THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A SUMMARY Contracts to Sell and Sales PERSONAL PROPERTY At Common. Law ( VUh references to the Uniform Sales Act) FRANK A. ERWIN Professor of Law, New York University NEW YORK UNIVERSITY PRESS BOOK STORE 81 Washington Square East New York City COPTBIOHT, 1911 mt FRANK A. EKWI T s PRINTED AND BOUND BY J. B. LYON COMPANY ALBANY, N. Y. CONTENTS. PART I. Essentials and Distinctions. PAGE. Definitions Sales and contracts to sell: distinguished Sale: Roman law Sales: absolute and conditional Vo'untary and involuntary Subject-matter: in general Existing and future goods Existence of subject-matter: sale Existence of subject-matter: sale, Roman law Continued existence of subject-matter: contract to sell Future goods: potential existence, sale Sale in equity Contract to sell Price: in general Fixing the price Reasonable Essential elements Exchange Sale and exchange, distinction between, material when 23 Roman law 23 Bailment 24 Pledge 25 Consignment 25 Bailment with privilege of purchase 26 Sale or return 27 Option must be exercised when 27 Lease 28 Mortgage of goods 30 Contract for work and labor 31 Roman law 31 Gift: defined 32 Essential elements 32 Delivery, history of 33 Equitable title 34 Revocable and irrevocable, when 36 PART II. The Transfer of Title. Introductory 37 As between the parties : Sale and contract to sell 37 Intention of parties, the test 39 [in] Q&72G2 iv CONTENTS. As between the parties Continued : PACI - Rules for ascertaining intention: I. Sale of specific goods, nothing remaining to be done 41 II. Goods to be put into deliverable state 43 III. Price to be ascertained by weighing, measuring, or testing. 45 IV. (1) " Sale or return." 49 (2) " Sale on approval " 49 V. Sale by description: appropriation 51 Delivery to carrier 51 C. O. D. shipment 56 Quantity shipped must conform to order 57 Order calling for " more or less " 58 Reservation of right of disposal 59 Reservation by bill of lading 59 As to third persons : Nemo dot quod non habet 62 Exceptions: Sales in markets overt 62 Negotiable paper 64 Transfer of title by consent of owner 65 Bona fide purchaser from fraudulent vendee 65 Possession intrusted to one whose common business it is to sell 67 Who is a bona fide purchaser for value 68 Remedies of defrauded vendor 71 Fraud by impersonation 71 Bona fide purchaser from conditional vendee 75 PART III. Warranty. Defined 78 Development of warranty 78 Misuse of word " warranty " 80 Condition and warranty 81 Representation and warranty 82 Classification of warranties 84 Express warranty: defined 84 Word " warrant " unnecessary 85 Intention of seller to warrant 85 Warranty against obvious defects 87 Warranty: consideration for 88 Written contract excludes oral warranty 88 Written contract does not exclude implied warranty 89 Express warranty excluding implied warranty 90 Implied warranty: denned 91 Early English law 91 Classification 93 Implied warranty of title 94 Same: seller in or not in possession 95 Same: Sale of Goods Act 96 Implied warranty of quality: early law 97 Implied warranties and caveat emptor 99 Sale of specific chattel open to inspection 101 Executory and executed agreements: merchantability 102 CONTENTS. v Classification of warranties Continued. PACE. Same: fitness for special use 103 Implied warranty against latent defect: manufacturer 104 Same: dealer 106 Implied warranty: sale by sample 105 Same: sale by description 108 Same: food products 109 Breach of warranty: remedy for 112 Warranty not available to sub-purchaser 115 PART IV. Statute of Frauds. Introduction 117 English statute (original) 117 New York statute (now repealed) 118 Uniform Sales Act 118 Sales and contracts to sell 118 Exchange 119 Pleading the statute as defense 121 " Every agreement, etc., is void unless " 124 May third persons avail themselves of the statute 125 " Contract for the sale of " 127 " Goods, chattels " 129 Land: in general 129 Standing trees 130 Crops: cultivated and natural 132 Water and ice 133 Fixtures 134 " Things in action: " stocks, bills and notes 136 " For the price of " 138 " Fifty dollars or more " 138 When is limit reached or exceeded 138 Evidentiary requirements: in general 139 (1) Writing: " unless it " 140 " Some note or memorandum " 141 When to be made 142 Consists of what 142 Contents of 142 " Subscribed " or " signed " 144 " By the party to be charged " 145 " Or by his lawful agent " 148 (2) Acceptance and receipt 150 Time of 151 By agent 152 Acceptance 152 Receipt 155 " Part of such goods " 159 " Or the evidence, etc., of such things in action " 160 " Sale or return " . 160 " Or give something in earnest to bind the bargain " 161 (3) Payment of part of purchase money 162 Purchase money: in general 163 Checks 164 Bills and notes 166 Pre-existing debt 166 vi CONTENTS. PART V. Remedies. PACK. In general 169 Seller vs. buyer: price, where title has passed 169 Price, where title has not passed 172 Damages 175 Measure of damages 175 Some rules for same 176 Anticipatory breach of contract 177 Seller PS. goods: lien 179 Default in payment does not rescind 180 Lien after part delivery 181 Waiver of lien 181 Stoppage in transit 182 Origin of the right 182 Essentials of the right Goods must be in transit 184 Insolvency of buyer 186 Resale by buyer 186 Effect of the exercise of the right Seller vs. goods: resale, English law 189 Same: American law 190 Same: sales and contracts to sell 191 Same: manner and notice of 192 Same: before expiration of credit 192 Same: at a profit 195 Rescission by seller: England 196 Same: America 196 Buyer vs. seller: in general 197 Where title has passed: Damages for refusal to deliver 197 Measure of 198 Trover or replevin 198 Measure of damages 198 Where title has not passed: damages 200 Measure of 200 Specific performance 201 Appendix. Uniform Sales Act 303 SUMMARY OF SALES. PART I. ESSENTIALS AND DISTINCTIONS. Definitions. " Sale, . . ., is a transmutation of property from one man to another in consideration of some price or recompense in value." (2 Blackstone's Com. 446.) "A sale is a contract for the transfer of property from one person to another, for a valuable consideration." (2 Kent's Com. 468.) "A sale is a transfer of the absolute title to property for a certain agreed price. It 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 valuable consideration." (Story on Sales, 1.) " Sale is a word of precise legal import both at law and in equity. It means at all times, a contract between parties, to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold." (Williamson v. Berry, 8 How. 495, 544.) "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. " Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale ; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell." (Sale of Goods Act, 1.) 2 SUMMARY OF SALES. "A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. "A sale of goods is an agreement whereby the seller trans- fers the property in goods to the buyer for a consideration called the price." (Uniform Sales Act, 1.) Sale and contract to sell: distinguished. Although " sale " has been defined or described, indifferently, as " the transfer of title," as " a contract for the transfer of title," as " a contract," or as " an agreement " whereby the seller transfers the property, i. e. } the title, in goods to the buyer for a money consideration, called the price, the fundamental distinction between a sale, in which the title is immediately transferred, and a contract to sell, in which the title is to be transferred in the future, must be observed. " By an agreement to sell a jus in personam is created, by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default, the seller may sue for the contract price, but where an agreement to buy is broken, the seller's remedy is an action for unliquidated damages. If an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes; they may be taken in execution for his debts, and, if he becomes bankrupt, they pass to his trustee, who may disclaim the contract. But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods themselves, such as the actions for conversion and detinue. In many cases, too, he can follow the goods into the hands of third parties. Again, if there be an agreement for sale, and the goods are destroyed, the loss, as a rule, falls on the seller, while, if there has been a sale, the loss, as a rule, falls upon the buyer, though the goods have never come into his possession." (Chalmers, Sale of Goods [7th ed.], 9.) ESSENTIALS AND DISTINCTIONS. 3 The distinction between a sale and a contract to sell is recognized in the Sale of Goods Act and in the Uniform Sales Act, but the English Act (section 62) makes " contract of sale " include " an agreement to sell as well as a sale," unless the context or subject-matter of the Act otherwise requires, and (section 1) declares that " a contract of sale of goods is a contract ;" where the title is to be transferred in the future, " the contract is called an agreement to sell." The American Act (section 1) more aptly, perhaps, declares that " a con- tract to sell goods is a contract," and that " a sale of goods is an agreement," although in White v. Treat, 100 Fed. Rep. 290, 291, it is said, that " inasmuch as a sale is a contract or agreement it is frequently spoken of as ' a^contract of sale,' or an ' agreement of sale/ two phrases which in the law mean no more and no less than the word ' sale V A sale, though commonly so regarded, is not a contract, but is a completed transaction. " The only things essential to a valid sale of personal property at common law were, a proper subject, a price, and the consent of the contracting parties, and when these concurred, the sale was complete, and the title passed without anything more." (Cunningham v. Ash- brook, 20 Mo. 553, 556.) This is sometimes called a " bar- gain and sale," a " present sale," or an " executed sale." It suffices to call it a sale. If, however, the title is not imme- diately transferred, but is to be transferred at some future time, the result will ordinarily be accomplished by a contract. This is sometimes inaccurately, at least inaptly, called a " future sale," or an " executory sale." Strictly speaking, it is a contract to sell. Sale: Roman law. Under the Roman law, "a sale was not an immediate transmutation of property, but a contract of mutual and personal engagements for the transference of the thing on the one hand and the payment of the price on the other, without regard to the time of performance on either part, that being left to be regulated by the agreement of the parties, the seller being bound to deliver the thing in property 4 SUMMARY OB 1 SALES. to the buyer at the time agreed on, and the buyer to pay the price in the manner settled between them. The distinction was carefully observed between the direct right of property (jus in re) conferred by delivery, and the indirect right (jus- ad rem) to demand of the seller delivery of the thing sold. There thus arose out of the contract the double relation of debtor and creditor, as to the thing sold and the price to be paid for it. Corresponding with these relations, two actions were given, both personal and direct ; one for the thing sold, the other for the price due. The claim for the price being absolute on delivery or tender of the thing and the demand for the thing conditional, provided it had not in the meantime perished without fault of the seller." (Bell on Sales, 9.) Absolute and conditional sales. Sales are sometimes classified as absolute or conditional. The sale is absolute when the transfer of title is complete, although a so-called absolute sale may be subject to a condition subsequent. In a conditional sale, mayhap a misnomer, the title is not, but is to be, transferred in the future, upon the performance of a con- dition or the happening of a contingency, a conditional con- tract to sell, although a contract to sell may be absolute as well as conditional. Anent conditions precedent and subsequent in conditional sales, a distinguished writer says : " In an ordinary condi- tional sale the payment of the price is by the express terms of the agreement a condition precedent to the transfer of title. For this reason it has been argued that the term ( con- ditional sale ' is a misnomer and that the transaction should properly be called a conditional contract of sale or contract to sell. The name of conditional sale, it is urged, should be reserved for a transaction where title is transferred imme- diately and a right given in the nature of a condition subse- quent to resume the title for breach of condition. The dis- tinction between a sale upon condition subsequent and a con- ditional sale as ordinarily made with a condition precedent is not so extreme, however, as this argument implies. The ordinary conditional sale does not rest wholly in agreement. ESSENTIALS AND DISTINCTIONS. 5 It is not merely a contract to sell to which is superadded a contract that the buyer shall have possession. If this were all, the seller could at any time break his contract, subjecting himself thereby to liability of damages. In fact the buyer acquires not simply a contract right but a property right. This is due to the fact that the seller does not simply contract that the buyer shall have possession; the seller actually de- livers possession, and this possession is delivered not to hold the goods for the seller, but to use as the buyer's own. More- over, the buyer, so long as he is not in default, may maintain his possession and use of the property against the world. The situation is, therefore, identical with the case of the condition subsequent except that in the case of the condition precedent the seller has a bare legal title for the purpose of security only, while in the case of the condition subsequent the seller has only the right to regain a legal title on the happening of a condition." (Williston on Sales, 330.) If we adhere, however, to the true conception of sale as a completed transaction, and not a contract, in which, it is inaccurately said, two distinct obligations of the seller are involved, viz., " first, to pass the property in the thing sold; secondly to deliver possession of it " (Martineau v. Kitcliing, L. R. 7 Q. B. 436), the second, strictly speaking, being purely an incident of a property right and not a contractual obligation at all, nor, by any proper consideration, two con- tracts by superaddition, it would seem necessarily to follow that the expression " conditional sale," although frequently employed, is a contradiction in terms, and hence a misnomer. Voluntary and involuntary sales. Sales are also de- scribed as voluntary or involuntary. A sale is voluntary when made by, or under the authority of, the owner of the goods, and involuntary or forced when made, not by his will, but by the authority of, and in pursuance of, the law, as in sheriffs', executors,' guardians' and judicial sales. "A forced sale has been defined to be a sale made at the time and in the manner prescribed by law, in virtue of an execution 6 SUMMARY OF SALES. issued upon a judgment already rendered by a court of com- petent jurisdiction: ... or, in other words, a forced sale is one which is made under the process of the court and in the mode prescribed by law." (Sampson v. Williamson, 6 Tex. 102, 110.) Subject-matter: in general. It is said that anything of value belonging to the seller and actually or potentially in existence may be made the subject of a sale (Mechem on Sales, 197), and that this does not mean " that the subject of sale should have a physical and corporeal existence and be susceptible of manual delivery; for, provided it have an actual value, however intangible it may be, it may neverthe- less be sold." (Story on Sales [4th ed.], 187.) On the other hand, it is said, that the subject-matter " does not embrace every form of personal property, but is generally said to consist in goods " (Burdick on Sales [2d ed.], 5), and that " the most troublesome question in any attempt to define the meaning of goods relates to the dividing line between real and personal property." (Williston on Sales, 60.) That it has seemingly been thus limited is the result, per- haps, of statute, as for example the Statute of Frauds, under which topic herein the meaning of " goods " will later be considered. Existing and future goods : in general. Irrespective of their meaning, " 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. Goods of the first sort are the only proper subjects of a common law sale, ., although there are some apparently anomalous cases in our books in which transactions in reference to goods to be separated from a mass seem to have been treated, where there had been a constructive delivery, as valid sales, produc- ing a present change of property. ESSENTIALS AND DISTINCTIONS. 