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THE LAW OF SALES 
 
 OF 
 
 PEESONAL PROPERTY. 
 
 FRANCIS M. BURDICK, 
 
 DWIGHT PKOFESSOK OF LAW IN COLUMBIA nNIVEKSITT 
 SCHOOL OF LAW. 
 
 BOSTON: 
 LITTLE, BROWN, AND COMPANY. 
 
 1897. 
 

 Cnpyririld, 1897, 
 By Fkaxcis M. Bukdick. 
 
 John Wilson ahd Son, Cambridge, U.S.A. 
 
PREFACE. 
 
 This book is intended especially for law students ; 
 and its characteristic features have been determined 
 largely by the writer's experience in the lecture-room. 
 As a rule, questions are discussed with a fulness pro- 
 portioned to the trouble which they have given to the 
 student, or to his aptness to misapprehend the prin- 
 ciples which they involve. On the other hand, a few 
 topics which are found in most treatises on sales 
 have been omitted, upon the assumption that the 
 student has already mastered them. A discussion 
 of such subjects as consideration, mutual assent, the 
 capacity of parties, illegality and fraud, belongs to 
 the study of pure contracts and of torts, and its 
 repetition ought to be unnecessary during the inves- 
 tigation of a branch of applied contracts. 
 
 The provisions of the Statute of Frauds, bearing 
 upon the sale of goods, have been treated in connec- 
 tion with the common-law topics to which respec- 
 tively they relate. It is believed that this method 
 has resulted in an economy of space in the book, 
 and will conduce to a like economy of time and per- 
 plexity on the part of the student. 
 
vi PREFACE. 
 
 In the Appendix will be found the present British 
 Factors Act, following the statutory provisions of 
 France and Germany towards which British legis- 
 lation has been tending. The American statutes 
 which are reprinted, when considered in connection 
 with the sketch of their history and of their strict 
 construction by the courts, undisturbed by the legis- 
 lature as that construction has remained, show that 
 the mercantile community has not been as sensitive 
 in this country as in Great Britain, to the pinch of 
 the common-law rules on this subject. 
 
 A volume of cases, selected and arranged to ac- 
 company this book, is nearly ready for the press. 
 
 CoLCMEiA Uniteesitt Sohool of Law, 
 June, 1897. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 THE NATUKB AND FORMALITIES OF THE CONTRACT. 
 
 PAGE 
 
 1. Sale and Contract to Sell 1 
 
 1. Executed and Executory Contracts ... 2 
 
 2. Their Respective Characteristics 2 
 
 2. The Property in Chattels may pass without 
 
 A Contract 3 
 
 1. Title relates back to Time of Conversion . . 4 
 (a) Reasons assigned for Doctrine of Rela- 
 tion 4 
 
 3. The Subject-matter of a Sale 5 
 
 1. In England 5 
 
 (a) Is Money a Proper Subject of Sale . . 5 
 
 (6) Are Choses in Action Goods .... 6 
 
 2. In Scotland 6 
 
 3. In the United States 7 
 
 (o) Effect of Legislation ." 7 
 
 (J) Different Judicial Views 7 
 
 4. Existing and Future Goods 8 
 
 1. At Law 8 
 
 (a) Potential Existence 8 
 
 (J) Chattel Mortgages on After Acquired 
 
 Goods 9 
 
 2. In Equity 10 
 
 3. Sale of a Chance 10 
 
 4. Goods which have perished 11 
 
Vm CONTENTS. 
 
 PAGE 
 
 § 5. Contract for Sale, or for Labor and Mate- 
 rials . . . ... . . 11 
 
 1. Present Sale Test 12 
 
 2. Consideration Test . 12 
 
 3. Test of DeliverabiUty 12 
 
 4. The Special Order Test . . ... 13 
 
 5. Upon whose Materials is the Labor expended . 13 
 
 6. Essential Ingredient Test . . .... 13 
 
 7. Present Test in England 14 
 
 8. Diversity of View in the United States . . 15 
 
 (a) The Consideration Test .... 15 
 
 (b) The Test of Deliverability . . 15 
 The Beliverability Test in New York . . 15 
 
 (c) Special Order Test 16 
 
 (rf) Upon wliose Materials is Labor Ex- 
 pended 16 
 
 («) The Essential Ingredient Test ... 17 
 (/) Doctrine of Lee v. Griffin in the United 
 
 States 18 
 
 9. Ultimate Object of Contract must be the Trans- 
 
 fer of Title to Goods 19 
 
 § 6. Goods or an Interest in Land . . . . 20 
 
 1. Minerals 20 
 
 2. Ice . 21 
 
 3. Soil Products 21 
 
 (a) Annual Crops 22 
 
 (J) Natural Soil Products 23 
 
 4. Fixtures .... 24 
 
 (a) Trade Fixtures in the United States . 25 
 
 5. Contract for Sale of Land and Goods ... 26 
 § 7. The Property .26 
 
 1. A Sale differs from a Mortgage 27 
 
 2. A Sale differs from a Pledge 27 
 
 3. A Sale differs from a Lien 27 
 
 4. Application of Foregoing Rules .... 28 
 § 8. The Price 29 
 
 1. Sale or Barter 29 
 
 2. If Price is not stipulated 30 
 
 3. Reasonable Price 31 
 
CONTENTS. IX 
 
 § 9. Price and Part Payment under the Statute 
 
 OF Frauds 32 
 
 1. Several Articles bought at one Interview . . 32 
 
 2. Uncertainty of Aggregate Sum 83 
 
 3. Earnest and Part Payment 33 
 
 § 10. The Form of the Contract 35 
 
 1. Nature of the Memorandum 35 
 
 (a) Memorandum not a Written Contract . 35 
 (i) Terms of an Accurate Memorandum not 
 
 to be modified by Oral Evidence . . 36 
 
 2. Physical Requisites of the Memorandum . . 36 
 
 3. Contents of the Memorandum 37 
 
 (a) Statement of Price 38 
 
 4. Intent with which made 38 
 
 5. The Signature 39 
 
 6. Signature by Agent 39 
 
 7. Brokers' Notes 40 
 
 (a) Broker's Entry is Generally a Memo- 
 randum only 40 
 
 (i) Where the Notes differ 41 
 
 8. When made 42 
 
 CHAPTER II. 
 
 bakgain and sale. 
 
 § 1. Its Nature 43 
 
 § 2. The Goods must be Specific 43 
 
 1. Contract for Sale of Part of Mass .... 44 
 
 2. Title not lost by remingling an Appropriated 
 
 Part with the Mass 45 
 
 3. English Rule modified by Usage of Warehouse- 
 
 men 45 
 
 4. Title by Estoppel 46 
 
 § 3. Contract to sell may become a Bargain and 
 
 Sale 46 
 
 § 4. The Contract must be Unconditional ... 47 
 1. Presumption that Contract for Specific Goods 
 
 is one of Bargain and Sale 47 
 
X CONTENTS. 
 
 PAGE 
 
 2. Is a Sale for Cash Conditional 48 
 
 3. Cash Sale is not Conditional in Most Jurisdic- 
 
 tions 49 
 
 4. Payment or Security may be a Condition of 
 
 Title's Passing 49 
 
 5. Sale upon Condition Subsequent 50 
 
 CHAPTER III. 
 
 contract to sell. 
 
 § 1. Existing or Specific Goods 51 
 
 1. Goods to be made deliverable by the Seller . 51 
 
 (a) Notice to Buyer that Goods are deliver- 
 able 53 
 
 2. Weighing, Measuring, or Testing by the Seller 53 
 
 (a) Weighing or Measuring to identify the 
 
 Goods 54 
 
 (6) Weighing or Measuring to ascertain 
 
 Sum to be Paid . 55 
 
 (c) Destruction of Goods before Weighing 
 
 or Measuring 56 
 
 3. Sale of Specific Goods on Approval .... 56 
 
 (a) Sale or Return 57 
 
 § 2. Unascertained or Future Goods 58 
 
 1. The Described Goods 59 
 
 2. Unconditionally Appropriated 59 
 
 3. Mutual Assent 60 
 
 (a) Mutual Assent to the Passing of Title is 
 
 subsidiary to Contract to sell ... 61 
 
 (5) Withdrawal of Precedent Assent . . 63 
 
 (c) Waiver of Subsidiary Provision ... 63 
 
 § 3. Reservation op the Right op Disposal . . 63 
 
 1. Specific Deliverable Goods 63 
 
 2. Specific Goods to be made Deliverable ... 64 
 
 3. Future Goods 64 
 
 Rule 1. Goods deliverable to Shipper's Order . . 64 
 Rule 2. Bill of Lading as Security for Draft for 
 
 Price 66 
 
CONTENTS. XI 
 
 PAGE 
 
 § 4. The Risk of the Loss 66 
 
 1. Risk may be transferred without the Title . 67 
 
 2. Risk when Delivery improperly delayed . . 67 
 
 CHAPTER IV. 
 
 ACCEPTANCE AND RECEIPT. 
 
 § 1. To PASS Title at Common Law 69 
 
 § 2. To satisfy the Statute of Frauds .... 69 
 
 1. Acceptance 69 
 
 (a) Statute requires more than Evidence of 
 
 a Bargain 70 
 
 (b) Acceptance to satisfy the Statute need 
 
 not be Final 71 
 
 2. Actual Receipt 72 
 
 (a) What Act amounts to a Receipt ... 72 
 
 (b) If Goods are on the Land of a Third 
 
 Party 73 
 
 (c) Common Carrier has Implied Authority 
 
 to receive, but not to accept ... 74 
 
 (d) Actual Receipt involves Mutual Assent 74 
 
 (e) Receipt of a Part satisfies the Statute 75 
 (/) Receipt of Document of Title instead of 
 
 the Goods 75 
 
 {g) Receipt and Acceptance under Contract 
 of Sale with Option to resell or 
 repurchase 76 
 
 CHAPTER V. 
 
 seller's duties. — buyer's eights. 
 
 § 1. Duties and Rights Dependent upon Seller's 
 
 Engagements; Conditions and Warranties 77 
 
 § 2. (a) Classification of Conditions 77 
 
 1. The Nature of Promissory Conditions ... 78 
 (a) An Essential Term as a Condition 
 
 Precedent 78 
 
Xli CONTENTS. 
 
 PAGE 
 
 (5) Damages for its Breach, -when its Effect 
 
 as a Condition is waived . . .79 
 
 (c) A Promissory Condition is not a Col- 
 lateral Agreement .... . . 79 
 
 (jl) Distinction between Promissory Condi- 
 tions and Warranties 80 
 
 (e) Classification of Sale Contract Provisions 81 
 (b) Provisions which are Mere Conditioxs 81 
 
 1. Sale of Goods to be appraised .... 82 
 
 2. Sale of Goods to be approved by a Third Per- 
 
 son . 83 
 
 (a) Effect of Third Party's Decision ... 84 
 
 3. Contracts Conditioned upon the Goods being 
 
 Satisfactory to the Buyer ... 84 
 
 4. Judicial Construction of these Contracts . . 86 
 § 3. Promissory Conditions Binding on the Sel- 
 ler 86 
 
 (.4) To confer Title on the Buyer 86 
 
 1. This Engagement is not Collateral to the Sale 
 
 Contract .87 
 
 2. It is treated as Collateral by some Courts . sa 
 
 (a) Reasons assigned for this View . . 89 
 
 3. Engagement for Quiet Possession ... .89 
 
 4. Seller's Engagement that the Goods are not 
 
 encumbered . .90 
 
 5. Damages for Breach of Engagement as to Title 90 
 , 6. Damages for Breach of Engagement as to Quiet 
 
 Possession and Encumbrances .... 91 
 
 7. When these Engagements will not be Implied 91 
 (n) Sale of Goods not in Vendor's Posses- 
 sion . . .... .92 
 
 (B) To furnish the Agreed Article 92 
 
 1. This Rule is applied most frequently to Con- 
 tracts to sell . . . 93 
 
 94 
 
 . 95 
 
 95 
 
 . 96 
 
 (a) Sale with all Faults 
 
 2. Sale by Description and by Sample 
 
 (a) When a Sale is by Sample . 
 
 3. Fitness for a Particular Purpose 
 
 (a) Express Engagement . . 
 
CONTENTS. XIU 
 
 PAGE 
 
 (i) Implied Engagement 96 
 
 (c) Seller must be notified of Particular 
 
 Purpose 97 
 
 (d) Reliance on Seller's Skill or Judgment 98 
 
 (e) The Superior Skill and Judgment of a 
 
 Manufacturer or Producer .... 98 
 (/) The Rule applies to Quarrymen and 
 
 Seedgrowers 100 
 
 ((/) Buyer relies on his Judgment in Case of 
 
 a Specified Article bought under its 
 
 Trade Name 100 
 
 (h) No Reliance by Buyer when he specifies 
 
 the Materials or Methods .... 101 
 
 (i) The Engagement of Breeders of Animals 102 
 (y) Is a Dealer's Undertaking the same as a 
 
 Manufacturer's 103 
 
 (k) The Manufacturer as a Dealer . . 104 
 
 4. Seller engages that Goods are Merchantable . 105 
 
 (a) Extension of this Rule in England . . 105 
 
 (i) Rule restricted in the United States . . 105 
 
 (c) Present, not Future, Merchantableness 106 
 
 5. Engagement of the Vendor of Provisions . . 107 
 
 (a) Does he engage that they are Whole- 
 some .... 107 
 
 6. Quantity as an Essential Term or Condition 
 
 Precedent 108 
 
 (a) Effect of Such Words as " About" . . 109 
 
 (b) An Estimated Quantity 109 
 
 (c) Contract for a " Cargo " 110 
 
 7. Goods must not be mingled with Others . . 112 
 
 (a) Modification of this Rule in many Juris- 
 dictions 113 
 
 8. Seller engages for Inspection by Buyer . . . 113 
 
 (a) Place of Delivery is generally the Place 
 
 of Inspection 114 
 
 (6) Reasonable Opportunity of Inspection 115 
 
 (c) Inspection may necessitate Use of Prop- 
 
 erty 115 
 
 (d) Transfer of Title may precede Inspec- 
 
 tion 116 
 
XIV CONTENTS. 
 
 PAGB 
 
 («) Example of Sale or Return .... 116 
 
 (/) Conditional Title before Inspection . 117 
 
 {g) Absolute Title before Inspection . . 118 
 
 § 4. Warranties 118 
 
 (a) Express Warranties 120 
 
 1. Fact versus Opinion and Commendation . . 121 
 
 2. Intention of Seller 121 
 
 (a) Peculiar Views 122 
 
 (3) May include Patent Defects 123 
 
 (4) The Warranty need not be the Sole Induce- 
 
 ment to the Purchase 124 
 
 (5) May extend to the Future 124 
 
 (6) Province of Court and of Jury 125 
 
 (7) Oral Warranty cannot be added to a Written 
 
 Contract 125 
 
 (b) Implied Warranties 126 
 
 § 5. Buyer's Rights upon Breach op Seller's En- 
 gagement 126 
 
 1. Against the Seller 126 
 
 (a) Prompt Action required 127 
 
 (i) Effect of Acceptance . 127 
 
 (c) A Different View of the Effect of Ac- 
 ceptance 128 
 
 (d) This View leads to Arbitrary Distinc- 
 
 tions 129 
 
 (e) Effect of Acceptance (1) when Contract 
 
 is Entire ; (2) when it is Severaljle . 130 
 
 2. Against Third Parties 130 
 
 § 6. Buyer's Rights upon Breach of Warranty . 131 
 
 1. Right to Damages Only 132 
 
 2. Right to rescind 133 
 
 (a) False and Innocent Warranty Con- 
 founded 133 
 
 (J) Breach of Warranty as a Tort . . . 133 
 
 (c) Failure to distinguish Warranty from 
 
 Condition 134 
 
 {d} This Fundamental Distinction discarded 
 
 by a few Courts 135 
 
 3. Rejected Goods must be returned .... 136 
 
 4. Alternative Rights under Special Agreements 136 
 
CONTENTS. XV 
 
 PAQB 
 
 7. Seller's Duty to deliver Possession . . . 136 
 
 1. Nature of this Engagement 136 
 
 2. Formal Tender not Necessary 137 
 
 3. The Place of Giving Possession 138 
 
 (a) Cumbrous Articles and Portable Goods 139 
 (i) When the Parties name a Definite 
 
 Place 139 
 
 (c) When they designate a Locality, leaving 
 
 Exact Spot to be fixed 140 
 
 4. Time of giving Possession 141 
 
 (a) Delay due to Extraordinary Causes . . 141 
 
 (6) Reasonable Hour . 142 
 
 (c) Time of Delivery an Essential Term . 142 
 
 (d) Strict Performance may be waived . . 143 
 
 (e) Instalment Deliveries : Entire not Di- 
 
 visible Contracts .... . . 143 
 
 (/) Unsatisfactory State of Authorities . 144 
 
 (_g) How far they are Agreed 144 
 
 (h) Default must amount to a Renunciation 
 
 of the Contract 145 
 
 (i) Breach going to the Whole Considera- 
 tion 146 
 
 (y) Breach of any Essential Term of an 
 
 Instalment Contract 147 
 
 (k) Is Time of Payment an Essential Term 
 
 of Instalment Contracts 148 
 
 (/) Right to Rescind may be Waived . . 149 
 
 5. Manner of giving Possession 150 
 
 (a) Transfer of Possession without Change op 
 
 Location 150 
 
 (a) Delivery of Goods already in Buyer's 
 
 Possession 151 
 
 (b) Actual Tradition Impracticable . . . 152 
 
 (c) Symbolical Delivery 152 
 
 (d) Delivery by Tradition of Key .... 153 
 
 (e) Delivery by Attornment of Third Party 154 
 (/) Does Notice to Third Party dispense 
 
 with Attornment 156 
 
XTl CONTENTS. 
 
 PAGB 
 
 (b) Transfer of Possession by Delivery to a 
 
 Carrier 157 
 
 (a) Implied Authority to deliver to a Car- 
 rier 157 
 
 (J) Goods must be prepared for Transpor- 
 tation ... 158 
 
 (c) Goods must be correctly Addressed . . 158 
 
 (d) Care in providing the Buyer a Remedy 
 
 against the Carrier . . ... 158 
 
 (e) Should the Seller aiiord the Buyer an 
 
 Opportunity to insure . ... 159 
 
 (/) Delivery to a Warehouseman . . . 160 
 (g) Change of Location without Transfer of 
 
 Possession .160 
 
 (h) A Partial Delivery under an Entire 
 
 Contract 161 
 
 § 8. Buyer's Rights against Third Parties . . . 161 
 
 1. Sale in il.arket Overt 161 
 
 2. Negotiable Paper 162 
 
 3. Transfer by One not Owner, under a Power of 
 
 Sale 163 
 
 4. Transfers with Consent of Owner ... . 163 
 
 (a) Sale by Buyer with Voidable Title . . 164 
 (h) Sale by One who obtained Possession by 
 
 Trick 165 
 
 (c) The Second Purchaser must buy in Good 
 
 Faith and part with Value . . . 166 
 
 ('/) Meaning of Valuable Consideration . 166 
 
 A Creditor receiving Goods in Payment of 
 Debt is not a Purchaser for Value . . 167 
 
 The Opposite View 168 
 
 Is a Pledgee a Purchaser for Value . . . 169 
 (e) An Attaching Creditor or Assignee as a 
 
 Purchaser for Value 169 
 
 (/) A Second Purchaser who has promised 
 
 to Pay 170 
 
 (g) Legal Holder of Bill of Lading has 
 
 Apparent Authority to Sell . . . 170 
 (Ji) Bill of Lading not fully Negotiable 171 
 
CONTENTS. XVli 
 
 PAGE 
 
 (i) Negotiability of Bills of Lading under 
 
 Statutes 172 
 
 (j) Sale by One in Possession without other 
 
 Semblance of Authority 174 
 
 {k) Sale by Possessor with Apparent Au- 
 thority to sell 175 
 
 (I) Sale by Conditional Vendee .... 176 
 What Eight may be acquired by a Pur- 
 chaser from a Conditional Vendee . . 177 
 (m) Statutory Reputed Ownership . . . 178 
 (n) Reputed Ownership misapplied . . . 179 
 
 (o) The Mercantile View 1 80 
 
 (jo) Effect given to the Mercantile View by 
 
 Factors Acts 180 
 
 (9) Vendor's Retention of Possession . . 181 
 Anomalous Doctrine in a Few States ; Deliv- 
 ery of Possession necessaiy to pass Title . 182 
 Caldwell v. Ball misunderstood by the Mas- 
 sachusetts Court 183 
 
 The Anomalous Doctrine supported by Con- 
 siderations of Public Policy 181 
 
 These Considerations have induced Legisla- 
 tion 184 
 
 Delivery under this Rule 185 
 
 6. Continued Possession by Vendor as Evidence 
 
 of Fraud 185 
 
 (a) The Earlier English Doctrine approved 
 
 by some Courts; Various Reasons . 186 
 When Vendee excused from taking Actual 
 
 Possession 188 
 
 Statutory Provisions as to Vendor's Reten- 
 tion of Possession 188 
 
 (J) The Later English Doctrine prevails 
 
 generally in this Country .... 189 
 Diverse Applications of the Doctrine . . . 189 
 
 Diverse Views of Possession 190 
 
 § 9. Specific Performance by the Seller may be 
 
 DECREED 191 
 
XYUl CONTENTS. 
 
