36 Up. Can. Q. B. 590, 605-608. But compare Eaton v. Cook, 32 Vt. 58. 412. Buyer's insolvency. As determining right of stoppage. The validity of the right of stoppage in transitu depends entirely on the bankruptcy or insolv- ency of the vendee. 1 What constitutes. It is not necessary, however, that there should be proof of a technical insolvency on the part of the buyer, but it is sufficient to show a general inability on his part to pay his debts, although he may not have taken the benefit of an insolvent law, or made an assignment for the benefit of his creditors, or made 607 STOPPAGE IN TRANSITU. g 413 a stoppage of payment, or evinced the failure in his circumstances by any overt act. 2 Time of insolvency. And the seller of goods may stop them in transitu on account of the buyer's insolvency existing before the sale, but not known to the seller until after the sale. 3 Information of insolvency. It is laid down that any well-founded or probable information of such an em- barrassment on the part of the buyer as to prevent him from honoring his drafts, or meeting the demands of his creditors, is sufficient insolvency to justify the vendor in stopping the goods sold.* But if through excess of caution or from misinformation, he make a mistake and stop the goods when the buyer is not insolvent, the buyer would be entitled to claim the goods and an indemni- fication for all the expenses arising out of the stoppage. 5 1 O'Brien v. Norris, 16 Md. 122, 132. And see Fox v. Willis, 60 Tex. 373, 376, 377 ; 2 Kent Com. 543 ; Stewart v. Man, 2 Tox. App. (Civ. Cas.) \ 787 ; The St. Joze Indiana, 1 Wheat. 208. Insolvency of Intermediate party insufficient: Eaton v. Cook, 32 Vt. 58. See Memphis etc. B. B. Co. v. Freed, 38 Ark. 614. 2 See O'Brien v. Norris, 16 Md. 122, 132 ; Hays v. Mouille, 14 Pa. St. 48, 51 ; Durgey Cement etc. Co. v. O'Brien, 123 Mass. 12, 13 ; Nuylor v. Dennie, 8 Pick. 198, 205; 19 Am. Dec. 319; Bloomingdale v. Mem- phis etc. B. B. Co. 6 Lea, 616, 628 ; Benedict v. Schaettle, 12 Ohio St. 515, 519; More v. Lott, 13 Neb. 376. Contra, see discredited case of Bogers v. Thomas, 20 Conn. 53, 62. 3 Loeb v. Peters, 63 Ala. 243, 248 ; 35 Am. Bep. 17. And see Bene- dict v. Schaettle, 12 Ohio St. 515, 519; Reynolds v. Boston etc. B. 11. Co. 43 N. H. 580, 588. Same effect: Naylor v. Dennie, 8 Pick. 1C8, 203; 49 Am. Dec. 319; Buckley v. Furniss, 15 Wend. 137; Stevens v. Wheeler, 27 Barb. 658; O'Brien v. Norris, 16 Md. 122, 132; Blum v. Marks, 21 La. An. 208, 289 ; White v. Mitchell, 38 Mich. 3 ( JO. And see Conyers v. Ennla, 2- Mason, 236 ; Biggs v. Barry, 2 Curt. 259. Contra, see discredited case of Bogers v. Thomas, 20 Conn. 53. 4 More v. Lott, 13 Nev. 376. And C9nsult Walsh v. Blakely, 9 Pacif. Bep. (Mont.) 809. Knowledge of insolvency in general: See O'Brien v. Norris, 16 Md. 122, 132 ; Blum v. Marks, 21 La. An. 268 ; Lee v. Kilburn, 3 Gray, 595, 599 ; Secomb v. Nutt, 14 Mon. B. 261, 263. 5 More v. Lott, 13 Nev. 376, 383. Same effect : The Constantia, 6 Bob. Adm. 321 ; quoted, Benedict v. Schaettle, 12 Ohio St. 515, 518. Compare The Tigress, 22 Law J. Adm. 97, 101. \ 413. Duration of transit. In general. A vendor has a right to stop goods sold by him, where he dis- $ 413 STOPPAGE IN TRANSITU. 608 covers the vendee to be insolvent, at any time while the goods are in transitu. 1 And goods are said to be in transit so long as they are on the passage, and until they come into the actual or constructive possession of the buyer, or of some person acting for him. 2 Beginning and end of transit. The stoppage to be ef- fective must occur between the two points where the transit begins, which happens when the carrier or middleman takes possession of the goods from the seller as carrier or middleman, and where the transit ends, which happens when the carrier or middleman divests himself of possession in such capacity to the buyer. 3 Continuance of transit. The goods are deemed to be in transitu, not only while they remain in the possession of the carrier, whether by land or water, although such carrier may have been named and appointed by the consignee, 4 but also while they are in any place of de- posit connected with their transmission and delivery, and until they reach the actual or constructive posses- sion of the consignee, at the place named by the seller to the buyer as their destination. 5 Cessation of right of stoppage. Yet the vendor's right of stoppage is at an end when the goods have either come into the actual possession of the vendee at an in- termediate point, or have reached the place of their destination, and are delivered either to the vendee, or in his absence, to a third person selected by the carrier to keep them for the vendee. 6 Recommencement of transit. If a transit is once at end , the delivery is complete and the transit cannot com- mence again, because the goods are sent to a new and ulterior destination. 7 1 Stevens v. Wheeler, 27 Barb. 658.663. And see White v. Welsh, 38 Pa. St. 396, 420 ; Hays v. Mouille, 14 Pa, St. 48, 51. Compare Loeb v. Blum, 25 La. An. 232, 233. 609 STOPPAGE IN TRANSITU. 414 2 More v. Lott, 13 Nev. 376. And see Halff v. Allyn, 60 Tex. 278, 279. 3 See Walsh v. Blakely, 9 Pacif. Bep. (Mont.) 809, 812. And consult Wongcr v, Bernhardt,55 Pa. St. 300 ; Boyd v. Mosely,2 Swan, 661, 6G3 ; Wind Engine etc. Co. v. Oliver, 16 Neb. 612, 614 ; Chicago etc. B. B. Co. v. Painter, 15 Neb. 394, 396 ; Symns v. Schotten, 10 Pacif. Hep. (Kan.) 728 ; Ex parte Watson, Law B. 5 Ch. D. 35 ; 21 Eng. Bep. 764 ; Hays v. Mouille, 14 Pa. St. 48, 53 ; Covell v. Hitchcock, 23 Wend. 611 ; Buckley v. Furniss, 15 Wend. 137. 4 See Berndston v. Strang, Law B. 4 Eq. 481 ; Ex parte Bosevear etc. Co. Law K. 11 Ch. D. 560 ; 27 Eng. Bep. 778 ; Stokes v. La Bivicre, reported In Bohtlingh ?>. Inglis, 3 East, 8-J7 ; Hoist v. Pownall, 1 Esp. 40 ; Northey v. Field, 2 Esp. 613 ; Hodgson v. Loy, 7 Term Bep. 440. 5 Halff v. Allyn, 60 Tex. 278, 279. And see Abbott on Shipping, 520, 521 ; Chandler v. Fulton, 10 Tex. 13 ; 60 Am. Dec. 188, 1<)1 ; Hall v. Dimond, 3 Atl. Bep. (N. H.) 423. Compare Atkins v. Colby, 20 N. H. 154 ; Mohr v. Boston etc. B. B. Co. 106 Mass. 67, 70 ; Sawyer v. Joslin, 20 Vt. 172, 179 ; 49 Am. Dec. 768 ; Conyers v. Ennis, 2 Mason, 236. 6 See Lane v. Bobinson, 18 Mon. B. 623, 6HO ; Stevens v. Wheeler, 27 Barb. 608, 603, 664 ; Wood v, Yeatman, 15 Mon. B. 270, 279, 280 ; Walsh v. Blakely, 9 Pacif. Bep. (Mont.) 809. 7 Pottinger v. Hecksher, 2 Grant Cas. 309, 314. And see Brooke Iron Co. v. O'Brien, 135 Mass. 442, 447. 414. Capacity of middleman, In general. In the absence of any understanding to the contrary, the employment of a carrier by a seller of goods on credit, constitutes all middlemen into whose custody they pass, agents of the seller, for their transportation and delivery, and the goods are deemed in transit until the complete performance of the carrier's whole duty. 1 Intermediate agent. If, however, a party to whom goods are delivered is clothed with a general and un- limited power to receive them and alter their destina- tion, the transit ends, as between vendor and vendee, when the goods reach his hands. 2 But if an agent be clothed only with specific and limited authority, to for- ward goods to a particular destination, the transitus is not at end until the goods have reached the place named by the buyer or seller as such destination. 3 Accord- ingly the vendor's right of stoppage continues, where an intermediate delivery occurs before the goods reach their ultimate destination, if the middleman to whom they are thus delivered, or with whom they are thus $ 414 STOPPAGE IX TRAXSITTJ. 610 deposited, has no authority to give them a new destina- tion not originally intended, but is a mere agent to transmit or forward the goods in accordance with the original directions. 