7 " The general rule, however, is otherwise, and all the different sorts of goods to which we have referred, except the first, are, under our law, the proper subjects only of executory agreements contracts for the future sale and delivery of them." (Cunningham v. Ashbrook, 20 Mo. 553, 556.) This is a statement of the common law, and is still the law in England (see sections 5 and 16-18 of the Sale of Goods Act), but the " anomalous cases " referred to in Cunningham v. Ashbrook, supra, represent the American doctrine as ex- pressed in the leading case of Kimberly v. Patchin, 19 1ST. Y. 330, of which more hereafter under the topic of the Transfer of Title, and which, moreover, is supported by the weight of recent American authority. (See, also, sections 5 and 6 of the Uniform Sales Act.) A " bargain and sale," or sale, is possible only when the goods are existing and specific or ascertained, and, according to the doctrine of Kimberly v. Patchin, supra, they are sufficiently specific or ascertained, when the goods are fungible, i. e., when each particle is identical with every other particle as in wheat, oil and wine, or when the buyer and seller agree to act on the assumption that the goods are all alike, although there was no separation by measuring, weigh- ing or counting ; but, while all other goods may be the subject only of a contract to sell, it is self-evident that there may be a contract to sell, as well as a sale of, existing and specific or ascertained goods, according as the parties intend. Existence of subject-matter: sale. Pothier (Contrat de Vente, No. 4) says : " There must be a thing sold, which forms the subject of the contract. If then, ignorant of the death of my horse, I sell it, there is no sale for want of a thing sold." In Bates v. Smith, 83 Mich. 347, 350, it is said : " If it appears that the subject-matter of a contract was not, and could not have been, in existence at the time of such contract, the contract itself is of no effect, and may be disre- garded by either party." See, also, section 7 of the Uniform Sales Act, which covers not only non-existence or total de- 8 SUMMARY OF SALES. struction of the thing sold, but also the contingency of deterioration or partial destruction. The reasons for treating such a sale void have been cogently stated as follows : " Sometimes the result is put upon the ground of impossibility, sometimes upon the ground of mistake, and sometimes on the lack of mutual assent owing to the mistake. So far as the existence of a sale is concerned, that is, the actual transfer of title to property, of course there is absolute impossibility. The real question, however, is whether the buyer and seller are excused from all liability. Even though there is no sale the seller may be liable on an obligation of warranty or contract (referring to 137 of Williston on Sales), and similarly the buyer might be liable on an obligation to pay the price. No such obligation, how- ever, exists on either side. The seller is excused from any such obligation by the doctrines both of impossibility and mistake. As the obligation would relate to a specific thing, the non-existence of the thing, without his fault, excuses him (citing, among other cases, Gilbert & Co. v. Butler, 146 Mass. 82; Stewart v. Stone, 127 1ST. Y. 500; Young v. Leary, 135 N. Y. 569 ; Dolan v. Rodgers, 149 K Y. 489). Even apart from the doctrine of impossibility the mutual mistake under which the parties labored would excuse the seller from any obligation. On the part of the buyer there is no question of impossibility, it is entirely possible for him to pay the price. If the promise, however, was expressly or impliedly condi- tional upon the transfer of title, which would generally be the case, the nonperformance of this condition, for whatever reason, would necessarily excuse him. Even though his promise to pay the price was not conditional, the destruction of the goods for which the price was to be paid would be such failure of consideration as to excuse him from paying the price if he had not already paid it. The doctrine of mutual mistake would also excuse the buyer as well as the seller. It is not accurate, however, to say that there is no mutual assent ; the parties do, in fact, assent to the same thing. The mistake which they make is ground for excusing them from ESSENTIALS AND DISTINCTIONS. 9 the bargain they made. It is not a ground for saying they never made a bargain." (Williston on Sales, 161.) Existence of subject-matter: sale, Roman law. Under the Roman law, " If the thing which it has been agreed to buy and sell has, unknown to both parties, ceased to exist at the time at which contract is made, the contract is void. The vendor must return the purchase money, if he has been paid ; and if he alone knew that the property no longer existed he is further liable to compensate the purchaser in damages for any loss which he may sustain through nonperformance, whereas if the purchaser alone knew it, he is bound to pay the purchase money, and has no rights himself against the vendor. If both were aware that the property no longer existed, the contract is void." (Moyle, Contract of Sale, in the Civil Law, 21.) Continued existence of subject-matter: contract to sell. " Where there is a contract to sell specific goods, and subse- quently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided." (Uniform Sales Act, sub-section (1) of section 8.) This is also the common law, and involves a principle applicable to the law of con- tracts generally. " The principle seems to us to be," says Blackburn, J., in Taylor v. Caldwell, 3 B.. & S. 826, 839, " that in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the per- formance." The law in regard to impossibility as excuse for non-performance has been expressed as follows : " Where there is a positive contract to do a thing, not in itself unlaw- ful, the contractor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents, the performance of his contract has become unexpectedly burthen- some or even impossible. . . . But this rule is only 10 SUMMARY OF SALES. applicable when the contract is positive and absolute, and not subject to any condition either express or implied: and there are authorities which, as we think, establish the prin- ciple that where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless when the time for the fulfil- ment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be ex- cused in case, before breach, performance becomes impos- sible from the perishing of the thing without default of the contractor." . (Taylor v. Caldwell, 3 B. & S. 826, 833.) This is the recognized rule of the common law. (Rugg v. Minett, 11 East, 210; Dexter v. Norton, 4T N". Y. 62; Wells v. Cal- nan, 107 Mass. 514; Thomas v. Knowles, 128 Mass. 22.) See, also, sub-section (2) of section 8 of the Uniform Sales Act, which covers the case of deterioration or partial destruction. Future goods : potential existence, sale. From the nature of a sale, heretofore considered, it would seem manifestly impossible for a seller to make a present sale of goods which he neither owns nor possesses at the time he purports to sell them. " It is a common learning in the law that a man cannot grant or charge that which he hath not " (Perkins' Profitable Book, tit. Grant, 65), nemo dat quod non habet. However, a distinction seems to have arisen, at least as early as 1443, between future goods in which the seller has, and those in which he has not, a potential right of property. (Fitzwilliam v. The Parson of Arcsay, Yr. Bk. 21 Hen. VI. 43.) The former class consists of the natural produce or increase of that which is owned or possessed by the seller at the time he sells, e. g., the future offspring (Hull v. Hull, 48 Conn. ESSENTIALS AND DISTINCTIONS. 11 250; McCarty v. Blevins, 5 Yerg. 195) or the products (Van Hoozer v. Cory, 34 Barb. 9) of animals belonging to the seller, or future crops from his land (Briggs v. U. 8., 143 TJ. S. 346). The latter class consists of all other future goods not the natural produce or increase of that which is owned or possessed by the seller at the time he sells, e. g., the wool of any sheep, or the crops of any land, which the seller might subsequently acquire. " It is frequently held that a man may sell property of which he is potentially but not actually possessed. He may make a valid sale of the wine that a vineyard is expected to produce; or the grain a field may grow in a given time ; or the milk a cow may yield during a coming year; or the wool that shall thereafter grow upon sheep ; . . . ; or fruits to grow ; or young animals not yet in existence; . . . The thing sold, however, must be specific and identified ; it must be, for instance, the product of a particular vineyard or field, or the wool from a particular sheep. These must also be owned at the time by the vendor. A person cannot sell the products of a field which he does not own at the time of sale, but which he expects to own." (Emerson v. European, etc., Ry. Co., 67 Me. 387, 392.) In short, " things have a potential existence which are the natural product or expected increase of something already belonging to the vendor " (Hutchinson v. Ford, 9 Bush, 318, 319), and, when goods are in potential existence, they may be the subject of present sale, as well as goods in actual existence, notwithstanding they are future goods. In the other class of future goods, in which the seller is said not to have a potential interest, the title will pass in the future, and may therefore be the subject only of a contract to sell. " The only difference therefore," says Mr. Benjamin (Sales [5th Eng. ed.], 132), "between the two classes of future goods seems to be in respect of the time of the passing of the property." As to when the title of goods in potential existence, in case of a present sale, passes, Mr. Williston (Sales, 133) says: " It is obvious in the nature of the case, title cannot pass 12 SUMMARY OF SALES. when the bargain is made, but it would be possible to say that title passed as soon as the goods came into existence, and, . . . , this would be an extension beyond the general rule of the common law as to future goods. The rule, however, seems to have a wider meaning than this when carried to its full extent. It seems to be assumed that title passes as of date of the bargain. Accurately expressed, this means that when the goods come into existence, title to them passes free from any defects of title due to rights which have accrued since the time of the original bargain." The leading case upon this subject is Grantham v. Hawley, Hob. 132, in which it was held that the purchaser of a future crop of corn from a lessee of the land had a better title thereto than the reversionary owner of the lease, the court saying: " Therefore he that hath it [the land] may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant, as 21 Hen. 6. A person may grant all the tithe-wool that he shall have in such a year, yet perhaps he shall have none; but a man cannot grant all the wool that shall grow upon his sheep that he shall buy here- after; for there he hath it neither actually nor potentially." The case of Grantham v. Hawley has been generally fol- lowed. Says the court in Low v. Pew, 108 Mass. 347, 349, " It is an elementary principle of the law of sales, that a man cannot grant personal property in which he has no interest or title. To be able to sell property, he must have a vested right in it at the time of the sale . . . " It is equally well settled that it is sufficient if the seller has a potential interest in the thing sold. But a mere possi- bility or expectancy of acquiring property, not coupled with any interest, does not constitute a potential interest in it, within the meaning of this rule. The seller must have a present interest in the property, of which the thing sold is the product, growth or increase. Having such interest, the right to the thing sold, when it shall come into existence, is a present vested right, and the sale of it is valid." ESSENTIALS AND DISTINCTIONS. 13 In Rochester Distilling Co. v. Rasey, 142 N. Y. 570, a limitation has been put upon the case of Grantham v. Hawley, the court, at p. 575, saying : " Grantham v. Hawley, Hobart, 132, is the general source of authority for the proposition that one may grant what he has only potentially, and there is no good reason for doubting that that which has a potential, or possible existence, like the spontaneous product of the earth, or the increase of that which is in existence, may prop- erly be the subject of sale, or of mortgage. The right to it, when it comes into existence, is regarded as a present vested right. That which is, however, the annual product of labor and of the cultivation of the earth cannot be said to have either an actual, or a potential existence before a planting." " In Scotch law, a contract purporting to effect the present sale of a chance, such as the cast of a net, operates as a present sale of the incorporeal thing. (Bell's Principles, 92). ' Such a chance is a res in the wide jural sense of the word.' (Mackintosh's Eoman Law of Sale, 25.) English law treats it as a contract for the sale of the subject of the chance, and unless falling under the ban of illegality because a wager, it will be enforced as an executory agreement, even though the chance produces nothing. (Hitchcock v. Giddings, 4 Price, 135, 140; Hanks v. Palling, 6 E. & B. 659.) As a present sale it has no validity. (Low v. Pew, 108 Mass. 347.)" (Burdick on Sales [2d ed.], 11.) In Low v. Pew, supra, the parties purported to effect a present sale of future goods, viz., all the halibut that might be caught by the master and crew of a certain schooner on a certain voyage to the Grand Banks. Prior to the return of the schooner from the Banks, the sellers became bankrupts, and, upon the return of the schooner with the fish, the buyers claimed, and instituted replevin to obtain, the halibut from the assignees of the sellers, but the court, at page 349, said: " It seems to us clear, as claimed by both parties, that this was a contract of sale, and not a mere executory agreement to sell at some future day. The plaintiffs cannot maintain their suit upon any other construction, because, if it is an 14 SUMMARY OF SALES. executory agreement to sell, the property in the halibut re- mained in the bankrupts, and, there being no delivery before the bankruptcy, passed to the assignees. The question in the case therefore is, whether a sale of halibut afterwards to be caught is valid, so as to pass to the purchaser the property in them when caught. * * * The sellers, at the time of the sale, had no interest in the thing sold. There was a possibility that they might catch halibut; but it was a mere possibility and expectancy, coupled with no interest. We are of opinion that they had no actual or potential possession of, or interest in, the fish ; and that the sale to the plaintiffs was void." The Uniform Sales Act wisely makes no distinction be- tween goods in potential existence and other future goods. Under sub-section 3 of section 5 of that Act, the agreement in Low v. Pew, purporting to effect a present sale of the halibut, would operate only as a contract to sell, and the plaintiffs, under the circumstances of that case, could not claim title to the fish. Future goods: sale, in equity. The doctrine of potential existence or potential possession, however, is, except in those jurisdictions where the Uniform Sales Act has been enacted into law, recognized and accepted, the only limitations, if any there be, apparently being, that crops that are " the annual product of labor and of the cultivation of the earth cannot be said to have either an actual, or a potential existence before a planting " (Rochester Distilling Co. v. Rasey, 142 N". Y. 570, 576), and sometimes not even until the crop has germi- nated (Comstock v. Scales, 7 Wis. 159). Goods therefore that are in potential existence, as well as in actual existence, at the time of agreement, may be the subject of sale, assign- ment or mortgage. " Other things," however, " not having an existence actual or potential, but the future acquisition of which is merely expected or contemplated, are not the subject of sale, assignment, or mortgage, according to the common law. A different doctrine, however, prevails in a court of ESSENTIALS AND DISTINCTIONS. 15 equity. The sale, or mortgage, or assignment, does not pass the legal title to such property, unless, after it comes into existence, the vendor or mortgagor shall do some new act for the purpose of ratifying or carrying it into effect. Neverthe- less, it creates an equitable interest, attaching to the property when it is acquired, or when it comes into existence, that a court of equity will enforce " (Hurst v. Bell, 72 Ala. 336, 340 ) , and protect against all persons other than bona fide purchasers from the seller, assignor or mortgagor (Joseph v. Lyons, 15 Q. B. D. 280; Deering v. Cobb, 74 Me. 334), or attaching or execution creditors of the seller, assignor or mortgagor (Rochester Distilling Co. v. Rasey, 142 N. Y. 570 ; Blanchard v. Cooke, 144 Mass. 218 ; Gittings v. Nelson, 86 111. 591). In New York it is said that, " Invalidity at law imports nothing more than that a mortgage of property thereafter to be acquired is ineffectual as a grant to pass the legal title. A court of equity, in giving effect to such a provision, does not put itself in conflict with that principle. It does not hold that a conveyance of that which does not exist operates as a present transfer in equity, any more than it does in law. But it construes the instrument as operating by way of present contract, to give a lien, which, as between the parties, takes effect and attaches to the subject of it as soon as it comes into the ownership of the party." (Kribbs v. Alford, 120 N. Y. 519, 524.) This is in accord with McCaffrey v. Woodin, 65 K Y. 459, and is followed in Central Trust Co. cf N. Y- v. West India Improvement Co., 169 N. Y. 314, wherein it was held that a mortgage of securities to be thereafter issued gives a valid equitable lien which attaches as soon as the securities come into the hands of the mortgagor. If such lien is to prevail against third persons without notice, and if the effect is reached by construing the instrument as operating by way of present contract, it is difficult to reach other conclusion than that equity in such view does conflict with the common law, because the idea of a lien is inconsistent with the idea of ownership or title in the seller, assignor or mortgagor. 