 PAGE 
 
 § 10. Damages for Breach of an Essential Term 
 
 OP THE Contract 192 
 
 1. General Rule 193 
 
 (a) Market-Price at Time and Place of 
 
 Delivery 193 
 
 2. No Available Market 194 
 
 3. Special Damage . . 195 
 
 (a) Particular Consequences not contem- 
 plated by the Seller ... . . 195 
 
 (p) The Seller notified of Particular Conse- 
 quences 196 
 
 (c) Seller and Buyer need not be agreed as 
 
 to the Precise Consequences . . . 196 
 
 (d) Special Damages when Seller knows the 
 
 Goods are for Resale 197 
 
 (e) Expenses in Transporting and Caring 
 
 for the Goods, as Special Damages . 198 
 
 (/) Conjectural Profits 198 
 
 4. Duty of the Injured Party to minimize Dam- 
 
 ages . ... 199 
 
 § 11. Damages for Breach of Warranty . . . 200 
 
 (a) General Principles 200 
 
 (b) Special Damages ... 200 
 
 Diseased Animals: Poisonous Substances . . . 201 
 
 Profits as Special Damages 202 
 
 S 12. Interest as Damages 202 
 
 CHAPTER VI. 
 
 duties of buyer. eights of seller. 
 
 The Duty to take Title 204 
 
 1. Seller's Claim is for Damages 204 
 
 2. Seller's Right to Price upon Tender of Stipu- 
 
 lated Goods 205 
 
 3. Contract may bind Buyer to pay Price whether 
 
 Title passes or not 208 
 
CONTENTS. XIX 
 
 PAGE 
 
 § 2. Damages for Non-Acceptance 207 
 
 1. When Market-Price is Abnormal 207 
 
 2. Premature Repudiation by Purchaser . . . 208 
 
 3. Seller may sue as soon as Buyer repudiates . 209 
 
 4. Interest on the Agreed Price 210 
 
 § 3. Buyer's Duty to take away the Goods . . 210 
 
 § 4. The Seller's Lien .... 211 
 
 1. The Unpaid Seller 212 
 
 (a) Lien accorded to Quasi Vendors . . 213 
 
 2. Seller in Possession 213 
 
 3. Lien Waived : Sale on Credit 214 
 
 (a) Revival of Lien upon Expiration of 
 
 Credit 215 
 
 (5) Revival of Lien upon Buyer's Insolvency 215 
 
 4. Effect on Lien of Transfer of Buyer's Interest 216 
 § 5. The Seller's Right of Stoppage in Transitu 217 
 
 (a) How this Right differs from that of Lien 217 
 
 (6) It differs from Vendor's Right to retake 
 
 his own Goods . . 218 
 
 1. The Unpaid Seller 218 
 
 (a) Right may be exercised by Agent . . 219 
 
 (6) Factors who are not Unpaid Vendors . 219 
 
 2. The Buyer's Insolvency 220 
 
 (a) Buyer insolvent when Goods despatched 221 
 
 3. The Transit: (a) its Inception 221 
 
 (J) Interception of Transit by Attornment 223 
 
 (c) Interception by Sole Act of Buyer . . 223 
 
 ((f) Interception by Creditors of Buyer . 224 
 
 (e) Interception by Transferee of Buyer . 225 
 
 (/) Transferee of Bill of Lading .... 226 
 (^) Bill of Lading must be transferred for 
 
 Value . . ....... 227 
 
 (h) Bill of Lading must be transferred in 
 
 Good Faith 228 
 
 (i) When Bill of Lading is transferred as 
 
 Security .229 
 
 (k) The Termination of the Transit ... 230 
 (I) Transit continues until the Goods come 
 
 to Buyer's Possession . . . . 232 
 
 (m) Deposit of Goods in Bonded Warehouse 233 
 
XX CONTENTS. 
 
 FAOE 
 
 4. Exercising the Right of Stoppage .... 234 
 
 (a) Notice to Others than Carrier . . . 234 
 
 (4) Invalid Notice . . 235 
 
 (c) Expenses which Seller must defray . . 235 
 
 5. EfEect of exercising the Right 235 
 
 (a) Doctrine of Newhall v. Central Railway 236 
 
 (b) Bill of Lading must be transferred be- 
 
 fore Stoppage 237 
 
 § 6. Seller's Right of Resale 237 
 
 1. Nature of Vendor's Lien ... ... 237 
 
 2. How should Resale be made 238 
 
 (a) Notice of Intention to resell . . 239 
 
 (J) Notice of Time and Place of Resale . 239 
 
 3. Title of Buyer on a Resale ... . . 240 
 
 (a) Rejection of Goods which conform to 
 
 the Contract 241 
 
 (i) Refusal to receive goods after Title has 
 
 passed 242 
 
 (c) Rescission pursuant to a Term of the 
 
 Contract . .... 243 
 
 (rf) Vendor's Right to regain Title in 
 
 America 243 
 
 Appendix I. 
 
 Continental Legislation . . 245 
 
 Appendix II. 
 
 English Factors Act of 1889 246 
 
 Factors Act for Scotland 250 
 
 Sketch of the earlier English Acts , 251 
 
 Appendix III. 
 
 New York Factors Act 255 
 
 Massachusetts Factors Act . . 257 
 
 Historical Sketch of Factors Acts in U. S 2.n9 
 
 Judicial Interpretation of Factors Acts 263-268 
 
 Index 269 
 
TABLE OF CASES. 
 
 PAGE 
 
 Abat V. Atkinson, 21 La. An. 414 54 
 
 Acraman v. Morris, 8 C. B. 449 ' 52 
 
 Adams v. Messinger, 147 Mass. 185 192 
 
 Adderley v. Dixon, 1 Sim. & Stu. 607 191 
 
 Al. G. S. Ry. V. Mt. Vernon Co., 84 Ala. 173 '. 64 
 
 Alden v. Hart, 161 Mass. 576 t . . . . 117, 127 
 
 Aldrich v. Pyatt, 64 Barb. (N. Y.) 391 .'...' 33 
 
 Aldridge v. Johnson, 7 E. & B. 885 45 
 
 AUard v. Greasert, 61 N. Y. 1 . . . 32 
 
 Allan V. Lake, 18 Q. B. 560 ' .' 93 
 
 Allen V. Anderson, 3 Humph. (Tenn.) 581 133 
 
 V. Maury, 66 Ala. 10 156 
 
 V. Railroad, 79 Me. 827 234 
 
 V. Woods, 24 Pa. St. 76 139 
 
 Ames V. Jones, 77 N. Y. 614 96 
 
 V. Quimby, 96 U. S. 324 31 
 
 Am. Sugar Co. v. Fancher, 145 N. Y. 552 170 
 
 Andrews v. Cheney, 62 N. H. 404 59 
 
 Andriend v. Randall, 3 ClifE. (U. S. Cir. Ct.) 99 75 
 
 Arnold v. Blabon, 147 Pa. 372 200 
 
 V. Delano, 4 Cush. (58 Mass.) 33 211-216, 216 
 
 Atherton v. Newhall, 123 Mass. 141 75 
 
 Atkinson v. Bell, 8 B. & C. 277 13, 59, 60 
 
 w. Maling, 2 D. & E. 462 153 
 
 Atkyns v. Barwick fl Str. 165) 242 
 
 Atwater v. Clancy, 104 Mass. 369 96 
 
 Aultman v. Clifeord, 55 Minn. 159 59 
 
 V. Falkum, 51 Minn. 562 125 
 
 Babcoek v. Bonnell, 80 N. Y. 244 235 
 
 Bach V. Levy, 101 N. Y. 511 95, 200 
 
 Bacon v. Eccles, 43 Wis. 227 38 
 
XXU TABLE OF CASES. 
 
 FAOS 
 
 Badger v. Kerber, 61 III. 328 84 
 
 Bagley v. Walker, 78 Md. 239 15, 141, 143 
 
 Baker v. Cuyler, 12 Barb. (N. Y.) 667 75 
 
 Baldwin v. Young, 47 La. Ann. 1466 26 
 
 Baldy v. Parker, 2 B. & C. 37 3X 
 
 Ballard v. Burgett, 40 N. Y. 314 . . 177 
 
 Bait. Ry. v. Brydon, 65 Md. 198 84 
 
 £.r ;jarte Banner, 2 Ch. D. 278 66,213 
 
 Barbee v. Williams, 4 Heisk. (Tenn.) 622 92 
 
 Barber v. Meyerstein, L. R. 4 H. L. 817 ... 170, 171, 172 
 
 Barker v. Dinsmore, 72 Pa. St. 427 165 
 
 V. Freeland, 91 Tenn. 112 68 
 
 Barnard v. Campbell, 58 N. Y. 73 166 
 
 y. Kellogg, 10 Wall. (U. S.) 383 92,96 
 
 Barnes v. Denslow, 30 N. S. R. 315 148 
 
 V. Freeland, 6 D. & E. 80 243 
 
 Barr v. Myers, 3 W. & S. (Pa.) 295 139 
 
 Barrett v. Goddard, 3 Mason, 111 55 
 
 Barrow v. Arnaud, 8 Q. B. 695 193, 205 
 
 Barry v. Coombe, 1 Pet. 640 ... 36 
 
 Barter v. Kane, 17 Wis. 371 108 
 
 Bartholomew v. Freeman, 3 C. P. D. 310 211 
 
 Bartlett v. Jewett, 98 Ind. 206 . . 160 
 
 Bartram a. Farebrotlier, 4 Bing. .579 242 
 
 Batterbury v. Vyse, 2 H. & C. 42 83 
 
 Beals V. Olmstead, 24 Vt. 114 98 
 
 Beardsley 1>. Beardsley, 138 U. S. 262 43 
 
 Beaumont v. Brengeri, 5 C. B. 301 . 70 71 
 
 Beck V. Sheldon, 48 N. Y. .365 \ , 'iQl 
 
 Becker r. Hallgarten, 86 N. Y. 167 232 
 
 V. Holm, 89 Wis. 86 . . '. ! .' 72 
 
 Beeman v. Banta, 118 N. Y. 538 ! ! ! 202 
 
 V. Buck, 3 Vt, 53 '.'.'.'. IZi 
 
 Behn v. Burness, 3 B. & S. 751 79 
 
 Beirne v. Dord, 5 N. Y. 95 _ gg 
 
 M. Dunlap, 8 Leigh (Va.) 514 30 
 
 Bement u. Smith, 15 Wend. (N. Y.) 493 .61 
 
 Beneset v. Weil, 69 j\ld. 276 . . . '. . . . , \ ' '. ' 169 
 
 lientley v. Vilmont, 12 App. Cas. 471 ....... \&\ 
 
 Berndtson y. Strang, L. R. 4 Eq. 481 . ... 222 
 
 y. Strang, 3 Ch. App. 588 . ...!!'. 222 230 
 
 Best V. Flint, 68 Vt. 543 . . . '98 
 
 Bethell y. Clark, 20 Q B. D. 615 .' .' .' .' ." .' .' .' 222 2.31 
 
 Bettini ,.. Gye, 1 Q. B. D. 183 ' 119 
 
 Bianchi v. Nash, 1 Jt. & W. 545 '46 
 
 Bibb V. Allen, 149 U. S. 481 '. 42 
 
TABLE OP CASES. xxiii 
 
 PAGE 
 
 Bierman v. City MiEs Co., 151 N. Y. 482 li!9 
 
 Billraeyer v. Wagner, 91 Pa. St. 92 193 
 
 Bird V. Brown, 4 Ex. 786 224 
 
 V. Munroe, 66 Me. 3-37 35, 4:i 
 
 Bisliop V. Sliillito, 2 B. & Aid. 329, note (a) 50, IBl 
 
 Black V. Incorporation o£ Brokers, 6 Sess. Cae. 3d series, 141 . 157 
 
 V. Webb, 20 Oliio, 304 u9 
 
 Blackmore ;;. Fairbanks, 79 la. 282 12t} 
 
 Black liiver Lumber Co. v. Warner, 93 Mo. 374 206 
 
 Bliss Co. V. U. S. Co., 149 N. Y. 300 137, 138 
 
 Bloomingdale v. Memphis Ry., 6 Lea (Tenn.), 616 220 
 
 Bloxam v. Sanders, 4 B. & C. 941 212, 214, 238 
 
 Blue Grass Cordage Co. v. Lutliy, 33 S. W. 835 107 
 
 Blyderstein v. N. Y. Secy, and Trust Co., 67 Fed. 469 ... . 264 
 Boardman u. Spooner, 13 Allen (Mass.), 353 . . .... 36 
 
 Bolin V. HufEnagle, 1 Eawle (Pa.), 9 222 
 
 Bolton V. Railway, L. R. 1 C. P. 430 . . . ... 233, 242 
 
 Bonito V. Mosquera, 2 Bos. 401 267 
 
 Boothby v. Scales, 27 Wis. 626 134 
 
 Borrowman I'. Drayton, 2 Exch. Div. 17 Ill 
 
 Bostwick V. Leach, 3 Day (Conn.), 476 24 
 
 Bourne v. Seymour, 16 C. B. 337 110 
 
 Bowes V. Shand, 2 App. Cas. 455 142 
 
 Bowman v. Clemmer, 50 Ind. 10 124 
 
 K. Herring, 4 Harr. (Del.) 458 188 
 
 Bowser v. Birdsell, 49 Mich. 5 240 
 
 Brabin v. Hyde, 82 N. Y. 519 34 
 
 Braddock Glass Co. v. Irwin, 153 Pa. St. 440 160 
 
 Bradford v. Manly, 13 Mass. 138 95, 96, 135 
 
 Bradley v. Wheeler, 44 N. Y. 495 56 
 
 Brady v. Cassidy, 145 N. Y. 171 161 
 
 Bragg V. Morrill, 49 Vt. 45 105 
 
 Brand v. Focht, 1 Abb. App. (N. Y.) 185 75 
 
 Brawley )'. U. S., 96 U, S. 168 109, 110 
 
 Breen v. Moran, 51 Minn. 525 100 
 
 Brem v. Lockhart, 93 N. C. 191 169 
 
 Brewer v. Ford, 54 Hun, 116 ; 59 Id. 17 ; 126 N. Y. 643 ... 178 
 
 Bridge v. Wain, 1 Stark. 504 80, KH 
 
 Bridgford v. Crocker, 60 N. Y. 627 244 
 
 Briggsr. U. S., 143U. S. 346; 12 Sup. Ct. 391 
 
 Brigliam v. Hibbard, 43 Pac. R. 383 69 
 
 Brinsmead v. Harrison, L. R. 6 C. P. 584 ; on appeal, 7 C. P. 
 
 547 3 
 
 Brock V. O'Donnell, 49 N. J. L. 230 67 
 
 Brogden v. Marriott, 2 Bing. N. C. 473 83 
 
 Bronson v. Gleason, 7 Barb. (N. Y.) 472 140 
 
XXIV TABLE OF CASES. 
 
 PAGB 
 
 Brook V. Clark, 60 Vt. 551 200 
 
 Brooke Iron Co. u. O'Brien, 135 Mass. 442 223 
 
 Brooks V. Powers, 16 Mass. 244 189 
 
 Brower i;. Peabody, 13 N. Y. 121 172 
 
 Brown v. Bement, 8 Johns. (N. Y.) 96 27 
 
 V. Bigelow, 10 Allen (92 Mass.), 242 200 
 
 u. Billinglon, 103 Pa. St. 76 28 
 
 u. Cockburn, 37 Up. Can. Q, B. 592 90 
 
 V. Eddington, 2 Man. & Gr. 279 98 
 
 V. Foster, 108 N. Y. 387 127 
 
 V. John Church Co., 53 111. App. 615 28 
 
 V. Sanborn, 21 Minn. 402 15 
 
 V. Whipple, 58 N. H. 229 37 
 
 Browne i-. Hare, 4 H. & N. 822 . . . 65 
 
 Brownfield v. Johnson, 128 Pa. St. 267 44, 113 
 
 Brownlee v. Bolton, 44 Mich. 218 . .... 114 
 
 Brundage v. Camp, 21 111. 330 179 
 
 Bryans v. Nix, 4 M. & W. 775 . . . . . . . 59 
 
 Bryant v. Crosby, 40 Me. 9 121 
 
 V. Isburgh, 13 Gray (Mass.), 607 134, 135 
 
 V. Whitoher, 52 N. H. 158 162 
 
 Buckley v. Eurniss, 15 Wend. 137 225 
 
 Buddie V. Green, 27 L. J. Exch. 33 137 
 
 Bulkley v. Honold, 19 How. U. S. 390 103 
 
 Bull V. Robinson, 10 Exch. 342 106 
 
 Burnby v. Bollett, 16 M. & W. 644 107 
 
 Burnell C-. Robertson, 5 Gilm. (10 111.) 282 184 
 
 Burnley v. Tufts, 66 Miss. 48 . . 206 
 
 Burrows v. Whi taker, 71 N. Y'. 291 . 55 
 
 Buswell V. Bicknell, 17 Me. 344 57 
 
 Bussey v. Barnett, 9 M. & W. 312 48 
 
 Butler I'. Butler, 77 N. Y. 472 205 
 
 V. xMurray, 30 N. Y. 88 163 
 
 r. School District, 149 Pa. St. 351 57 
 
 Butters v. Haughwout, 42 111. 18 168 
 
 Button V. Rathbone, 1.37 N. Y. 187 167 
 
 Buxton ». Rust, L. R. 7 Exch. 279 f 
 
 Bvasse .-. Reese, 4 Mete. (Ky.) .372 23 
 
 Byrnside v. Burdett, 15 W. Va. 702 »» 
 
 Cabot r. Winsor, 1 Allen (Mass.), 546 |^^ 
 
 Cadv !'. Walker, 62 Mich, 157 1^* 
 
 Cahen v. Piatt, 60 N. Y. 348 ^^ 
 
 r.Tlais Steamboat Co. !'. Van Pelt, 2 Black (U. S.), 372 ..•!'& 
 
 Cnlder r. Dobell, L. R. 6 C. P. 486, 496, 497 410 
 
 Caldwell y. Ball, 1 B. & E. 205 184 
 
TABLE OF OASES. XXV 
 
 PAQE 
 
 Campbell Co. v. Thorp, 36 Fed. 414 85, 86 
 
 Carleton v. Lombard, 149 N. Y. 137 106, 126, 129 
 
 Ex parte Carnfortli, 4 Ch. D. 108 220 
 
 Carpenter v. Galloway, 73 Ind. 418 33 
 
 Carter v. Willard, 19 Pick. (36 Mass.) at p. 8 154 
 
 Cartwright v. Wilmerding, 24 N. Y. 521 ... 234, 264, 267 
 
 Case V. Hall, 24 Wend. (N. Y.) 102 .89 
 
 V. Jolin, 10 Watts (Pa.), 107 133 
 
 J. I. Case Plow Works v. Niles, 90 Wis. 590 . . 102, 126, 200 
 
 Cason V. Cheely, 6 Ga. 554 16 
 
 Cassaboglou v. Gibb, 11 Q. B. D. 797 213 
 
 Castle V. Playfair, L. R, 7 Exuh. 98 . 61 
 
 CastanoUe v. Missouri Ry., 24 Fed. 267 229 
 
 Caton V. Caton, L. R. 2 H. L. 127 39 
 
 Caulkins v. Hellman, 47 N. Y. 449 . 74 
 
 Cliadwick v. Butler, 28 Mich. 349 ... . . 194 
 
 Ex parte Chalmers, L. K. 8 Ch. App. 289 . . .216 
 
 Chalmers v. McAuley, 33 At. 767 . . . . . . 67 
 
 Champion v. Short, 2 Camp. 53 . . ... 108 
 
 Chandler v. Fulton, 10 Tex. 2 .228 
 
 Chanter v. Hopkins, 4 M. & W. 399 . .100 
 
 Chaplin v. Rogers, 1 East, 192 . 70, 71 
 
 Chapman v. Gwyther, L. R. 1 Q. B. 463 124 
 
 V. Ingram, 30 Wis. 290 .. . ... 208 
 
 V. Murch, 19 John. 290 . . .... 120 
 
 V. Partridge, 5 Esp. 256 41 
 
 Cherry Valley Iron Works v. Florence Iron Co., 64 Fed. 569 . . 144 
 
 Chinery v. Viall, 5 H. & N. 288 . 2 
 
 Claflin i,'. Rosenberg, 42 Mo. 439 184, 188 
 
 Clapp V. Thayer, 112 Mass. 296 109 
 
 Clark y. Fey, 121 N. Y. 470 . . . . . . 36 
 
 V. Greeley, 62 N. H. 394 49 
 
 V. Mauran, 3 Paige (N. Y.), 378 ... 218 
 
 V. Mumford, 3 Camp. 37 .19 
 
 V. Stewart, 10 So. L. R. 152 6 
 
 Clarke w. Foss, 7 Biss. 541 10 
 
 V. Hutchins, 14 East, 475 159 
 
 V. Westrope, 18 C. B. 765 ; 25 L. J. C. P. 287 . . 31 
 
 Clay V. Yates, 1 H. & N. 73 13 
 
 Clayton v. Andrews, 4 Burr. 2101 .12 
 
 Cleveland v. Slioeman, 40 Ohio St. 176 267 
 
 Close y. Crossland, 47 Minn. 500 89, 90 
 
 Cochrane v. Moore, 25 Ch. D. 57 29 
 
 Coe V. Tough, 116 N. Y. 273 37 
 
 Coffin V. State, 144 Ind. 678 193 
 
 Cogent V. Gibson, 33 Beav. 557 192 
 
XXVI 
 
 TABLE OF CASES. 
 
 Coggill V. Hartford Ry., 3 Gray (69 Mass.), 645 
 Cohen v. Foster, 61 L. J. Q. B. 643 . . 
 Cohn V. AramidowD, 120 N. Y. 398 . . . . 
 
 Cole a. Berry, 42 N. J. L. 308 
 
 V. N. VV. Bank, L. R. 10 C. P. 354 . . 
 
 Colonial Bank v. Whinney, 11 App. Cas. 426 
 Columbia Rolling Co. u. Beckett Co., 55 N. J. L. 391 
 Columbian Iron Works v. Douglas, 34 At. 1118 
 Columbus Buggy Co. v. Turley, 19 So. 232 
 Comm. V. Devlin, 141 Maes. 423 . . 
 
 V. Harmel, 166 Pa. St. 89 . . 
 
 Com. Bank v. Gillett, 90 Ind, 268 . 
 