4 On the other hand the transitus is at an end, and the vendor's right of stoppage ceases when goods are delivered at a place where they will remain until a fresh impulse is communicated to them by the vendee, 5 as if they reach the hands of a forward- ing merchant, there to await the instructions of the purchaser respecting any further transit. 6 Detention for carrier's charges. The right of stoppage remains, however, while the goods are still liable to be held by the carrier, subject to his lien for freight or charges, or are so detained, 7 and in the absence of clear proof of an arrangement or agreement that the carrier holds the goods in the capacity of warehouseman for the buyer. 8 1 Calahan v. Babcock, 21 Ohio St. 281, 293 ; 8 Am. Rep. 63. Carrier's attitude toward goods at terminus : See James v. Griffin, 2 Mees. & W. 623 ; Bolton v. Lancashire etc. Ry. Co. Law R. 1 Com. P. 431, 438 ; Ex parte Burrow, Law R. 6 Ch. D. 783 ; 23 Eng. Rep. 349, 354 ; Jackson v. Nichol, 5 Bing. N. C. 508, 518 ; Whitehead v. Anderson, 9 Mees. & \V. 518, 5:35 ; Coventry v Gladstone, Law R. 6 Eq. 44, 50 ; Ex parte Cooper, Law R. 11 Ch. D. 68 ; 27 Eng. Rep. 338, 342 ; Inslee v. Lane, 57 N. H. 454 ; Alsberg v. Latta, 30 Iowa, 442, 447 ; McFetridge v. Piper, 40 Iowa, 627, 628. Capacity of middleman as question of fact: Hallr. Dimond, 3 Atl. Rep. (N. H.) 423. Question whether warehouseman received goods as agent of vendee or of carrier : Hoover v. Tibbits, 13 Wis. 70, 81. See, also, 2 Kent Com. 545 ; Chandler v. Fulton, 10 Tex, 14 ; 60 Am. Dec. 188, 191 ; Halff v. Allyn, 60 Tex. 278, 282. 2 Pottinger v. Hecksher, 2 Grant Cas. 309, 314. 3 Pottinger v. Hecksher, 2 Grant Cas. 309, 314. And see O'Neil v. Garrett, 6 Iowa, 480, 435. Goods rejected by both parties : Bolton v. Lancashire etc. Ry. Co. Law R. 1 Com. P. 431. 4 See Cabeen v. Campbell, 30 Pa. St. 254, 259 ; Markwald v. Cred- itors, 7 Cal. 213,214. Same effect: Blackman v. Pierce, 23 Cal. 508, 511 ; Aguirre v. Parmelee, 22 Conn. 473, 432; Pottinger v. Hecksher, 2 Grant Cas. 309. 314 ; Hepp v. Glover, 15 La. 461 ; 35 Am. Dec. 206, 208, 203 ; Harris v. Pratt, 17 N. Y. 24*), 252, reviewing English and other cnsos ; Harris y. Hart, 6 Duer, 606, 613, 616, 617, reviewing cases and stating conclusions. 5 Guilford v. Smith, 30 Vt. 49, 67. And see Gill v. Benjamin, 64 Wis. 362 ; 54 Am. Rep. 619, 622 ; citing, Dixon v. Baldwin, 5 East, 175 ; Kendall v. Stevens (or Marshall), Law R. 11 Q, B. D. 356 ; and Ex parte Miles, Law R. 15 Q. B. D. 39. 611 STOPPAGE IN TRANSITU. 415 6 Biggs v. Barry, 2 Curt. 259, 262 ; discussed, Harris v. Hart, 6 Duer. 606, 625. Same effect: Hays i>. Mouille, 14 Pa. fet. 48; Guilford v. Smith, 30 Vt. 49, 61 ; Ex parte Gibbes, Law R. 1 Ch. IX 101, 109 ; 15 Eng. Rep. 667, 674. See Becker v. Hallgarten, 86 N. Y. 167, 173, 174. Right of stoppage gone if delivery to a special agent or bailee representing the buyer, and receiving the goods either for custody or disposal: Walsh v. Blakely, 9 Pac. Rep. (Mont.) 809. 7 See Sawyer v. Joslin, 20 Vt. 172 ; 49 Am. Dec. 768, 773 ; Calahan v. Babcock, 21 Ohio St. 281 ; 8 Am. Rep. 63, 65. 8 See Kemp v. Falk, Law R. 7 App. C. 573, 584 ; 35 Eng. Rep. 395, 405 ; and consult Hall v. Dimond, 3 Atl. Rep. (N. H.) 433 ; Ex parte Cooper, Law R. 11 Ch. D. 68, 74, 76, 78 ; 27 Eng. 338, 343, 345, 346 ; Ex parte Burrow, Law R. 6 Ch. D. 783, 788 ; Whitehead v. Anderson, 9 Mees. & W. 518, 535; Symns v. Schotten, 10 Pacif. Rep. (Kan.) 828, discussing subject. But compare Guilford v. Smith, 30 Vt. 49, 72; Allen v. Griffin, 2 Cromp. & J. 218. Consult further, Macon Western R. R. Co. v. Meador, 65 Ga. 725; Inslee v. Lane, 59 N. H. 454; Greve v. Dun- ham, 60 Iowa, 108, 111 ; McLean v. Brethaupt, 19 Cent. L. J. (Can.) 176 ; More v. Lott, 13 Nev. 376, 383. $ 415, Delivery terminating transit. Actual delivery. The actual delivery to the vendee which puts an end to the transitus, or state of passage, 1 may be at the vendee's own warehouse, or at a place used by him for the de- posit of goods ; 2 or where such is the intent of the parties, by loading the goods on trucks sent by the buyer's agents ; 3 or as generally held, by placing the goods on board the vendee's own vessel, or even one chartered by him. 4 So the delivery of goods to the vendee, which puts an end to the state of passage, and so deprives the vendor of the right of stoppage in transitu, may be at a place where the vendee means the goods to remain until a fresh destination is given to them by orders from himself. 5 Constructive delivery. And a vendor of goods cannot exercise the right of stoppage in transitu where there has been a constructive delivery to the buyer, as after the goods have been delivered by the carrier to a third person on the vendee's order; 6 or where the goods, having reached their destination, have been deposited in a warehouse, subject to the order and control of the buyer; 7 or where the goods have been landed at the customary place upon a wharf near the buyer's place 415 STOPPAGE IN TRANSITU. 612 of business, and where they are free from any outside custody or lien for freight or charges. 8 Insufficient delivery. But the transfer of goods from the car into the depot or warehouse at the station designated for their discharge, in the vicinity of the buyer's place of business, there to await the payment by him of the charges thereon, does not ipso facto con- stitute a delivery thereof. 9 Kor does the taking of per- sonal property from the carrier by an officer levying execution thereon, under the process, and not as agent of the purchasers, operate as a delivery to them, so as to defeat the right of stoppage. 10 And it seems that the delivery of part of the goods is not a delivery of the whole, so as to divest the right of stoppage, unless the parties so intended. 11 Entry at custom-house. So it appears to be the law that the entry of the goods by the vendee at the custom-house at the port of delivery, without the payment of the duties, is not a termination of the transitus, so as to make the right of stoppage cease ; 12 nor does such right terminate unless there has been a recognition of the buyer's title, 13 or a perfected entry in a bonded warehouse. 14 Intercepting goods. But if the vendee intercepts the goods on their passage to him, and takes possession as owner, the delivery is complete, and the right of stoppage gone. 15 1 James v. Griffin, 1 Mees. & W. 20 ; 2 Mees. & W. 663. Manual possession held requisite: Whitehead v. Anderson, 9 Mees. & Yv r . 518, 534 ; Crawshay v. Eades, 1 Barn. & C. 181, 184. But see Sawyer ?. Joslin, 20 Vt. 172 ; 49 Am. Dec. 768, 770, 773 ; Inslee v. Lane, 57 N. H. 454, 458. 2 Scott v. Pettit, 3 Bos. & P. 469, 472 ; Kowe v. Pickford, 8 Taunt 83, 85. 3 Merch. Bank. Co. v. Phoenix etc. Co. Law R. 5 Ch. D. 219 ; 22 Eng. Rep. 33, 46. 4 See Bolin v. Huffnagle, 1 Rawle, 9, 18 ; Thompson v. Stewart, 7 Phila. 1S7 ; Pequeno v. Taylor, 38 Barb. 375. And consult Van Casteel v. Booker, 2 Ex. 601, 708 ; Schotsman v. Lancashire etc. Ry. Co. Law R. 2 Ch. 332, 336. Compare Turner v. Liverpool Docks Trustees, 6 Ex. 547 ; Berndston v. Strang, Law R. 4 Eq. 481. But see Stubbs v. Lund, 613 STOPPAGE IX TRANSITU. 416 7 Mass. 453. 457, 458 ; 5 Am. Dec. 63 ; Ilsley v. Stubbs, 9 Mass. 65, 72 ; 6 Am. Dec. 29. Consult further, Cross v. O'Donnell, 44 N. Y. 661 ; 4 Am. Rep. 721, 724; Newhall v. Vargas, 13 Me. 93, 107; 29 Am. Dec. 489, 494 ; Bowley v. Bigelow, 12 Pick. 307 ; 23 Am. Dec. 607 ; Parker v. M'lver, 1 Desaus. Eq. 274, 281. 5 Becker v. Hallgarten, 86 N. Y. 167, 173, 174. 6 Stevens v. Wheeler, 27 Barb. 658, 661. Sufficiency of constructive delivery in general : Chandler v. Fulton, 10 Tex. 2 ; 60 Am. Dec. 188, 191. 7 Frazer v. Hilliard, 2 Strob. 309, 317. 8 Sawyer v. Joslin, 20 Vt. 172, 180 ; 49 Am. Dec. 768. And compare Cooper v. Bill, 3 Hurl. & C. 722, 729. 