16 SUMMAEY OF SALES. The view that the mortgagee acquires no rights superior to bona fide purchasers from, or attaching or execution creditors of, the mortgagor, unless the mortgagee takes possession prior to the time when their rights attach, is distinctly recognized in Rochester Distilling Co. v. Rasey, 142 N. Y. 570, and in N. Y., etc., Co. v. Saratoga, etc., Co., 159 1ST. Y. 137. The question seems, without sound reason therefor, to be regarded as of peculiar importance in cases of insolvency of the mort- gagor. (See Williston on Sales, 138-144.) Future goods: contract to sell. "It was formerly held that when the vendor had neither the goods, nor entertained any contract to buy them, at the time of the sale, nor had any reasonable expectation of receiving them by consignment, but intended to go into the market and buy the articles he engaged to deliver, no action could be maintained on such contract. But that rule has been changed by the later authorities, and there have been numerous decisions, particularly in this country, holding that the vendor may contract for the sale of an article not in his possession, and this doctrine seems to be entirely in accordance with the rules of public policy." (Whitesides v. Hunt, 97 Ind. 191, 195.) See, also, sub- section 2 of section 5 of the Uniform Sales Act. Contracts for the sale and future delivery of goods which the vendor neither owns nor possesses at the time of making the contract, but which may be procured by him, are valid or invalid contracts, to be determined from the intention of the parties. " Where a commodity is bought for future de- livery, no matter what the form of the contract is, the law regards the substance and not the shadow, and if the parties mutually understood and intended that the purchaser should pay for and the seller should deliver the commodity at the maturity of the contract, it is a legal and valid transaction ; and the fact that the purchaser is required to deposit a mar- gin and increase the same at any time the market requires it, in order to secure the payment at maturity, or that the seller shall deposit a margin and increase the same, like the pur- ESSENTIALS AND DISTINCTIONS. 17 chaser, in order to secure the delivery at maturity, does not vitiate the contract. But if, at the time of the contract, it is mutually understood and intended by all the parties, whether expressed or not, that the commodity said to be sold was not to be paid for nor to be delivered, but that the con- tract was to be settled and adjusted by the payment of differ- ence in price if the price should decline the purchaser pay- ing the difference, if it should rise the seller paying the ad- vance, the contract price being the basis upon which to calcu- late differences, in such a case it would be a gambling con- tract and void, and the deposits of margin are only to be con- sidered as attempting to secure the terms of the bet on prices at some future time." (Whitesides v. Hunt, 97 Ind. 191, 202.) In accord therewith are Story v. Salomon, 71 N. Y. 420; Sampson v. Shaw, 101 Mass. 150; Harvey v. Merrill, 150 Mass. 1; Lyon v. Culbertson, 83 111. 33; Maxton v. Gheen, 75 Pa. St. 166. Price : in general. In sales and in contracts to sell, the price is called the consideration for the transfer of the prop- erty (see Definitions, page 1, and sub-sections 1 and 2 of sec- tion 1 of the Uniform Sales Act, and sub-section 1 of section 1 of the Sale of Goods Act) , and, as generally recognized and technically considered, must consist of money or money valu- ation, paid or promised. (Williamson v. Berry, 8 How. 495, 544; Gunter v. Leckey, 30 Ala. 591, 596 ; Pickard v. McCor- mick, 11 Mich. 68, 77 ; Herrick v. Carter, 56 Barb. 41.) According to sub-section 2 of section 9 of the Uniform Sales Act, " the price may be made payable in any personal property." That Act expressly brings barter or exchange, and contracts to barter or exchange, directly under the law of sales, while the English Act (sub-section 1 of section 1) still clings to " money consideration." Commenting thereon, Mr. Williston (Sales, 170) says: "It has doubtless been universally said that the price must be payable in money. This statement seems to have been copied from the Roman law without observation of essential differences between that 18 SUMMARY OF SALES. law and the common law. ... In our law, however, there is no different rule applicable to a contract of sale from that which is applicable to contract of exchange. It would seem unfortunate in codifying the law of sales to exclude contracts of exchange which turn on precisely the same principles and which differ, if at all, only in name. The only doubtful point indeed, in regard to exchanges, is whether they differ even in that respect." Fixing the price. As price is essential to a sale, and to a contract to sell, it must be, expressly or impliedly, fixed or made certain by the parties, or be made susceptible of ascer- tainment and so certain, because id cerium est quod cerium reddi potest. It is immaterial what method or means are em- ployed, provided the method or means employed will result in fixing the price with requisite certainty. It is said that " the omisison of the particular mode or time of payment, or even of the price itself, does not necessarily invalidate a contract of sale. Goods may be sold, and frequently are sold, when it is the intention of the parties to bind themselves by a contract which does not specify the price or the mode of payment, leaving them to be settled by some future agreement, or to be determined by what is reasonable under the circumstances." (Valpy v. Gibson, 4 C. B. 837, 864.) The parties may agree upon a sale, and may agree to leave the price to be fixed by future agreement. In such case title would undoubtedly pass from seller to buyer, but if they subsequently failed to agree upon the price, and the buyer kept or consumed or other- wise disposed of the goods, a quasi-contractual obligation would follow, and the buyer would be compelled to pay their reasonable value. (See, also, sub-section 4 of section 9 of the Uniform Sales Act.) If, however, as stated in Valpy v. Gibson, supra, the parties, agreeing upon a sale, should leave the price " to be settled by some future agreement, or to be determined by what is reasonable under the circumstances," then, failing of future agreement, and having expressly pro- vided an alternative mode or method, viz., " by what is reason- ESSENTIALS A.ND DISTINCTIONS. 19 able under the circumstances," a jury may determine accord- ing to the agreed method. " The rule as to price, in executory contracts of sale, is generally said to be, that it must be certain, or capable of being made certain. Such is undoubtedly the settled doctrine, and although, in such case, if the agreement be that it is to be fixed by arbitration, the sale must be considered void if the arbitrators fail to agree, a different principle prevails where the contract of sale is complete and executed. In the latter class of contracts, where the seller, whether by actual delivery or other like unequivocal act, intentionally passes the prop- erty in specific goods to the purchaser, without fixing the price, the law leaves the price to be adjusted by the agree- ment of the parties, or, if they fail to agree, by the verdict of a jury. If such price is left open for future adjustment by consent, the property being delivered with the expressed in- tention to complete the sale, the price to be agreed on is im- plied to be one that is fair and reasonable, and this is always the rule of recovery on a quantum meruit, or quantum vale- bat. If there should or can be no mutual consent, the impli- cation follows, as part of the original contract of sale, that a jury will adjust it, just as manifestly as in every day sales and delivery of goods by merchants on open account, where the price is very often not adjusted for months afterwards." (Shealy v. Edwards, 73 Ala. 175, 181.) The price, therefore, may, at the time of the bargain, be expressly fixed in a sum certain by the parties, or means for its ascertainment may then be fixed, as the market price on a certain day (Phifer v. Erwin, 100 K. C. 59), or ten cents less than the market price on any day thereafter which the seller should name (McConnell v. Hughes, 29 Wis. 537), or by being left to the valuation of a third party (Brown v. Bellows, 4 Pick. 189 ; Norton v. Gale, 95 111. 533), or it may be impliedly left to be determined by the course of dealing between the parties (Valpy v. Gibson, 4 C. B. 837, 864; U. 8. v. Wilkins, 6 Wheat. 135; Taft v. Travis, 136 Mass. 95, 102), or by what is reasonable under the circumstances. 20 SUMMARY OF SALES. (Valpy v. Gibson, 4 C. B. 837, 864; Shealy v. Edwards, 73 Ala. 175; Taft v. Travis, 136 Mass. 95.) Reasonable price. " What is a reasonable price," even as stated in sub-section 4 of section 9 of tbe Uniform Sales Act, " is a question of fact dependent on the circumstances of each particular case." The market price at the time and place fixed for the de- livery of the goods ordinarily determines the reasonable value (Konitzky v. Meyer, 49 N. Y. 571 ; DeutscJi v. Pratt, 149 Mass. 415 ; McEwen v. Morey, 60 111. 32 ; Althouse v. Alvord, 28 Wis. 577), because "ordinarily, when an article of sale is in the market, and has a market value, there is no difference between its value and the market price, and the law adopts the latter as the proper evidence of the value. This is not, however, because value and price are really convertible terms, but only because they are ordinarily so in a fair market. The primary meaning of value is worth, and this worth is made up of the useful or estimable qualities of the thing. (See Webster's and Worcester's Dictionaries.) Price, on the other hand, is the sum in money or other equivalent set upon an article by a seller, which he demands for it. (Id. Ibid.) Value and price are, therefore, not synonymous, or the neces- sary equivalents of each other, though commonly, market value and market price are legal equivalents. . . " It is equally obvious, when we consider its true nature, that as evidence, the market price of an article is only a means of arriving at compensation ; it is not itself the value of the article, but is the evidence of value. The law adopts it as a natural inference of fact, but not as a conclusive legal presumption. It stands as a criterion of value, because it is a common test of the ability to purchase the thing." (Eountz v. KirTcpatricTc, 72 Pa. St. 376, 386.) " Evidence as to the price need not be confined to the pre- cise time when the contract was to have been performed. It may sometimes be impracticable to show the price at the precise time, and hence evidence of the price for a brief ESSENTIALS AND DISTINCTIONS. 21 period before and after the time may be given, not for the purpose of establishing a market price at any other time, but for the purpose of showing as well as practicable the market price on the day the contract was to have been performed. So it may not always be practicable to show the price at the precise place of delivery. There may have been no sales of the commodity there, and hence evidence of the price at places not distant, or in other controlling markets may be given, not for the purpose of establishing a market price at any other place, but for the purpose of showing the market price at the place of delivery." (Cohen v. Platt, 69 N. Y. 348, 352.) The market price will not, therefore, always determine the reasonable price, as what is reasonable " may, or may not, agree with the current price of the commodity at the port of shipment, at the precise time when such shipment is made. The current price of the day may be highly unreasonable from accidental circumstances, as on account of the com- modity having been purposely kept back by the vendor him- self, or with reference to the price at other ports in the imme- diate vicinity, or from various other causes." (Acebal v. Levy, 10 Bing. 376, 383.) Therefore, if it appear that the market price was unduly inflated or depressed at the time and place fixed for the delivery of the goods, the market price will not be the criterion of what is reasonable price or value. (Smith v. Griffith, 3 Hill, 333; Kountz v. Kirk- patrick, 72 Pa. St. 376; Lovejoy v. Michels, 88 Mich. 15.) Essential elements. The essential elements, therefore, are, (1) competent parties, (2) mutual assent, (3) general property in a thing the subject of transfer, and (4) price in money. In order to avoid repetition, we may leave the detailed discussion of " competency of parties," " mutual assent " and " consideration " to the law of persons and of pure contract, respectively, and confine our attention to the paramount pur- pose in " sale " and in " contract to sell," viz., the Transfer of Title; and thereafter to Warranty, sometimes, but not 22 SUMMABY OF SALES. always, accompanying ; to so much of the Statute of Frauds, a statute of only evidentiary and procedural value, as relates to contracts to sell and to sales of personal property; and to the Remedies of Seller and Buyer, first distinguishing, how- ever, sales from some seemingly similar, yet distinct, trans- actions. Exchange. As in sale and in contract to sell, so in ex- change and in contract to exchange, the transfer of the abso- lute property in goods is what is, or is to be, effected. Sales differ from exchanges in that the consideration in the former is expressed in money or in money terms {Harris v. Fowle cited in Barbe v. Parker, 1 H. Bl. 287 ; Herrick v. Carter, 56 Barb. 41 ; Gunter v. Leckey, 30 Ala. 596 ; Loomis v. Wain- wright, 21 Vt. 520; Picard v. McCormick, 11 Mich. 68), while in the latter the consideration consists of other goods without money valuation (Fuller v. Duren, 36 Ala. 73), but " the distinction between a sale and exchange of property is rather one of shadow than of substance. In both cases the title to property is absolutely transferred, and the same rules of law are applicable to the transaction, whether the considera- tion of the contract is money or by way of barter. It can make no essential difference in the rights and obligations of parties that goods and merchandise are transferred and paid for by other goods and merchandise instead of by money, which is but the representative of value or property." ( Com- monwealth v. Clark, 14 Gray, 3 07, 372.) See, also, Hudson Iron Co. v. Alger, 54 N. Y. 173. Under the Sale of Goods Act (sub-section 1 of section 1), however, money consideration still distinguishes a sale from an exchange, but in the Uniform Sales Act (sub-section 2 of section 9) this distinction is abandoned. When a statute refers in terms to a " sale," it has been held not to include an exchange (Massey v. State, 74 Ind. 368 ; State v. Mercer, 32 la. 405 ; Rickart v. People, 79 111. 85) ; but the weight of authority in this country seems, in such case, to disregard any distinction, and to treat exchange ESSENTIALS AND DISTINCTIONS. 23 as included in the term " sale." (Misner v. Strong, 181 N. Y. 163, 168; Franklin v. Matoa, etc., Go., 158 Fed. Rep. 941; Commonwealth v. Clark, 14 Gray, 367 ; Howard v. Harris, 8 Allen, 297 ; Dowling v. McKenney, 124 Mass. 478 ; Gor- man v. Brossard, 120 Mich. 611; Rutan v. Hinchman, 30 K J. Law, 255; Wallace v. Long, 105 Ind. 522.) Distinction between sale and exchange, material when. The distinction between sale and exchange is mainly material in the matter of pleading. Under the common-law system of pleading, " where one party agrees to do a certain thing, and the other party agrees to pay a sum of money, and the thing or duty is performed, an action lies for the money, because a debt has accrued, and nothing remains to be done but to pay it," but " where goods are sold to be paid for wholly or in part by other goods, or by the defendant's labor, or otherwise than in money, the action must be on the agreement, and for a breach of it, and not for goods sold and delivered." (Mitchell v. Gile, 12 K H. 390, 391, 392.) The distinction between sale and exchange has also been observed in the right to waive tort and sue in assumpsit, where the defendant has disposed of goods, belonging to the plaintiff, by sale, but not if he disposed of them by exchange (Fuller v. Duren, 36 Ala. 73) ; and also in case of authority to sell, which does not include an authority to exchange. (Taylor, etc., Co. v. Starkey, 59 N. H. 142.) See, also, Williston on Sales, 170. Exchange : Roman law. " It was long a moot point be- tween two rival schools of Roman jurists, the Sabinians and the Proculians, whether the contracts of exchange (permu- tatio) and of sale (emptio-venditio} were essentially differ- ent. Gaius (3, 141), professing to be a Sabinian, maintained from a purely historical point of view that barter was merely the more ancient form of sale, in support of which he cited a passage of Homer (II. 7, 472-475). Another school main- tained the negative, on the ground that it could not be deter- mined which was the thing sold, and which was the price, and 24 SUMMARY OF SALES. that it was absurd that a thing should be both; and this opinion prevailed, being supported by other passages of Homer (e. g., Od. 1, 430), and as being more in accordance with sound reason. The question was finally disposed of by a rescript (Code 4, 64, 7) of the Emperors Diocletian and Maximian in A. D. 294, which was adopted by Justinian (Inst. 3, 23, 2). Price being therefore held to be of the essence of the contract of sale, barter was relegated to the class of real contracts. The distinction was important, as a contract of exchange, not being a consensual contract (by the French Civil Code, however, exchange is a consensual con- tract: Arts. 1703-7), was enforceable only after a part per- formance by the party seeking relief. A contract of barter, therefore, so long as it was executory on both sides, was not enforceable in the absence of a stipulatio (Code 4, 64, 3; Dig. 19, 4, 1, 2). To this rule, according to Gaius (3, 141, adopted by Code 4, 64, 1), one exception only was allowed, and the transaction treated as a sale, namely, where a person had a thing for sale, and another, ' pretii nomine/ gave another thing for it; the reason of the exception obviously being, that in this case it could be determined which of the two things was sold and which was the price." (Benjamin on Sales [5th Eng. ed.], 6.) Bailment. In a sale, the general or absolute property in goods is transferred, while in bailment only a special property therein is transferred. In a sale, there must be agreement, expressed or implied, to pay the purchase price, while in bail- ment, if for hire, there must be payment for the use. (Hery- ford v. Davis, 102 U. S. 235. )J 11 The distinction between a bailment and a sale is correctly laid down by Bronson, chief judge, in Mallory v. Willis, 4 Comst. 