 V. Hurt, 99 Ala. 130 ... . 
 
 Comer v. Cunningham, 77 N. Y. 391 
 Comfort V. Kiersted, 26 Barb. 472 
 Comstock ij. Affouter, 50 Mo. 411 
 Conrad v. Fisber, 37 Mo. App. 352 
 Converse v. Miner, 21 Hun (N. Y.), 367 
 Cook V. Adams, 1 Bos. (N. Y. Super. Ct.) 497 
 Cookson !'. Swire, 9 App. Cas. 653 . . . 
 Cooper V. Bill, 3 H. & G. 722 . . 
 Copland v. Bosquet, 4 Wash. C. Ct. 588 
 Coplay Iron Co. o. Pope, 108 N. Y. 232 
 Copper Co. v. Copper Mining Co., 33 Vt. 92 
 Corbin v. Tracy, 34 Conn. 325 . . . 
 
 Cortelyoii v. Lansing, 2 Caines Cases, 200 
 ■ Cory V. Thames Co.^ L. R. 3 Q. B. 181 
 Cotterill i: Stevens, 10 Wis. 422 . . 
 Couturier v. Hastie, 7 H. L. Cas. 673 
 Covin V. Hill, 4 Den. (N. Y.) 323 . . 
 
 Coxe r. Harden, 4 East, 211 
 
 Coyle V. Baum, 3 Okl. 695 
 
 Crane v. London Dock Co., 5 B. & S. 313 
 
 . i: Powell, 139 N. Y. 379 . . 
 
 Craven v. Ryder, 6 Taunt. 433 
 
 Crawcour v. Salter, 19 Ch. D. 30 
 
 Crawford !'. Forristall, 58 N. H. 114 .. . 
 
 Cream City Glass Co. v. Friedlander, 84 Wis. 53 
 
 Creigliton c. Comstock, 27 Ohio St. 548 
 
 Crosswell v. Martindale, 63 Fed. 84 . 
 
 Crocker v. Gullifer, 44 Me. 491 . 
 
 Croninirer v. Crocker, 62 N. Y. 151 
 
 Crookshank i: Burrell, 18 Johns. 58 . . 
 
 Crosby v. Delaware & Hudson Can. Co., 119 N. Y. 334 
 
 N. Y. 641 ... 
 
 Cross V. Elgin, 2 B. & Ad. 106 . 
 
 PAGE 
 
 . . 176 
 
 . . 240 
 
 . . 92 
 
 . 176 
 
 237, 253 
 
 5 
 
 67 
 
 94 
 
 176 
 
 48 
 
 , 29 
 
 . 44 
 
 174, 181 
 
 . 177 
 
 . 59 
 
 . . 157 
 
 214,217 
 
 . 90 
 
 . 267 
 
 186, 189 
 
 74 
 
 . 48, 49 
 
 . 129 
 
 199 
 
 192 
 
 27 
 
 . 197 
 
 74 
 
 11 
 
 175, 265 
 
 65 
 
 202 
 
 . . 162 
 
 ,S5 
 
 225 
 
 . . 179 
 
 182, 185 
 
 116 
 
 109 
 
 147 
 
 . 57 
 
 115, 142 
 
 . . 16 
 
 128 
 
 . . 28 
 . . 109 
 
TABLE OF CASES. XXVU 
 
 PAGE 
 
 Cross V. O'Donnell, 44 N. Y. 661 71 
 
 Crummey v. Randenbush, 56 Minn. 426 216 
 
 Gumming v. Brown, 9 East, 506 228 
 
 Gundy !-•. Lindsay, 3 App. Gas. 459 165, 106 
 
 Cunningliam v. Ashbrook, 20 Mo. 553 2, 55 
 
 V. Hall, 4 Allen (.Mass.), 268 102 
 
 Currie v. Anderson, 2 E. & E. 592 . . 75 
 
 Cusack u. Robinson, 1 B. & S. 299 70, 71 
 
 Cushman v. Holyoke, 34 Me. 289 67 
 
 Cutting V. Dana, 25 N. J. Eq. 265 192 
 
 Daggett V. Johnson, 49 Vt. 345 84 
 
 Dalzell V. Dueber Mnfg. Co., 149 U. S. 315 8 
 
 Daniels v. Nelson, 41 Vt. 161 . . 187 
 
 V. Newton, 114 Mass. 530 209 
 
 Davies w. McLaen, 28 L. T. (n. s.) 113 140 
 
 Davis V. Bigler, 62 Pa. St. 242 265, 267 
 
 V. Davis, 49 Me. 282 82 
 
 V. Gilliam, 14 Wash. 206 137 
 
 V. Russell, 52 Gal. 611 156 
 
 V. Schwartz, 155 U. S. 681 . 29 
 
 Day V. Bassett, 102 Mass. 445 . . 177 
 
 Decan v. Shippen, 35 Pa. St. 239 266 
 
 Delamater v. Ghappell, 48 Md. 244 57 
 
 Deming v. Darling, 148 Mass. 504 121 
 
 Dempsey v. Gardner, 127 Mass. 381 185 
 
 Denny v. Williams, 5 Allen (87 Mass.), 1 70 
 
 Desloge v. Pearce, 38 Mo. 588 20 
 
 DeWitt V. Van Sickle, 29 N. J. E. 209 168 
 
 Dexter v. Norton, 47 N. Y. 62 11, 82 
 
 D'Eyncourt v. Gregory, L. R. 8 Eq. 382 25 
 
 Deyo V. Hammond, 102 Mich. 122 124 
 
 Dibble v. Corbett, 5 Bos. (N, Y.) 202 210 
 
 Dickinson v. Gay, 7 Allen, 29 104 
 
 Diem V. Kobletz, 49 Ohio St. 41 220, 235, 238, 239 
 
 Dike V. Reitlinger, 23 Hun (N. Y. Sup. Ct), 241 81 
 
 Dingley v. Oler, 117 U. S. 490 209 
 
 Dixon K, Yates, 5 B. & Ad. 313 214,216 
 
 Doane v. Dunham, 79 111. 131 127 
 
 Doherty v. Hill, 144 Mass. 465 . . 37 
 
 Donath v. Broomhead, 7 Pa. St. 301 233 
 
 Donald v. Suckling, L. R. 1 Q. B. 585 28 
 
 Dorr V. Eisher, 1 Gush. (Mass.) 271 133, 1.35 
 
 Dorsey v. Pike, 50 Hun, 534 73 
 
 Dowling V. McKenney, 124 Mass. 478 30 
 
 Down V. Fisher, 1 Cush. (Mass.) 271 118 
 
XXVIU TABLE OF CASES. 
 
 FAOE 
 
 Downer K. Thompson, 2 Hill (N. Y.), 137 . . ... 63,108 
 
 V. Thompson, 6 Hill (N. Y.), 208 63, 108 
 
 Downs V. Ross, 23 Wend. 270 . . 16 
 
 Dows V. Greene, 21 N. Y. 688 171 
 
 V. Kidder, 84 N. Y. 121 ... .... , 175 
 
 V. Nat. Ex, Bk., 91 U. S. 618 64, 65 
 
 V. Perrin, 16 N. Y. 325 172 
 
 Douglas r. Slnimway, 13 Gray (79 Mass.), 498 . . . 215 
 
 Dounce v. Dow, 64 N. Y. 411 94 
 
 Ex parte Drake, 5 Ch. D. 866 3 
 
 Dresser v. Ainsworth, 9 Barb. 619 . 90 
 
 Drummoud v. Van Ingen, 12 App. Gas. 284 95, 98 
 
 Drury v. Young, 58 ild. 546 38 
 
 Duke of Somerset v. Cookson, 3 P. Wm. 390 191 
 
 Dummer v. Smedley, 00 Mich. 000 ; 68 N. W. 260 . . . . 215 
 Dunkirk Colliery Co. v. Lever, 9 Ch. D. 20, 25 .... 31, 208 
 
 Dunlop V. Grote, 2 C. & K. 153 206 
 
 Dunne v. Ferguson, 1 Hayes (Irish), 542 22 
 
 Duplex Co. V. Garden, 101 N. Y. 387 . 86 
 
 Durgy Cement Co. v. O'Brien, 123 Mass. 12 219 
 
 Durrell v. Evans, 1 H. & C. 174 41 
 
 Dushane i'. Benedict, 120 U. S. 630 103 
 
 Dustan v. McAndrew, 44 N. Y. 72 239 
 
 Dutton V. Solomonson, 3 B. & P. 582 157 
 
 Dwiggins v. Clark, 94 Ind. 49 208 
 
 Dyer r. Pearson, 3 B. cSc C. 38 252 
 
 Eaton V. Davidson, 46 Ohio St. 355 167 
 
 Edgerton r. Hodge, 41 Vt. 67 . 34 
 
 Edan v. Dudfield, 1 Q. B. 302 73 
 
 Edmunds c. Merch. T. Co., 135 Mass. 283 .166 
 
 Edwards v. Cottrell, 43 la. 194 30 
 
 V. Harben, 2 D. & E. 587 186 
 
 i: Pearson, 6 Times Law R. 220 87 
 
 Eiuhelburger r. JlcCauley, 5 H. & J. 21-3 .15 
 
 Eichholz V. Bnnnister, 17 C. B. (n. s.) 708 ... 87, 92 
 
 Elbinger v. Armstrong, L. R. 9 Q. B. 473 . 197 
 
 Elgee Cotton Cases, 22 Wall. 180 52 
 
 Ellinger v. Comstock, 13 Ind. App. 696 .142 
 
 Elliot V. Barrett, 144 Mass. 256 . 40 
 
 Elliott V. Thomas, 3 JI. & W. 170 . . . . . .75 
 
 Ellis V. Bray, T'J Mo. 227 38 
 
 Ellison !■. Brigham, 38 Vt. 64 . 17 
 
 Emanuel v. Dane, 3 Camp. 209 30 
 
 Emery's Sons r. Irving Nat. Bk., 25 Ohio St. 360 . . . .66,130 
 
TABLE OF OASES. XXIX 
 
 PAGE 
 
 Empire State Foundry Co. v. Grant, 114 N. Y. 40 . . . . 50, 177 
 
 Enger v. Dawley, 62 Vt. 164 123 
 
 Englehardt v. Olanton, 83 Ala. 336 97 
 
 English V. Spokane Com. Co., 57 Fed. 451 106 
 
 Equit. Gas Co. v. Baltimore Co., 63 Md. 285 192 
 
 Evans V. Roberts, 5 B. & C. 829 22 
 
 Eyansville Railway v. Erwin, 84 Ind. 457 48, 49 
 
 Exhaust Co. w. Ciiicago Co., 66 Wis. 218 85 
 
 Eyers v. Haddem, 70 Fed. 648 121, 136 
 
 Fairbank Canning Co. u. Metzger, 118 N. Y. 260 . . . . 118, 129 
 
 Falcke v. Gray, 4 Drewrey, 651 191 
 
 Ex parte Falk, 14 Ch. D. 446 230 
 
 £x parte Falk, 7 App. Cas. 573 234 
 
 False V. Fletcher, 34 L. J. C. P. 146 64 
 
 Farmeloe r. Bain, 1 C. P. D. 445 216 
 
 Farmers' Bank v. Logan, 74 N. Y. 568 27, 180 
 
 Farmers' Phosphate Co. v. Gill, 69 Md. 637 55 
 
 Farrell v. Railroad, 102 N. C. 390 223 
 
 Fay V. Wheeler, 44 Vt. 292 76 
 
 Feize v. Wray, 3 East, 93 219 
 
 Fells V. Reed, 3 Ves. 70 191 
 
 Fessler v. Love, 48 Pa. St. 407 196 
 
 Field w. Leiean, 6 H. & N. 617 215 
 
 V. Runk, 22 N. J. L. 625 140 
 
 Finding v. Hartraan, 14 Colo. 596 188 
 
 Finn u. Clark, 10 Allen (92 Mass.), 479 158 
 
 Finney v. Apgar, 31 N. J. L. 226 16 
 
 Firrest v. Greenwich, 8 E. & B. 890 24 
 
 First Nat. Bank v. Bates, 1 Fed. 702 156 
 
 V. Boyce, 78 Ky. 42 174 
 
 V. Edge, 109 N. Y. 120 172 
 
 V. Grindstaff, 45 Ind. 158 123 
 
 V. Reno, 73 la. 145 : 30 
 
 V. Shaw, 61 N. Y. 283 267 
 
 Fisher v. Boynton, 87 Me. 395 141 
 
 Fitzgerald v. Evans, 49 Minn. 641 123 
 
 Flanagans. Demorest, 3 Robt. (N.Y.) 173 Ill 
 
 Fleet V. Hollenkemp, 13 B. Mon. (Ky.) 219 107 
 
 Fleming v. Smith, 8 Sess. Cas. (4th series), 552 226 
 
 Flint V. Corbett, 6 Daly (N. Y.), 429 16 
 
 Florence Mining Co. v. Brown, 124 U. S. 385 145, 216 
 
 Florence Sewing Mach. Co. v. Warford, 1 Sweeny, 433 .... 265 
 
 Flynn v. Allen, 57 Pa. St. 482 88 
 
 Foggs' Adm'r v. Bodgers, 84 Ky. 559 93 
 
XXX 
 
 TABLE OF CASES. 
 
 Fogel I'. Brubaker, 122 Pa. St. 17 . 
 
 Foley V. Felrath, 98 Ala. 176 
 
 Foot V. Marsh, 51 N. Y. 288 
 
 Forbes v. Gracey, 94 U. S. 762 ... 
 
 Forrow v. Andrews & Co., 69 Ala. 96 . 
 Forsaith Machine Co. v. Mengel, 99 Mich. 280 
 Forsythe o. Ellis, 4 J. J. Marshall (Ky.), 298 . 
 Forsyth v. Mann, 68 Vt. 116 ... 
 
 Foss i>. Sabin, 84 III. 564 
 
 Foster v. Ropes, 111 Mass. 10 
 
 Foundry Co. v. Paseagoula Co., 72 Miss. 608 . 
 Fowler v. N. Y. Gold Exch. Bank, 67 N. Y, 138 
 Fragano v. Long, 4 B. & C. 219 . ... 
 
 Frank v. Eltringham, 65 Miss. 281 ... 
 Frankinstein v. Thomas, 4 Daly, 256 
 Franklin u. Neate, 1.3 M. & W. 481 
 Frecy v. Clifford, 44 Cal. 335 . . 
 Freiberg v. Steenbock, 54 Jlinn. 514 . 
 Frost V. Knight, L. R. 7 Ex. Ill . . 
 
 V. Woodruff, 54 111. 155 ... 
 
 Frostburg Mining Co. v. N. E. Glass Co., 9 Cush, 
 Fuentes c. Montis, L. R. 3 C. P. 268 . . 
 
 Gadsden v. Lance, McMullan, Eq. 87 . 
 Gammell v. Gunby Co., 52 Ga. 504 . . 
 Garbarron v. Kreeft, L. R. 10 Ex. 274 . 
 Garbutt r. Watson, 5 B. & Aid. 613 . 
 Garden Cultivator Co. c. Missouri Railway, 64 Mo. 
 Gardner !■. Gray, 4 Camp. 144 . . . 
 
 V. Lane, 12 Allen (94 Mass.), 39 
 
 V. , 98 Mass. 517 
 
 Garfield v. Paris, 96 U. S. 563 
 Garretsou c. Selby, 37 la. 529 . . 
 Gas Co v. Glass Co., 56 Kans. 614 . . 
 Gaskell v. Morris, 7 W. & S. (Pa.) .32 . . 
 Gaylord Mnfg. Co. v. Allen, 53 N. Y. 515 . 
 Gerli v. Poidebord Silk Co., 57 N. J. L. 432 
 Gerst V. Jones & Co., 32 Gratt. 518 . 
 Gibson c. Love, 4 Fla. 217 .. . 
 
 V. Stevens, 8 How. (U. S.) 384 . . 
 
 V. Vail, 63 Vt. 476 
 
 Gill V. Benjamin, 64 Wis. 362 . . 
 Gillespie c Clieney, 65 L. J. Q. B. 552 . 
 Gillett V. Hill, 2 Cromp. & M. 530 . 
 
 !•. Treganza, 6 Wis. 343 .... 
 
 Giroux V. Stedman, 146 Mass. 439 . . . 
 
 (Ma 
 
 115 
 
 App. 305 
 
 97, 
 
 PA8E 
 94 
 
 50 
 
 45 
 
 20 
 
 104 
 
 67 
 
 92 
 
 18 
 
 207 
 
 52 
 
 178 
 
 6 
 
 47,60 
 
 37 
 
 265 
 
 . 27 
 
 . 169 
 
 . 156 
 
 . 208 
 
 66 
 
 . 74 
 
 181, 263 
 
 . 15 
 
 . 103 
 
 66, 130 
 
 . 13 
 
 . 221 
 
 95, 106 
 
 . 97 
 
 97 
 
 72,75 
 
 . 158 
 
 . 199 
 
 239 
 
 129 
 
 . 146 
 
 104 
 
 188 
 
 . 156 
 
 . 57 
 
 . 56 
 
 101, 198 
 
 44,46 
 
 . 20 
 
 . 107 
 
TABLE OP CASES. XXXI 
 
 PAGE 
 
 Glyn Co. v. East Ind. Co., 7 App. Cas. 591 172 
 
 Goad V. Johnson, 6 Heisk. (Tenn.) 107 
 
 Goddard t). Binney, 115 Mass. 450 16 
 
 Godts V. Rose, 25 L. J. C. P. 61 73 
 
 Colder v. Ogden, 15 Pa. St. 528 45 
 
 Ex parte Golding, Davis, & Co., 13 Ch. D. 628 230 
 
 Goodwin v. Holbrook, 4 Wend. 377 139 
 
 V. Mass. Loan Co., 152 Mass. 189 169 
 
 Goodwyn v. Pritchard, 10 La. An. 250 54 
 
 Goom V. Aflalo, 6 B. & C. 117 41 
 
 Gordon v. Norris, 49 N. H. 376 206 
 
 Gosler v. Eagle Sugar Refinery, 103 Mass. 331 106 
 
 Gossler v. Schepler, 5 Daly (N. Y.), 476 213 
 
 Gould V. Bourgeois, 51 N. J. L. 361 91 
 
 V. Stein, 149 Mass. 570 . 95 
 
 Goulds V. Brophy, 42 Minn. 109 101 
 
 Graff !\ Osborne Co., 42 Pae. R. 705 59 
 
 Grand Tower Co. v. Phillips, 23 Wall. (U. S.) 471 207 
 
 Grantham w. Hawley, Hobart, 132 8 
 
 Graves v. Legg, 9 Exch. 709 78, 119 
 
 Gray v. Hall, 29 Kans. 704 202 
 
 V. Walton, 107 N. Y. 254 137, 138 
 
 Greaves v. Ashlin, 3 Camp. 426 210 
 
 Gre'bert-Borgnis v. Nugent, 15 Q. B. D. 85 195, 198 
 
 Green v. Armstrong, 1 Denio (N. Y.), 552 23 
 
 V. Ashlem Iron Co., 62 Pa. St. 97 20 
 
 Greenwood v. Law, 55 N. J. L. 168 7 
 
 Greer v. Church & Co., 13 Bush (Ky.), 430 29 
 
 Gregory v. Morris, 96 U. S. 619 215 
 
 Greve v. Dunham, 60 la. 108 233 
 
 Griee v. Richardson, 8 App. Cas. 319 238 
 
 Griffin V. Colver, 16 N. Y. 489 .194 
 
 Grimoldby v. Wells, L. R. 10 C. P. 391 ... . . 114,'l27 
 
 Groat V. Gile, 51 N. Y. 431 . . 3 
 
 Groetzinger's Sons v. Kann, 165 Pa. St. 578 113 
 
 Grose v. Hennessey, 13 Allen, 389 88, 91 
 
 Gross V. Jordan, 83 Me. 380 29 
 
 V. Kierski, 31 Calif. Ill 88 
 
 Grout V. Hill, 4 Gray (70 Mass.), 361 242 
 
 Groves v. Buck, 3 M. & S. 178 13 
 
 Guilford v. Smith, 30 Vt. 49 223 
 
 Guinzburg v. Downs, 165 Mass. 467 163 
 
 Gunn V. Bolekow, L. R. 10 Ch. App. 491 212 
 
 Gurney v. Behrend, 3 E. &. B. 606 172 
 
 Gustine v. Phillips, 38 Mich. 674 . 220 
 
 Gwyn V. Railway, 85 N. C. 429 219 
 
XSXn TABLE OF CASES. 
 