9 Calahan v. Babcock, 21 Ohio St. 281, 293 ; 8 Ain. Rep. 63. Deliv- ery at nearest railway depot to place of destination : Halff v. Allyn, 60 Tex. 278. 10 Sherman v. Rugee, 55 Wis. 346, 349. 11 See Kemp v. Falk, Law R. 7 App. C. 573 ; 35 Eng. Rep. 395, 407 ; Ex parte Cooper, Law R. 11 Ch. I). 63 ; 27 Eng. Rep. 33S, 341, 345. And consult Buckley v. Furniss, 17 Wend. 504, 505. 12 Mottram v. Heyer, 5 Denio, 629, 632. And see Northey v. Field, 2 Esp. 613 ; Nix v. Olive, Abbott on Shipping, 377. 13 See exhaustive review of cases in Wiley v. Smith, 1 Ont. App. 179 ; affirmed, 2 Duval, 1 ; followed, Wilds v. Smith, 2 Ont. App. 8, 12. And consult Orr v. Murdock, 2 Ir. Com. Law Rep. 9. 14 Fraschieris v. Henriques, 6 Abb. Pr. N. S. 251, 255-261, reviewing the cases and stating conclusions. See, also, Cartwright v. Wilmerd- ing, 24 N. Y. 521, 537. Compare Mohr v. Boston etc. R. R. Co. 106 Mass. 67, 71 ; Donath v. Broomhead, 7 Pa. St. 301. 15 Secomb v. Nutt, 14 Mon. B. 261, 264. And see 2 Kent Com. 547 ; Mohr v. Boston etc. R. R. Co. 106 Mass. 67 ; Walsh v. Blakely, 9 Pacif. Rep. (Mont.) 809. Compare Muskegon Booming Co. v. Underbill, 43 Mich. 629. Consent or refusal of carrier immaterial : Whitehead v. Anderson, 9 Mees. scope of legislation, 375. conflict of State laws, 375. Sunday sales, 376. 656 INDEX. Illegal sales Continued. at common law and in England, 376. in United States, 376. liberal construction of enactments, 376. Illegality. See ILLEGAL SALES. Immoral transactions, relation to illegalit} 7 , 363, 367. Implied sales, as distinguished from express, 6. assent may be implied, 29. express contract as excluding implied, 44. appropriation of goods by alleged purchaser, 44. delivery and retention of part, 44. Impossibility, of performance of contracts of sale, 296. Incorporeal personalty, relation to statute of frauds, 277. transfer of, in relation to warranty of title, 326. Inebriated persons. See INTOXICATED PERSONS. Infants, as parties to sales, 48-54. voidable character of transactions, 48. Sales and purchases by, 48. ratification after majority, 48. time to disaffirm, 48. enforcing delivery, 48. trading purchases of, no liability as, for necessaries, 51 o such purchases voidable under modern tendency, though strictly void, 51. Necessaries, 49, 50. common-law liability, 49. support supplied by parents, etc., 49. scope of term, 49. province of court and jury, 49. express contracts for necessaries, when and how far held binding or otherwise, 50. Misrepresentation of age by, title of innocent pur- chaser, 52. . INDEX. 657 Infants Continued. no estoppel of infant, 52. infant's recovery of consideration, 52. Ratification after majority, in writing, 53. modes of, 53. direct promise, 53. acquiescence in sale, etc., 53. retaining property purchased, 53 ' Disaffirming transaction, 54. rescission of sale before majority, 54. restoration of property or consideration, 54. tender, 54. use or consumption, 54. allowing for benefit, 54. innocent purchasers. See BONA FIDE PURCHASERS. Insane persons, and those mentally incompetent, 46. contracts voidable, 46. when sales, etc., sustained, 46. necessaries, 46. Insolvency, of buyer as reviving seller's lien where credit given, 409. of buyer, as ground for exercise of seller's right of stoppage in transitu, 412. Inspection, and acceptance, 252. buyer's right of, 212. right of, 260. opportunity for, as affecting implied warranty of quality, 331. finality of, in sales by sample, 338. Instalment sales, 306. as illustration of severable contracts of sale, 6. Instalments, of price, payments of, 121. delivery by, 238. remedies for delay in delivery of, 402. 658 INDEX. Intention, as criterion to determine whether sale execu- tory or not, 111. to reserve control, evidence of, 143. relation to transfer of title, 155-157. Intercepting goods, by buyer, as defeating stoppage in transitu, 415. Interest, in chattel, transfer of, in relation to warranty of title, 325. Intoxicated persons, as parties to sales, etc., 37. extent of intoxication, 47. contracts voidable, etc., 47. liability for necessaries, 47. Intoxicating liquors, sales of, 375. Intrusting goods, or documents under Factors' Acts, 209. Involuntary sale, definition of, 6. Judicial sales, definition of, 6. title of purchaser at, 173. Jus disponendi, reserving, see RESERVATION OP CONTROL. Kinds, of sales, see CLASSIFICATION. Knowledge, of unlawful purpose of transaction, 363, 364. Latent defects, 332. relation to warranty, 349, 450. in general, 349. lack of fault or knowledge by seller, 350. Lease. Sale or, 22. conveying whole interest, 22. sale under guise of renting, 22. formalities of lease lacking, 22. unrecorded instrument construed as sale, 22. lease giving privilege of purchase, 22. distinction in Pennsylvania, 22. Letter. See CONTRACT BY LETTER. Levy, of attachment or execution by creditor as not de- feating right of stoppage in transitu, 418. Lien, seller's, see SELLER'S LIEN. liquor. Sale INDEX. quor. Sale by club, 13. for consumption off the premises, etc., 13. payment in checks, etc., 13. counter-views, 13. sales of intoxicating, 375. Loan, distinguished from sale, 28. Lobbying contracts, 370. Lost chattels, title of purchaser, 181. Maintenance, and champerty, 371. Mala in se, and mala prohibita, in relation to illegality, 362. Mala prohibita, and mala in se, in relation to illegality, 362. Manufacture, sale or contract to, under statute of frauds, 28. notice to stop, 393. Manufactured chattels, sales of, 114-124. In general, 114. presumption against immediate transfer of title, 114. disposition of unsatisfactory chattel, 114. contract generally executory until chattel finished and appropriated, 114. Need of completion, etc., 115. act remaining to be performed, 115. chattel must be finished, etc., 115. counter-intent, 115. Requisites to transfer of title, 116. completion, delivery, appropriation, etc., 116. procuring full payment for unfinished set of tools, 116. rule concerning vessels, etc., in progress of comple- tion, 116. Need of delivery, 117. Kin England, 117. in this country, 117. 660 INDEX. Manufactured chattels Continued. rule otherwise when different special stipulations, 117. everything done and notice given, 117. intention governs, 117. Need of assent, 118. statement and illustration, 118. maintenance of action for goods bargained and sold, 118. sufficiency of appropriation, 118. tender, etc., of manufactured article, 118. payment by instalments and superintendence of work, 118. Unfinished chattels, 119. showing express intention to pass title, 119. transfer of thing in its existing state, 119. delivery, bill of sale, etc., 119. Ship-building, contracts, 170. title to uncompleted vessel, 120. superintendent for intended buyer, 120. express agreement and burden of proof, 120. question of intent and interpretation, 120. stipulations as to instalments, superintendence, etc., not decisive, 120. Instalments of price, payments of, 121. English rule of construction, 121. American views, 121. Unattached materials, 122. presumption against transfer of title, 122, effect of acceptance, 122. applications of principles, 122. Chattels not finished, title to, 123. particular instances, 123. Unfinished vessels, title to, 124. special applications of principles, 124. IttDEX. 661 Manufacturer. Delivery to, 18. obligation to restore identical or equivalent things, 18. transaction between merchant and tanner, 18. cloth left with tailor, 18. contract with powder company, 18. liability of, on sales by sample, 339. liability of, on sales by description, 344. Market price, 63. Markets overt, 178-180. Married women. See SOLE TRADERS, as parties to sales, etc., 55-59. At common law, 55. general rule, 55. exceptions, 55. In equity, 56. British rule, 56. intention inferable, 56. American view, 56. Under statutes, 57. English married women's acts, 57. American enactments, 57. Sole traders, 58, 59. Materials, unattached, 122. Measuring, weighing, etc., 91. Memorandum, under statute of frauds, 286-293. in general, 286. form, 287. contents, 288. parol evidence concerning, 289. modification of original bargain, 290. signature, 291. compliance by agents, 292. brokers, 293. NEWMARK SAXES. 