85, in these words : ' When the identical thing de- livered, although in an altered form, is to be restored, the contract is one of bailment and the title to the property is not changed ; but when there is no obligation to restore the specific article, and the receiver is at liberty to restore another thing ESSENTIALS AND DISTINCTIONS. 25 of equal value, he becomes a debtor to make the return, and the title to the property is changed : it is a sale." (Foster v. Pettibone, 7 N. Y. 433, 435.) See, also, Union Stock-Yards, etc., Co. v. Western Land, etc., Co., 59 Fed. Rep. 49, 53; Sturm v. Boker, 150 U. S. 312, 329 ; Mansfield v. Converse, 8 Allen, 182. If, however, the identical goods, though in altered form, are not to be returned, but other goods, or goods with valuation fixed, or money is to be returned, the party under obligation becomes debtor therefor, and the transaction will be exchange or sale, as the case may be. (Norton v. Woodruff, 2 N. Y. 153 ; Butterfield v. Lathrop, 71 Pa. St. 225; Powder Co. v. Burkhardt, 97 U. S. 110.) Pledge. Where goods are pledged by way of security, the general or absolute property remains in the pledgor, and only a so-called special property strictly speaking, an authority is transferred to the pledgee. (Parshall v. Eggert, 54 N". Y. 18; Ex parte Hublard, 17 Q. B. Div. 690.) Delivery of possession is essential in pledge, in order to trans- fer said special property, but it is not always necessary in sale in order to transfer the general or absolute property to the purchaser. The transaction is therefore a bailment, and so continues until the pledge is returned to the pledgor upon payment by him of the debt, or performance of the obligation, for which the goods were pledged as security, or until the pledgee, upon default by the pledgor, exercises his authority or power to sell the pledge to satisfy his claim, when the general or absolute property of the pledgor therein is trans- ferred to the purchaser. (Cortelyou v. Lansing, 2 Caines Cas. 202; Whitaker v. Sumner, 20 Pick. 405; Houser v. Kemp, 3 Pa. St. 208; Shaw v. Wiltshire, 65 Me. 485.) Consignment. Where goods are consigned to a factor or general commission merchant for sale, only a so-called special property in the goods is transferred, notwithstanding the pur- pose is not to return the identical goods, but to sell them on behalf of the consignor. The consignee has, of course, a lien 26 SUMMARY OF SALES. for his charges and advances, possible only when the general property in the goods is in the consignor, until the goods are sold, when the moneys received from the sale take the place of the goods, subject to his lien as before, and subject, even as the goods themselves were before they were sold, to return at the request of the consignor upon satisfaction of the lien, if any there be. The same is true of a consignment under a del credere commission. (Morse v. Stone, 5 Barb. 516; Mel- drum v. Snow, 9 Pick. 441 ; Walker v. Buttrick, 105 Mass. 237; Boston, etc., Co. v. Warrior Mower Co., 76 Me. 251.) Such transaction is therefore a bailment with authority to sell. If, however, goods are consigned at a fixed price, with the intention of making the consignee primarily liable without regard to the price obtained by the latter therefor, and are so accepted by the consignee, the transaction is a sale and not a bailment. (Ex parte White, L. R. 6 Ch. 397; Jordan v. Easter, 2 111. App. 73.) Bailment with privilege of purchase. If goods are de- livered for the purpose of trial or inspection, upon the under- standing that, if they prove satisfactory, the bailee will keep them and pay a certain price therefor, the transaction is a bailment until the bailee elects to keep them, when the bail- ment ends, and sale takes place. This is sometimes, but in- accurately, called a " sale on approval." But there is no sale, not even a contract to sell, until the bailee elects to keep the goods, and not until then is the absolute property trans- ferred, with approval only a thing not a condition prece- dent of the past. Of course, the parties may expressly agree contrariwise, but unless their intention is otherwise manifested, the law will construe their intention in favor of bailment, and not in favor of sale. (Whitehead v. Vander- lilt, 10 Daly, 214; Hunt v. Wyman, 100 Mass. 198; Dando v. Foulds, 105 Pa. St. 74; Wilson v. Stratton, 47 Me. 120; Kahn v. Cldbrunda, 50 Wis. 235 ; Re Froelich Rubber Co., 139 Fed. Rep. 201; O'Donnell v. Wing, 121 Ga. 717.) ESSENTIALS AND DISTINCTIONS. 27 Sale or return. A bailment with privilege of purchase, or so-called " sale on approval," must be distinguished from what is commonly called " sale or return" in which the par- ties agree upon a present transfer of the absolute property in goods for a price, with a privilege in the buyer of returning the goods, if they prove unsatisfactory. In such a trans- action, the title passes immediately, subject to reverter, how- ever, if the purchaser, under his privilege, elects to return the goods. (Sturm v. Eoker, 150 U. S. 312; Foley v. Felrath, 98 Ala. 176 ; Lynch v. Willford, 57 Minn. 377.) "An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined ; in the other the property passes at once, subject to the right to rescind and return." (Hunt v. Wyman, 100 Mass. 198, 200.) Option must be exercised when. In case of "sale or return " and of so-called " sale on approval," the transferee must by word or act, within the time fixed for the exercise of his option, and, if no time is fixed, within a reasonable time, express his willingness, the one, to return the goods, the other, to keep the goods, and thereby exercise his option. In Hunt v. Wyman, 100 Mass. 198, the plaintiff, after naming $250 as the price of his horse, in response to a query thereto by the defendant, allowed the defendant to take it upon the latter's saying, " Let me take the horse and try it ; if I do not like it, I will return it to-night in as good condition as I get it." The court, at page 200, said: "A mere failure to return the horse within the time agreed may be a breach of contract, upon which the plaintiff is entitled to an appro- priate remedy; but has no such legal effect as to convert the bailment into a sale. It might be evidence of a determina- tion, by the defendant, of his option to purchase. But it would be only evidence," because mere retention might result from some cause other than a willingness to take title. Under the Uniform Sales Act, however, [section 19, rule 3, (2) (b)] 28 SUMMARY OF SALES. retention for any reason beyond the time, whether fixed or reasonable, is assent. " Frequently in bargains of this sort [so-called ' sales on approval '], the contract does not fix a time for the approval to be signified but states only the period of trial to be allowed. According to the better view this cannot be con- strued as requiring the buyer to signify his approval or acceptance within the time allowed him for trial. He may use the full period for trial, and exercise his option with reasonable promptitude thereafter. (Springfield Engine Stop Co. v. Sharp, 184: Mass. 266.) The case is to be contrasted with that of a sale with a right of return. In the latter case a named period will be the extreme limit for the return." (Williston on Sales, 272.) Of course, if the period of trial alone be fixed, we must perforce fall back upon reasonable time for acceptance, simply because a fixed period, only for trial, does not necessarily, and may not reasonably, include acceptance within the same period. If the period for return be expressly fixed in case of " sale or return," the goods, of course, must be returned within " the extreme limit," or the right to return will be lost. Under the English Act, no distinction is made between "sale or return" and so-called "sale on approval." (Sale of Goods Act, section 18, rule 4.) Lease. A lease proper contemplates the use of property for a time, with possession and payment for the use, and the ultimate return of it to the lessor. A so-called " conditional sale," involving a condition precedent, contemplates the ulti- mate purchase for a price by the party to whom its possession is delivered, with right meanwhile to its use, and payment therefor or not, as the parties may agree. " Where the transaction is an ordinary case of hiring, its real character is not hard to recognize. (Smith v. Niles, 20 Vt. 315.) But a transaction, which is substantially a sale, cannot be changed into a lease, merely by calling the peri- odical payments, reni, if on the last payment the thing is to ESSENTIALS AND DISTINCTIONS. 29 become the property of the hirer. If, however, there is a bona fide hiring, with the privilege of purchase at a given price, over and above the periodical payments, then the trans- action does not become a sale, until the additional sum is paid, or the hirer has notified the owner of his intention to buy. (Forest v. Nelson, 108 Pa. St. 481; Stadtfield v. Hunts- man, 92 Pa. St. 53 ; Brunswick & Balke Co. v. Hoover, 95 Pa. St. 508; Edward's Appeal, 105 Pa. St. 103.) Parol evidence is admissible to show the real character of the trans- action, where it is at all involved in doubt. (Domestic Sew- ing Machine Co. v. Anderson, 23 Minn. 57 ; Singer Sewing Machine Co. v. Holcomb, 40 Iowa, 33.) " These questions have arisen lately on contracts for the disposition of organs, pianos, sewing machines, etc., under contracts which provide for the payment of periodical sums as rent, and the thing is to become the property of the other party on the payment of the last installment of rent. The courts have uniformly held these contracts to be sales, and not leases. (Contra, Sumner v. Cottey, 71 Mo. 121.) In some of the cases, the title is held to pass immediately. (Greer v. Church, 13 Bush, 430; March v. Wright, 46 111. 487; Lucas v. Campbell, 88 111. 447; Singer Mfg. Co. v. Cole, 4 Lea, 439 ; Hervey v. R. I. Locomotive Works, 93 U. S. 663 ; Price v. McCallister, 3 Grant Cas. 248.) But where the contract contains the express stipulation, as most of them do, that the title shall not pass until the last payment, the transaction is held to be a conditional sale, the condition being precedent. Sargent v. Gile, 8 N. H. 325 ; Kohler v. Hayes, 41 Cal. 456 ; Singer Mfg. Co. v. Graham, 8 Or. 17 ; Crist v. Kleber, 79 Pa. St. 290; Enlow v. Klein, 79 Pa. St. 488; Goodell v. Farebrother, 12 K. I. 233; Carpenter v. Scott, 13 K. I. 474; Hine v. Roberts, 48 Conn. 267 ; Loomis v. Bragg, 50 Conn. 228; Whitcomb v. Woodworth, 54 Vt. 544; Collinder Co. v. Marshall, 57 Vt. 322; Gibbons v. Luke, 37 Hun, 577." (Tiedeman on Sales, 9.) See, also, Equitable Providing Co. v. Potter, 22 Misc. 124; Equitable Providing Co. v. Eisentrager, 34 Misc. 179. 30 SUMMARY OF SALES. For provisions applicable to conditions and reservations in contracts for the so-called conditional sale of chattels, see the New York Personal Property Law, being chap. 41 of the Consolidated Laws of 1909, 62 et seq. Mortgage of goods. A chattel mortgage is sometimes said to be in essence a " conditional sale," with condition subsequent. The mortgagee of goods became, by the com- mon law, the transferee of the title, subject, however, to defeasance upon performance by the mortgagor of the con- ditions imposed by the mortgage (Brown v. Bement, 8 Johns. 96) ; but, if, for any reason, the mortgagor failed to perform the conditions imposed by the mortgage, the mortgagee be- came the absolute owner. (Parshall v. Eggert, 52 Barb. 367.) He might thus become the owner of goods worth four times the amount of the mortgage debt. Adherence to such position by the common law, resulting in manifest injustice in many instances, attracted the atten- tion of the court of chancery, which, after a long struggle, acquired jurisdiction in the reign of James I., and decreed that the mortgagor would be entitled to redeem, after con- dition broken, upon payment of the debt with interest. As this right of redemption was recognized only in a court of equity, it became known as the " equity of redemption " (Patchin v. Pierce, 12 Wend. 61), and, in the absence of statute, is still, strictly speaking, an equitable remedy. This right of redemption marks the chief distinction between a chattel mortgage and a " conditional sale," with condition sub- sequent, in which no such right exists. The chief distinction between a pledge and a chattel mort- gage lies in the difference of location of title. In the case of pledge, the title remains in the pledger, even after default, and he is divested of title only upon sale by the pledgee to satisfy his claim. In the case of the mortgagor, he is di- vested of title, conditionally, upon the execution and delivery of the mortgage, and absolutely, upon breach of the con- dition, except that he has what is called an equity of redemp- ESSENTIALS AND DISTINCTIONS. 31 tion. Again, the validity of the mortgage is not affected by the mortgagor's retention of the possession of the goods, while transfer of possession to the pledgee is essential to the validity of a pledge. Contract for work and labor. Goods to be manufactured and goods to be subsequently acquired are future goods, and, as we have seen, contracts for the sale of future goods, if there be no intention to wager, may be valid contracts to sell, although such goods, with the exception of goods said to be in potential existence, cannot be the subject of a present sale. As we have noticed that goods said to be in potential existence have been, except under the Uniform Sales Act, especially excepted from the class of future goods, so we shall find that goods to be manufactured have also been excepted, even to greater extent, some jurisdictions holding that if the seller, expressly or impliedly, agrees to perform work and labor thereon before the goods are in a deliverable condition, the contract is one for work and labor, and is not a contract to sell; but, if the seller agrees to sell goods which are to be manufactured by another, all seemingly agree that the con- tract then is a contract to sell, and not a contract for work and labor. As this distinction is most frequently noticed in connection with the Statute of Frauds, it will be considered later under the subject of " sale " in connection with that statute. Contract for work and labor : Roman law. " By the civil law, if the employer furnished the materials for the making of a chattel the contract was a conductio operis faciendi by the workman; if the workman supplied the materials the contract was emptio et venditio. The latter point was settled by Justinian contrary to the opinion of Cassius, who thought the contract was a mixed one of labor and of sale. (Inst. 3, 24, 4; Dig. 18, 1, 20; 19, 2, 2, 1.) Where the materials were jointly contributed, the contract was one of locatio et conductio if the employer's were the principal materials, and 32 SUMMARY OF SALES. emptio et venditio if the principal materials were the work- man's. (Dig. 6, 1, 61; 18, 1, 20; 19, 2, 22, 2.)" (Ben- jamin on Sales [5th Eng. ed.], 167.) Gift: defined. "A gift may be defined as a voluntary transfer of his property by one to another, without any con- sideration or compensation therefor. To make it valid, the transfer must be executed, for the reason that, there being no consideration therefor, no action will lie to enforce it." ( Gray v. Barton, 55 N. Y. 68, 72.) Gift: essential elements. "The elements necessary to constitute a valid gift are well understood and are not the subject of dispute. There must be on the part of the donor an intent to give, and a delivery of the thing given, to or for the donee, in pursuance of such intent, and on the part of the donee, acceptance. The subject of the gift may be chattels, choses in action, or any form of personal property, and what constitutes a delivery may depend on the nature and situa- tion of the thing given. The delivery may be symbolical or actual, that is, by actually transferring the manual custody of the chattel to tHe donee, or giving to him the symbol which represents possession. In case of bonds, notes or choses in action, the delivery of the instrument which represents the debt is a gift of the debt, if that is the intention ; and so, also, where the debt is that of the donee it may be given, as has been held, by the delivery of a receipt acknowledging pay- ment. (Westerlo v. DeWitt, 36 K Y. 340; Gray v. Barton, 55 id. 72; 2 Schouler on Pers. Prop., 66 et seq.) The acceptance, also, may be implied where the gift, otherwise complete, is beneficial to the donee. But delivery by the donor, either actual or constructive, operating to divest the donor of possession of and dominion over the thing, is a con- stant and essential factor in every transaction which takes effect as a completed gift. Anything short of this strips it of the quality of completeness which distinguishes an inten- tion to give, which alone amounts to nothing, from the con- ESSENTIALS AND DISTINCTIONS. 