 PAGE 
 
 H. & T. Ry. V. Poole, 63 Tex. 246 . 221 
 
 Hague V. Porter, 3 Hill (N. Y.), 141 61, 157 
 
 Haille v. Smith, 1 Bos. & Pul. 563 2 
 
 Hall V. Dimond, 63 N. H. 565 233 
 
 V. Huntley, 21 Vt. 147 52 
 
 V. Pillsbury, 43 Minn. 33 46 
 
 I'. Rawson, 4 C. B. (N. B.) 85 . 81 
 
 Hallgarten v. Oldham, 135 Mass. 1 165, 185 
 
 Halliday v. Briggs, 15 Neb. 219 125 
 
 Halt V. Mo. Pao. Ry., 50 Mo. App. 179 48 
 
 Halterline v. Rice, 62 Barb. 593 52, 60 
 
 Hamburger v. Rodman, 9 Daly (N. Y.), 93 22G 
 
 Hamilton ;;. Gordon, 22 Ore. 657 55 
 
 V. Hart, 8 Sess. Gas. 1st Series, 596 108 
 
 V. Russel, 1 Cranch, 310 187 
 
 Hammond v. Bussey, 20 Q. B. D. 79 201 
 
 Hanauer v. Bartels, 2 Col. 514 63, 131 
 
 Hanks v. Palling, 6 E. & B. 659 10 
 
 Hanson v. Meyer, 6 East, 614 53 
 
 Harden v. McClure, 1 Chand. 271 18 
 
 Hardenberg v. Bacon, 33 Cal. 356 21 
 
 Hardy v. Potter, 10 Gray, 89 166 
 
 Harkness v. Russell, 118 U. S. 663 179, 180 
 
 Harman v. Fisher, Cow. 117 242 
 
 Harman v. Reeve, 25 L. J. C. P. 257 33 
 
 Harriman v. Woburn El. L. Co., 163 Mass. 85 10 
 
 Harrington i: Smith, 138 Mass. 92 124 
 
 Harris v. Bradley, 2 Dillon (U. S. Cir. Ct.), 284 156 
 
 V. Lombard, 60 Miss. 29 169 
 
 V. Lynn, 2.3 Kans. 281 92 
 
 V. Pratt, 17 N. Y. 249 222 
 
 V. Tenney, 85 Tex. 254 232 
 
 Harrison v. Fortlage, 161 U. S. 57 ISS 
 
 Hart V. Wright, 17 Wend. 267 106 
 
 Haskins v. Warren, 115 Mass. 514 48 
 
 Hatch V. Oil Co., 100 U. S. 124 62, 139 
 
 Hnuser. Judson, 4Dana (Ky.), 7 2-30 
 
 Hawes v. Foster, 1 Mood. & Rob. 368 41 
 
 I'. Watson, 2 B. & C. 640 218 
 
 Hawkins !'. Graham, 149 Mass. 284, 287 86 
 
 V. Hersey, 86 Me. 394 177 
 
 V. Pemberton, 51 N. Y. 198 93, 121 
 
 Hayden v. Charter Oak D. P., 63 Conn. 142 170 
 
 V. Demets, 53 N. Y. 426 49, 205, 244 
 
 Hayes v. Jackson, 159 Mass. 451 38 
 
 Healy v. Brandon, 66 flun, 516 104 
 
TABLE OF CASES. XXXIU 
 
 PAQE 
 
 Heilbutt V. Hickson, L. R. 7 C. P. 438 58 
 
 Helby v. Matthews, 95 A. C. 471 28, 180 
 
 Hepburn v. Sewell, 5 H. & J. (Md.) 211 4 
 
 Hess Co. V. Dawson, 149 111. 138 148 
 
 Hewes v. German Fruit Co., 106 Cal. 441 210 
 
 Heyford v. Daris, 102 U. S. 235 29 
 
 Heyman v. Flewker, 13 C. B. (n. s.) 519 264 
 
 Heyworth v. Hutchinson, L. R. 2 Q. B. 447 118 
 
 Hibblewhite v. MuMorine, 5 M. & W. 462 11 
 
 Hick V. Raymond (1893), A. C. 22 141, 142 
 
 Higgins V. Kurterer, 41 Mich. 318 21 
 
 . V. Murray, 73 N. Y. 252 211 
 
 Hight V. Bacon, 126 Mass. 10 98 
 
 V. Harris, 56 Ark. 98 190 
 
 V. Ripley, 19 Me. 137 17 
 
 Hill V. Blake, 97 N. Y. 216 142 
 
 Hilton V. Tucker, 39 Ch. D. 669 153 
 
 Hillestad v. Hostetter, 46 Minn. 393 137 
 
 Himes v. Kiehl, 154 Pa. St. 190 136 
 
 Hinchraan v. Lincoln, 124 U. S. 38 72, 75 
 
 Hinde v. Lindell, L. R. 10 C. P. 265 195 
 
 V. Whitehouse, 7 East, 558 75 
 
 Hinds V. Kellogg, 37 N. Y. State Rep. 356 ; 133 N. Y. 536 . . . 16 
 
 Hirth V. Graham, 50 Ohio St. 57 ; 33 N. E. 90 23 
 
 Hitchcock V. Giddings, 4 Price, 135, 140 10 
 
 Hoag V. Place, 93 Mich. 450 21 
 
 Hobart v. Young, 63 Vt. 363 121, 125 
 
 Hobbs 1-. Carr, 127 Mass. 532 161 
 
 V. Columbia Co., 157 Mass. 109 145 
 
 V. Massasoit Co., 158 Mass. 194 71 
 
 Hodges V. Hurd, 47 111. 363 156 
 
 Hodgson V. Barrett, 33 Ohio St. 63 49 
 
 Hoe ». Sanborne, 21 N. Y. 552 99, 105 
 
 Hoffman v. Gallaher, 6 Daly (N. Y.), 42-44 85 
 
 V. King, 58 Wis. 314 112 
 
 Holbrook v. Vose, 6 Bosworth (N. Y.), 76 225 
 
 Holland v. Rea, 48 Mich. 218 240 
 
 Holliday v. McKinne, 22 Fla. 153 187 
 
 V. Marshall, 7 Johns. (N. Y.) 211 83 
 
 Holmes v. Gregg, 28 At. 17 115 
 
 V. Hoskin, 9 Exch. 753 72 
 
 V. Tyson, 147 Pa. St. 305 125 
 
 Home Insurance Co. v. Heck, 65 111. Ill 63 
 
 Honck V. Muller, 7 Q. B. D. 92 147 
 
 Hood V. Barker, 8 Cal. 609 156 
 
 Hoover v. Peters, 18 Mich. 51 108 
 
XXXIV TABLE OF CASES. 
 
 FAOE 
 
 Horn V. Baker, 9 East, 215 179 
 
 Hornblower v. Proud, 2 B. & Aid. 327 6 
 
 Horton v. McCarty, 53 Me. 394 40 
 
 Hosack V. Weaver, 1 Yeates (fa.), 478 163 
 
 Hosmer u. Wilson, 7 Mich. 294 206 
 
 Houghton V. Carpenter, 40 Vt. 588 . 135 
 
 House V. Fort, 4 Blackford, 293 .122 
 
 Howard u. Harris, 90 Mass. 297 .30 
 
 V. Hoey, 23 Wend. 350 . . .... .105 
 
 V. Miner, 20 Me. 325 140 
 
 Howe V. Andrews, 62 Conn. 398 . . 21 
 
 V. Hayward, 108 Mass. 54 34 
 
 V. Smith, 27 Ch. D. 89, 102 ... . . . . 34 
 
 Howell 0. Coupland, 1 Q. B. D. 258 . ... . 11, 82 
 
 Howes V. Jordan, 39 Md. 472 72 
 
 Howland r. Leaeh, 11 Pick. (28 Mass.) 151 120 
 
 V. Woodruff, 60 N. Y. 73 267 
 
 Hudmet r. Weir, 100 Ind. 501 ; 115 Ind. 525 . 34 
 
 Hudson Iron Co. v. Alger, 54 N. Y. 173 ... .30 
 
 Huebler v. Smith, 02 Conn. 186 .... .... 187 
 
 Hull V. HuU, 18 Conn. 250 . 9 
 
 V. Pitrat, 45 Fed. 94 . . . . ... .192 
 
 Humaston v. Am. Tel. Co., 20 Wall. 20 31 
 
 Humble v Jlitehell, 11 Ad. & E. 205 ... 5 
 
 Hunn c. Bowne, 2 Caines Cas. (N. Y.) 38 . . 226 
 
 Hunt !■. Sackett, 31 Mich. 18 . . . ... .90 
 
 V. Thurman, 15 Vt. 336 . . . . . .62 
 
 V. Wyman, 100 Mass. 198 57 
 
 Hunter v. Wetsell, 84 N. Y. 549 . . . . .... 138 
 
 V. Wright, 12 Allen (94 Mass.), 548 160 
 
 Huntingdon v. Hall, .36 Me. 501 , 192 
 
 Hurd c. Bickford, 85 Me. 217 167 
 
 Hurff 1-. Hires, 40 N. J. L. 581 44 
 
 Huschle V. Morris, 131 111. 587 ... . 182 
 
 Hutchinson r. Railway, 59 N. H. 487 . . . . 44 
 
 V. Hunter, 7 Pa. St. 140 . . . 45 
 
 Hutton V. Lippert, 8 App. Cas. 309 . . 28 
 
 lasigi V. Rosenstein, 141 N. Y. 414 . . . . . 158 
 
 Imp. Bank v. London Co , 5 Ch. D. 195 ... 213 
 Ingalls v. Herrick, 108 Mass. 351 . . . ... .151 
 
 Ingram v. Wackemagil, 83 la. 82 208 
 
 Inslee i;. Lane, 57 N. H. 4-54 224 
 
 Insurance Co. u. Kiger, 103 U. S. 352 174 
 
 Iron Cliff Co. «. Buhl, 42 Mich. 86 113 
 
 Iron Co. V. Best, 14 Mo. App. 503 86 
 
TABLE OF CASES. XXXV 
 
 PAOE 
 
 Irvine v. Stone, 6 Cush. (Mass.) 508 33 
 
 Irwin II. Thompson, 27 Kaus. 643 92 
 
 Isherwood v. Whitmore, H M. & W. 347 115 
 
 Jackson v. AUaway, 6 M. & G. 942 137 
 
 V. Tapper, 101 N. Y. 515 . 85 
 
 James v. Griffin, 2 M. & W. 623 223 
 
 V. Patton, 6 N. Y. 9 39 
 
 Janney v. Sleeper, 30 Minn. 473 138 
 
 Jauvrin v. Maxwell, 23 Wis. 51 150 
 
 Jeffries v. Fitchburg Co., 93 Wis. 67, N. W. 424 ... . 220, 228 
 
 Jenkyns v. Brown, 14 Q. B. 496 . 65 
 
 V. Osborne, 7 M. & G. 678 171, 213 
 
 Jenner v. Smith, L. R. 4 C. P. 270 204 
 
 Jennett v. Wendell, 51 N. H. 63 . 33 
 
 Jetton V. Tobey, 34 S. W. 531 163 
 
 Jewett V. Warren, 12 Mass. 300 152 
 
 Johnson v. Babcock, 8 Allen (90 Mass.), 583 163 
 
 ('. Credit Lyonnais Co., 3 C. P. D. 32 181, 184 
 
 V. Dodgson, 2 M. & W. 653 . . 39 
 
 V. Farnum, 56 Ga. 144 214 
 
 V. Hunt, 11 Wend. (N. Y.), 135 59 
 
 V. Laybourn, 56 Minn. 332 91 
 
 V. CEhming, 95 Ala. 189 89 
 
 Johnson-Brinkhan Co. v. Cent. Bk., 116 Mo. 558 49 
 
 Johnston v. Trask, 116 N. Y. 186 75 
 
 Jones V. Bright, 5 Bing. 533 96 
 
 V. Earl, 37 Cal. 630 234, 235 
 
 V. George, 61 Tex. 345 93 
 
 V. Jennings Bros., 168 Pa. 493 ... 205 
 
 V. Lloyd, 117 III. 597 38 
 
 V. Marsh, 22 Vt. 144 239 
 
 V. Padgett, 24 Q. B. D. 650 98, 106 
 
 V. Quick, 28 Ind. 125-127 125 
 
 V. Reynolds, 120 N. Y. 213 8, 75 
 
 V. Sclmeider, 22 Minn 279 63 
 
 V. Victoria Graving Dock Co., 2 Q. B. D. 814 39 
 
 Joseph V. Lyons, 15 Q. B, D. 280 10 
 
 Josling V. Kingsford, 13 C. B. (n. s.) 447 78, 80 
 
 Joy V. Bitzer, 77 la. 73 201 
 
 Joyce V. Adams, 8 N. Y. 291 54, 66 
 
 V. Swan, 17 C. B. (n. s.), 84 65 
 
 Justice V. Lang, 42 N. Y. 493 89 
 
 Kadieh v. Young, 108 111. 170 209 
 
 Kalm v. Kabunde, 50 Wis- 235 57 
 
XXXVl 
 
 TABLE OF CASES. 
 
 Kain v. Larkin, 38 N. Y. Suppl. 546 
 
 V. Old, 2 B. & C. 627 
 
 Keeler v. Goodwin, 111 Mass. 490 
 
 Kein v. Tupper, 52 N. Y. 550 
 
 Kellogg Bridge Co. u. Hamilton, 110 U. S. 108 
 Kellogg Co. V. Peterson, 162 111. 158 
 Kelsea v. Ramsey Co., 55 N. J. L. 320 
 
 Kemp II. Falk, 7 App. Cas. 573 
 
 Kendall u. Marshall, 11 Q. B. D. 856 .. . 
 Kennedy v. Duncklee, 1 Gray (67 Mass.), 65 
 Kenner v. Harding, 85 111. 264 .... 
 Kenniston v. Ham, 29 N. H. 501 . . 
 
 Ketchum v. Evertson, 12 Johns. (N. Y.) 358 
 Key V. Cotesworth, 7 Exch. 595 
 Killraan i: Hewlett, 48 N. Y. 569 .... 
 Kilpin V. Ratley, 1 Q. B. 582 . . 
 Kiraberly v. Patchin, 19 N. Y. 330 
 Kingman v. Denison, tii Mieh. 608 . 
 King Fiiilip Mdls v. Slater, 12 R. I. 82 
 Kingsley i\ White, 57 Vt. 565 . 
 Kingshury v. Smith, 13 N. H. 109 . 
 Kinloch v. Craig, 3 D. & E. 783 
 Kinsey v. Leggett, 71 N. Y. 387 . . . . 
 Kircher v. Conrad, 9 Mont. 191 . . . 
 
 Kirkpatrick v. Gowan, 9 Ir. R. C. L. 521 
 Knights t: Wiffen, L. R. 5 Q. B. 660 
 Knowles i: Vacher, 67 N. J. L. 490 
 Knox f. Eden Musee, 148 N. Y. 441 . 
 Koon l: Brinkerhoff, 39 Hun (N. Y.), 130 
 Kost r. Reilly, 62 Conn. 57 . . 
 Kountz i\ Kirkpatrick, 72 Pa. 376 
 Kreuger v. Blanck, L. R. 5 Ex. 179 
 Kribbs v. Alford, 120 N. Y. 519 . 
 K. S, Co. „. Inman, 1.34 N. Y. 92 
 Kuldman v. Wood, 81 la. 128 ... 
 
 Kunkle v. Mitchell, 56 Pa. 100 . . 
 
 Ladnc v. Ward, 20 Q. B. D. 475 
 Laidler v. Burhson, 2 JI. & W. 602 
 Lake Shore Ry. v. Richards, 162 111. 59 
 Lamb r. Durant, 12 Mass. 54 . 
 Lamond c. Duvall, 9 Q. B. 1030 . . , 
 La Neuville r. Nourse, 3 Camp. 351 
 Lanfear v. Sumner, 17 Mass. 110 
 Langton r. Higgins, 4 H. & N. 402 
 Langstaff v. Stix, 64 Miss. 171 .. . 
 
 43 
 
 PAGE 
 
 . . 104 
 
 . . 125 
 
 46, 216 
 
 55 
 
 . . 99 
 
 . 153 
 
 69, 157 
 
 223, 232 
 
 217, 223 
 
 . 163 
 
 . . 123 
 
 . . 83 
 
 . . 244 
 
 64 
 
 . . 23 
 
 . . 20 
 
 44, 45, 113 
 
 233 
 
 . 147 
 
 153, 188 
 
 164 
 
 219 
 
 265 
 
 122 
 
 93 
 
 46 
 
 168 
 
 176 
 
 67 
 
 47 
 
 31, 207 
 
 111 
 
 10 
 
 148 
 
 161 
 
 140 
 
 . 171 
 60 
 209 
 . 182 
 . 243 
 . 30 
 . 182 
 8,240 
 . 223 
 
TABLE OF CASES. 
 
 XXXVU 
 
 (U. S 
 
 Lansing v. Turner, 2 Johns. 13 
 Lavery v. Pursell, 39 Ch. D. 608 
 Lawrence v. Porter, 63 Fed. 62 
 Lawton v. Lawton, 3 Atk. 14 
 Leask v. Scott, 2 Q. B. D. 376 
 Leavitt v. Fletcher, 60 N. H. 182 
 Lee v.- Gaskell, 1 Q. B. D. 700 
 
 V. Griffin, 1 B. & S. 272 . 
 
 V. Kimball, 45 Me. 172 ... 
 
 Leigh Bros. v. Mobile Ry., 58 Ala. 165 
 Leitch V. Gillette Co., 67 N. W. 352 
 In re Leith's Estate, L. R. 1 P. C. 296 . 
 Leonard v. Clough, 133 N. Y. 292 . . 
 
 V. Davis, 1 Black (U. S.), 476 . 
 
 Lerned v. Wannemaclier, 9 Allen, 412 
 Lesassier v. The Southwestern, 2 Woods 
 Levi V. Booth, 58 Md. 305 . ... 
 Levy V. Green, 28 L. J. Q. B. 319 . . 
 Lewis V. Mason, 36 Up. Can. Q. B. 590 
 Lickbarrow w. Mason, 2 D. & E. 63 
 Lightburn v. Cooper, 1 Dana (Ky.), 273 
 Lincoln v. Gallagher, 79 Me. 189 . . 
 Lingham v. Eggelston, 27 Mich. 324 . 
 Linton v. Porter, 31 111. 107 . 
 Lister v. WindmuUer, 52 N. Y. Supr. Ct. (20 J, 
 Litt V. Cowley, 7 Taunt. 169 ! . . . 
 Lobdell V. Hopkins, 5 Cow. (N. Y.) 516 
 Lockett V. Nicklin, 2 Ex. 93 ; 19 L. J. Ex 
 Lockhart v. Bonsall, 77 Pa. St. 53 
 Loeb V. Peters, 63 Ala. 243 . 
 Loescher v. Deisterberg, 26 111. App. 620 
 Long V. Hartwell, 34 N. J. L. 116 . . 
 
 V. White, 42 Ohio St. 59 . 
 
 Lord V. Edwards, 148 Mass. 476 
 
 V. Green, 15 M. & W. 216 
 
 Lorynier v. Smith, 1 B. & C. 1 
 Lovejoy v. Michels, 88 Mich. 15 
 Low V. Pell, 108 Mass. 347 
 Loyd V. Wight, 20 Ga. 574 . 
 Lucas w. Dixon, 22 Q. B. D. 357 
 Ludbrook v. Barrett, 46 L. J. C. P. 798 
 Ludwig V. Fuller, 17 Me. 162 . 
 Lukens v. Freiund, 27 Kans. 664 . . . 
 Lynch v. Curfnan, 68 N. W. 5 ... 
 
 V. Willford, 59 N. W. 311 . . . 
 
 Lyon V. Bertram, 20 How. (U. S 
 
 Cir. Ct.), 35 
 
 PAGE 
 66 
 
 24 
 199 
 
 227 
 123 
 
 25 
 
 14 
 227 
 176 
 125 
 216 
 
 26 
 55,74, 152 
 
 37 
 228 
 
 175, 176 
 
 . 265 
 
 . 112 
 
 . . . .234 
 
 171, 178,211,227 
 
 . . 133 
 
 115, 140 
 
 47, 55 
 
 & S. 
 
 149 
 
 403 
 
 407 
 
 . . 91 
 
 234, 235 
 
 138 
 
 . 35 
 
 . . 113 
 
 228 
 
 195 
 
 221, 
 
 26 
 
 106 
 
 179 
 
 113 
 
 31 
 
 10 
 
 167 
 
 42 
 
 83 
 
 153 
 
 108 
 
 126 
 
 50, .57 
 
 . 130 
 
XXXTIU 
 
 TABLE OF CASES. 
 
 Lyons v. Hoffnung, 15 App. Caa. 391 
 Lyttle V. Lansing, 147 U. S. 59 
 
 ,495 
 
 McCafiray v. Woodin, 65 N. Y. 459 . 
 McCandlish v. Newman, 22 Pa. St. 4B0 
 McCann v. Randall, 147 Mass. 81 . . 
 McCarty v. Blevis, 5 Yerger (Tenn.), 195 
 McClarmock v. Flint, lUl Ind. 278 
 McClure v. Briggs, 58 Vt. 82 
 
 V. Jefferson, 85 Wis. 208 . 
 
 McConihe v. N. Y. & E. Ry. Co., 20 N. Y 
 McConnell v. Hughes, 29 Wis. 537 . 
 McCormick v. Hamilton, 23 Gratt. (Va.) 561 
 
 V. Kelly, 28 Minn. 135 . . 
 
 Maodonald v. Longbottom, 1 E. & E. 977 . 
 McElroy v. Seery, 61 Md. 389 . 
 McFarland v. Newman, 9 Watts, 55 . 
 JIcFetridge v. Piper, 40 la. 627 . 
 McGrath v. Cannon, 55 Minn. 457 . , 
 
 V. Gegner, 77 Md. 331 
 
 Macky v. Dillinger, 73 Pa. St. 85 
 Mackay v. Dick, 6 App. Cas. 251 
 McKibbin v. Martin, 64 Pa. St. 352 
 McLaughlin v. Marstin, 78 Wis. 670 
 McLay v. Ferry, 44 L. T. (n. s.) 152 
 McLean v. NicoU, 7 Jurist (n. s.), 999 
 McLennan v. McDermid, 52 Mich. 379 
 
 JIcMuUen v. Halberg, L. R. 6 Ir. 4G3 
 
 McNaughton v. Cassady, 4 McLean (U. S. Cir. Ct.), 530 . 
 JIcNeal V. Braum, 53 N. J. L. 617 ... 
 
 SIcNtil V. Hill, 1 Woolworth (U. S. Cir. Ct.), 96 
 
 V. Bank, 46 N. Y. 325 . . .... 
 
 Macomber v. Parker, 13 Pick. 175 . . 
 Macplierson i: Warner, 9 T. L. R. 397 . . 
 
 McQuaid .■. Ross, 85 Wis. 492 . 
 
 Maliaffey v. Ferguson, 156 Pa. 156 
 
 Malone v. Minn. Statue Co., 36 Minn. 325 
 Manly v. Betzer, 91 Ky. 596 ... 
 Mann r. Evertson, 32 Ind. 355 
 JIanton v. Moore, 7 D. & E. 67 . 
 Manufacturing Co. v. Stark, 45 Kans. 606 
 Marshall v. Duke, 51 Ind. 62 . 
 