56. 662 INDEX. Merchantable character, warranty of, sometimes alone covered on sale by sample, \ 336. warranty of, 347. Middleman, capacity of, in relation to stoppage in transitu, 414. Millers. Arrangements withj whether sale or bailment, 15. return of specified proportions of flour, etc., 15. corn to be used as part of current consumable stock, 15. no right reserved to return or recall, etc., 15. when mere bailment, 15. Minors. See INFANTS. Mistake, consent lacking, when misunderstanding on material matter, 30. in drawing sample, 336. Terms of contract, concerning, 377. no meeting of minds, 377. different ships meant, 377. part delivery, 377. mistake of one party, 377. Essence of contract, touching, 378. false representation, 378. substantial failure of consideration, 378. matter merely collateral, 378. Subject-matter, as to, 379. as avoiding contract, 379. identity or existence of thing sold, 379. situation of property, 379. buyer's ability to pay, 379. quality, 379. Identity of article, concerning, 380. reference to different articles, 380. misplacement of damaged flour, 380. contents of receptacle, 380. INDEX. 663 Mistake Continued. Price, concerning, $ 381. effect of, 381. vendor's subsequent sale, 381. snapping up offer, 381. Quantity, concerning, 382. recovery of excess of price paid, 382. setting off amount of shortage, 382. duties not recoverable, 382. Quality, concerning, 383. not ground of avoidance by buyer, 383. no repudiation by seller of ascertained articles, 383. Person, concerning, 384. vital when personality important, 384. exclusion from set-off, etc., 384. assent to purchase from successor, 384. giving credit under mistaken assumption, 384. Remedies of parties, 385. recovering back price, 385. where mistake as to subject-matter, 385. reforming bill of sale, 385. Modification, of original bargain under statute of frauds, 290. Mortgage. Sale or, 24. intention as criterion, 24. conditional sale rather than mortgage, 24. discharge of debt as test, 24. right of repurchase or redemption, 24. Mutual assent, See CONSENT. Necessaries, for insane persons, 46. for intoxicated persons, 47. for infant, 49, 50. Negotiable instruments, relation to statute of frauds, 277. taken for price, seller's lien where, 409. Negotiable paper, payment in, 270. 664 INDEX. Negotiation, preliminary to sale, see PRELIMINARY NEGOTIATION. Nominal damages, for failure to deliver, 398. Notice, of non-acceptance, etc., seller's waiver of, 264. as an element in sales, 298. of defects, 323. not to manufacture, 393. to stop goods in transit, 417. Offer, withdrawal of, and giving of time, 29. variation from offer as counter-proposition, 29. To sell, 32. notice to the trade, 32. quotation or statement of price, 32. of payment, as prerequisite to suit for failure to de- liver, 400. Offices, illegality concerning public, 370. sales of offices or their emoluments, 370. Option, buyer's, 307. Oral sales. See STATUTE OF FRAUDS. restrictions on validity or enforcement, 6. Oral warranty, or written, 315. Ostensible ownership, or authority, 174, 175. Ownership, ostensible, 174, 175. or authority apparent by factors, 210. Pari delicto, parties in, 365. Parol evidence, concerning memorandum under statute of frauds, 289. Part payment, earnest or, under statute of frauds, 279. Partial delivery, 237. Participation, in unlawful transaction, 365. Parties. See INSANE PERSONS; INFANTS; MARRIED WOMEN. In general, 45. as element of sale, 45. seller and buyer, 45. INDEX. 665 Parties Continued. who may sell, 45. who may buy, 45. Insane and mentally incompetent persons, as, 48. Intoxicated persons as, 47 ; see that separate title. Infants as, 48-54. Married women as, 55-59. Patent defects, 320. Patent rights, relation to statute of frauds, 277. Payment, nor delivery necessary to transfer of title, 158. stipulations concerning, 163. delivery and payment as concurrent, 225. delivery under expectation of, 227. part, under statute of frauds, 279. offer but not tender of, as prerequisite to suit for failure to deliver, 400. Sale or, 27. compensation for service, 27. payment or. purchase of note, 27. " giving in payment " in Louisiana, 27. In general, 269. signification, 269. buyer's duty, 269. modes of, 269. Cash, in, in general, 270. where contract silent, 270. demand of price, 270. Negotiable paper, in, 2, 65, 271. prima facie conditional, 65. prima facie absolute, 65. by check, 271. by buyer's note, etc., 271. third party's note, etc., 271. Chattels, in, 64. covenant or debt as remedy, 64. 666 INDEX. Payment Continued. debt as remedy, 64. optional or otherwise, 64. Credit sales, in general, 272. effect of, 272. time of payment under, 272. Mode of making, in general, 273. not in cash, 273. tender, etc., 273. Payments, appropriation of, 273, note 7. Person, mistake concerning, 384. Place, of performance of conditions in sales, stipulations concerning, 297. Pledge, Sale or, sale and not pledge or mortgage, 23. pledge and not sale, 23. parol evidence to show pledge, 23. Pledges, transfers of unforfeited, 185. sales of forfeited, 185. Possession, right of, 159. seller's, as related to further transfers, 196. receiving or taking. 259. resumption of, under conditional sales, 305. seller's, as test of warranty of title, 328. breach by dispossession, etc., 329. Preliminary negotiation, Sale or, distinction made, 8. ground of, 8. Price. See PAYMENT ; SPECIFIED CHATTELS, SALES OF. In general, 60. essential feature of sale, 60. money or other equivalent, 60. mode of payment, 60. real and fixed, or ascertain able, 60. sufficiency of consideration, 60. evidence of value, 60. inadequacy of price, 60. INDEX. 667 Price Continued. * Determination where not fixed, $ 61. need of specification, 61. price ascertain able from contract, 61. something remaining to be done, 61. failure of parties to agree upon, 61. additional act requisite, 61. Valuation by third person, 62. decision effective, 62. no sale until valuation made, 62. estimate binding, 62. Reasonable price, 63. where no price fixed, 63. market price, 63. by agreement, 63. not where special contract, 63. Payment of, in chattels, 64. in negotiable paper, 65. Various points, ascertainment of acts for, as postpon- ing transfer of title, 87-89. ascertaining, 87. left unadjusted, 88. or value, under statute of frauds, 278. mistake concerning, 381. suit for, 394. buyer's liability for, 397. Privilege of purchase, 20. keeping chattel or paying for its use, 20 option to purchase or return, 20. bailment with, transfers under, 184. Privilege of return, 21. option to return or pay, etc., 21. dissatisfaction with contemporaneous trade, 21. waiver of right to insist upon return, 21. Provisions, warranty on sale ojf, 348. 668 INDEX. Public policy, violation of, 368. Purchase, privilege of, 20. Purchasers, bonafide, see BONA FIDE PURCHASERS. Qualified or conditional warranty, 322. Quasi vendors, etc,, exercising right of stoppage in transitUj 416. Ratification, by infant after majority, 53. Eeasonable price, 63. See under PRICE. Receipt, acceptance distinguished from, 258. under statute of frauds, 281, 284. actual, under statute of frauds, 284. Rejection, right of, 262. buyer's course on, 263. notice of non-acceptance, etc., 263, 264. of article to be satisfactory, 268. Remedies, for breach of warranty, 351-353. for mistake, 385. seller's, 391-396. election of, by seller, 394. buyer's, 397-403. Replacing goods, cost of, as standard of damages for fail- ure to deliver, 398. Repledge, for greater amount, 185. Resale. Delivery for ,17. return of money or property, 17. action of accredited agent, 17. receipt, etc., indicating sale, 17. recipient becoming factor, etc., 17. as one of several remedies, 391. right of, in general, 396. Right of, 404. in general, 404. election of seller, 404. English doctrine, 404. Mode of, 405. INDEX. 