33 summated act, which changes the title." (Beaver v. Beaver, 117 K Y. 421, 428.) Gift : delivery, history of. " The law enunciated by Brae- ton in his book ' de acquirendo rerunl dominio/ seems clear to the effect that no gift was complete without tradition of the subject of the gift. * * * In Brae ton's day, seisin was a most important element of the law of property in general ; and, however strange it may sound to jurists of our day and country, the lawyers of that day applied the term as freely to a pig's ham (Select Pleas in Manorial Courts, p. 142 [2] ; see also Professor Maitland's papers on the Seizin of Chattels, the Beatitude of Seizin, and the Mystery of Seizin ; Law Quarterly Rev., L, 324; II., 484; IV., 24, 286) as to a manor or a field. At that time the distinction between real and personal property had not yet grown up: the dis- tinction then recognized was between things corporeal, and things incorporeal : no action could then be maintained on a contract for the sale of goods, even for valuable considera- tion, unless under seal: the distinction so familiar to us now between contracts and gifts had not fully developed it- self. The law recognized seisin as the common incident of all property in corporeal things, and tradition or the delivery of that seisin from one man to another as essential to the transfer of the property in that thing, whether it were land or a horse, and whether by way of sale or of gift, and whether by word of mouth or by deed under seal. This necessity for delivery of seisin has disappeared from a large 'part of the transactions known to our law; but it has sur- vived in the case of feoffments. Has it also survived in the case of gifts ? * * * Coming next to the great law-writers of the reign of Edward I., they hold language substantially the same as that of Bracton, except indeed that the difference between transactions purely voluntary, or for pecuniary con- sideration, appears to be growing somewhat more important. * * * In the reign of Edward IV. a step seems to have been taken in the law relative to gifts which resulted in this 3 34 SUMMARY OF SALES. modification : that whereas under the old law a gift of chattels by deed was not good without the delivery of the chattel given, it was now held that the gift by deed was good and operative until dissented from by the donee. * * * It was in the reign of the early Tudors that the action on the case on indebitatus assumpsit obtained a firm foothold in our law ; and the effect of it seems to have been to give a greatly increased importance to merely consensual contracts. It was probably a natural result of this that, in time, the question whether and when property passed by the contract came to depend, in cases in which there was a value consideration, upon the mind and consent of the parties, and that it was thus gradually established that in the case of bargain and sale of personal chattels, the property passed according to that mind and intention, and a new exception was thus made to the necessity of delivery. * * * This review of the authorities leads us to conclude that according to the old law no gift or grant of a chattel was effectual to pass it whether by parol or by deed, and whether with or without considera- tion unless accompanied by delivery: that on that law two exceptions have been grafted, one in the case of deeds, and the other in that of contracts of sale where the intention of the parties is that the property shall pass before delivery: but that as regards gifts by parol, the old law was in force when Irons v. Smallpiece, 2 B. & A. 551, was decided: that that case therefore correctly declared the existing law." (Cochrane v. Moore, 25 Q. B. Div. 57, 64-67, 70, 72.) Gift: delivery; equitable title. In Grymes v. Hone, 49 N". Y. 17, the donor, being the owner of 120 shares of bank stock, in one certificate, made an absolute assignment in writ- ing, under seal and witnessed, of twenty shares thereof to the plaintiff, his favorite granddaughter, and appointed her his attorney irrevocable to sell and transfer the same to her use. Afterwards, he handed it to his wife, saying, " I intend this for Nelly. If I die, don't give this to the executors ; it isn't for them, but for Nelly ; give it to her, herself." The donor ESSENTIALS AND DISTINCTIONS. 35 was at that time about 80 years of age, in failing health, and so continued till his death. The plaintiff then brought action against the executor to recover said twenty shares of stock, or their value. The court, at p. 22, said : " The donor, by this assignment and power, parted with all his interest in the stock assigned as between him and the donee, and the donee became the equitable owner thereof as against every person but a bona fide purchaser without notice. Delivery of the stock certificate without a transfer on the bank's books would have made no more than an equitable title as against the bank (N. Y. & N. H. R. Co. v. Schuyler, 34 K Y. 80, and cases cited), though it would give a legal title as against the assignor. (McNeil v. Tenth Nat. Bank, 46 N. Y. 325, just decided, and according to the case of Duffield v. Elwes, 1 Bligh. N. S. 497, 530, decided in the House of Lords.) The representatives of the donor were trustees for the donee by operation of law to make the gift effectual. (See also to the same effect Ex parte Pye, 18 Ves. 140 ; Kekewich v. Manning, 1 DeG., M. & G. 176 ; Richardson v. Richardson, 3 Eq. Cas. 686.) This trust, like the gift, is revocable dur- ing the donor's life, and is perfected and irrevocable by his death. " This extended the law as laid down by Lord Hardwicke, in Ward v. Turner, 2 Ves. Sr. 431, 442, upon this subject, and our courts have gone in the same direction with Duffield v. Elwes. Where notes payable to the donor's order and not indorsed, and other things of similar character, have been given mortis causa, courts compel the representatives of the donor to allow the donee to sue in their name, though the legal title has not passed. (See last case; Grover v. Grover, 24 Pick. 261; Chase v. Redding, 13 Gray, 418; Bates v. Kempton, 7 id. 382; and see also Westerlo v. DeWitt, 36 N. Y. 340; Walsh v. Sexton, 55 Barb. 251.)" As to gifts of moneys deposited in savings banks to the credit of the donor, the court, in Ridden v. Thrall, 125 N. Y. 572, 577, says: " The decisions are not entirely harmonious as to the sufficiency of the mere delivery of such deposit-books 36 SUMMAEY OF SALES. to constitute a valid gift, either inter vivos or causa mortis. But the general rule in England and in this country, and particularly in this state, is that any delivery of property which transfers to the donee either the legal or equitable title, is sufficient to effectuate a gift; and hence it has been held that the mere delivery of non-negotiable notes, bonds, mort- gages or certificates of stock is sufficient to effectuate a gift. [2 Eedfield on Wills, 312 ; Westerlo v. DeWitt, 36 N. Y. 340 ; Champney v. Blanchard, 39 id. Ill; Penfield v. Thayer, 2 E. D. Smith, 305; Walsh v. Sexton, 55 Barb. 251; Johnson v. Spies, 5 Hun, 468; Allerton v. Lang, 10 Bosw. 362; Camp's Appeal, 36 Conn. 88 ; Bates v. Kempton, 7 Gray, 382; Chase v. Redding, 13 id. 418; Pierce v. Boston Savings Bank, 129 Mass. 425 ; Tillinghast v. Wheaton, 8 K. I. 536 ; In re Mead, L. K. (15 Ch. D.) 651; Moore v. Moore, L. K. (18 Eq.)474.] " Gift: revocable and irrevocable, when. "Gifts causa mortis as well as gifts inter vivos are based upon the funda- mental right everyone has of disposing of his property as he wills. The law leaves the power of disposition complete, but to guard against fraud and imposition, regulates the methods by which it is accomplished. " To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable. But in the case of gifts causa, mortis more is needed. The gift must be made under the apprehension of death from some present disease or some other impending peril, and it becomes void by recovery from the disease or escape from the peril. It is also revocable at any time by the donor, and becomes void by the death of the donee in the lifetime of the donor." (Ridden v. Thrall, 125 N. Y. 572, 579.) PART II. THE TRANSFER OF TITLE. Introductory. In note 1 to section 258 of his work on Sales, Professor Williston says : " The word ' property ' is used [in the Uniform Sales Act] as in the English act, as meaning title as between the parties. In portions of the act which deal with the rights of third persons, . . . the word ' title ' is used as meaning ownership good against world. The word ' title ' is in most American cases used broadly to express both meanings." The words " property " and " title " will be used inter- changeably herein under the topic of " The Transfer of Title," and sub-headings A and B will respectively indicate consideration thereof as between the parties, and as to third persons. A As between the parties : Sale and contract to sell. " It is a rule asserted in many legal authorities, but which may be quite as fitly called a rule of reason and logic as of law, that in order to an exe- cuted sale, so as to transfer a title from one party to another, the thing sold must be ascertained. This is a self-evident truth, when applied to those subjects of property which are distinguishable by their physical attributes from all other things, and, therefore, are capable of exact identification. No person can be said to own a horse or a picture, unless he is able to identify the chattel or specify what horse or what picture it is that belongs to him. It is not only legally, but logically, impossible to hold property in such things, unless they are ascertained and distinguished from all other things; and this I apprehend is the foundation of the rule that, on a sale of chattels, in order to pass the title, the articles must, if not delivered, be designated, so that posses- [37] 38 SUMMARY OF SALES. sion can be taken by the purchaser without any further act on the part of the seller." (Comstock, J., in Kimberly v. Patchin, 19 N. Y. 330, 332.) " Nothing was required at common law to give validity to a sale of personal property except the mutual assent of the parties to the contract. As soon as it was shown by com- petent evidence that it was agreed by mutual assent that the one should transfer the absolute property in the thing to the other for a money price, the contract was considered as completely proven and binding on both parties. If the prop- erty by the terms of the agreement passed immediately to the buyer, the contract was deemed a bargain and sale; but if the property in the thing sold was to remain for a time in the seller, and only to pass to the buyer at a future time or on certain conditions inconsistent with its immediate trans- fer, the contract was deemed an executory agreement." (Hatch v. Oil Co., 100 U. S. 124, 130.) It will therefore be observed that " the right of property and the right of possession are distinct from each other ; the right of possession may be in one person, the right of prop- erty in another." (Bayley, J., in Tarling v. Baxter, 6 B. & C. 360.) Therefore, " a sale of a specified chattel may pass the property therein to the vendee and vest the title in him without delivery. (See Chitty on Contracts, 8th American ed., p. 332, and Terry v. Wheeler, 25 N. Y. 520.)" Groat v. Gile, 51 N. Y. 431, 437. That is, there may be a present transfer of the property in specified goods from vendor to vendee, without any transfer of the physical possession of the goods ; but, if the parties make, as they may, delivery of the physical possession of specified goods a condition precedent to the transfer of the property therein, then, of course, the property therein will not pass from vendor to vendee, until such delivery is made. But, " sales of goods not specified stand upon a different footing, the general rule being that no property in such goods passes until delivery, because until then the very goods sold are not ascertained." (Hatch v. THE TRANSFER OF TITLE. 39 Oil Co., 100 U. S. 124, 132.) That is, in the case of un- specified goods, property therein will not pass until delivery of the physical possession, or some equivalent thereof, e. g., appropriation (Mitchell v. Le Clair, 165 Mass. 308), for until then the goods are not specified. See sections 17 and 18 of the Uniform Sales Act. Intention of parties, the test. "The above, relating to the present transfer of property in specified goods, without de- livery of the physical possession, was not always the law. At first, delivery of the physical possession was a prerequisite to the transfer of title by sale. (See " Gift: delivery, history of" ante, p. 33.) This was succeeded by the payment of the price, which was treated as the equivalent of delivery of possession. (See article on Parol Contracts Prior to As- sumpsit, by Professor Ames, 8 Harvard Law Rev. 252, 258.) Later, it seems to have been the common understand- ing that the property in specified goods might pass from vendor to vendee, even without delivery of possession or payment of the price, provided credit was extended to the vendee (Noy's Maxims, c. XLII.), although it is imme- diately thereafter stated in the Maxims, seemingly in accord with a statement by Chief Justice Brian (Y. B. 18 Ed. IV. 21, 1) that, " If I sell my horse for money, I may keep him until I am paid, but I cannot have an action of debt until he be delivered, yet the property of the horse is by the bargain in the bargainee or buyer; but if he does presently tender me my money, and I do refuse it, he may take the horse or have an action of detainment. And if the horse die in my stable between the bargain and the delivery, I may have an action of debt for my money, because by the bargain the property was in the buyer." But now, " where no question arises under the statute of frauds, and the rights of creditors do not intervene, the ques- tion whether a sale is completed or only executory, must usually be determined upon the intent of the parties to be ascertained from their contract, the situation of the thing 40 SUMMARY OF SALES. sold, and the circumstances surrounding the sale. The parties may settle this by the express words of their contract, but if they fail to do so, we must determine from their acts whether the sale is complete." (Lingham v. Eggleston, 27 Mich. 324; 326.) That is, " 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 v. Oil Co., 100 IT. S. 124, 131.) See, also Logan v. Le Mesurier, 6 Moore P. C. 116; Burt v. Dutcher, 34 N". Y. 493; Cox v. Jack- son, 6 Allen, 108. The question of intention is always one of fact (Empire State Type Founding Co. v. Grant,, 114 N". Y. 40, 44), even when it is, as under certain circumstances it may be, deter- mined by the court, subject, however, to " the construction of the agreement; for the law professes to carry into effect the intention of the parties as appearing from the agree- ment, and to transfer the property when such is the intention of the agreement ; not before. In this, as in other cases, the parties are apt to express their intentions obscurely; very often because the circumstances rendering the point of im- portance are not present to their minds, so that they really had no intention to express. The consequence is, that with- out absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of con- struction which, in their nature, are more or less technical . . But as these are only rules for the construction of the agreement, they must yield to anything in the agreement which clearly shows a contrary intention." (Blackburn on Sales, 120.) Rules for ascertaining intention. Various rules have been laid down as rules of construction for ascertaining the intention of the parties, but no one set of rules has been uniformly acquiesced in both in England and in this country, or in the various jurisdictions of this country alone. Al- THE TRANSFER OF TITLE. 41 though section 18 of the English Sale of Goods Act and section 19 of the American Uniform Sales Act set forth such rules, each is not identical or in perfect accord with the other. Therefore, the so-called common-law rules will be con- sidered, and conflict thereunder noted in course of their consideration. Unless a different intention (Decker v. Furniss, 14 "N. Y. 611, 615; Sherwin v. Mudge, 127 Mass. 547, 549; Brock v. O'Donnell, 45 N. J. Law, 441, 443) appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer : Rule i. Sale of specific goods, nothing remaining to be done. Where there is an unconditional agreement for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the agreement is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. " Modern decisions of the most recent date support the proposition that a contract for the sale of specific ascertained goods vests the property immediately in the buyer, and that it gives to the seller a right to the price, unless it is shown that such was not the intention of the parties." (Hatch v. Oil Co., 100 U. S. 124, 134.) See Tarling v. Baxter, 6 B. & C. 360; Olyphant v. Baker, 5 Denio, 379, 382; Terry v. Wheeler, 25 N. Y. 520, 525 ; Van Brocklen v. Smeallie, 140 N. Y. 70, 72 ; Morse v. Sherman, 106 Mass. 430, 433 ; Folsom v. Cornell, 150 Mass. 115, 119. " Where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take the same and to pay the stipulated price, the parties, ., are thus in the same situation as they would be after a delivery of goods under a general contract, for the reason that the very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his 42 SUMMARY OF SALES. accepting possession." (Hatch v. Oil Co., 100 U. S. 124, 132.) See Dixon v. Yates, 5 Barn. & Adol. 313, 340; God- dard v. Binney, 115 Mass. 450, 455. " There can be no doubt that a man may sell any kind of articles in bulk so as to pass the title. (5 Met. 452; 5 Johns. 