 V. Green, 1 C. P. D. 35 . 
 
 Marston v. Knight, 29 Me. 341 
 
 Martin v. Hurlburt, 9 Minn. 142 
 
 V. Mathiot, 14 S. & R. 214 . . . , 
 
 PASS 
 
 222, 223 
 . . 170 
 
 10 
 
 67 
 7 
 
 85 
 
 129 
 
 68 
 
 31 
 
 208 
 
 124 
 
 37 
 
 238 
 
 . 122 
 
 . 232 
 
 207 
 
 . . 207 
 
 262, 268 
 
 188 
 160 
 110 
 
 36 
 114 
 
 38 
 149 
 160 
 156 
 175 
 
 55 
 
 36 
 103 
 123 
 
 52 
 
 9 
 
 106 
 
 151 
 
 134 
 
 87 
 
 23,72 
 
 133 
 
 54 
 179 
 
TABLE OF CASES. XXsix 
 
 PA0K 
 
 Martindale v. Smith, 1 Q. B. 389 213, 238 
 
 Martineau v. Kitching, L. R. 7 Q. B. 436 .. . 53, 56, 67, 77, 136 
 
 Marvin v. Wallis, 6 El. & Bl. 726 69, 70, 72 
 
 Marvin Safe Co. v. Norton, 48 N. J. L. 410 63 
 
 Maryland Co. i/. Lorentz, 44 Md. 218 120 
 
 Mason v. Chappell, 15 Gratt. 572 104 
 
 V. Wilson, 43 Ark. 172 233 
 
 Massey u. State, 74 Ind. 368 30 
 
 Matheny v. Mason, 78 Mo. 677 88 
 
 Mattoon v. Rice, 102 Mass. 236 106 
 
 Maybee v. Tregent, 47 Mich. 495 174 
 
 Mayer v. Heidelbach, 123 N. Y. 332 167 
 
 Meade v. Smith, 16 Conn. 346 182 
 
 Meehan v. Sharp, 151 Mass. 564 75 
 
 Meincke v. Talk, 55 Wis. 427 18 
 
 Melancon v. Robichaux, 17 La. (o. s.) 97 136 
 
 Mellen v. Boorman, 21 Miss. 100 92 
 
 Merch. Bank v. Lovejoy, 84 Wis. 601 9 
 
 Merchant Banking Co. v. Phoenix Co., 5 Ch. D. 205 . . . . 226 
 Merchants' Nat. Bank v. Bangs, 102 Mass. 291 . . . . 60, 64 
 
 Merritt v. Closson, 12 Johns. 102 36 
 
 V. Johnson, 7 Johns. (N. Y.) 473 60 
 
 Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 484 . . 144, 145, 148 
 
 Mews V. Carr, 1 H. & C. 484 40 
 
 Meyer v. Everth, 4 Camp. 22 96 
 
 Meyers v. Scherap, 67 111. 469 26 
 
 Mich. State Bank v. Gardner, 15 Gray, 362 261 
 
 Ex parte Miles, 15 Q. B. D. 39 230, 233 
 
 Miles V. Gorton, 2 Cr. & M. 604 . . . . ... 212 
 
 Milgate v. Kebble, 3 M. & Gr. 100 . . . .... 240 
 
 Millard v. Webster, 54 Conn. 416 •. . . 221, 233 
 
 Miller v. Hyde, 161 Mass. 472 3 
 
 V. Moore, 83 Ga. 684 . . 149 
 
 V. Race, 1 Burr. 462 ... 162 
 
 V. Steen, 30 Cal. 402 148 
 
 Mills V. Hunt, 20 Wend. (N. Y.) 431 33 
 
 Missouri Ry. v. Heidenheimer, 82 Tex. 195 228, 229 
 
 Mitchell V. Gill, 12 N. H. 390 30 
 
 V. Le Clair, 165 Mass. 308 150 
 
 Mixer v. Howarth, 21 Pick. 205 16 
 
 Molir V. Boston Railway, 106 Mass. 67 233 
 
 Mondel v. Steel, 8 M. & W. 858 132 
 
 Moody V. Brown, 84 Me. 107 61, 205 
 
 Moore v. Campbell, 10 Exch. 323 . 36 
 
 .,. McKinley, 5 Calif. 471 105 
 
 V. Mountcastle, 61 Mo. 424 38 
 
xl 
 
 TABLE OF CASES. 
 
 15 
 
 Mooreliead v. Davis, 92 Ind. 303 . 
 Moors V. Kidder, 106 N. Y. 32 
 Morgan v. Bain, L. R. 10 C. P. 
 
 V. McKee, 77 Pa. St. 228 
 
 V. Perkins, 1 Jones' Law (N. C), 171 
 
 Morison v. Gray, 2 Bing. 260 . 
 ^[orley v. Attenljorougli, 3 Excli. 500 . 
 Morris v. Levison, 1 C. P. I). 155 . 
 
 i: Wibaux, 159 III. 627 
 
 Morse v. Moore, 83 Me. 473 . 
 
 II. Slierman, 106 Mass. 430 . 
 
 V. Stockyard, 21 Ore. 289 . . 
 
 Moss V. Sweet, 16 Q. B. 493 ... 
 Mottram v. Heyer, 5 Den. (N. Y.) 629 
 Mucklow V. Mangles, 1 Taunton, 318 . . . 
 
 MuUer v. Pondir, 55 N. Y. 325 
 
 Murdoch v. Greig, 16 Sess. Cas. 395, 4th series 
 Murphy v. Boese, L. R. 10 Exch. 126 . . 
 Murray v. Jennings, 42 Conn. 9 ... 
 Myer v. Wheeler, 65 la. 390 
 
 PAGE 
 . . 90 
 
 65, 213 
 
 145, 241 
 
 144 
 
 55 
 
 . 219 
 
 92 
 
 109 
 
 110 
 
 128 
 
 48 
 
 56 
 235 
 
 61 
 213 
 180 
 
 40 
 200 
 144 
 
 Nash r. Rockford Veneer Co., 67 N. W. Ill . . 
 
 Nat. Bank v. Chic. Bur. & N. R. Ry., 44 Minn. 224 . 
 Xeis V. O'Brien, 12 Wash. 358 . ... 
 
 Newliall V. Central Railway, 51 Cal. .345 
 
 t). Vargas, 13 Me. 93 
 
 New Haven Wire Co. Cases, 57 Conn. 352 . 
 New England T. Co. .'. Abbott, 162 Mass. 148 . 
 Newell 1-. Radford, L. R. 3 C. P. 52 . ... 
 
 c. Smith, 53 Conn. 72 
 
 N. Y. Biscuit Co. c. City of Cambridge, 161 Mass. 326 
 N. Y. Tartar Co. r. Frencli, 154 Pa. St. 273 . 
 Nicholson v. Bowen, 1 E. & E. 172 . ... 
 
 V. Taylor, 31 Pa. St. 128 . 
 
 Nickerson v. Darrow, 5 Allen (Mass.), 419 
 Nightingale v. Eissman, 121 N. Y. 288 . . . 
 Noble V. Bnsworth, 19 Pick, (.^rass ) 314 . 
 
 [.. Smith, 2 Johns. (N. Y.) 52 
 
 V. Ward, L. R. 1 Exch. 117 ; 2 Ibid. 135 
 
 Norrington v. Wright, 115 U. S. 188 . . 
 Northwestern Cordage Co. u. Rice, 67 N. W. 298 . . 
 
 . 47 
 
 173 
 
 244 
 
 . 236 
 
 219, 222, 238 
 
 . . 176 
 
 84, 192 
 
 37 
 
 31 
 
 31, 
 
 Oberdorfer v. Meyer, 88 Va. 384 . . 
 O'Brien v. Jones, 91 N. Y. 193 . 
 O'Connor's Admx. v. Clark, 170 Pa. 318 
 Ogg r. Shuter, 1 C. P. D. 47 . . 
 
 . 160 
 
 212 
 
 55,64 
 
 267 
 
 143 
 
 26 
 
 29 
 
 . 36 
 
 144, 147 
 
 128 
 
 . 169 
 
 175 
 64 
 
TABLE OP CASES. 
 
 xli 
 
 O'Hanlan v. Great W. Ry., 6 B. & S. 484 . 
 
 Oliver v. Hunting, 44 Ch. D. 205 
 
 Ollivant v. Bayley, 5 Q. B. 288 
 
 Olyphant v. Baker, 5 Den. 379 
 
 Osborne Co. v. Francis, 38 W. Va. 312 . 
 Osgood V. Bander, 75 la. 550 . .... 
 Oswego Starch Factory u. Lendrum, 57 la. 573 
 Otis V. Adams, 56 N. J. L. 38 . . . . 
 Ott V. Sweatman, 166 Pa. St. 217 ... 
 Owens V. Lewis, 46 Ind. 488 
 V. Weedman, 82 III. 409 
 
 .550 
 
 Page V. Cowasjee, L. R. 1 P. C. 127 
 
 V. Morgan, 15 Q. B. D. 228 . . 
 
 Paine v. Young, 56 Md. 314 . . 
 
 Palmer v. Hand, 13 Jolins. (N. Y.) 434 
 Pardee v. Kanady, 100 N. Y. 121 . 
 Parker v. Baxter, 86 N. Y. 586 . 
 
 V. Palmer, 4 B. & C. 387 . 
 
 Parks V. O'Connor, 70 Tex. 377 
 
 Parry v. Libbey, 166 Mass. 112 
 
 Parshall v. Egert, 54 N. Y. 18 . 
 
 Parton v. Crofts, 16 C. B. (n. s.) 11 . 
 
 Paterson v. Tash, 2 Strange, 1178 . 
 
 Patten's Appeal, 45 Pa. St. 151 . 
 
 Patten v. Thompson, 5 M. & S. 350 
 
 Pattison f. Culton, 33 Ind. 240 . . 
 
 Paul r. Reed, 52 N. H. 136 . 
 
 Payne v. Rodden, 4 Bibb, 304 . 
 
 Peabody v. Speyers, 56 N. Y. 230 
 
 Peace River Co. f. Gratflin, 58 Fed 
 
 Peacock v. Rhodes, 1 Doug. 633 
 
 Peck V. Jenison, 99 Mich. 326 . 
 
 Peer v. Humphrey, 2 A. & E. 495 . 
 
 Pegram v. Corson, 10 Bos. 505 
 
 Pembroke Iron Co. v. Parsons, 5 Gray (Mass.), 589 
 
 Penley v. Bessey, 87 Me. 530 
 
 Peim. Co. u. Am. Oil Works, 126 Pa. St. 485 . 
 Peoria Manufacturing Co. ii. Lyons, 153 111. 427 
 
 Perkins u. Bell (1893), IQ.B. 193 
 
 Perley v. Balch, 23 Pick. (Mass.) 283 
 Peterkin v. Martin, 30 La. An. 894 .. . 
 
 Phelps V. Comber, 29 Ch. D. 813 
 
 Phil. Ry. 0. Wireman, 88 Pa. St. 264 
 
 Phillimore v. Barry, 1 Camp. 513 
 
 Phillips V. Moor, 71 Me. 78 
 
 PAGE 
 
 194 
 
 37 
 
 101 
 
 2 
 
 86 
 
 146 
 
 169 
 
 144 
 
 179 
 
 23 
 
 214 
 
 238 
 
 71 
 
 52 
 
 216 
 
 145 
 
 166 
 
 95 
 
 129 
 
 151 
 
 27 
 
 41 
 
 252 
 
 238 
 
 226 
 
 225 
 
 49 
 
 87 
 
 37 
 
 193 
 
 162 
 
 121 
 
 162 
 
 . 267 
 
 110 
 
 47 
 
 235 
 
 28 
 
 . . . 114 
 
 . . 1.33 
 
 54 
 
 . . 234 
 
 , 60, 66, 218 
 
 . . 36 
 
 . . 49 
 
xlii TABLE OP CASES. 
 
 PAOB 
 
 Phillips V. Reitz, 16 Kans. 396 189 
 
 Phippen v. Stickney, 3 Met. (Mass.) 384 3l 
 
 Phipps V. McFarlan, 3 Minu. 109 15 
 
 Pickering v. Busk, 15 East, 38 174, 175, 252 
 
 Pierce v. Chipman, 8 Vt. 334 166 
 
 Pierson i>. Crooks, 115 N. Y. 539 114, 117, 130 
 
 Pike V. Vaughan, 39 Wis. 499 '. . ' 54 
 
 Pinkham v. Mattox, 53 N. H. 600 71 
 
 Pinney v. Andrus, 41 Vt. 631 123 
 
 u. Railroad, 19 Minn. 251 141 
 
 Pitkin V. Noyes, 48 N. H. 294 17 
 
 Pittsburg Coal Co. v. Foster, 59 Pa. St. 365 196 
 
 Piatt V. Peck, 70 Wis. 620 62 
 
 Platter v. Acker, 13 Ind. App. 417 47 
 
 Pollard w. Vinton, 105 U. S. 7 172 
 
 Pollen V. Le Roy, 30 N. Y. 549 2:!n 
 
 Poole V. The H. Ry., 58 Tex. 134 . . 224 
 
 Pope V. AUis, 115 U. S. 363 94, 11,3 
 
 V. Porter, 102 N. Y. 366 ' I47 
 
 Pordage v. Cole, 1 Saund. 319, note 2 . 120 
 
 Porter v. Bright, 82 Pa. St. 441 . . 92 
 
 Potsdamer v. Kruse, 57 Minn. 193 130 
 
 Potts V. N. Y. & N. E. Ey., 131 Mass. 455 235 
 
 Potter V. Lee, 94 Mich. 140 113 
 
 V. Peters, 72 L. T. R. 624 37 
 
 Pratt V. Miller, 109 Mo. 78 18 
 
 H. A. Prentice Co. v. Page, 164 Mass. 276 266 
 
 Prescott V. Locke, 51 N. H. 94 17, 5.5 
 
 Price I'. Durin, 56 Barb. 647 .40 
 
 V. Wis. Co., 43 Wis. 267 . . 263, 264, 268 
 
 Priestly r. Pratt, L. R. 2 Ex. 101 . 179 
 
 Pritchett v. Jones, 4 Rawle (Pa.), 259 52 
 
 Providence Coal Co. v. Coxe, 35 At. 210 149 
 
 Puget Sound Depot 0. Rigby, 43 Pac. 39 16 
 
 Piirner v. Piercy, 40 Md. 212 . . 24 
 
 Putcliin V. Pierce, 12 Wend. 61 27 
 
 Putnam v. Glidden, 159 Mass. 47 211 
 
 Plumb V. Campbell, 129 111. 101 239 
 
 Quintard !■. Bacon, 99 Mass. 185 75 
 
 Radliffy. Dallinger, 141 Mass. 1 165 
 
 Rail V. Little Falls Lumber Co., 47 Minn. 422 49 
 
 Ramish v. Kirschbraun, 40 Pac. 1045 63 
 
 Randall v. Newson, 2 Q. B. D. 102 97, 99, 104 
 
 Ray V. Thompson, 12 Cush. 281 50 
 
TABLE OF CASES. 
 
 xliii 
 
 Rechten v. McGary, 117 Ind. 132 . . 
 
 Reed v. Jewett, 5 Greenl. (Me.) 96 . . . . 
 
 V. Reed, 70 Me. 504 
 
 Reeder v. Maohen, 57 Md. 56 . . 
 
 Remick v. Sanford, 120 Mass. 309 ... . 
 
 Remington v. Linthicum, 14 Pet. 84, 93 (1840) 
 
 Restal V. Engemon, 67 N. W. 1146 
 
 Reuss V. Picksley, L. R. 1 Ex. 342 . . 
 
 Reynolds v. Railroad, 43 N. H. 580 . 
 
 Rhodes v. Thwaites, 6 B. & C. 388 ... 
 
 Richey v. Garvey, 10 Irish Law Reports, 544 
 
 Ricker v. Cross, 5 N. H. 570 ... 
 
 Ricketts v. Siason, 9 Dana (Ky.), 358 
 
 Riddle v. Webb, 18 So. 323 . . 
 
 Rider v. Kelly, 32 Vt. 268 . . 
 
 Rieff V. RiefE, 64 Pa. St. 134 . 
 
 Robbins v. Luce, 4 Mass. 474 . . 
 
 Roberts v. Applegate, 153 111. 210 
 
 Robinson v. Morgan, 65 Vt. 37 . 
 
 V. United States, 13 Wall. (U. S.) 363 
 
 Rochester D. Co. v. Rasey, 142 N. Y. 670 
 Rochester Lantern Co. v. Stiles & Parker Co., 135 N, 
 Rodgers v. Perrault, 41 Kans. 385 
 
 V. Niles, 11 Ohio St. 48 . . . 
 
 Rogers v. Hanson, 35 la. 283 . 
 
 V. Thomas, 20 Conn. 53 . 
 
 u. Whitehouse, 71 Me. 222 . 
 
 Rohrbough v. Johnson, 107 Cal. 144 
 Rondeau v. Wyatt, 2 H. Bl. 63 . . 
 Root V. French, 13 Wend. (N. Y.) 570 
 Roper V. Johnson, L. R. 8 C. P. 167 
 Ropes V. Law, 11 Allen (93 Mass.), 591 
 Rose V. Story, 1 Pa. St. 190 . . 
 Rosenfield v. Swenson, 45 Minn. 190 
 Rosenhams v. Weeden, 18 Grattan (Va.), 785 
 Rosenthal v. Dessau, 11 Hun (N. Y.), 49 
 
 V. Kahn Bros., 19 Ore. 571 . . . 
 
 Rourke v. BuUens, 8 Gray (Mass.), 549 
 Roush V. Emerick, 80 Ind. 551 
 Rowe V. Sharp, 61 Pa. St. 26 . . 
 Rucker v. DonoTan, 1 3 Kans. 251 
 Rugg V. Minet, 11 East, 210 . . 
 
 V. Moore, 110 Pa. St. 236 . 
 
 Ruhl V. Phillips, 48 N. Y. 126 . . 
 Russell V. Nicolopuco, 8 C. B. (n. s.) 362 
 V. Richards, 10 Me. 429 ... . 
 
 
 PAGE 
 
 . 131 
 
 . 190 
 
 ... 182 
 
 . . 61 
 
 . 71, 74 
 
 39,42 
 
 ... 52 
 
 
 . 37 
 
 
 . 219 
 
 
 47 
 
 
 . 40 
 
 
 185 
 
 
 102 
 
 
 120 
 
 
 61 
 
 
 22 
 
 
 137 
 
 
 121 
 
 
 225 
 
 
 126 
 
 
 9 
 
 209. . 
 
 193 
 
 
 125 
 
 
 99 
 
 . . 135 
 
 . . 220 
 
 ... 176 
 
 ... 188 
 
 . . 12 
 
 . . . 168 
 
 . 208, 209 
 
 . . 151 
 
 . . 179 
 
 127 
 
 . . . 239 
 
 . . . 228 
 
 . 54 
 
 . , . 52 
 
 138 
 
 . 28 
 
 . . . 234 
 
 ... 54 
 
 . . . 144 
 
 . . . 29 
 
 . . . 95 
 
 
 25 
 
xliv TABLE OF CASES. 
 
 St. Anthony Lumber Co. v. Bardwell Co., 60 Minn. 199 
 SafEord v. McDonough, 120 Mass. 290 . . 
 
 Saladin v. Mitchell, 45 111. 79 ... . 
 
 Salem India Rubber Co. v. Adams, 23 Pick. 256 
 Salisbury v. Stainer, 19 Wend. {N. Y.) 159 
 Saltus V. Everett, 20 Wend. 266 
 Sanborn v. Flagler, 9 Allen, 474 . 
 Sanders v. Davis, 15 Q. B. D. 268 
 
 V. Jackson, 2 C. & K. 667 . 
 
 V. Maclean, 11 Q. B. D. 327 . 
 
 Sands v. Taylor, 5 Johns. 395 . . . . 
 
 Sanger v. Waterbury, 116 N. Y. .371 
 Saunderson v. Jackson, 2 B. & P. 238 
 Sawyer v. Joslin, 20 Vt. 172 
 
 u. Long, 86 Me. 541 
 
 Schloss V. Feltus, 103 Mich. 525 . . 
 Schofield V. National El. Co., 67 N. W. 645, Minn. (1896) 
 Scholfield i: Bell, 14 Mass. 40 .... 
 
 School Furniture Co. (/. Warsaw Sch. D., 1.30 Pa. St. 76 
 Schotsman v. Lancashire Ry., L. R. 2 Ch. Ap. 332 
 Schreyer v. Kimball Lumber Co., 54 Fed. 653 
 Schufeldt V. Pease, 16 Wis. 659 
 Scott V. Ry., 12 M. & W. 33 
 
 u. Wells, 6 W. & S. (Pa.) 357 
 
 Scott Lumber Co. u. Hafner Co., 91 Wis. 667 
 Scranton v. Chirk, 39 N. Y, 220 
 
 V. Coe, 40 Conn. 159 
 
 Scudder i: Worster, 11 Cush. (65 Mass.) 573 
 Seal r. Zell, 63 Md. 356 
 Seavey v. Walker, 108 Ind. 78 
 Secomb w. Nult, 14 B. Mon. (Ky.) 324 
 Seed ". Lord, 66 Sle. 680 . . 
 Seemnller v. Fuchs, 64 Md. 217 . 
 Seitz V. Brewers' Co., 141 U. S. 510 
 Sewell V. Burdick, 10 App. Cas. 74 . . . 
 Shaffer v. Stevens, 42 N. E. 620, Ind. (1896) 
 Shanwick v. Sothern, 9 Ad. & E. 895 
 Shattuck v. Green, 104 Mass. 42 
 Sliaul ('. Harrington, 54 Ark. 305 
 Shaw r. Nudd, 8 Pick. (Mass.) 9 
 
 V. Railroad Co., 101 U. S. 557 . 
 
 Shawan v. Van Nest, 25 Ohio St. 490 . 
 