669 Resale Continued. in general, \ 405. restrictions on seller, 405. place of, 405. time of, 405. notice, 405. Recovery after, 406. ordinary view, 506. special view, 506. goods not separately resold, etc., 506. mere, as insufficient to defeat right of stoppage in transitu, 418. Reservation of control, 137. In general, 142. by seller taking bill of lading to his own order, 142. dealing with bill of lading to secure price, 142. Intention, evidence of, 143. provisional or conditional appropriation allowed, 143. difficulty in ascertaining intention, 143. generally question of fact for jury, 143. effect of making bill of lading deliverable to seller's order, 143. Passing of title to buyer, 144. ship owned or hired by buyer, 144. bill of lading indorsed as security for draft, 144. procurement of blank bill of lading, 144. unindorsed bill of lading in seller's name, 144. bill of lading specially indorsed to buyer, etc., 144. seller's right of possession and lien, 144. Seller's transferee, rights of, 145. delivery of bill of lading to purchaser or pledgee, 145. transfer before consignee's possession of goods, 145. buyer's objections to the sale, etc., 145. 670 INDEX. Reservation of control Continued. Delivery to carrier, effect of, 146. as passing title, 146. immaterial circumstances, 146. where bill of lading taken, 146. on board buyer's vessel, 148. restraining effect of, 148. goods not appropriated before shipment, 148. Bill of lading, to seller's order, 147. as indication of intention to reserve control, 147. proof in rebuttal, 147. illustrative cases, 147. statement of governing doctrine, 147. Bill of exchange, disposition of, 149. refusing acceptance, 149. mailing to purchaser of bill of lading to buyer's order, 149. depositing bill of lading with discounting bankers, 149. general and special property, 149. . Bill of lading, transmission to buyer of indorsed, 150. question of seller's intention, 150. goods deliverable to consignor's order, 150. remittance of draft requested, 150. undelivered bill of lading in buyer's name, 150. transmission to secure advances, 151. as evidence of appropriation, etc., 151. general indebtedness of consignor, 151. transmission to agent, 152. presumption of condition of acceptance of bill of exchange, 152. effect of different course, 152. when title passes, 152. Restraint of trade, sales and contracts in, 372. INDEX. 671 Return of goods, right of, 309. sale or, 310. privilege of return, 21. Right of possession, 159. Risk, assumption by acceptance, 97. change of, 160. title and, 161. assumption of, 161, 162. stipulations concerning, 163. Sale, definitions, 1, 2. scope of term, 2. elements, 3. consideration, 4. transfer of title, 5. classification of sales, 6. distinguished from similar transactions, 7-28. See SIMILAR TRANSACTIONS. delivery to manufacturer, 18. tinder conditional, 19. privilege of purchase, 20. privilege of return, 21. or lease, 22. or pledge, 23. or mortgage, 24. or consignment, 25, 26. or payment, 27. distinguished from agency, loan, trust, and se- curity, 28. distinguished from accord and satisfaction, 28. distinguished from contract to manufacture, 28. colorable, 30. implied, 44. Consent, 29-44. See CONSENT. Parties, 45-59 ; see separate title. Price, 60-65 ; see that title. 672 INDEX. Sale Continued. Thing sold, % 66-69. See THING SOLD. "sale or return," 310. of goods " to arrive," 311. by sample or description, conditions concerning, 312. Sales, executory, 70-152. conditional, 294-314. fraudulent, 354-361. illegal, 362-376. manufactured chattels, of-, 114-124. specified chattels, of, 75-97. unspecified chattels, of, 98-113. contract or conveyance, 154. " sale or return," 310. "on trial," 308. sample, by, 334-340. description, by, 341-345. Sales " on trial," 308. Sales by sample, 334-340. See under WARRANTY OF QUALITY. Sales by description, 341-345. Sample, or description, sale by, condition implied in, 312. sale by, seller's appropriation of goods not corre- sponding with sample, 133. sales by, 334-340. exhibition of, 334. See under WARRANTY OF QUALITY. Satisfactory, article to be, 307. Securities, sold, genuineness of, implied condition of, 313, 314. Security, distinguished from sale, 28. Selection and separation, of goods, 103. Sell, who may, 45. Seller, and buyer, 45. INDEX. 673 s lien, in general, $$ 391, 396. In general, 407. where credit not given, etc., 407. extinction by unconditional surrender of posses- sion, 407. constructive delivery, 407. reservation of lien, 407. notice, 407. Withholding or countermanding delivery, 408. general doctrine and application, 408. giving delivery order, etc., 408. Giving credit, 409. as waiver of lien, 409. insolvency of buyer where possession retained or regained, 409. taking notes, etc., 409. Sub-sale, arid estoppel, 410. resale by buyer, 410. estoppel of seller, 410. Seller's remedies. In general, 391. against buyer and against goods, 391. action for goods sold, 391. > damages for failure to accept, 391. resale, etc., 391. seller's lien and stoppage in transitu, 391. Damages for non-acceptance, 392. when only remedy, 392. general rule, 392. exceptional cases, 392. Notice not to manufacture, 393. general doctrine, 393. applications, 393. Forms of action, 394. special declaration, 394. common counts for goods sold, 394. NEWMARK SALKS. 67. 674 INDEX. Seller's remedies Continued. election of remedies, 394. suit for price, 394. Credit, waiting for expiration of, 395. in general, 395. refusal to give security, 395. buyer's fraud, 395. retention of goods sent, 395. Against the goods, 396. lien and stoppage, 396. right of resale, 396. Separate trading of married women, 58, 59. See SOLE TRADERS. Separation, selection and, 103. weighing or, 108. from uniform mass, 112. Severable contracts of sale, as distinguished from entire or indivisible contracts, 6. Shares of stock, relation to statute of frauds, 277. Ship-building contracts, 120. title to unfinished vessels, 124. Ship-owners, estoppel of, 215. Shipping receipts, 214. Signature, to memorandum under statute of frauds, 291. Similar transactions, sale or assignment, 7. sale or preliminary negotiation, 8. sale or executory agreement, 9. sale or gift, 10. sale or exchange, 11, 12. sale of liquor by club, 13. sale or bailment, 14-25. accord and satisfaction, 28 agency, 28. assignment, 7. club, sale of liquor by, 13. INDEX. 675 Similar transactions Continued. bailment, \ 14. conditional sales, delivery under, 19. consignment, 25, 26. elevators, grain, deposits in, 16. distinctions, further, 28, exchange, 11, 12. executory agreement, 9. gift, 10. lease, 22. liquor, sale by club, 13. loan, 28. manufacture, contract of, for, 28. manufacturer, delivery to, 18. millers, arrangements with, 15. mortgage, 24. payment, 27. pledge, 23. purchase, privilege of, 20. remedies, 12, 26. resale, delivery for, 17. return, privilege of, 21. security, 28. trust, 28. Smuggling transactions, illegality of, 367. Sole traders. By custom, 58. custom of London and its adoption, 58. scope of custom, 58. restrictions where custom prevails, 58. Separate trading under special enactments, 59. prevalence of, 59. effect of enactments, 59. when acts held inapplicable, 59. K soundness or other qualities of animals, warranty concerning, 321. 