395; 2 Barn. & C. 540.) H<3 may pass the title to an absent or a present thing without delivery ; for, as be- tween vendor and vendee, it is specification and not delivery that is necessary to the vesting of title. (17 Ser. & R. 99; 5 Watts, 201.) This is and always has been the law, except in cases where other forms have been prescribed by statute." (Winslow, Lanier & Co. v. Leonard, 24 Pa. St. 14, 16.) "A word of warning," says Professor Williston (Sales, 264), " is necessary, however, in regard to cash sales, where the property does not pass until payment of the price unless the condition is waived." That depends, however, upon the meaning, according to intention, attaching to the expression, " cash sale." Undoubtedly, the parties may make a cash sale of specified goods, with immediate transfer of title, but subject to the seller's lien for the price, i. e., the payment of the price being a condition precedent only to the transfer of possession; or, they may make a contract to sett specified goods for cash, with future transfer of title, the seller's reten- tion of title being now his protection for the price, i. e., the payment of the price being a condition precedent to the trans- fer of title. (Empire State Type Founding Co. v. Grant, 114 N. Y. 40.) Under early law, as before noted, title could not pass without delivery, or payment, or extension of credit, but now, in the absence of other manifestation of intention, " where the goods to be transferred are clearly specified and the terms of sale, including the price, are explicitly given, the property, as between the parties, passes to the buyer even without actual payment or delivery." (Hatch v. Oil Co., 100 U. S. 124, 131.) Such is the gen- erally accepted rule, although " it is often said, indeed, that in a cash sale (and all sales in which no time is agreed upon for payment are prima facie cash sales) the property does not THE TBANSFEB OF TITLE. 43 pass until payment, and some cases appear so to hold. It is always possible for the parties to agree that the property shall not pass until payment, and in some cases a stipulation that the buyer shall pay cash or give a note or other security for the price may be interpreted as indicating such an intention, while in other cases such an intention may be indicated by other circumstances. " In many of the cases, where it is said that the property does not pass, however, the question involved was, not whether the property had passed, but whether the buyer had the right to possession." (Tiffany on Sales [2d ed.], 123, and cases cited.) " In most jurisdictions, however, a contract for the sale of specific goods for cash on delivery is treated as a bargain and sale, unless some other fact appears evincing an intention that the title as well as the possession shall not pass unless and until the price is paid. This fact may be disclosed by evi- dence of the course of dealing between the parties, or of the conduct of the parties before delivery has taken place, or of an option to the buyer to pay cash or to perform some express condition such as giving approved paper, or of a statement by the seller during the negotiations that the property shall not become the buyer's unless he pays cash. In most of the cases where cash sales have been spoken of as conditional, some such additional fact has appeared ; or the question really at issue has been, not whether title had passed, but whether the buyer was entitled to possession." (Burdick on Sales [2d ed.], 48, and cases cited.) Rules 2 and 3, following, " of which there is no trace in the Reports before the time of Lord Ellenborough, are laid down since the time of that learned judge as rules of English law, in terms nearly equivalent to those in which they are laid down as rules of civil law." (Blackburn on Contract of Sale [2ded.],l74.) Rule 2. Goods to be put into deliverable state. " Where by the agreement, the vendor is to do anything to the goods 44 SUMMARY OF SALES. for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is some- times worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicat- ing a contrary intention, be taken to be a condition precedent to th6 vesting of the property." (Blackburn on Contract of Sale [2ded.], 174.) This rule " seems to be founded in reason. In general, it is for the benefit of the vendor that the property should pass ; the risk of loss is thereby transferred to the purchaser, and as the vendor may still retain possession of the goods, so as to retain a security for payment of the price, the transference of the property is to the vendor pure gain. It is, therefore, reasonable, that where by the agreement the vendor is to do something before he can call upon the purchaser to accept the goods as corresponding to the agreement, 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. The presumption does not arise, if the things might be done after the vendor had put the goods in the state in which he had a right to call upon the purchaser to accept them, and would be unreasonable where the acts were to be done by the buyer, who would thus be rewarded for his own default." (Blackburn on Contract of Sale [2d ed.], 175.) This rule was the law in England until the adoption of the Sale of Goods Act, when there was added to the rule the provision, "and the buyer has notice thereof" (sect. 18,, rule 2), on the ground "that it was unfair that the risk should be transferred to the buyer without notice." (Chalmers, Sale of Goods Act [7th ed.], 60.) Without any such modification, however, the rule is well settled in this country, and is the same in the Uniform Sales Act. (Sect. 19, rule 2.) Thus, where trees were to be trimmed (Acra- man v. Morrice, 8 C. B. 449), cotton to be ginned and baled (Elgee Cotton Cases, 22 Wall. 180), fish to be dried (Foster v. Ropes, 111 Mass. 10), grain to be threshed (Thompson v. THE TBANSFEB OF TITLE. 45 Conover, 32 N. J. Law, 466), a cutter to be finished and delivered (Halterline v. Rice, 62 Barb. 593), hops to be baled (Keeler v. Vandervere, 5 Lansing, 313), or animals to be fattened (Restad v. Engemoen, 65 Minn. 148), the doing of the thing by the seller was presumptively a con- dition precedent to the transfer of the property or title. It likewise follows under this rule that if goods are to be delivered at a certain place, title will not pass until delivery at that place (Suit v. Woodhall, 113 Mass. 391), unless there be other expression of intention (Lynch v. O'Donnell, 127 Mass. 311), or other circumstance, such as payment of the price indicating a contrary intention. (Terry v. Wheeler, 25 N. Y. 520.) Merely because the seller is to do something to the goods after delivery, or after the right of property in the unfinished goods has been acquired by the vendee, will not defeat the transfer of title, in the absence of contrary intention. (Graves v. Hepke, 2 B. & A. 131; Mt. Hope Iron Co. v. Buffington, 103 Mass. 62; Hurd v. Cook, 75 N. Y. 454; Kitson Machine Co. v. Holden, 74 Vt 104.) Rule 3 Price to be ascertained by weighing, measuring, or testing. " Where anything remains to be done to the goods for the purpose of ascertaining the price as by weigh- ing, measuring, or testing the goods where the price is to depend on the quantity or quality of the goods ; the perform- ance of those things, also, shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted." (Blackburn on Contract of Sale [2d ed.], 174.) This rule " seems to be somewhat hastily adopted from the civil law, without adverting to the great distinction made by the civilians between a sale for a certain price in money, and an exchange for anything else. The English law makes no such distinction, but, as it seems, has adopted the rule of civil law, which seems to have no foundation except in that 46 SUMMAEY OF SALES. distinction. In general, the weighing, etc., must, from the nature of things, be intended to be done before the buyer takes possession of the goods, but that is quite a different thing from intending it to be done before the vesting of the property; and as it must in general be intended that both the parties shall concur in the act of weighing, when the price is to depend upon the weight, there seems little reason why, in cases in which the specific goods are agreed upon, it should be supposed to be the intention of the parties to render the delay of that act, in which the buyer is to concur, beneficial to him. Whilst the price remains unascertained, the sale is clearly not for a certain sum of money, and therefore does not come within the civilian's definition of a perfect sale, transferring the risk and gain of the thing sold; but the English law does not require that the consideration for a bar- gain and sale should be in moneys numbered, provided it be of value." (Blackburn on Contract of Sale [2d ed.], 175.) It may be noted that this rule is stated, as it was originally stated (Hanson v. Meyer, 6 East, 614), as an absolute rule, instead of a rule of presumption, but, in 1863, the case of Turley v. Bates, 2 H. & C. 200, intimated that the rule should be modified by confining it to acts to be done by the seller, thus classing it with Rule 2, and treating it as a rule of pre- sumption, but making it inapplicable where the thing remain- ing to be done was to be done by the buyer. The English Sale of Goods Act (sect. 18, rule 3) states the rule as above modified, but adds thereto " and the buyer has notice thereof." The American Uniform Sales Act (see sect. 19) does not adopt the rule, Professor Williston, the author of the act, accounting therefor (Sales, 266) by saying, that " the rule was originally founded on a mistake, has no principle behind it, and has already been abolished in some States in this country without the aid of legislation. The English rule, therefore, was not adopted in the American Act." " The rule of Hanson v. Meyer has," however, " been gen- erally adopted in this country, and as no especial stress had THE TRANSFER OF TITLE. 47 been laid in the early English cases, upon the fact that the weighing or measuring was to be done by the seller, it was natural that some States should have applied the rule without regard to the question whether the weighing or measuring was to be done by the buyer or the seller. In other States, how- ever, the modern English modification of the rule has been adopted and the general presumption that the property passes when all terms of the bargain are fixed is applicable although the buyer is subsequently to weigh or measure the goods in order to complete the calculation of the price. In a few States the presumption of retention of the property because weighing or measuring remains to be done seems practically done away with. Where the rule exists that the property presumably does not pass if something remains to be done to ascertain the price, the rule is everywhere merely one of presumption which will yield to evidence showing an intent to transfer the prop- erty immediately." (Williston on Sales, 269, and cases cited.) While the rule, as modified, makes weighing, measuring or testing, by the seller, for the purpose of ascertaining the price, a condition precedent to the transfer of title, some cases seem- ingly confound it with weighing, measuring or testing, for the purpose of ascertaining the goods. If goods are not speci- fied, and weighing, measuring or testing is to be done for the purpose of ascertaining or identifying the goods, title, of course, cannot naturally be presumed to pass until perform- ance of such condition, because until then the goods are not ascertained. " If the goods sold are clearly identified, then, although it may be necessary to number, weigh or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass. . . . The distinction in all these cases does not depend so much upon what is to be done, as upon the object which is to be effected by it. If that is specification, the property is not changed ; if it is merely to ascertain the total value at designated rates, the change of title is effected." (Crofoot v. Bennett, 2 N. Y. 258, 260.) See, also, Groat 48 SUMMARY OF SALES. v. Gile, 51 K Y. 431; Burrows v. Whitalcer, 71 N. Y. 291; Sanger v. Waterbury, 116 N. Y. 371. If the sale transaction relates to a specific quantity of goods in mass, such as a certain number of gallons of wine, oil, or a certain number of bushels of grain, where one unit is the equivalent of any other unit, sometimes called " fun- gible goods," the English courts hold that title cannot pass until separation from the mass takes place, because until then the goods sold are not ascertained. That is logically true, but, in this country, while some jurisdictions follow the English rule (Warten v. Strane, 82 Ala. 311 ; Morrison v. Woodley, 84 111. 192 ; Com. Nat. Bank v. Gillette, 90 Ind. 268; Jeraulds v. Brown, 64 N. H. 606), other jurisdictions hold, in accordance with the leading case of Kimberly v. Patchin, 19 !N". Y. 330, that title may pass without separa- tion, if the parties so intend. (Chapman v. Shepard, 39 Conn. 413; Carpenter v. Graham, 42 Mich. 191; MacKellar v. Pillsbury, 48 Minn. 396 ; Hurff v. Hires, 40 N. J. Law, 581.) The Uniform Sales Act ( 6 [2]) adopts the law as expressed in Kimberly v. Patchin, supra. "Articles of this nature [fungible goods] are sold, not by a description which refers to and distinguishes the particular thing, but in quan- tities, which are ascertained by weight, measure or count; the constituent parts which make up the mass being undis- tinguishable from each other by any physical difference in size, shape, texture or quality. Of this nature are wine, oil, wheat and the other cereal grains, and the flour man- ufactured from them. These can be identified only in masses or quantities, and in that mode, therefore, they are viewed in the contracts and dealings of men. In respect to such things, the rule [in order to an executed sale, the thing sold must be ascertained] . . . must be applied according to the nature of the subject. In an executed and perfect sale the things sold, it is true, must be ascertained. But as it is not possible in reason and philosophy to identify each constituent particle composing a quantity, so the law does not require such an identification. Where the quantity and THE TRANSFER OF TITLE. 49 the general mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it becomes a possible result for the title to pass, if the sale is complete in all its other circumstances. An actual delivery indeed^ cannot be made unless the whole is transferred to the posses- ' sion of the purchaser, or unless the particular quantity sold is separated from the residue. But actual delivery is not indispensable in any case in order to pass a title, if the thing to be delivered is ascertained, if the price is paid or a credit given, and if nothing further remains to be done in regard/ to it." Delivery, although not always essential to the transfer of title, is the most important fact indicative of intent to trans- fer the ownership (Burrows v. Whitaker, Yl N". Y. 291; Odell v. Railroad, 109 Mass. 50; Upson v. Holmes, 51 Conn. 500; Boswell v. Green, 25 1ST. J. Law, 390), unless a con- trary intention expressly appears (Cornell v. Clark, 104 N. Y. 451; Ballantyne v. Appleton, 82 Me. 570), and pay- ment of the price is also an important indication of intention to a present transfer of title (Terry v. Wheeler, 25 N". Y. 520), although non-payment of the price is naturally of little importance in determining a contrary intention. Rule 4. "(*) When goods are delivered to the buyer * on sale or return/ or on other terms indicating an intention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the prop- erty in the seller by returning or tendering the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time. "(2) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer "(a) When he signifies his approval or acceptance to the seller or does any. other act adopting the transaction; "(b) If he does not signify his approval or acceptance to 4 50 SUMMARY OF SALES. the seller, but retains the goods without giving notice of rejection, then if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact." (Uniform Sales Act, 19, Rule 3.) The provisions of Rule 4 have been considered under the topics " Sale or return " and " Bailment with privilege of purchase/' ante, pp. 26, 27, to which the reader is now referred. " The American decisions accord with these provisions (Rule 4 [2, b] above) in the main (Delamater v. Cliappell, 48 Md. 244 ; Columbia Rolling Co. v. Beckett Co., 55 1ST. J. L. 391; Forsaith Machine Co. v. Mengel, 99 Mich 280; Butler v. School District, 149 Pa. St. 351 ; Gibson v. Vail, 53 Vt. 476), although there is some authority for the view that the retention of the goods beyond the agreed time for their return, without notice of rejection, does not vest title in the buyer of itself; that it is evidence only of acceptance by the pur- chaser. (Hunt v. Wyman, 100 Mass. 198; Kahn v. Kla- bunde, 50 Wis. 235.) . . . The English statute, follow- ing the decisions of England and Scotland, makes no dis- tinction between a ' sale or return/ and a sale on approval. (Sale of Goods Act, 18, Rule 4.)" (Burdick on Sales [2d. ed.], 57.) Judge Chalmers, however, seems to recognize the possibility of the distinction, for he says : " When goods are sent on trial, or on approval, or on sale or return, the clear general rule is that the property remains in the seller till the buyer adopts the transaction, but it is quite competent for the parties to agree that the property shall pass to the buyer on delivery, but that, if he does not approve the goods, the property shall then revest in the seller. To use the lan- guage of continental lawyers, the condition on which the goods are delivered may be either suspensive or resolutive." (Chalmers, Sale of Goods [7th ed.], 62.) In this country the distinction is quite generally recognized, is certainly con- venient, and whether title in either transaction passed, is to. THE TRANSFEB OF TITLE. 