 Shealy v. Edwards, 73 Ala. 175 
 
 Shepherd w. Harrison, L. R. 5 H. L. 116 . . 
 
 Sherdon v. Kyler, 87 Ind. 38 . 
 
 Sherman v. Ruger, 55 Wis. 346 
 
 
 PA8E 
 
 
 118 
 
 
 150 
 
 
 239 
 
 
 135 
 
 
 92 
 
 
 163 
 
 
 37 
 
 
 25 
 
 
 114 
 
 90, 153 
 
 ,172 
 
 104 
 
 ,239 
 
 
 55 
 
 
 36 
 
 
 233 
 
 
 9 
 
 
 167 
 
 
 28 
 
 
 218 
 
 
 84 
 
 22V 
 
 ,235 
 
 
 59 
 
 
 168 
 
 
 75 
 
 
 55 
 
 
 125 
 
 
 92 
 
 
 153 
 
 
 44 
 
 
 173 
 
 
 190 
 
 
 220 
 
 . 161,243 
 
 
 92 
 
 . 101, 
 
 ,126 
 
 
 27 
 
 
 29 
 
 
 218 
 
 
 87 
 
 
 190 
 
 
 193 
 
 
 173 
 
 61, 
 
 ,205 
 
 
 31 
 
 
 66 
 
 
 124 
 
 
 225 
 
TABLE OP CASES. xlv 
 
 PAaa 
 
 Sherrod v. Langdon, 21 la. 619 201 
 
 Shields v. Pettee, 4 N. Y. 122 81 
 
 Sliindler v. Houston, 1 N. Y. 261 70 
 
 Shisler v. Baxter, 109 Pa. St. 443 . ... . .94 
 
 Shurtleff v. "Willard, 19 Pick. (36 Mass.) 202 . . . . I5i 
 
 Simcoe Society v. Wade, 12 Up. Can. Q. B. 614 . ... 103 
 
 Simm V. Anglo Am. Tel. Co., 6 Q. B. D. 188 . .... 46 
 
 Simmons v. Swift, 5 B. & C. 857 . 53 56 
 
 SkifCen v. Wray, 6 East, 371 213 
 
 Slayton v. McDonald, 73 Me. 50 . . 30 
 
 Smith V. Baker, 40 L. T. (n. s.) 261 107 
 
 V. Clark, 21 Wend. 83 '. ' 28 
 
 V. Edwards, 156 Mass. 221 .61 
 
 V.Edwards, 29 Hun (N. Y.), 493 64 
 
 V. Goss, 1 Camp. 282 224 
 
 V. Green, 1 C. P. D. 92 201 
 
 V. Lewis, 26 Conn. 110 . 138 
 
 V. Lynes, 5 N. Y. 41 161 
 
 V. Pettee, 70 N. Y. 13 . 240 
 
 V. Smith, 51 N. H. 571 . . . . . . . 4 
 
 V. Stanton, 15 Vt. 685 . . . . . . 38 
 
 V. Surman, 9 B. & C. 561 . 13 
 
 V. Wheeler, 7 Oregon, 49 ... . 137 
 
 Smyth z). Craig, 3 W. & S. (Pa.) 14 .82 
 
 Snider v. Thrall, 56 Wis. 674 .73, 151 
 
 Snow V. Schomacker Manuf. Co., 69 Ala. Ill . . . 125 
 
 Soltau V. Gerdau, 119 N. Y. 380 181, 266 
 
 Somerby v. Buntin, 118 Mass, 279 8 
 
 Somes V. British Co., 8 H. L. C. 338 212 
 
 South Australian Ins. Co. c. Randall, L. R. 3 P. C. 101 28 
 
 Spalding v. Ruding, 6 Beav. 376 . . 229 
 
 Sparkes v. Marshall, 2 Bing. N. C. 761 . . . . . 63 
 
 Sparling !). Marks, 86 111. 125 . . .... 134 
 
 Spooner v. Holmes, 102 Mass. 603 ... 163 
 
 Standard Sugar Refinery v. Castano, 43 Fed. 279 . Ill 
 
 Stanton v. Eager, 16 Pick. 467 .. . . 227, 236 
 
 !•. Richardson, L. R. 7 C. P. 421 79 
 
 Ex parte Stapleton, 10 Ch. D. 586 238 
 
 Starr v. Torrey, 22 N. J. L. 190 ... . . . . . 127 
 
 Startup !■■ Macdonald, 6 Man. & G. 593 . . . 113, 115, 142 
 
 Steaubli v. Blaine Nat. Bank, 11 Wash. 426 263 
 
 Stephens v. GiflTord, 137 Pa. St. 219 ... 188 
 
 Stevens v. Cunningham, 3 Allen (85 Mass.), 491 . . . 263, 266 
 
 V. Wilson, 3 Den. (N. Y.) 472 ... 267 
 
 „. , 6 Hill (N. Y.), 512 267 
 
 Stevenson v. Burgin, 49 Pa. St. 36 109 
 
xlvi TABLE OP CASES. 
 
 FAGB 
 
 Stewart v. Eddowes, L. R. 9 C. P. 811 39 
 
 Stimson v. Wrigley, 86 N. Y. 332 187, 190 
 
 Stock V. Inglis, L. R. 12 Q. B. 664 ; 10 App. Cas. 263 .. . 44, 67 
 
 Stoddard v. Ham, 129 Mass. 383 165 
 
 Stokes V. Baars, 18 Fla. 656 . 148 
 
 StoUenwerok v. Thacher, 115 Mass. 224 267 
 
 Stone V. Browning, 51 N. Y. 211 ... 72 
 
 V. Heissler, 120 lU. 433 31 
 
 StOTeld V. Hughes, 12 Rev. Rep. at p. 525 218 
 
 V. Hughes, 14 East, 308 225 
 
 Streeper v. Eckart, 2 Whar. (Pa.) 302 187 
 
 Strong y. Doyle, 110 Mass. 92 . 25 
 
 Stroud w. Austin, IC. & E. 119 195 
 
 Sturm V. Baker, 150 U. S. 812 80, 50, 65 
 
 Sturtevant v. Orser, 24 N. Y. 538 243 
 
 StutE V. Coal Co., 131 Pa. St. 267 57 
 
 SuUivan v. Byrne, 10 S. C. 122 84 
 
 Surget V. Boyd, 57 Miss. 485 1G9 
 
 Symms v. Schotten, 35 Kas. 310 232 
 
 Talbot Paving Co. v. Gorman, 103 Mich. 403 129 
 
 Tallman v. Franklin, 14 N. Y. 584 36 
 
 Tancred v. Steel Co., 15 App. Cas. 125 110 
 
 Tansley v. Turner, 2 Bing. N. C. 151 56, 74 
 
 Tarling v. O'Biordan, L. R. 2 Ir. 82 112 
 
 Taylor v. Blakelock, 32 Ch. D. 560 168 
 
 !). Bullen, 5 Exch. 778 94 
 
 V. Saxe, 134 N. Y. 67 . 126 
 
 Taylors v. Maclellan, 19 Sess. Cas., 4th series, 10 . . . 141, 112 
 
 Tempest v. Fitzgerald, 3 B. & Aid. 680 75 
 
 Terry v. "Wheeler, 25 N. Y. 620 3, 47 
 
 Texas Ry. v. Beard, 68 Tex. 265 73 
 
 Thacher y. Moors, 134 Mass. 156 191,267 
 
 Thayer v. Luce, 22 Ohio St. 62 36 
 
 V. Rock, 13 Wend. 53 26 
 
 Theiss v. Weiss, 166 Pa. 9 200 
 
 Thomas v. Wells, 140 Mass. 517 202 
 
 Thompson v. Brannin, 94 Ky. 490 47 
 
 I'. Conover, 36 N. J. L. 148 52 
 
 0. Gardiner, 1 C. P. D. 777 41 
 
 i>. Harvey, 86 Ala. 519 135 
 
 V. Railway Co., 28 Md. 396 74 
 
 Thorndike v. Bath, 114 Mass. 116 190 
 
 Thornton v. Charles, 9 M. & W. 802 41 
 
 V. Meux, M. & M. 44 41 
 
TABLE OP CASES. xlvii 
 
 PAGE 
 
 Thurston v. Spratt, 52 Me. 202 91 
 
 Tigress, The, 32 L. J. Adm. 97 236 
 
 Tiedeman v. Knox, 63 Md. 612 173 
 
 Tipton V. Feitner, 20 N. Y. 423 33 
 
 Tisdale v. Harris, 20 Pick. 9 7 
 
 Todd V. Gamble, 148 N. Y. 382 209 
 
 Tottenham v. Swansea Zinc Ore Co., 52 L. T. 738 25 
 
 Towell V. Gatewood, 3 111. 22 121 
 
 Towers v. Osborne, 1 Strange, 506 12 
 
 Towne v. Collins, 14 Mass. (Supplement) 500 162 
 
 Townsend v. Hargraves, 118 Mass. 325 73 
 
 Treadwell v. Aydlett, 9 Heisk. (Tenn.) 388 222 
 
 Treat v. Hills, 68 Wis. 344 20 
 
 Trigg V. Clay, 88 Va. 330 195 
 
 Trimble v. Keet, 65 Mo. App. 174 184 
 
 Tufts u. Bennett, 163 Mass. 398 207 
 
 V. Grewer, 83 Me. 407 206 
 
 V. Griffin. 107 N. C. 47 178 
 
 V. Sylvester, 79 Me. 213 233 
 
 V. Weinfeld, 88 Wis. 647 209 
 
 Turner v. Moore, 58 Vt. 455 48 
 
 Tuthill V. Skidmore, 124 N. Y. 148 220, 238 
 
 Twyne's Case, 3 Coke, 80 b 186 
 
 Tyler v. Augusta, 88 Me. 504 136 
 
 i;. Freeman, 3 Cush. 261 49 
 
 Ulen V. Klttredge, 7 Mass. 233 39 
 
 UUman v. Kent, 60 111. 271 239 
 
 Underwood v. Wolf, 131 111. 425 127 
 
 Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536 . . 63, 207 
 
 Union Con. Silver Co. v. Taylor, 100 U. S. 37 21 
 
 United States v. Peck, 102 U. S. 64 139 
 
 «. Robeson, 9 Pet. (U. S.) 319 84 
 
 Upson V. Holmes, 51 Conn. 500 58 
 
 Vallentine v. Reid, 22 Sess. Cas., 4th series, 711 176 
 
 Valley Distilling Co. v. Atkins, 50 Ark. 289 189 
 
 Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468 107 
 
 Van Brocklin v. Smeallie, 140 N. Y. 70 8, 47, 69, 240 
 
 Van Casteel v. Bowker, 2 Ex. 691 65, 223 
 
 Van Duzon v. Allen, 90 111. 499 169 
 
 Van Hoozer v. Cory, 34 Barb. (N. Y.) 9 9 
 
 Ventress v. Smith, 10 Pet. (U. S.) 161 162 
 
 Vlckers v. Vickers, L. E. 4 Eq. 529 82, 83 
 
xlviii TABLE OP CASES. 
 
 PAGE 
 
 Viaette, The, 34 Fed. 396 . . 235 
 
 Vincent v. Germond, 11 Jolins. 283 . . 71 
 
 V. Vietlis, 60 Mo. App. 9 . . . . . 8 
 
 Voorhees v. Kellogg, 2 Hill (N. Y.), 288 . . . 133 
 
 Voorhis v. Olmstead, 66 N. Y. 113 . ... 217 
 
 Wagner v. Cleveland & Toledo Railway, 22 Ohio St. 563 . . 25 
 
 Wagstaff;;, Shorthorn Dairy Co., 1 C. &E. 324 . 201 
 
 Wait V. Baker, 2 Exch. 1 , .60 
 
 Wakeman v. Manufacturing Co., 101 N. Y. 205 . . . 199 
 
 Waldo V. Belcher, 11 Iredell (N. C), 609 . . . 44 
 
 Walker v. Davis, 65 N. H. 170 112 
 
 V. Supple, 54 Ga. 178 . . ... 7 
 
 Walley v. Montgomery, 3 East, 585 64, 65 
 
 Walmeslay v. Milne, 7 C. B. (n. s.) 115 24 
 
 Walther v. Wetmore, 1 E. D. Smith, 7 264 
 
 Wansler v. Messier, 29 N. J. L. 256 89 
 
 Waples c. Overaker, 77 Tex. 7 . 289 
 
 Ward II. Turner, 2 Ves. Sr. 481 . . . 154 
 
 Ware River Co. v. Vibbard, 114 Mass. 447 212 
 
 Waring v. Mason, 18 Wend. (N. Y.) 425 95 
 
 Warner v. Martin, 11 How. (U. S.) 209 . . . 263 
 
 V. Norton, 20 How. (U. S.) 448 . 187 
 
 Wash. Ice Co. v. Shortall, 101 111. 46 . . . . . . 21 
 
 Washington Ice Co. v. Webster, 62 Me. 341 ... . 75 
 
 Waterman v. Meigs, 4 Cush. (Mass.) 497 .... .37 
 
 Watson V. Beckett, 2 Kans. App. 232 . . . 125 
 
 f. Kirby, 111 Ala.OOO; 20So. 624 .... 199 
 
 V. Roode, 30 Neb. 264 123 
 
 Watts V. Hendry, 13 Fla. 523 . ... 46 
 
 Webster v. Anderson, 42 Mich. 554 . . . ... 72 
 
 Webster Co. c. Dryden, 90 la. 37 . . . . . 93 
 
 Weeks w. AVecd, 2 Aik. (Vt.) 64 . 187 
 
 Wessels v. McCann, 85 la. 424 188 
 
 West V. Cutting, 19 Vt. 535 . . .... 103 
 
 Westzinthus, Matter of, 5 B. & Ad. 817 . ... 229 
 
 Wetherill v. Neilson, 20 Pa. 448 . . 123 
 
 Wheeler v. Guild, 20 Pick. 545 163 
 
 Wheelliouse v. Parr, 141 Mass. 593 . . . .... 63, 158 
 
 Whitcomb v. Wliitney, 24 Mich. 486 . . . . 47 
 
 White V. Dougherty, 18 Ret. (Sc. Sess. Cas. 4th ser.), 972 95, 96 
 
 V. Gorden, 10 C. B. 919 . . 164 
 
 , V. Harvey, 85 Me. 212 62 
 
 V. Miller, 71 N. Y. 118 100, 201, 202 
 
 V. Miller, 78 N. Y. 393 202, 203, 210 
 
TABLE OF CASES. xlix 
 
 PAaB 
 
 White V. Oakes, 88 Me. 367 124 
 
 0. Solomon, 164 Mass. 516 207 
 
 V. Welsh, 32 Pa. St. 396 215 
 
 Whitehead v. Anderson, 9 M. & W. 518 223, 224 
 
 Whiting Co. v. White Lead Works, 58 Mich. 29 ... . 115, 198 
 
 Whitlock V. Hay, 68 N. Y. 484 155 
 
 Whitmarsh v. Walker, 1 Met. (Mass.) 313 22 
 
 Whitney v. Boardman, 118 Mass. 242 . 94 
 
 V. Eaton, 15 Gray (81 xMass.), 225 50 
 
 Wieler v. Schlizzi, 17 C. B. 619 94 
 
 Wigton V. Bowley, 130 Mass. 252 60, 64, 66 
 
 Wilcox V. Owens, 64 Ga. 601 . . 126 
 
 Wiley V. Smith, 2 Duval (Can.) . 234 
 
 Wilkes V. Ferris, 5 Johns. 335 154 
 
 Wilkins v. Bromhead, 6 Man. & Gr. 963 62 
 
 Wilkinson v. Ferree, 24 Pa. St. 190 90 
 
 V. Heavenrich, 58 Mich. 574 39 
 
 V. King, 2 Camp. 335 .. . 175, 262 
 
 Williams v. Bacon, 2 Gray (68 Mass.), 387 40 
 
 V. Burgess, 10 Adol. & Ell. 499 . ... .76 
 
 V. Howard, 3 Murphey (N. C), 74 191 
 
 Williams & Co. v. Brinton & Co., 174 Pa. St. 299 151 
 
 Williamson v. Berry, 8 How. 495 . 30 
 
 Wilmshurst v. Bowker, 2 Man. & G. 792 64 
 
 Wilmouth V. Patton, 2 Bibb (Ky.), 280 139 
 
 Wilson V. Nason, 4 Bos. 155 267 
 
 V. Western Fruit Co., 11 Ind. App. 89 158 
 
 Winchester v. Newton, 2 Allen (98 Mass.), 492 147 
 
 Wind V. Her & Co., 61 N. W. 1001 116 
 
 WindmuUer v. Pope, 107 N. Y. 674 209 
 
 Wing V. Merchant, 57 Me. 383 . 29 
 
 V. Peabody, 57 Vt. 19 73 
 
 Winslow, Lanier, & Co. v. Leonard, 24 Pa. St. 14 69 
 
 Winslow V. Norton, 29 Me. 419 . . 171 
 
 Winsor v. Lombard, 18 Pick. 57 105 
 
 Wiseman v. Vandeputt, 2 Vern. 203 221, 234 
 
 Withers v. Lyss, 4 Camp. 237 .83 
 
 Wolcott V. Mount, 36 N. J. L. 262 129, 201 
 
 Wood «. Manly, 11 Ad. &E. 34 137,165 
 
 0. Yeatman, 16 B. Mon. (Ky.) 270 224 
 
 Wood Co. f. Smith, 50 Mich. 565 84 
 
 Woodbury v. Long, 8 Pick. 542 161 
 
 Woodle V. Whitney, 23 Wis. 55 134 
 
 Word V. Cavin, 1 Head, 506 88 
 
 Wright y. Barnard Bros., 89 la. 166 58 
 
 V. Davenport, 44 Tex. 164 133 
 
1 TABLE OF CASES. 
 
 PAGE 
 
 Yennie v. McNamee, 45 N. Y. 614 156, 263 
 
 Young V. Blaisdell, 60 Me. 272 72 
 
 V. Wakefield, 121 Mass. 91 130 
 
 Zabriskie v. Cent. Vt. Ry., 131 N. Y. 72 129 
 
 Zachrisson v. Oilman, 1 Sandf. (N. Y. Super. Ct.) 67 . . . 264 
 Zimmerman v. Druecker, 44 N. E. 657 103 
 
THE LAW OF SALES 
 
 &F 
 
 PERSONAL PROPERTY. 
 
 CHAPTER I. 
 
 THE NATURE AND FORMALITIES OP THE CONTRACT. 
 
 § 1. Sale and Contract to Sell. 
 
 The law of sales of personal property includes contracts 
 of bargain and sale, and contracts for a future sale. By 
 each of these contracts the seller engages to pass the gen- 
 eral property in a thing, and to deliver possession thereof 
 to the buyer, for a price paid or promised. These two 
 engagements maj' be performable at the same time or at 
 different times. 
 
 If the parties agree upon a present sale of a horse, or 
 of any other specific chattel, which the purchaser is to 
 take at once, but for which he is to pay at a stated future 
 time, the title and possession pass immediately upon the 
 formation of the contract. It may be stipulated, however, 
 that the title shall pass at once, but that the seller may 
 retain possession of the thing until a part or the whole of 
 the price is paid. When these two engagements are ex- 
 pressly- united or separated, no difflcnltj' is experienced by 
 the courts in dealing with them. But their union or sepa- 
 
2 THE LAW OF SALES. 
 
 ration is often a matter of inference. In such cases the 
 judges have not always kept in mind the distinction be- 
 tween the two engagements, and their confusion of thought 
 has been fruitful of erroneous dicta,^ and even of unsound 
 decisions. This is noticeably true in actions growing out 
 of cash sales.^ 
 
 1. Execiited and Executory Contracts. — It is a funda- 
 mental doctrine of this branch of English law, that in the 
 case of a bargain and sale the engagement to pass the 
 general property is executed by the formation of the con- 
 tract, while in the case of a contract for a future sale it is 
 to be executed thereafter. Hence a present salt, passing 
 the general property in a thing, is often called an executed 
 contract of sale ; while a contract to pass the general prop- 
 erty in the future is spoken of as executory. 
 
 2. Their Ili:iipectii:e Characteristics. — These are dis- 
 tinctly marked, and are to be borne in mind throughout 
 our discussion. (1) A bargain and sale is confined to 
 existing goods, title to wliich can pass at once ; ^ while a 
 contract to sell can apply either to present goods or to 
 those which are to be acquired. (2) The latter contract 
 confers upon the buyer a right in personam ; and its non- 
 performance entitles him to an action for a breach of con- 
 tract only. A bargain and sale vests title to the specified 
 goods in the buyer. Upon the seller's default in trans- 
 ferring possession, the buyer may sue him for a breach of 
 contract, or in tort,* and may even recover the goods from 
 
 1 In Olyphant u. Baker, 5 Den. 379 (1848), Whittlesey, J., said: 
 " In many casea of sales of personal property it is a very nice and diffi- 
 cult question to determine whether there has been a delivery, — whether 
 title has passed." Throughout his opinion he treats these questions as 
 identical. 
 
 2 Infra. 
 
 8 Cunningham v. Ashhrook, 20 Mo. 553 (1855); Haille v. Smith, 
 1 Bos. & Pul. 563 (1796). 
 
 4 Chinery v. ViaD, 5 H. & N. 288 (1860). 
 
NATUEE AND FORMALITIES OF THE CONTBACT. 3 
 
 third parties, save in exceptional circumstances. (3) In 
 tlie case of a bargain and sale, the subsequent gaiu^ or 
 loss ^ belongs to the buyer ; while under a contract to sell, 
 until title has passed from him, the goods are at his risk, 
 unless this rule is varied by the agreement of the parties. 
 
 § 2. The Property in Chattels may pass without a Contract. 
 