676 INDEX. Special damages, for failure to deliver, 398. Special declaration, in seller's suit, 394. Specific performance, of contracts of sale and deli very, 401. Specification, need of, 98. Specified chattels, sales of, as distinguished from sales of unspecified chattels, 6, note 19. Goods subject to disposition by sale, 75. in largest sense of term " sale," 75. under common-law sale, 75. Goods mingled with others, 76. need of separation, identification, etc., 76. passing of title to goods clearly identified, 76. commodity of uniform character, 76. agreement to buy all the spring lambs of another, 76. Bargain for specified quantity, of grain, 77. separated from other grain, 77. specified quantity of unseparated grain, 77. no specification of quantity or location, 77. Identification of goods, 78. sufficiency of, 78. designation by marking, 78. Intention to retain title, 79. intendment in favor of transfer of title ; 79. unperformed acts indicating contrary intention, 79. Intention to retain title, indications of such intention, 80. by various circumstances, 80. acts by seller on his own behalf, 80. seller's acts for buyer's benefit, etc., 80. Act remaining to be done, 81. by seller before delivery, 81. purposes of seller's acts, 81. quantity, quality, etc., to be determined by vendee, 81. seller's act under buyer's direction, 81. 677 Specified chattels, sales of Continued. Unperformed acts not affecting title, \ 82. where goods sufficiently designated, 82. quantity may remain to be ascertained, 82. various things lacking, 82. By whom act to be done, 83. sometimes deemed immaterial, 83. by seller under general view, 83. inconsistent statements, 83. more comprehensive declaration, 83. {Seller's acts, 84. weighing undelivered portion, 84. filling up casks, 84. counting skins, 84. timber transactions, 84. Buyers acts, 85. to goods in his possession, etc., 85. quantity to be settled, 85. reason of general rule, and when inapplicable, 85. exact price to be ascertained, 85. illustrative instances, 85. Putting into deliverable state, 86. need of, as suspending transfer of title, 86. Blackburn's first rule, 86. by other acts than weighing and measuring, 86. intention of parties controls, 86. Ascertaining price, 87. acts for, as presumptive conditions precedent, 87. Blackburn's second rule, 87. broad statement of doctrine, 87. rule criticised and limited, 87. where object only to satisfy purchaser, 87. where price mere matter of computation, 87. Price left unadjusted, 88. limitation of principle, 88. 678 INDEX. Specified chattels, sales of Continued. intention as to identified goods, 88. Distinction where sale complete and executed, 89. rule as to price in executory contracts, 89. where contract executed, 89. Rule of presumption merely, 90. intention, how gathered, 90. designated goods, 90. acts to determine price, 90. Weighing, measuring, etc., 91. course of decisions in England, 91 American views, 91. unpaid price as factor, 91. presumptive postponement of change of ownership, 91. Intention to pass title, 92. effect given to, 92. illustrative cases, 92. Special circumstances, 93. govern while intention criterion, 93. American tendency against strong presumption, 93. Acts to be done after delivery, 94. delivery as indicative of intent to pass title, 94. acts for adjustment of price, 94. broader statement of rule, 94. constructive and actual delivery, 94. Duty and agreement to deliver, 95. as affecting state of goods, 95. special undertaking to deliver, 95. illustrations, 95. Effect of delivery, 96. presumption of finality of transfer, 96. by whom act to be done after delivery, 96. delivery not conclusive, etc., 96. INDEX. 679 Specified chattels, sales of Continued. Acceptance, assumption of risk by, \ 97. in general, 97. express undertaking, 97. Statute of frauds, as restricting oral sales, 6. sale or contract to manufacture under, 28. In general, 274. changes common law, 274. purpose, 274. provisions respecting personal property, 274. prevalence, 274. design and operation, 274. subsequent compliance, 274. when provision inapplicable, 274. Contracts covered, 275. executory sales, 275. auction sales, 275. mixed contracts, 275. various contracts, 275. Things attached to the soil, 27(x products of the earth, 276. growing trees, 276. fixtures, 276. Incorporeal personalty, 277. shares of stock, 277. negotiable instruments, 277. things in action, 277. patent rights, 277. Amount prescribed, 278. " price " or " value," 278. statutory sum, 278. purchase of several articles, 278. Earnest or part payment, 279. as equivalent acts, etc., 279. thing of value computable in money, 279. 680 INDEX. Statute or frauds Continued. subsequent to oral bargain, $ 299. acceptance, etc., 279. deposit with third party, 279. offset stipulation, 279. Delivery, 280. statutory provisions, 280. requisites of delivery, 280. insufficiency of delivery or seller's acts aloxie, 280. Acceptance and receipt, 281. concurrence, 281. order of time, 281. of part of goods, 281. relation to lien and title, 281. buyer's possession and control, 281. inspection and examination, 282. receipt by carrier or custodian, 282. Acceptance, 282, 283. and receipt, 281. in general, 282. precluding objection, etc., 282. what constitutes, 283. direct and constructive, 283. exercise of ownership, 283. keeping bills of lading, 283. marking goods, 283. equivocal acts, etc., 283. intention to be manifested, 283. Receipt, actual, in general, 284. requisites, 284. goods in buyer's custody, 284. goods in seller's custody, 284. goods in third person's custody, 284. Carriers and other middlemen, intervention of, 285. receipt by such agents, 285. INDEX. 681 ite of frauds Continued. seller keeping control, $ 285. Memorandum, in general, 286. provision of statute, 286. distinguished from oral and written contract, 287. method of proof, 286. form of, 287. formal writing not requisite, 287. sufficient modes of expression, 286. letter, 287. telegram, 287. acknowledgment, 287. of invoice or bill of parcels, 287. separate writings, 287. written proposal, 287. repudiation of bargain, 287. not addressed to plaintiff, 287. contents of, in general, 288. designation of parties, 288. price, 288. essential terms of bargain, 288. stipulations, 288. time and place of delivery, 288. parol evidence concerning, 289. general rule against, 289. to show that writing states bargain, 289. trade usage, extraneous evidence of, 289. ambiguity, removal of, 289. modification of original bargain, 290. subsequent agreement, showing or excluding. 290. rescission of prior contract, 290. Signature, to memorandum, 291. place of signing or subscribing, 291. mode of signing, 291. connected papers, 291. 632 INDEX. Statute of frauds Continued. Compliance by agents, in general, \ 292. authority of agent, 292. agent's capacity, etc., 292. auctioneer's memorandum, 292. brokers, 293. for both parties, 293. for one party, 293. memorandum book, 293. bought and sold notes, etc., 293. Statutes, violation of, as constituting illegality, 374. Stock, shares of, relation to statute of frauds, 277. Stolen goods, purchase of, 176. Stoppage in transitu. In general, 391, 396, 411. nature and requisites, 412. non-payment of any part of price, 411. giving credit, taking notes, etc., 411. Buyer's insolvency, 412. as determining right of stoppage, 412. what constitutes, 412. time of insolvenc}', 412. information of insolvency, 412. Duration of transit, 413. in general, 413. beginning and end of transit, 413. continuance of transit, 413. cessation of right of stoppage, 413. recommencement of transit, 413. Capacity of middleman, 414. in general, 414. intermediate agent, 414. detention for carrier's charges, 414. Delivery terminating transit, 415. actual delivery . 415. constructive delivery, 415. INDEX. 