51 be determined according to the intention of the parties from all the circumstances of the particular case. Rule 5. "( r ) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are uncondi- tionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either before or after the appropriation is made. "(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have uncon- ditionally appropriated the goods to the contract." (Sale of Goods Act, 18, Eule 5.) " The word appropriation may be understood in different senses. It may mean a selection on the part of the vendor, where he has the right to choose the article which he has to supply in performance of his contract; and the contract will show when the word is used in that sense. Or the word may mean, that both parties have agreed that a certain article shall be delivered in pursuance of the contract, and yet the property may not pass in either case. For the purpose of illustrating this position, suppose a carriage is ordered to be built at a coachmaker's, he may make any one he pleases, and, if it agree with the order, the party is bound to accept it. Now suppose that, at some period subsequent to the order, a further bargain is entered into between this party and the coachbuilder, by which it is agreed that a particular carriage shall be delivered. It would depend upon circum- stances whether the property passes, or whether merely the original contract is altered from one which would have been satisfied by the delivery of any carriage answering the terms 52 SUMMAKY OF SALES. of the contract, into another contract to supply the particular carriage, which, in the Roman law, was called obligatio certi corporis, where a person is bound to deliver a particular chattel, but where the property does not pass, as it never did by the Roman law, until actual delivery; although the prop- erty, after the contract, remained at the risk of the vendee, and if lost without any fault in the vendor, the vendee, and not the vendor, was the sufferer. The law of England is different: here, property does not pass until there is a bar- gain with respect to a specific article, and everything is done which, according to the intention of the parties to the bar- gain, was necessary to transfer the property in it. 'Appro- priation' may also be used in another sense, . . ., viz., where both parties agree upon the specific article in which the property is to pass, and nothing remains to be done in order to pass it." (Parke, B., in Wait v. Baker, 2 Exch. Rep. 1.) " In all completed contracts of sale, property in the goods sold passes to the buyer, although they may not have come to his actual possession. An unconditional sale of specific chattels passes the title at once, and the buyer takes the risk of loss, and has the right to immediate possession. When anything remains to be done, in the way of specifically appro- priating the goods sold to the contract, the agreement is executory and the property does not pass. When, from the nature of the agreement, the vendor is to make the appro- priation, then, as soon as any act is done by him, identifying the property, and it is set apart with the intention uncon- ditionally to apply it in fulfilment of the contract, the title vests, and the sale is complete. Thus the delivery to the buyer 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 sufficient. If the bill of lading, or other written evi- dence 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 53 absolute title to the vendee. 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 des- tination, by delivery to a carrier. The appropriation which he then makes is said to be provisional or conditional. 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 retain this jus disponendi, the property will not pass to the vendee. Practically the difficulty is to ascertain, when the evidence is meagre or equivocal, what the real intention of the parties was at the time. It is properly a question of fact for the jury, under proper instructions, and must be submitted to them, unless it is plain as matter of law that the evidence will justify a finding but one way." (Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295.) See, also, Aldridge v. John- son, 7 El. & Bl. 885 ; Langton v. Higgins, 4 H. & N. 402. In Andrews v. Cheney, 62 N. H. 404, the plaintiff bought goods of the defendant, and paid for them. The defendant did not have in stock the goods wanted, so the plaintiff selected the kind and quality desired from samples. The defendant agreed to have the goods at his store within two weeks, at which time the plaintiff was to call for them; if they were ready before that time, the defendant agreed to notify him. Within the stipulated time, the defendant got the goods into his store, set them apart by themselves, and marked them with the plaintiff's name. Afterwards, the goods, together with the store, were destroyed by fire, the plaintiff not having called for them. The court, at p. 404, said : " The agreement on the part of the defendant was executory. He agreed to furnish goods corresponding to the samples selected by the plaintiff. If the goods, subsequently procured and set apart by the defendant, did not conform to the samples, the plaintiff had a right to reject them. It does not appear that he waived that right. The defendant was not concluded by his selection; he might have sold or other- 54 SUMMAKY OF SALES. wise disposed of the particular articles set apart by him, and substituted others in their place. A contract of sale is not complete until the specific goods upon which it is to operate are agreed upon. ... If , as in the case of a sale by sample, the specific goods are not ascertained by the agreement, the property does not pass until an appropriation of specific goods to the contract is made with the assent of both parties. (Bog Lead Mining Co. v. Montague, 10 C. B. [N. S.] 489; Jenner v. Smith, L. R. 4 C. P. 270; Hielbutt'v. Hickson, L. K. 7 C. P. 438 ; Merchants N. Bank v. Bangs, 102 Mass. 291; Black. Sales, 122, 127; Benj. Sales, 358.) If the plaintiff authorized the defendant to make the selection, the property immediately on the selection vested in the plain- tiff. (Aldridge v. Johnson, 7 E. & B. 885.) It not appear- ing that the plaintiff gave such authority, the goods at the time of the fire were the property of the defendant, and their destruction was his loss." " It has been already said that the specific goods must be agreed upon ; that is, both parties must be pledged, the one to give and the other to accept those specific goods. This is obviously just, for until both parties are so agreed, the appro- priation cannot be binding upon either; not upon the one, because he has not consented, nor upon the other, because the first is free. But the application of this principle leads to nice and subtle distinctions, which perhaps cannot be helped, but are not the less to be lamented. When the goods are selected from the first in the original agreement there is of course no difficulty on the point, both parties are then bound to apply the contract to those specific goods. Neither is there any difficulty where both parties have subse- quently assented to the appropriation of some specific goods to fulfill an agreement that in itself does not ascertain which the goods are to be. The effect is then the same as if the parties had from the first agreed upon a sale of those specific goods. In the accurate language of Holroyd, J. (Rhode v. Thwaites, 6 B. & C. 388), ' the selection of the goods by the one party and the adoption of that act by the other, converts THE TKANSFEK OF TITLE. 55 that which before was a mere agreement to sell into an actual sale, and the property thereby passes.' " But the difficulty arises when the original agreement does not ascertain the specific goods, and one party has appro- priated some particular goods to the agreement, but the other party has not subsequently assented to such an appropriation. Such an appropriation is revocable by the party who made it and not binding on the other party, unless it was made in pursuance of an authority to make the election conferred by agreement; or unless the act is subsequently and before its revocation adopted by the other party. In either case it becomes final and irrevocably binding on both parties. " The question of whether there has been a subsequent assent or not, is one of fact ; the other question of whether the selection by one party merely showed an intention in that party to appropriate those goods to the contract, or showed a determination of a right of election, is one of law, and some- times of some nicety." (Blackburn on Contract of Sale [2d. ed.], 128.) " The question as to what acts are necessary to be per- formed by a vendor under an executory agreement for the sale of unspecified goods in order to transfer the title to the vendee and subject him to the risk of the carriage, depends entirely upon the agreement, either express or implied, be- tween the parties. If the vendor undertakes to make the delivery himself at a distant place, thus assuming the risk in the carriage, the carrier becomes the agent of the vendor, and the property will not pass until the delivery is actually made. On the other hand, if the goods are delivered to a carrier specially designated by the purchaser, he becomes the agent of the latter, and the title to the property, as a general rule, will pass the moment the goods are dispatched. Should the contract of purchase be silent as to the person or mode by which the goods are to be sent, a delivery by the vendor to a common carrier in the usual and ordinary course of busi- ness transfers the property to the vendee." (Magruder v. Gage, 33 Md. 344, 348.) 56 SUMMAKY OF SALES. " When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser, or, when no agreement is made or direction given, to be transported in the usual mode; or when the purchaser, being informed of the mode of transportation, assents to it ; or when there have been previous sales of other goods, to the transportation o which in a similar manner the purchaser has not objected, the goods, when delivered to the carrier, are at the risk of the purchaser, and the prop- erty is deemed to be vested in him, subject to the vendor's right of stoppage in transitu." (Wheelhouse v. Parr, 141 Mass. 593, 595. "A delivery to a carrier, pursuant to the direction of the purchaser, is a good delivery to him. Though not sufficient to constitute an acceptance under the statute of frauds (61 N. Y. 1), it is sufficient to constitute a delivery." (Wilcox Silver Plate Co. v. Green, 72 N". Y. 17, 20.) C. O. D. shipment. The authorities are in conflict as to the passing of title, when goods are shipped C. O. D. While the case of Higgins v. Murray, 73 N. Y. 352, is some- times referred to in support of the rule that title passes on delivery of a C. O. D. package to a carrier, that case did not depend on where the title was, as in the case of a sale of goods, and did not so decide. The following jurisdictions hold that in such case title passes: State v. Intoxicating Liquors, 73 Me. 278; State v. Peters, 91 Me. 31; Com. v. Fleming, 130 Pa. St. 138 ; Norfolk R. Co. v. Barnes, 104 N". C. 25; Pilgreen v. State, 71 Ala. 368; Breechwald v. People, 21 111. App. 213; State v Carl, 43 Ark. 353. The following hold that title does not pass: State v. O'Neil, 58 Vt. 140 ; U. S. v. Shriver, 23 Fed. Kep. 134 ; State v. Wing- field, 115 Mo. 428; Lane v. Chadwick, 146 Mass. 68; Baker v. Bourcicault, 1 Daly. 23. Professor Williston (Sales, 279) prefers the former "on principle as well as because of the weight of authority,'' but the reasons advanced there- THE TRANSFER OF TITLE. 57 for are not very convincing. However, the view that title passes is adopted by the Uniform Sales Act (section 19, rule 4 [2]). Quantity shipped must conform to order. Where goods are ordered to be shipped by a carrier, the quantity delivered by the seller to the carrier must conform to the request in order to pass title to the buyer. In Barton v. Kane, 17 Wis. 37, 43, " the cigars forwarded exceeded the quantity ordered. The order was for 5,000, but the plaintiff sent 5,625. This was no compliance with the order, and imposed no obligation on the defendant, without showing an acceptance in fact by him after the cigars were received, the burden of which was upon the plaintiff. To constitute a delivery to the carrier a delivery to the consignee, so as to pass the title and make the consignee liable for goods sold and delivered, the goods must correspond, in quantity as well as quality, with those named in the order. Bruce v. Pearson, 3 Johns. 534, and Downer v. Thompson, 2 Hill, 137, are clear upon this question; and though the latter was reversed in the court of errors (6 Hill, 208), the main point of reversal cannot arise here. There can be no pretense that the 625 extra cigars were sent out of an abundance of caution, and to insure a scriptural com- pliance with the order. They were sent to fill up the case, and the defendant was charged with their price. To entitle him to recover under the circumstances, the plaintiff should have shown that the defendant actually received and accepted the cigars sent, upon the terms indicated in the plaintiff's letter notifying him of the consignment." See, also, Dixon v. Fletcher, 3 M. & W. 145 ; Hart v. Mills, 15 M. & W. 85 ; Norrington v. Wright, 115 TJ. S. 188; Croninger v. Crocker, 62 K Y. 151; Rommel v. Wingate, 103 Mass. 327; Downes v. Marsh, 29 Conn. 409 ; Ellis v. Roche, 73 111. 280 ; Willis- ton on Sales, 459-461 ; Benjamin on Sales (5th Eng. ed.), 695; Burdick on Sales (2d ed.), 114; Uniform Sales Act, 44. 58 StJMMABY OF SALES. Order calling for "more or less." Sometimes the con- tract states the quantity with qualifying words, such as " about" " more or less" or words of like import. In such case the Supreme Court of the United States has formulated the following as the result of an examination of the author- ities : " Where a contract is made to sell or furnish certain goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may be manufactured by the vendor in a certain estab- lishment, or that may be shipped by his agent or correspond- ent in certain vessels, and the quantity is named with the qualification of ' about,' or ' more or less/ or words of like import, the contract applies to the specific lot; and the nam- ing of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it. In such cases, the governing rule is some- what analogous to that which is applied in the description of lands, where natural boundaries and monuments control courses and distances and estimates of quantity. " But when no such independent circumstances are re- ferred to, and the engagement is to furnish goods of a cer- tain quality or character to a certain amount, the quantity specified is material, and governs the contract. The addition of the qualifying words, ' about/ ' more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight. " If, however, the qualifying words are supplemented by other stipulations or conditions which give them a broader scope or a more extensive significancy, then the contract is to be governed by such added stipulations or conditions. As, if it be agreed to furnish so many bushels of wheat, more or less, according to what the party receiving it shall require for the use of his mill, then the contract is not governed by the quantity named, nor by that quantity with slight and unimportant variations, but by what the receiving party shall THE TRANSFEB OF TITLE. 