 Although there is no true sale of a chattel without a 
 contract between the seller and buyer, the general property 
 therein may pass by operation of law ; as where a person 
 satisfies a judgment obtained against him for the value 
 of goods which he had converted. Such a transfer is often 
 spoken of as an involuntary sale. An early writer bases 
 this doctrine on the two maxims, Solutio pretii eruptionis 
 loco habetur ; Quod remedio destituitur, ipsa re valet, si 
 culpa absit." 
 
 Many of the older law-books contain dicta to the effect 
 that title passes to the converter upon the recovery of 
 judgment against him ; but in Brinsmead o, Harrison,* 
 Willes, J., declared such was not the common-law rule; 
 and, on appeal, the majority of tlie judges seem to have 
 held the same opinion. This view was reaffirmed in Ex 
 parte Drake,* and prevails generally in the United States." 
 
 1 Groat V. Gile, 51 N. Y. 431 (1873). 
 
 2 Terry r. Wheeler, 25 K. Y. 520 (1862). 
 ^ Jenkins, Centuria Quarta, Case 88. 
 
 4 L. E. 6 C. P. 584 (1871); on appeal, 7 0. P. 547. It is here held 
 that the doctrine that if two commit a tort, a. judgment against one is 
 of itself, without execution, a bar to an action against the other for the 
 same cause, relates purely to procedure, and does not affect the ques- 
 tion of title. 
 
 5 5 Ch. D. 866 (1877). In this case James, L. J., said : "I think 
 it is not the business of any court of justice to find facilities for en- 
 abling one man to steal another man's property." 
 
 Miller v. Hyde, 161 Mass. 472 (1894); Burdick's Cases on Torts, 
 448. 
 
4 THE LAW OP SALES. 
 
 1 . Title relates back to Time of Conversion. — Whether 
 the title acquired in such a case relates back to the wrong- 
 ful act appears not to have received judicial decision in 
 England, and the text-writers are at variance.^ In the 
 United States the doctrine of relation is enforced. Ac- 
 cordinglj', the offspring of converted animals, born in- 
 termediate the conversion and the satisfaction of the 
 judgment, are the property of the judgment debtor;^ and 
 the owner of converted property, who retakes it after 
 judgment and before satisfaction, is a trespasser, if there- 
 after he enforces the judgment.' 
 
 (tf) Heasons assigned for Doctrine of Rdntion. — 
 The reasons for this view were stated as follows by the 
 Maryland Court of Appeals : " If the thing converted 
 should from anj' cause, whether natural or artificial, be 
 destroyed during the interval intervening between the 
 period of conversion and the pa3'ment of the judgment, 
 the loss must be sustained by the defendant ; and it would 
 seem to follow, that if the thing should improve in value 
 during that period, the benefit ought to enure to the de- 
 fendant, on the principle qui sentit onus, sentire debet at 
 commodum. It must be borne in mind that the plaintiff', 
 in an action of trover, compels the defendant to become 
 a purchaser against his will ; and from what period does 
 he elect to consider the defendant as a purchaser, or as 
 answerable to him for the value of the thing converted ? 
 He selects the date of conversion as the epoch of the 
 defendant's responsibilitj-, and claims from him the value 
 of the property at that period, with interest to the time 
 of taking the verdict. The inchoate right of the defend- 
 ant, as a purchaser, must be considered as coeval with 
 
 1 Cf. Addison on Torts (Am. ed., 1876), p. 442, and Chalmers' Sale 
 of Goods Act (2d ed.), p. 8. 
 
 2 Hepburn v. Rc-well, 5 H. & J. (Md.) 211 (1821). 
 8 Smith V. Smith, 51 N. H. 571 (1872). 
 
NATURE AND FOBMALITIES OF THE CONTRACT. .5 
 
 the period of conversion ; and this right being consum- 
 mated by the judgment and its discharge, must, on legal 
 and equitable principles, relate back to its commencement." 
 
 § 3. The Subject-matter of a Sale. 
 
 It does not embrace every form of personal propertj', 
 but is generally said to consist in goods. As the signifi- 
 cation of this term has been extended in some directions,' 
 while it has been narrowed in others,^ bj- the Statute of 
 Frauds, the provisions of that statute must be kept in mind 
 and applied during the discussion of the present topic. 
 
 1. In Migland.— The Sale of Goods Act (§ 62) de- 
 fines " goods" as "all chattels personal other than things 
 in action and money," and all " emblements, industrial 
 growing crops, and things attached to or forming part of 
 the land, which are agreed to be severed before sale or 
 under the contract of sale." Prior to the adoption of this 
 statute it had been judicially declared that onlj' those things 
 which were the subjects of larceny at common law and 
 susceptible of delivery could be the subject-matter of sale 
 in its technical sense. ° 
 
 (a) Is Money a Proper Subject of Sale ? — Mone.y, it 
 has been said, should not be included in the term "goods," 
 because it is ordinarily the price of the subject-matter of 
 the contract.^ The Roman law appears to have treated 
 the transfer of money for a money price as an exchange, 
 and not as a sale. ^ Among modern civilians, however, the 
 view prevails that a contract for the transfer of title to 
 money, whether to specific coins or to a round sum, will 
 amount to sale, if the money is dealt with as a ware ; " cer- 
 
 1 Chalmers' Sale of Goods Act (2d ed.), p. 112. 
 ? Humble v. Mit-chell . 11 Ad. & E. 205 (1839). 
 8 Colonial Bnnk v. Whinney, 11 App. Cas. 426, 434 (1886). 
 
 * Campbell on Sales (2d ed. ), pp. 3, 4. 
 
 * Moyle's Contract of Sale in the Civil Law, p. 24. 
 
 8 Windscheid's Lehrbuoh des Pandektenrechts, § 385. 
 
6 THE LAW OP SALES. 
 
 tain forms of money are constantly' bought and sold as 
 commodities, and even when these are not at a premium 
 in the terras of other forms of legal tender, there seems to 
 be no reason why they should not be the subject of a 
 technical sale.^ 
 
 (b) Arc Choses in Actio7i Goods? — A chose in ac- 
 tion, according to judicial decisions in England, is not the 
 subject-matter of a sale within the words, "goods, wares, 
 and merchandises," in the Statute of Frauds, because it is 
 incapable of delivery ; '^ although it is included in " goods 
 and chattels " under the Bankrupt Act.'' The term " chat- 
 tels " is considered more comprehensive than " wares and 
 merchandises," and tlie Bankrupt Act does not provide for 
 the acceptance and receipt of the subject-matter, and hence 
 does not by implication limit the term to things capable of 
 delivery. 
 
 2. In Scitland. — The term for goods in Scotland is 
 " corporeal movables," and the Sale of Goods Act is 
 expressly limited to this kind of personal property 
 (§ 62). Sales of incorporeal rights in Scotland are not 
 prohibited by the statute. Accordingly, a chose in action 
 or even a .s/c.s, or chance, is still the subject-matter of a 
 sale in that country, although such a transaction is not 
 governed by the Sale of Goods Act.* A Scotch court has 
 held that a contract to furnish eleven-horse power of the 
 steam-power of a particular engine is a sale and not a 
 lease." 
 
 1 Fowler v. N. Y. Gold Exch. Bk., 67 N. Y. 13S, 146 (1876). "It 
 is not claimed that gold is to be distinguished in this transaction from 
 ,nny other commodity or article of commerce. It was treated by the 
 parties as an article of merchandise, the subject of purchase and sale, 
 and not as current coin, a part of the currency of the land." 
 
 2 Humble ii. IMitchel l. S7ipra. 
 
 8 Hornblower v. Proud, 2 B. & Aid. 327 (1819). 
 
 ' Brown's Sale of Goods, p. 29. 
 
 5 Clark V. Stewart, 10 Sc. L. R. 152 (1872). 
 
NATURE AND FORMALITIES OF THE CONTRACT. 7 
 
 3. In the United States, (a) Effect of Legislation. — 
 Here, as in England, the judicial interpretation of the term 
 " goods " is generally found in cases under the Statute of 
 Frauds. While the English statute has been the model for 
 our State legislation on the subject, our law-makers have 
 frequentl}- changed its language,^ so as to leave no doubt 
 of their intention to extend the law of sales to ever\- form 
 of personal property. Even in the States which have 
 adopted the exact words of the English statute, it is held 
 generallj- that they include all choses in action or securities 
 which are the subjects of common sale and barter, which 
 have a market value, or which are intended to be trans- 
 ferable, and when transferred to convey the debts or 
 claims evidenced b}' them in a visible and palpable form.^ 
 American judges have not hesitated to declare the con- 
 struction put upon the statute bj- English courts narrow 
 and forced.' 
 
 (5) Different Judicial Views. In some States, ac- 
 counts, although not evidenced by anything having a 
 visible or tangible form, have been treated as goods,* 
 and it has been asserted that "goods, wares, and 
 merchandise" are equivalent to "personal property," 
 including whatever is not embraced in the phrase, " lands, 
 tenements, and hereditaments." ^ The view general!}' 
 entertained, however, is that a legal right of property, 
 not evidenced by an instrument which is capable of de- 
 livery in specie, is not within the words, " goods, wares, 
 
 1 In Conn., Fla., Oregon, la., Miss., "any personal property ;" in 
 Cali.Pornia, Col., N. Dak., S. Dak., Idaho, Minn., Mon., Neb., Nev., 
 N. Y., Wy., "goods, chattels, or things in action;" in Ind., N. J., 
 S. C, Vt, Va., Wash., "W. Va., "goods ;■' in Ga., Me., Mass., Mich., 
 Mo., N. H., "goods, wares, or merchandise." 
 
 2 McOann'U. Randall, 147 Mass. 81 (1888). 
 
 8 TisMe-U-Haidi, 20 Pick. 9, Shaw, Ch. J., p. 14 (1838). 
 
 1 Walker v. Supple, 54 Ga. 178 (1875). 
 
 6 Greenwood v. Law, 55 N. J. L. 168, 26 At. 134 (1892). 
 
» THE LAW OF SALES. 
 
 and merchandise." Hence the contract for the transfer 
 of an interest in an invention, before letters patent are 
 obtained,' or a bank account or other debt due the trans- 
 feror ^ is not one for the sale of goods ; nor is an agree- 
 ment for the sale of a partner's share in a flrm,^ although 
 it is embraced by the words " goods, chattels, and things 
 in action." * These words also include a contract for the 
 sale of an invention, as shown by a model.^ 
 
 § 4. Existing and Future Gooda. _ ' 
 
 1. At Laio. — In order that goods may be the sub- 
 ject of a bargain and sale, that is, of a present sale under 
 which title passes to the purchaser at once b}' virtue of the 
 contract, thej' must be in existence when the^contract is 
 made. " A man cannot grant or .charge that which he 
 hath not." Hence a contract for the present sale of 
 goods, thereafter to be manufactured or acquired by the 
 seller, can operate only as an agreement to sell. To 
 this rule there seems to be no exception, at present, in 
 England." 
 
 (a) Potential Existence. — Benjamin cites' Grantham. 
 V. Hawley " for the proposition that " things which are the 
 natural product or expected increase of something already 
 belonging to the vendor " have a potential existence in - 
 contemplation of law, and may be the subject-matter of a 
 
 1 Somerby J). Buntin, 118 Mass. 279 (1875) ; Dalzellti. DueberMnfg. 
 Co., 149 U. a. 315 ; L. ed. 749 (1892). 
 
 2 N. Y. Biscuit Co. o. City of Cambridge, 161 Mass. 326 (1894). 
 8 Vincent v. Vieths, 60 Mo. App. 9 (1894). 
 
 4 Viin Brocklin v. Smeallie, 140 N. Y. 70 (1893). 
 6 Jones V. Reynolds, 120 N. Y. 213 (1890). 
 
 s Cbalmers' Sale of Goods Act (2d ed.), § 5 ; Langton v. Higgins, 
 4 H. & N. 402. 
 
 ' Sales (Am. ed. of 1892), p. 80. 
 8 Hobart, 132 (1603). 
 
NATURE AND FORMALITIES OP THE CONTRACT. 9 
 
 present sale. The doctrine of this case has been adopted 
 in most of the United States, where it is held that the 
 future offspring of the seller's animals,^ or the products 
 therefrom,'* or the future crops from his land,' or wages to 
 be earned under an existing contract,^ may be the subject 
 of present sale. In such a case, the grant is absolute and 
 perfect, when made, vesting the propertj' in the purchaser 
 the moment it comes into existence, so that an attempted 
 sale and transfer thereof to a second bona fide purchaser 
 passes no title.' In some jurisdictions there is a ten- 
 dency to limit the decision in Grantham v. Hawley to 
 the spontaneous products of the earth and to crops that 
 have been planted before the contract is made.^ 
 
 (5) Chattel Mortgages on After Acquired Goods. — 
 Chattel mortgages frequently contain provisions that the 
 mortgagor may dispose of the mortgaged articles, replac- 
 ing them with goods which are to belong to the mortgagee. 
 Such new articles are treated generally as future goods, 
 and these provisions as agreements to sell and not as con- 
 tracts of present sale. Some courts, however, interpret 
 these clauses as establishing the relation of principal and 
 agent between the mortgagee and mortgagor, and hold that 
 the title to the new property, purchased with the proceeds 
 of the old, vests at once in the mortgagee. Accordingly, 
 if the mortgagor* becomes bankrupt, and his assignee trans- 
 fers such property to a bona fide purchaser, the latter does 
 not acquire title.' 
 
 1 Hull V. Hull, 48 Conn. 2.10 (1880). 
 
 2 Van Hoozer v. Cory, 34 Barb. (N. Y.) 9 (1860). 
 
 s Briggs V. U. S., 143 tJ. S. 346 ; 12 Sup. Ct. 391 (1891). 
 * Manly v. Betzer, 91 Ky.'596 ; 16 S. W. 464 (1891). 
 5 McCarty v. Blevis, 5 Yerger, Tenn. 195 (1833). 
 « Rochester D. Co. v. Rasey, 142 N. Y. 570 ; 37 N. E. 632 (1894) ; 
 Merch. Bk. v. Lovejoy, 84 Wis. 601 ; 55 N. W. 108 (1893). 
 ■J Sawyer v. Long, 86 Me. 541 ; 30 At. Ill (1894). 
 
10 THE LAW OF SALES. 
 
 2. Ill Ejxuty. — An agreement purporting to accom- 
 plish the present sale of future goods, is not dealt with in 
 equity as at law. On the one hand, it is not treated as a 
 mere contract to sell. On the other hand, it is not viewed 
 as effecting a sale of the goods upon their acquisition by 
 the vendor or mortgagor ; notwithstanding the language of 
 some distinguished judges.^ It is construed as an agree- 
 ment operating upon the goods, as soon as they are ac- 
 quired, to the extent of creating a lien upon them,'' or an 
 equitable interest in them.*' The general property in the 
 goods remains in the vendor, and he can transfer it to a 
 second hona fide purchaser free from the lien or equitable 
 interest of the iirst purchaser. In Massachusetts, pro- 
 visions such as we have been considering become effectual 
 in equity if the transferee takes and keeps possession of 
 the pvopertj- under the contracts, but not otherwise.* 
 
 3. Sale of a Chance. — In Scotch law, a contract pur- 
 porting to effect the present sale of a chance, such as the 
 cast of a net, operates as a present sale of the incorporeal 
 thing.^ " Such a chance is a res in the wide jural sense of 
 the word." ° English law treats it as a contract for the sale 
 of the snliject 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." As a present sale, it has no validit}-.' What 
 
 1 In Hob-oyd v. ^larshall, 10 H. L. C. 191, Lord Chelmsford says: 
 " At law, property non-existing, but to be acquived at a future time, is 
 not assignable ; in equity it is so.'' See also McCaffray v. Wcodin, 65 
 N. Y. l.-.O, at p. 46" (1875). 
 
 2 Kribbs V. Alford, 120 N. Y. 519 ; 24 N. E. 811 (1890), 
 8 Joseph V. Lvon-s. 1 5 Q. B. D. 280 (1884). 
 
 i Harriman v. Woburn El. L. Co., 163 Mass. 85; 39 N. E. 1004 (1895). 
 6 Bell's Principles, § 92. 
 '■ Mackintosh's Roman Law of Sale, p. 25. 
 
 ' Hitchcock 0. Giddings, 4 Price, 135, at 140 (1817) ; Hanks v. 
 Palling, 6 E. &B. 659 (1856). 
 
 8 Low V. Pell, 108 Mass. 347 (1871). 
 
NATURE AND FORMALITIES OP THE CONTRACT. 11 
 
 appears to be a contract for the sale of a chance may be 
 in reality an agreement for the hire of materials and 
 labor. ^ 
 
 4. Goods lohich have perished. — If the subject-matter 
 of an agreement for the sale of specific goods has perished 
 before the agreement is made, and this is unknown to the 
 seller, no contract obligation ensues. It is deemed to have 
 perished when it is so far destroyed that it ceases to answer 
 the description of the thing sold.^ The destruction of 
 specific goods without the fault of either party, after the 
 contract is made, but before title has passed to the bii3'er, 
 avoids the contract. This is based on the principle that 
 when the performance of a contract depends on the con- 
 tinued existence of a given thing, a condition is implied 
 that the impossibility of performance arising from the de- 
 struction of the thing shall excuse the performance.' 
 
 § 5. Contract for Sale, or for Labor and Materials. 
 
 An agreement to sell goods, to be made or acquired in 
 the future, is not a wager, but a valid executory contract.* 
 To this extent the courts are agreed. There is judicial 
 unanimity, also, in holding that if the contract relates to 
 goods not necessarily to be produced or manufactured 
 by the seller, it is one for the sale of goods, and not for 
 labor and materials. If, however, by the express or im- 
 plied terms of the contract, the seller is to expend labor 
 upon the subject-matter of the agreement before it is in a 
 deliverable state, the contract is treated by some courts as 
 one for labor and materials and not for sale. The question 
 has arisen, generally, under the Statute of Frauds. 
 
 1 Mackintosh, supra ; Benjamin on Sales (Am. ed. 1892), p. 83. 
 
 2 Couturier v. Hastie, 7 H. L. Cas. 673 (1856). 
 
 s Dexter «. Norton, 47 N. Y. 62 (1871); Howell o. Coupland, I 
 Q. B. D. 258 (1876). 
 
 4 HibblewMte v. McMorine, 5 M. & W. 462 (1839); Clarke u. Foss, 
 7 Biss. 541, 552 (1878). 
 
12 THE LAW OF SALES. 
 
 1. Present Sale Test. — lu one of the earliest reported 
 cases upon this point, the court held that a contract to 
 make and deliver a chariot was not within the statute, 
 " which relates onlj- to contracts for the actual sale of 
 goods, where the buj-er is immediately answerable without 
 time given him by special agreement, and the seller is to 
 deliver the goods immediately." ^ This view was followed, 
 without hesitation, by a court consisting of Lord Mansfield 
 and others, in deciding an action for the breach of an oral 
 contract to deliver at a future time a load and a half of 
 wheat which was unthreshed when the agreement was 
 made.^ 
 
 2. Consideration Test. — Twenty-flve years later the 
 reasons for these decisions were rejected, in an action for 
 the breach of an oral contract to sell and deliver 3,000 
 sacks of flour at the seller's mill, although the decisions 
 were sustained on the ground that the contracts in those 
 cases were for work and materials.' It was admitted that 
 the distinction between the case at bar and Clayton v. 
 Andrews might seem a very nice one, " but still," it was 
 declared, "the work to be performed in thrashing made, 
 though in a small degree, a part of the contract." Ac- 
 cording to this view, the nature of the consideration fur- 
 nished for the promise to paj-, determined whether the 
 contract was one for sale or for labor and materials. 
 
 3. Test of DeliveraUlity. — A different test was an- 
 nounced in a case brought for not accepting a quantity of 
 oak-pins to be cut out of slabs owned by plaintiff, and to 
 be delivered to the defendant. " The subject of this con- 
 tract did not exist in rerum natitra ; it was incapable of 
 delivery and acceptance," and hence not within the Statute 
 of Frauds. " If the thing be capable of delivery, at the 
 
 1 Towers v. Osborne, 1 Strange, 506 (1724). 
 
 2 Clayton v. Andrews, 4 Burr. 2101 (1767). 
 8 Rondeau v. Wyatt, 2 H. Bl. 63 (1792). 
 
NATUBE AND FORMALITIES OF THE CONTRACT. 13 
 
 time, why is it not delivered? But the same reason does 
 not apply when the goods are not deliverable." ^ 
 
 4. The Special Order Test. — Soon after this decision, 
 we find still another test suggested in an action brought 
 for breach of contract to sell and deliver 100 sacks of 
 flour, thereafter to be ground by the seller. Abbott, C. J., 
 said: "In Towers v. Osborne, the chariot which was 
 ordered to be made would never but for the order have 
 had any existence. But here the plaintiffs were proceed- 
 ing to grind the flour for the purpose of general sale, and 
 sold this quantity to the defendant as part of their general 
 stock. The distinction is, indeed, somewhat nice ; but 
 the case of Towers v. Osborne is an extreme case, and 
 ought not to be carried further." ^ 
 
 5. Upon whose Materials is the Labor expended ? — A 
 fifth test was enunciated in a suit brought for the price 
 of certain maehiner}' made by the plaintiff upon the special 
 order of the defendant ; ° and in an action for breach of 
 contract to take and pay for a quantity of timber to be cut 
 and put into a deliverable state by the plaintifl'.'' It is 
 stated in these terms by Baylej', J. : " If you employ 
 another to work up his own materials in making a chattel 
 ... he cannot maintain an action for work and labor, be- 
 cause his labor was bestowed on his own materials, and 
 for himself, and not for the person who employed him." 
 