683 Stoppage in transitu Continued. insufficient delivery, $ 415. entry at custom-house, 415. intercepting goods, 415. By whom right exercised, 416. quasi vendors, etc., 416. agent without special authority, 416. buyer's countermand, etc., 416. Mode of exercising right, 417. demand, notice, etc., 417. enforcing by action, 417. carrier's liability, 417. Mode of defeating right, 418. transfer of bill of lading, 418. good faith and consideration, 418. mere resale, 418. assignment to pay debts, 418. creditor's levy, 418. carrier's lien for freight charges, 418. Sub-sale, loss of profits on, as element of damages for failure to deliver, 398. knowledge of sub-contract, etc., 399. and estoppel in relation to seller's lien, 410. Subject of sale. See THING SOLD. Sunday sales, 376. Superior equity, of innocent purchasei from fraudulent vendee, 198. Symbolical delivery, 240. Tolegraph, contract by, see CONTRACT BY TELEGRAPH. Tender, etc., 273. of payment not prerequisite to suit for failure to deliver, 400. Thing sold, goods subject to disposition by sale, 75. goods mingled with others, 76. bargain for specific quantity of grain, 77. 684 INDEX. Thing sold Continued. identification of goods, \ 78. mistake concerning, 379-383. In general, 66. as requisite of sale, 66. capability of severance from realty, 66. what may not be sold, 66. property included in sale, 66. Privilege, as subject of sale or assignment, 67. illustrations, 67. newspaper property. 67. Existence, thing no longer in, 68. thing not yet in, 68. mere possibility, 68. After-acquired property, 69. agreement to sell property not then owned, 69. sale of vested interest, 69. vesting of title subsequently acquired, 69. confirmatory act, 69. present transfer of future acquisitions, 69. rule in equity, 69. Things in action, relation to statute of frauds, 277. Time, of delivery, 231. reasonable, 232. divisions of, 233. computation of, 234. of performance of conditions in sales, stipulations concerning, 297. Title, risk and, 161. to undelivered chattel, 164. state of, governs in successive transfers, 170. only from owner, etc., 171. purchase generally from one lacking, 189. state of, governs in successive transfers, 190. ^^?. ? r)>i Title Continued. voidable or defeasible purchaser from one liavin 2 192. ^^^c'** vv *^<^^^ of innocent purchaser from frau ; 9w?eS^-re : n'dee, 200. of fraudulent vendee, 202. transfer of, without delivery, 224. delivery to pass, 253. reservation of, delivery with, 299, 300. warranty of, 324-330. in buyer, his remedies where, 401. Trading, purchases of infant, 51. separate, of married women, 58, 59. See SOLE TRADERS. Transfer of title, by sale, in general, 5. as feature of sale, 5. immediate or postponed, 5. absolute or general, 5. In relation to executory sales, intention and difficulty in determining, 71, 72. passing of title and risk, 73. intention to retain title, 79. intention to pass title, 92. requisites of, in case of sale of goods to be manufac- tured, 116. relation to reservation of control, 144. without delivery, 224. delivery to pass title, 253. In general, 153. importance of determining, 153. cash sale at store counter, 153. circumstances complicating point of transition, 153. uncertainty concerning thing sold, 153. contract or conveyance, 154. bargain and sale, or executory agreement, 154. privilege of repurchase, 154. NEWMARK SALES. 58. 686 INDEX. Transfer of title Continued. Intention, to pass title, \ 155. express or presumed intention, 155. distinct manifestation of intention, 155. governs in general, 156. province of court and jury, 156. ascertainment and manifestation, 156. sufficiency of, 157. meeting of minds, etc., 157. performance or waiver of condition, 157. Payment or delivery, without, 158. English statements of the law, 158. American statements of the law T , 158. payment as prerequisite to completion of sale, 158. payment as condition precedent, 158. illustrative cases, 158. Possession, right of, 159. completed sale, 159. seller's right of possession till price paid, 159. credit sale, 159. Risk, change of, 160. on transfer of title, 160. without delivery, 160. specification of goods not complete, 160. title and, 161. risk as attending title, 161. transfer of title, 161. assumption of risk, 161, 162. instances of assumption, 162. recovery of price of destroyed goods, 162. stipulations concerning risk, delivery, payment, etc., 163. consignee's title, risk, and liability to pay, 163. seller's undertaking to deliver, 163. intermediate arrangement, 163. INDEX. 687 ansfer of title Continued. Delivery, title to undelivered chattel, general rule and illustration, $ 164. sufficient to pass title, 165. marking landed logs, 165. piano left to be finished, 165. delivery to common carrier, 165. shipment to consignee, 165. as prerequisite to transfer of title, 166. where engagement to deliver at certain place, etc., 166. applications of rule, 166. shipment to pay for advances, 166. when not such prerequisite, 167. express or implied intent, 167. when intent inferred, 167. Estoppel, of seller, 168. by active inducements, etc., 168. delay in bringing replevin, etc., 168. of warehouseman, etc., 169. against seller and sub-buyer, 169. by attainment to sub-vendee, 169. by keeping delivery order, 169. Treasonable transactions, relation to illegality, 367, Trial, sales on, 308. Trover, when not maintainable, 104. not without weighing or separation, 108. Trust, distinguished from sale, 28. Unfinished chattel, sale of, 119. title to, 123, 124. Unfinished vessels, title to, 124. Unspecified chattels, sales of, 98-113. as distinguished from sales of specified chattels, 6, note 19. Need of specification , 98. 688 IXDEX. Unspecified chattels Continued. for present sale of chattels not specific, 98. illustrative case, 98. statement of fundamental rule*, 98. presumption as to goods not separated, etc., OS. reason of rule. object to be effected, 99. identified goods with price ascertained, 99. specification or computation of value, 99. Identification, 100. need and requisites, 100. without separation, etc., 100. pointing out or marking, 100. Warehouse receipt for undesignated goods* at common law and under statute, 101. Delivery of unidentified goods, 102. does not determine intention, ln2. liability for loss, 102. Selection and separation, 103. for identification prerequisite to transfer of title, 103. applications of doctrine, 103. animals not selected from flock, 103. possession taken for purposes of separation, 103 When trovernot maintainable, 104. thing to be done by vendor, 104. vendor's power of selection, 104. Quasi cotenancy, 105. apparent exception to general rule, 105. no separation necessary, 105. Estoppel of custodian, 106. warehouseman accepting order for goods, 106. difficulty in supporting authorities, 106. Intension and indications thereof, 107. intention overcoming presumption against transfer of title, 107. INDEX. 689 Unspecified chattels Continued. selection and separation, or separation only, \ 107. purchaser to make separation after delivery, 107. Weighing or separation, 108. for identification, etc., 108. trover not maintainable without, 108. Distinguishing from mass, 109. rule requiring separation, 109. applications of doctrine, 109. when no designation necessary, 109. mass of uniform character, 109. Uniform mass, no selection necessary where, 110. need of selection as basis of requirement of separa- tion, 110. no selection or separation of uniform mass, 110. Intention as criterion, 111. slight circumstances utilized, 111. supplying goods of particular description, 111. advantage derived from selection, 111. presumption against intention to pass title, 111. when separation mere ministerial act, 111. Separation from uniform mass, 1 1 2. selection from variable bulk, 112. extension in England to uniform mass, 112. distinctions made, 112. conflict in American decisions, 112. illustrative cases, 113. holding separation necessary and otherwise, 113. destruction of flour before removal, 113. Usage, proof of, in relation to delivery, 254. Value, price or, under statute of frauds, 279. Voidable contracts, of insane persons, 46. of intoxicated persons, 47. and other transactions of infants, 48. trading purchases of infants, 51. 