59 require for the use of his mill; and the variation from the quantity named will depend upon his discretion and require- ments, so long as he acts in good faith." (Brawley v. U. S. f 96 U. S. 168, 171.) Reservation of right of disposal. In case of an agree- ment to sell specific goods, the seller may, notwithstanding delivery of the goods, retain title therein until performance of some annexed condition, such as payment of the price, and such reservation of title is effective between the parties, and, in the absence of statute, even as to third persons. " It has long been the settled rule of law in this commonwealth, that a sale and delivery of goods, on condition that the property is not to vest until the purchase-money is paid or secured, does not pass the title to the vendee, and that the vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods, both against the vendee, and against his cred- itors, claiming to hold them under attachments." (Coggill v. Hartford & N. H. R. E. Co., 3 Gray, 545, 546.) See, also, Smith v. Lynes, 5 N. Y. 41 ; Cole v. Mann, 62 N. Y. 1; Harkness v. Russell, 118 U. S. 663. Such a transaction is, properly speaking, a contract to sell upon condition, and not a conditional sale as it is customarily, but improperly, designated. (See "Absolute and conditional sales," ante, p. 4, and "Lease," ante, p. 28.) The rights of third persons thereunder will be considered later under " bona fide pur- chasers from conditional vendee." Reservation of title by bill of lading. A common way of reserving title is by means of a bill of lading. " We have uniformly held," says the New York Court of Appeals, " that the bill of lading is the evidence^pf title, and^s_jufficient_to vest the ownership and absolute control in him to whose order it Js drawn " (Moors v. Kidder, 106 N. Y. 32, 41), ancTthisaccords with the law as expressed in Evans v. Mar- lett, 1 Ld. Raym. 271. " If the bill of lading shows that the consignment was made for the benefit of the consignor or his 60 SUMMARY OF SALES. order, it is very strong proof of his intention to reserve the jus disponendi. And on the other hand, if the bill of lading shows that the shipment is made for the benefit of the con- signee, it is almost decisive of the consignor's intention to part with the ownership of the property." (Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360, 365.) Or, as stated in Wigton v. Bowley, 130 Mass. 252, 254, " If the bill of lading or written evidence of the delivery to a carrier be taken in the name of the consignee, or be transferred to him by in- dorsement, the strongest proof is afforded of the intention to transfer the property to the vendee. (Merchants' Na- tional Bank v. Bangs, 102 Mass. 291.) If the vendor intends to retain the right to dispose of the goods while they are in course of transportation, he must manifest that in- tention at the time of their delivery to the carrier. It is not the secret purpose, but the intention as disclosed by the vendor's acts and declarations at the time, which governs." " It will be observed," says Professor Williston (Sales, 282), "that this use of bills of lading as a controlling indication of the ownership of the goods seriously qualifies the principles already laid down in regard to appropriation of goods by the seller when he delivers them to a carrier." " Where goods are shipped, and ~by the bill of lading the goods are deliverable to the order of the seller or his agent f the seller is prima facie deemed to reserve the right of dis- posal" (Sale of Goods Act, 19 [2].) See, also, Mirabita v. Bank, 3 Ex. D. 164, 172 ; Dows v. Nat. Bank, 91 U. S. 618, 631; Farmers' Bank v. Logan, 74 N. Y. 568, 578; Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. " This inference of intention may be rebutted by other evidence. Accordingly, if the seller indorses such a bill of lading and sends it to the purchaser ; or if he takes the bill of lading in this form for some collateral purpose, such as pro- tecting himself in case the purchaser does not accept the goods; or if the original contract shows that the vendor is not to retain the right of disposal; or if the invoice con- tradicts the bill of lading, as by declaring that the vendor THE TEANSFEK OF TITLE. 61 shipped the goods by the order and for account and risk of the purchaser, title may pass to the purchaser notwith- standing the form of the bill of lading. The controlling element, in all cases of the^ind now under Consideration, isTthe jntention of the consignor as shown by his acts_at_ the time of shipping the* goods. When such acts are equivocal the consignor's intention is a question of fact for the jury." (Burdick on Sales [2d ed.], 66, and cases cited.) " Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him/' (Sale of Goods Act, 19 [3].) See, also, Mirabita v. Bank, 3 Ex. D. 164, 173; Farmers' Bank v. Logan, 74 !NT. Y. 568, 578 ; Alderman v. Railroad, 115 Mass. 233 ; Jones v. Brewer, 79 Ala. 545 ; Freeman v. Kraemer, 63 Minn. 242 ; McArthur Co. v. Bank, 122 Mich. 223. " But," said Cotton, L. J., in Mirabita v. Bank, supra, " if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor authority for holding that in such a case the goods shipped for the purpose of completing the contract do not, on payment or tender by the purchaser of the contract price, vest in him. When this occurs there is a performance of the condition subject to which the appropriation was made, and everything which, according to the intention of the parties, is necessary to transfer the property is done; and in my opinion, under such circumstances, the property does, on payment or tender of the price, pass to the purchaser." " Most frequently, when the seller wishes to secure the price, he draws on the buyer for the amount and obtains a discount of the bill of exchange from a banker, to whom he delivers it with the indorsed bill of lading attached. Under these circumstances the banker acquires a special property in the goods to secure his advances, and the property does 62 SUMMARY OF SALES. not pass to the buyer until acceptance or payment of the bill or tender of the price. The same rule is applied when the seller takes a bill of lading making the goods deliverable to the buyer and thus deals with it to secure the price. Under these circumstances the banker acquires a special property in the goods to secure his advances." (Tiffany on Sales [2d ed.], 171, and cases cited.) The reader is also referred to section 20 of the Uniform Sales Act. B. As to third persons. " Nemo dat quod non habet." In order to be able to pass title to goods, the seller must be owner, or he must have authority from the owner or be authorized by law to pass title, or the owner must by conduct be precluded from deny- ing the authority, because no one can give what he has not. " The universal and fundamental principle of our law of personal property, is, that no man can be divested of his property without his own consent; and, consequently, that even the honest purchaser under a defective title cannot hold against the true proprietor. That ' no one can transfer to another a better title than he has himself,' is a maxim, says Chancellor Kent, l alike of the common and the civil law, and a sale, ex m termini, imports nothing more than that the feona fide purchaser succeeds to the rights of the vendor." (Saltus v. Everett, 20 Wend. 267, 275.) See, also, the Uniform Sales Act, 23 (1). Exceptions : Sales in markets overt. An exception to the above rule in English law was that of sales in market overt. " It is known to the professional members of the court, that in the market towns of England there are periodical fairs, where property is bought and sold, called market days; and that by the custom of the city of London, every day except Sunday, is a market day, and every tradesman's shop is a market overt for those things in which he usually deals at THE TRANSFER OF TITLE. 63 that place; and that by the common law, a sale in a mar- ket overt actually changes the title to the property in favor of a bond fide purchaser thereof, even though it has been stolen from the rightful owner. (5 Coke's R. 83, a.) The only remedy of the owner of stolen property to recover it again, under such circumstances, at the common law, was to pursue his appeal against the felon to conviction, and then he was entitled to restitution of his goods, although they had been sold in a market overt. (Coke's 2d Inst. 714.) So, also, if goods were stolen, and the thief abandoned or waived them in his flight, they were forfeited to the crown, or the lord of the manor, unless the owner proceeded upon his appeal to attaint the thief. (Foxley's Case, 5 Coke, 109, a.) But as this proceeding to convict the felon by a private suit was very inconvenient and expensive to the owner of stolen property, the statute 21 Hen. VIII., ch. 11, was enacted, by which the stolen goods were directed to be restored to the owner upon his procuring a conviction of the thief, upon an indictment in the ordinary way, without the necessity of an appeal. (Staunf. P. C. ed., of 1853, p. 167.) Under this statute, it is the settled law in England, that upon the conviction of the offender, the owner is en- titled to be restored to his property, notwithstanding it may have been sold to a bona fide purchaser in a market overt. (Burgess v. Koney, Trem. P. C. 315; Coke's 2d Inst. 714; J. Kelyng's R. 48.)" Hoffman v. Carow, 22 Wend. 285, 290. As to the source of this exception in the English law, reference may be had to Peer v. Humphrey, 2 Ad. & El. 495; Crane v. London Dock Co., 3 B. & S. 313; Bryant v. Whitcher, 52 N. H. 158. For the present law of England thereon, see Sale of Goods Act, 22, 24. The custom of sales in market overt has never been rec- ognized in this country. (Wheelwright v. Depeyster, 1 Johns. 471; Dame v. Baldwin, 8 Mass. 518; Ventress v. Smith, 10 Pet. 161; 2 Kent's Com. 324.) 64 SUMMAEY OF SALES. Negotiable paper. The transfer of title to negotiable paper is often stated to be also an exception to the general law that a man cannot be divested of his property without his consent. " The first and most remarkable class of these exceptions relates to money, cash, bank bills, checks, and notes payable to the bearer or transferable by delivery, and in short, whatever comes under the general notion of cur- rency. It was decided by Lord Chief Justice Holt, at an early period of our commercial law, that money and bills payable to bearer, though stolen, could not be recovered after they had passed into currency ; and this ' by reason of the course of trade which creates a property in the holder.' ' They pass by delivery only, and are considered as cash, and the possession always carries with it the property/ (1 Salk. 126.)" (Saltus v. Everett, 20 Wend. 267, 277.) The transfer of title to negotiable paper, however, stands upon a different footing from the transfer of title to goods. "An examination of the cases will show that this part of the law of negotiable paper rests on grounds quite peculiar to itself, for the following reasons: 1. The protection of the bona fide holder of paper, transferable by delivery, ex- tends even to cases where the paper has been lost or stolen. But it has been often decided that loss by accident, theft, or robbery, does not divest the title of the owner of goods, nor give a title in them to a fair after purchaser. 2. The rule is put by all the authorities on the express and separate ground of the necessity of sustaining the credit and circu- lation of the currency. Thus Lord Chief Justice Hard- wicke : ' No dispute ought to be made with the holder of a cash note, who came fairly by it, for the sake of currency, to which discrediting such notes would be a great disturb- ance.' See, too, the reasoning of Lord Mansfield, in all cases on this head decided before him. Thus, says he, in the case of a stolen note, Peacock v. Rhodes, 1 Doug. 636, 'An assignee must take the thing assigned, subject to all the equity to which the original party was subject. If this THE TRANSFER OF TITLE. 65 rule was applied to bills, it would stop their currency.' Similar reasons are assigned for the same decision by American judges. 3. The analogy between notes and mov- ables or goods, is expressly denied in the leading cases on this head. Thus, in reply to an argument founded on that similarity, Lord Mansfield answers (1 Burr. 457): ' The whole fallacy of the argument rests upon comparing bank notes to what they do not resemble, and what they ought not to be compared to, viz., goods, or securities, or docu- ments for debts. Now, they are not goods, nor securities, nor similar to them ; they are treated as cash to all purposes/ etc." (Saltus v. Everett, 20 Wend. 267, 278.) Transfer of title by consent of owner. "After a careful examination of all the English cases and those of this state, that have been cited or referred to, I come to this general conclusion, that the title of property in things movable can pass from the owner only by his own consent and voluntary act, or by operation of law; but that the honest purchaser who buys for a valuable consideration, in the course of trade, without notice of any adverse claim, will be protected in his title against the original owner in those cases, and in those only, where such owner has by his own direct voluntary act conferred upon the person from whom the bona fide vendee derives title, the apparent right of property as owner, or of disposal as an agent. I find two distinct classes under this head, and no more." (Saltus v. Everett, 20 Wend. 267, 279.) Bona fide purchasers from fraudulent vendee. (1) " The first is, when the owner with the intention of sale, has in any way parted with the actual property of his goods, with his own consent, though under such circumstances of fraud or error, as would make that consent revocable, rescind the sale, and authorize the recovery of the goods as against such vendee. But if the property passes into the hands of honest purchasers, the first owner must bear the loss." (Saltiis v. Everett, 20 Wend. 267, 279.) 5 66 SUMMARY OF SALES. In the earlier cases, notwithstanding the apparent inten- tion of the defrauded vendor to transfer the title to the fraudulent vendee, it seems to have been held that title- did not pass. {Read v. Hutchinson, 3 Camp. 352; Noble v. Adams, 7 Taunt. 59; Bristol v. Wilsmore, 1 B. & C. 514; Ferguson v. Carrington, 9 B. & C. 59 ; Durell v. Haley, 1 Paige, 492; Cary v. Rotating, 1 Hill, 311; Hotchkin v. Third Nat. Bank, 127 N. Y. 329.) In 1866, however, it was finally settled that title does pass, the court saying, in Pease v. Gloahec, L. R. 1 P. C. 219, that " When a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepre- sentation in order to effect the contract or obtain the pos- session, the property vests in the vendee until the vendor has done some act to disaffirm the transaction; and the legal consequence is, that if before the disaffirmance the fraudu- lent vendee has transferred either the whole or a partial in- terest in the chattel to an innocent transferee, the title of such transferee is good against the vendor." And in American Sugar Refining Co. v. Fancher, 145 N. Y. 552, 560, it is said that " it is the law of this state, as in Eng- land, that title passes on such a sale to the fraudulent vendee." (2) " The other class of cases in which the owner loses the right of following and reclaiming his property is, where he has, by his own voluntary act or consent, given to an- other such evidence of the right of selling his goods as, according to the custom of trade, or the common understand- ing of the world, usually accompanies the authority of dis- posal; or, to use the language of Lord Ellenborough, when the owner, ' has given the external indicia of the right of disposing of his property/ Here it is well settled that, how- ever the possessor of such external indicia may abuse the confidence of his principal, a sale to a fair purchaser divests the first title, and the authority to sell so conferred, whether real or apparent, is good against him who gave it. THE TRANSFER OF TITLE. 67 " Thus the consignee, in a bill of lading, is furnished by his consignor with such evidence of right of disposal, according to the custom and law of trade, so that the bona fide holder of the bill indorsed by the consignee is entitled to all the rights of property of the consignor in those goods, if bought fairly in the course of business, although the actual consignee, under whose indorsement he holds, has no right to the goods as against the former owner. If such goods were not paid for, they might be stopped in transitu by the owner, unless his consignee has already assigned his bill of lading; but that assignment divests the owner of his right of stoppage against such assignee." (Saltus v. Everett, 20 Wend. 267, 280.) See, also, 27-40 of the Uniform Sales Act for provisions relating to negotiable documents of title. Possession intrusted to one whose common business it is to sell. "Again," says Senator Verplanck, in Saltus v. Everett, 20 Wend. 267, 281, " the owner may lose the right of recovering his goods against purchasers, by exhibiting to the world, a third person as having power to sell and dis- pose of them ; and this, not only by giving a direct authority to him, but by conferring an implied authority. Such an authority may be implied by the assent to and ratification of prior similar dealings, so as to hold such person out to those with whom he is in the habit of trading, as authorized to buy or sell. It may be inferred from the nature of the business of the agent, with fit accompanying circumstances." In the leading case of Pickering v. Busk, 15 East, 38, Lord Ellenborough said : " If the principal send his commodity to a place, where it is the ordinary business of the person to whom it is confided to sell, it must be intended that the commodity was sent thither for the purpose of sale. If the owner of a horse send it to a repository of sale, can it be implied that he sent it thither for any other purpose than that of sale? Or if one send goods to an auction-room, can it be supposed that he sent them thither merely for safe 68 SUMMAEY OF SALES. custody? Where the commodity is sent in such a way and to such a place as to exhibit an apparent purpose of sale, the principal will be bound, and the purchaser safe." This is straining the law of intent to the breaking point. Un- doubtedly, intrusting one, whose common business it is to sell, with the possession of goods, may be some evidence of authority to sell, but alone and of itself is obviously insuf- ficient, unless there be also some " fit accompanying cir- cumstances," although it may open the door to the commis- sion of fraud. In Biggs v. Evans, I Q. B. (1894) 88, Wills, J., says : " In one sense every person who intrusts an article to any person who deals in second-hand articles of that description enables him, if so disposed, to commit a fraud by selling it as his own. A man who lends a book to a second-hand bookseller puts it into his power, in the same sense, to sell it as his own. A man who intrusts goods for safe custody to_ji wharfingefTwho also deals^ in hi^T