690 INDEX. Voidable title, purchase from one having, \ 192. analysis in cases of fraudulent transfers, 200. Voluntary salo, definition of, 6.* Wagering contracts, 369. Waivor, of notice of non-acceptance, etc., by seller, 204. of objections to goods by buyer, 285, 266. of condition of payment by delivery, 302, 303. of written notice of defects, 323. Warehouse receipt, 216. for tin designated goods, 101. Warehouseman, delivery to, 251. Warranty, sales with, as distinguished from others, 6. remedies for breach of, 351-353. In general, 315-323. definition, 315. distinguished from condition and fraud, 315. oral or written, 315. executory contract, on, 315. kinds, 316. express and implied, 316. warranty of title, 316. warranty of quality, 316. form and requisites, 317. affirmation and intention, 317. mode of expression, 317. time of making and operation, 317. expressions of opinion, etc., 318. distinguished from assertions of fact, 318. dealer's talk, etc., 318. province of court and jury, 318. . warranties by agents, 319. authority from custom, 319. warranties implied from mode of sale, 319. warranties by special agents, 319. oral and written, 319. INDEX. 691 Warranty Continued. patent defects, I 320. known or obvious defects, 320. need of skill, etc., 320. artifice to conceal defects, 320. covering patent defects, 320. liability for latent defects, 320. patent churn, 320. soundness or other qualities of animals, 321. rule concerning unsoundness, 321. permanence of injury, etc., 321. stumbling horse, etc., 321. I construction of phraseology, 321. expressions covering character, etc., 321. qualified or conditional, in general, 322. rules of sales, and limitations of continuance, 322. test and trial of article, 322. notice of defects, and illustrations, 323, Of title, 324-330. in general, 324. transfer of interest, etc., 325. transfer of incorporeal personalty, 326. general doctrines, 327. seller's possession, 328. breach by dispossession, etc., 329. existence and removal of encumbrances, 330. Of quality, see WARRANTY OF QUALITY. Remedies for breach, 351-353, 403. in general, 351. where warranty of quality, 351. where warranty of title, 351. evidence, 351. election of remedies, promptness, etc., 403. return of goods, 352. not necessary to obtaining damages, 352. 692 INDEX. Warranty Continued. conflict concerning permissibility of, 352. view against right to return, 352. Tiew favoring right to return, 352. damages, 353. in general, 353. enhancement of damages, 353. no knowledge of special purpose, 353. place of computation, etc., 353. Warranty of quality, 316, 331-333, 334-340, 341-345, 346- 348. in general, 316. caveat emptor, 331. implied, 333. inspection, opportunity for, 332. Caveat emptor, 331. English doctrine, 331. sound price, 331. application of maxim, 331. latent defects, 331. extent of exceptions, 331. Inspection, opportunity for, 332. want of, etc., 332. specific existing goods, 332. poisonous fodder for cattle, 332. conformity of goods to order, 332. Implied, 333. in general, 333. sample, on sales by, 333. description, on sale by, 333. fitness for intended purpose, 333. merchantable character of goods of, 333. provisions, wholesomeness of, 333. exact thing ordered, supplying, 333. fertilizer, sale of specific, etc., 333. INDEX. 693 Warranty of quality Continued. Sample, sales by, $ 334-340. exhibition of sample, 334. correspondence of bulk with sample, 334. when does not make sale by sample, 334. when makes sale by sample, 334. question for jury, 334. opportunity to examine bulk, 335. examination not practicable or convenient, 335. examination of sample as essence of transaction, 335. scope of warranty or undertaking, 336. correspondence in quality, 336. correspondence in kind, 336. opportunity of comparison, 336. merchantable character, 336. warranty concerning analysis, 336. mistake in drawing sample, 336. "average sample," 336. acceptance, coriclusiveness of, 337. after final examination, 337. fraudulent prevention or hindrance of examination, 337. acceptance of part, 337. under executory contracts, 337. inspection, finality of, 338. by official inspector, 338. subsequent to original delivery, 338. manufacturer, liability of, 339. fraudulent knowledge of facts, 339. unknown and un discoverable defects, 339. goods rendered unmerchantable, 339. buyer's remedies, 310. right of returning goods, etc., 340. mode of rejection, 340. effect of acceptance, 340. 694 INDEX. Warranty of quality Continued. Description, sales by, J 341-345. seller's liability, 341. nature of undertaking, 341. agreement to fill order, 341. doctrine governing sales by description, 341. undertaking as condition or warranty, 342. as warranty, as contract, and as condition, 342. other views, 342. remedies as affecting construction, 343. right of repudiation, 343. rescission becoming impossible, 343. representations changing from conditions to war- ranties, 343. manufacturer, liability of, 344. warranty of merchantability or fitness, 344. ordinary sales by description, 344. words of description, 345. may amount to warranty, 345. oral and written statements, 345. question of construction, 345. disinclination to construe as warranty, 345, Fitness, etc., warranty of, 346-348. fitness for particular purpose, 346. merchantable character, 347. provisions, warranty on sale of, 348. Fitness for particular purpose, warranty of, 346. general doctrine, 346. illustrative cases, 346. knowledge of buyer's intention, etc., 346. manufactured article, 346. Merchantable character, warranty of, 347. connection with other warranties, 347. limitations of scope, 347. Provisions, warranty on sale of, 348. INDEX. 695 Warranty of quality Continued. English view, 348. American view, 348. Latent defects, whether warranty against, 349, 350. in general, 349. lack of fault or knowledge on part of seller, 350. in general, 349. sample sale by dealer, 349. manufacturer's sale, 349. grower's liability, 349. executory and executed contracts, 349. warranty of reasonable fitness, 349. existing specific article, 349. statutory regulation, 349. seller's knowledge or fault lacking, 350. question in England, 350. breaking of carriage-pole, 350. American view, 350. Warranty of title, 324-330. In general, 315, 324. derived from seller's language, conduct, etc., 324. on executory sale, 324. effect of fraud, 324. implied warranty, 324. transfer of interest, 324. rebutting presumption, 324. Transfer of interest, etc., in general, 325. official sales, 325. pledged or mortgaged chattels, sales of, 325. Incorporeal personalty, transfer of, 326. warranty of title, 326. scope and application, 326. patent rights, 326. General doctrines, concerning, in England, in Canada, and in United States, 327. Warranty of title Continued. Seller's possession, as determining feature, g 328. distinction established, 328. qualification of doctrine, 328. constructive possession, 328. inference of possession, 328. dispossession, etc., breach by, 329. need of eviction or disturbance of possession, 329. deprivation of possession unnecessary, 329. express and implied warranty of title, 329. surrender of property, etc., 329. encumbrances, existence and removal of, 330 warranty extends to encumbrances, 330. refusal to retain goods, 330. paying off encumbrances, 330. express warranty, 330. Weighing, measuring, etc., 91. or separation, 108. Wholes omeness, of provisions for food, warranty con- cerning, 348. Wives. See MARRIED WOMEN. Written sales. See STATUTE OF FRAUDS. as evidentiary matter, requirement of, 6. VA 01772 U.C.BERKELEY LIBRARIES CDMSSbllbl N 55 b THE UNIVERSITY OF CALIFORNIA LIBRARY