 6. Essential Ingredient Test. — Still another test was 
 applied in a suit for the price agreed to be paid \>y the de- 
 fendant to the plaintiff for printing a book written \iy the 
 defendant. " The true criterion is, whether work is of 
 the essence of the contract, or whether it is the materials 
 supplied." ' 
 
 1 Groves v. Buck, 3 M. & S. 178 (1814). 
 
 2 Garbutt v. Watson, 5 B. & AM. 613 (1822). 
 » Atkinson v. Bell, 8 B. & C. 277 (1828). 
 
 * Smith V. Surman, 9 B. & C. 561 (1829). 
 6 Clay V. Yates, 1 H. & N. 73 (1856). 
 
14 THE LAW OF SALES. 
 
 7. Present Test in England. — None of the foregoing 
 tests proved to be satisfactor}'. Later, in an action for 
 the breach of contract to take and pay for two sets of 
 artificial teeth, made by the plaintiff upon the special 
 order of defendant's testatrix, the whole subject was care- 
 fully considered, and the conclusion reached that " if the 
 contract be such that, when carried out, it would result in 
 the sale of a chattel, the part}' cannot sue for work and 
 labor ; but if the result of the contract is that the party 
 has done work and labor which ends in nothing that can 
 become the subject of a sate, the partj- cannot sue for 
 goods sold and delivered." ' The rejection of the old tests 
 and the formulation of a new one were made easy for the 
 English courts by Lord Tenterden's Act,^ which extended 
 the Statute of Frauds to contracts for the sale of goods 
 which were not made, purchased, ready for dehvery or to 
 be delivered, when the contract was made. 
 
 " In reviewing these decisions," Mr. Benjamin remarks, 
 "it is surprising to find that a rule so satisfactory and 
 apparently so obvious . . . should not have been earUer 
 suggested bj^ some of the eminent judges who had been 
 called on to consider the subject." ' But in Smith y. 
 Surman, siqva, Littledale, J., said : " When the contract- 
 ing parties contemplate a sale of goods, although the sub- 
 ject-matter at the time of making the contract does not 
 exist in goods, but is to be converted into that state by the 
 seller's bestowing work and labor on his own raw mate- 
 rials ; that is a case within the statute. It is sufBcieut if, 
 at the time of the completion of the contract, the subject- 
 matter be goods, wares, and merchandise. I cannot 
 assent to any case which has decided that such a contract 
 is not within the statute." 
 
 1 T_.P_P „ , Trriffin, 1 R. S.. S. «7 -^ (1861). 
 
 2 9 Geo. IV., ch. 14, § 7 (1828). 
 
 8 Benjamin on Sales (Bennett's ed. 1888), § 103. 
 
NATURE AND FORMALITIES OF THE CONTRACT. 15 
 
 8. Diversity of View in the United States. — The Eng- 
 lish cases have been abstracted thus carefully-, because 
 their divergent doctrines account for the conflict of judicial 
 opinion on this topic in our various jurisdictions. 
 
 (a) The Consideration Test, employed in Rondeau v. 
 Wj-att for the purpose of distinguishing Clayton v. An- 
 drews, is applied in Maryland. As early as 1821, the 
 Court of Appeals declared that "the distinction between 
 mere contracts for the sale of goods, where work and 
 labor is to be bestowed on them previous to delivery, and 
 subjects are blended together, some of which are not in 
 the contemplation of the statute, has too long prevailed to 
 be at this da}' questioned." ' This test also received the 
 sanction of the Minnesota Supreme Court in an earl^- case,^ 
 but appears to have been rejected in a later decision which 
 adopts the essential element test.^ 
 
 (6) The Test of Deliverability won the approval of the 
 South Carolina courts. "It is now the settled rule that 
 when goods contracted for exist in solido and are capable 
 of delivery at the time, it is within the statute ; but where 
 they are to be made, or something is to be done to put 
 them in a condition to be delivered, according to the terms 
 of the contract, it is not within the statute." ^ 
 
 The Deliverability Test in New York. — This test is 
 at the bottom of the New York rule, which declares the 
 contract one for sale, if the subject-matter then exists 
 in solido, although something is to be done to fit it for 
 delivery. In the leading New York case on this point, the 
 distinction stated in Cooper v. Elston,' and approved in 
 
 1 Eichelbiirger v. McCauley, 5 H. & J. 213, 215 ; followed in Bagley 
 «^Wa%r. 78 Md. 2 39 (1893). 
 
 " 2 phipps V. McFarlan, 3 Minn. 109, 114, 115 (1859). The court's 
 dislike of the Statute of Frauds appears on pp. 116, 117. 
 
 3 Brown v. Sanborn, 21 Minn. 402 (1875). 
 
 * Gadsden v. Lance, McMullan, Eq., 87, 91, 92 (1841). 
 
 6 7 Term R. 14 (1796). 
 
16 THE LAW OF SALES. 
 
 Groves v. Buck, " between a contract for a thing existing 
 in solido and an agreement for a thing not j-et made," 
 was spoken of as well settled ; ^ and in a later case the 
 consideration test is spoken of as absurd, and Claj-ton v. 
 Andrews is declared to have been espressl}- overruled in 
 England.^ 
 
 Some of the later New York cases, it is true, laj- par- 
 ticular emphasis on the special order test,^ which has been 
 adopted in several jurisdictions. 
 
 (c) Special Order Test. — This test appears to have 
 influenced Shaw, Ch. J.,* in establishing the Massachusetts 
 rule, — that a contract for the sale of articles then exist- 
 ing, or such as the vendor, in the ordinarj' course of his 
 business, manufactures or procures for the general market, 
 whether on hand or not, is one for sale ; but a contract for 
 goods to be manufactured especially for the purchaser, 
 and npon his special order, and not for the general market, 
 is one for labor and materials.^ The same test is at the 
 bottom of the New Jersey rule.* 
 
 {d) Upon u-hose Materials is Labor Expended. — The 
 test suggested by Bayley, J., in Smith r. Surman — upon 
 whose materials the labor is to be expended — has com- 
 mended itself to several State courts. In an action for 
 breach of contract to deliver the whole of defendant's crop 
 of cotton for a certain year, the Supreme Court of Georgia' 
 said : ' ' There really is but one exception to the operation 
 of the statute, to wit, contracts for work and labor, and 
 
 1 C rooksh ank v. Bnrrell, 18 Johns. 58 (1820). 
 
 2 D owns v.^ Ro3s. 23 Wend. 270 (1840). 
 
 8 Hinds V. Kellogg, 37 N". Y. State Rep. 356 ; 133 N". Y. .536 (1892). 
 
 4 Mixer V. Howarth, 21 Pick. 205 (1839) ; of. Flint v. Corbett, 6 
 Daly (N. Y.) 429 (1876). 
 
 6 GodJard v. Binney, 115 Mass. 450 (1874). 
 
 <= Finney u. Apgar, 31 N. J, L. 226, 270; and see Puget Sound 
 Depot V. Rigtiy, 43 Pac. 39 ; 13 Wash. 264 (1895). 
 
 ' Cason V. Clieely, 6 Ga. 554, 560, 563 (1849). 
 
NATURE AND FORMALITIES OP THE CONTRACT. 17 
 
 this grows out of the palpable injustice of compelling a 
 man bj' law in any case to lose the price of his labor. 
 All cases which are not within the reason of this excep- 
 tion are not within the exception itself. . . . Whilst he 
 (the plaintiff in error) was working and laboring to pro- 
 duce this cotton, ' he was working and laboring for himself 
 and not for the defendants.' " 
 
 In an action for breach of contract to cut all butternut 
 trees, on certain land of defendant, into logs and deliver 
 them to plaintiffs, the Supreme Court of Vermont^ ex- 
 presslj' followed Smith v. Surman, saj-ing, " The labor 
 bestowed bj' the defendant was upon his own property, and 
 was all done in the simple act of deMvering it. He was not 
 at work for the plaintiffs in an}' sense, but for himself." 
 
 (e) 2\'ie Essential Ingredient Test. — Other State courts 
 have preferred the essential ingredient test. In a leading 
 case, the Supreme Court of Maine ^ held that a contract to 
 furnish a quantity of hoe shanks, to be made in accordance 
 with certain patterns supplied b}' the orderer, was not one 
 of sale, saying: "A contract for the manufacture of an 
 article differs from a contract of sale in this : the person 
 ordering the article to be made is under no obligation to 
 receive as good or even a better one of the like kind pur- 
 chased from another and not made for him. It is the 
 peculiar skill and labor of the other party, combined with 
 the materials for which he contracted and to which he is 
 entitled." This view seems to prevail in New Hampshire,^ 
 where a contract for the sale of an article thereafter to be 
 produced is treated as one for work and materials, if it 
 appears ' ' that the particular person who is to manufac- 
 
 1 Ellison V. Brigham, 38 Vt. 64 (1865) ; Atwater v. Hugh, 29 Conn. 
 508 (1861), accord. 
 
 •i Hight V. Eipley, 19 Me. 137 (1841). 
 
 8 P itkin p._y oye3, 48 N. H. 294 (1869) ; Prescott v. Locke, 51 
 N. H. 94 (1871). 
 
18 THE LAW OF SALES. 
 
 ture it, or the mode and manner or materials, enter into 
 and make part of tlie contract." 
 
 (/) Doctrine of Lee v. Griffin in the United States. — 
 Inasmuch as most of the State courts had committed 
 themselves to one or other of the foregoing tests, before 
 the decision of Lee v. Griffin, they have been unable to 
 adopt its simple and satisfactory rule. Missouri is a 
 notable exception.^ This rule was clearly announced in 
 an early Wisconsin case,^ but was not necessary to its 
 decision, and was rejected in a later case.^ It was re- 
 jected and criticised severely in a recent Vermont decision. 
 After discussing it and the New York rule, the court de- 
 clared its preference for the Massachusetts rule, under 
 which " the test is, not the non-existence of the article at 
 the time of the bargain as in New York, nor whether the 
 contract will result in the sale of a chattel, as in England, 
 but whether the goods are such as the vendor, in the 
 ordiuarj- course of business, manufactures or procures for 
 the general market, or whether they are manufactured 
 especially for the vendee, and on his special order, and 
 not for the general market, and for which they are neither 
 intended nor adapted." If the article is to be manufac- 
 tured on the vendee's special order, the contract is not 
 within the statute, this court declares, although the per- 
 sonal skill and labor of the contractor are not stipulated 
 for. "It is sufficient if the work and labor requisite to 
 such a contract are to be performed by the contractor, or 
 by his procurement and at his expense." * In not a few 
 States, the established rule has been based upon more 
 than one of the English tests. 
 
 1 Pratt V. Miller, 109 Mo. 78 (1891) ; and see opinion in Prescott v. 
 Locke, supra. 
 
 2 Harden v. McClure, 1 Chand. 271 (1849). 
 8 Meincke v. Falk, 65 Wis. 427 (1882). 
 
 « Forsyth v. Mann, 68 Vt. 116 ; 34 At. 481 (1896). 
 
NATTJEE AND FORMALITIES OF THE CONTRACT. 19 
 
 9. Ultimate Object of Contract must be the Transfer 
 of Title to Goods. — Even under the present English 
 rule, if the contract has not for its ultimate object the 
 transfer of the title to specific personal propertjs it is 
 not one for a sale. Accordinglj', an attorney who agrees 
 to prepare a deed, does not make a contract for the sale 
 of the paper or parchment on which his labor is expended ; 
 nor does a printer contract to sell the paper and binding 
 of books to the author for whom he prepares them ; ^ nor, 
 it is submitted, does the hotel or restaurant- keeper con- 
 tract to sell the viands which he places before his guest, 
 pursuant to an agreement for a meal,'' any more than a 
 farrier sells the medicines which he supplies in connection 
 with his professional attendance on horses.' 
 
 The dissenting opinion of Chief Justice Paxson, in 
 Commonwealth v. Miller, deserves careful consideration. 
 He " could find nothing in the facts to justify the conclu- 
 sion that there was a sale of the oleomargarine. The indi- 
 viduals referred to entered the defendant's place of 
 business and ordered a meal. It was furnished, but 
 oleomargarine formed no part of it. It is true there was 
 some of that article on the table. They might have par- 
 taken of it, but thej' did not. When they left, they 
 carried the oleomargarine away with them. This, in m}' 
 opinion, thej^ had no right to do. A guest at a hotel 
 may satisfy his appetite when he goes to the table. He 
 maj' partake of anything that is placed before him, but, 
 after filling his stomach, he maj- not also fill his pockets 
 and carry away the food he cannot eat. ... If the pro- 
 prietor of a hotel places a bottle of wine before his guests, 
 who do not partake thereof, it cannot be said that it is a 
 
 1 Lesji-Griffin, 1 B. & S. 272 (1861). Opinion of Blackburn, J. 
 
 2 Coram. V. Miller, 131 Pa. St. 118; 18 At. 938 (1890), contra. 
 
 3 Clark V. Mumford, 8 Camp. 37 (1811). 
 
20 THE LAW OF SALES. 
 
 sale of the wine, nor has the guest the right to carry it 
 away. He might as well carry off the table furniture." 
 
 § 6, Goods or an Interest in Land. 
 
 English law treats real and personal property- as dis- 
 tinct species ; and the rules governing their use, their 
 transfer, and their descent or their distribution are quite 
 different. This distinction is recognized but not defined 
 by the Statute of Frauds. It is important, therefore, to 
 note the tests which determine whether a particular con- 
 tract is one for the sale of goods or of an interest in land. 
 
 1. Minerals. — Land extends indefinitely above and 
 below the surface. It, therefore, includes all minerals 
 while thej' are unsevered. But the ordinary use of mines 
 results in detaching minerals from their natural bed, in 
 transforming them into movables, and consequently in 
 their treatment as goods. Hence a contract for the sale 
 of mined or severed ore is one for the sale of a chattel 
 and not for an interest in land ; ^ and a contract for a 
 partnership in opening and working a stone-quarry on 
 the land of one of the partners is not one for an interest 
 in land.^ Under a contract by which the land-owner 
 " bargains and sells the right of digging for lead ore 
 on a certain range, for the sum of $500, the receipt 
 whereof is herebj' acknowledged," the purchaser does not 
 acquire an estate in the land, nor does he become the 
 owner of anj' ores save those which he digs ; and he 
 cannot maintain replevin against the land-owner for ores 
 dug bj' the latter in violation of the contract.' A mining 
 
 1 Green u. Ashlem Iron Co., 62 Pa. St. 97 (1869) ; cf. Forbes v. 
 Gracey, 9i U. S. 762. 
 
 2 Treat v. Hills, 68 Wis. Zii (1887). 
 
 8 Gillett V. Treganza, 6 ^Yis. 343 (1838); contra, Desloge i;. Pearce, 
 38 Mo. 688 (1866), that the right to enter and dig for ores is an incor- 
 poreal hereditament, as it gives the right to commit waste and to carry 
 away a part of the realty. 
 
NATTJEE AND FOEMALITIES OP THE CONTEACT. 21 
 
 claim is treated ia the Pacific States as personal propert}-, 
 for the transfer of which a written conveyance is not 
 necessarj- ; ^ and is distinguished from a mine which is 
 considered real property-. ^ 
 
 2. Ice. — This, until severed, belongs to the owner of 
 the soil under the water upon which it forms," and 
 generally is deemed real property, because "connected 
 with and in the nature of an accession to the land ; " ^ 
 although a contract for the sale of ice already formed 
 but unsevered has been' held one for the sale of personal 
 property.* Said Campbell, Ch. J. . " In its frozen condi- 
 tion, it drew nothing from the land and got no more 
 support from it than a log floating on water would have 
 had. ... It does not seem to us that it would be profit- 
 able to attempt to determine such a case as the present 
 by applying the inconsistent and sometimes almost whim- 
 sical rules that have been devised concerning the legal 
 character of crops and emblements. ... It can onl}' be 
 used and sold as personalty, and its only use tends to its 
 immediate destruction. We think it should be dealt with 
 in law according to its uses in fact, and that any sale of 
 ice ready formed, as a distinct commoditj-, should be held 
 a sale of personaltj-, whether in the water or out of the 
 water." 
 
 3. Soil JProducts. — These, while attached to the earth, 
 are within the general definition of real property, and the}' 
 pass as a part of the land, without enumeration, by a deed 
 from the exclusive owner and occupier. For most pur- 
 poses, however, the common law treated certain land 
 
 1 Union Con. Silver Co. «. Taylor, 100 U. S. 37 (1879). 
 
 2 Hardenberg v. Bacon, 33 Cal. 356, 381 (1867). 
 
 ' Hoag V. Place, 93 Mich. 450 (1892) ; cf. Howe v. Andrews, 62 
 Conn. 398 (1892). 
 
 i Wash. Ice Co. u. Shortall, 101 III. 46 (1881). 
 6 Higgins V. Kurterer, 41 Mich. 318 (1879). 
 
■^'2 
 
 THE LAW OF SALES. 
 
 products as personal and not as real property. These 
 were called emblements or fructus industriales, and 
 consisted of "such crops as in the ordinary course of 
 things return the labor and expense bestowed upon them 
 strictly within the year." A tenant at will, whose estate 
 was determined by the landlord, or the representatives of 
 a tenant for life, were allowed to enter and take such 
 products as a "compensation for the labor and expense 
 of tilling, manuring, and sowing the lands, and also for 
 the encouragement of husbandry, which, being a pubKc 
 benefit, tending to the increase and plenty of provisions, 
 ought to have the utmost security and privilege that the 
 law can give." The same doctrine was "extended to 
 tenants in fee, principally for the benefit of their 
 creditors." ^ 
 
 {(() Annual Crops. — As the common law thus dis- 
 tinguished emblements from the land, devolving the 
 former upon the personal representative and the latter 
 upon the heir, subjecting one to seizure under an execu- 
 tion and not the other, — in short, treating one as goods 
 for most purposes; and as the Statute of Frauds "takes 
 things as it finds them, and provides for lands and goods, 
 according as they were so esteemed before the enact- 
 ment," ^ a contract for the sale of this class of land 
 products is treated generallj' as one for the sale of goods, 
 and not of an interest in lands. ^ It is to be borne ifl mind 
 that this class includes only such crops as are produced 
 within the current year bj- manurance and industry.^ 
 
 By the British Sale of Goods Act, not only emblements, 
 but industrial growing crops are declared to be goods. 
 
 1 2 Blackstone's Commentaries, pp. 122, 146, 404. 
 
 2 Dunne v. Ferguson, 1 Hayes (Irish), 542 (1832). 
 s Evans V. Roberts, 5 B. & C. 829 (1826). 
 
 4 Rieff V. Rieff, 64 Pa. St. 134 (1890); cmUra, Whitmarsli i>. Walker, 
 1 Met. (Mass.) 313 (1840). 
 
NATURE AND F0E.MAL1TIES OF THE CONTRACT. 23 
 
 The latter term is the Scotch equivalent of emblements, 
 and was inserted in the statute because of that fact ; but 
 the suggestion is made by a Scotch writer that its pres- 
 ence in the statute ma}- have disposed of a question which 
 had not been settled by judicial decision in England, 
 whether such products of the soil as madder, clover, 
 teasels, which are not permanent products as trees, nor 
 requiring annual cultivation like cereals, are goods.^ 
 
 (b) Natural Soil Products. — The natural and perma- 
 nent produce of the soil, such as grass, trees with their 
 fruits, and the like, before severance, was not treated as 
 personalty bj' the common law, and a contract for its 
 sale is, bj' the weight of judicial authority, deemed one 
 for the transfer of an interest in lands. '^ If, by the agree- 
 ment, however, the title to the produce is not to pass until 
 it has been severed and thus converted into a chattel, the 
 contract is one for the sale of goods.' The modern Eng- 
 lish view seems to be that the natural growth of land may 
 be the subject-matter of a present sale of goods, if it is not 
 to derive further benefit from the soil ; ' and this doctrine 
 is held by a few of our State courts. The agreement of the 
 parties that the produce shall be separated presently from 
 the land, is treated as working its constructive severance.' 
 
 Even in those jurisdictions where the subject-matter of 
 a contract for the present sale of natural produce is 
 deemed an intei-est in land, it i& held generallj' that if the 
 vendee severs the growth before the vendor's repudiation 
 of the contract, he acquires title to it as a chattel.^ In 
 
 1 Brown on Sales, p. 286. 
 
 2 Green v. Armstrong, 1 Denio (N. Y.), 552 (1845); Hirth v. Graham, 
 50 Ohio St. 57; 33 N. E. 90 (1893). 
 
 8 Killmau v. Hewlett, 48 N. Y. 569 (1872). 
 4 Marshall v. Green, 1 0. P. D. 35 (1875). 
 6 Byag.se v. Eee.se, 4 Mete. (Ky.) 372; 83 Am. Dec. 481 (1863). 
 « Owens t'. Lewis, 46 Ind. 488 (1874); but see Bent v. Hoxie, 92 
 Wis. ; 64 N. W. R. 426 (1895). 
 
24 THE LAW OF SALES. 
 
 two States the broad ground is taken, that if the con- 
 tract is to eventuate merely in the transfer of title to a 
 chattel, it is one for the sale of goods, whether the natural 
 growth is to derive further benefit from the soil or not, 
 and whether it is to be severed from the land by the 
 vendor or the vendee.^ Said the court, in the case last 
 cited: "The circumstance that the produce purchased 
 maj-, or probabl3', or certainly will, derive nourishment 
 from the soil between the time of the contract and the time 
 of the deliver^', is not conclusive as to the operation of the 
 statute. If the contract, when executed, is to convey 
 to the purchaser a mere chattel, though it may be in the 
 interim a part of the realty, it is not affected by the 
 statute ; but if the contract is, in the inttrim, to confer 
 upon the purchaser an exclusive right to the land for a 
 time, for the purpose of making a profit of the growing 
 surface, it is affected by the statute, and must be in 
 writing, although the purchaser is at the last to take from 
 the land only a chattel. . . . It would be a perversion of the 
 objects of the statute to hold as invalid the sale, in other 
 respects legal, of the growing crop of peaches, with no 
 intent of the parties to sell or purchase the soil, but 
 affording a mere license, express or implied, to the pur- 
 chaser to go upon the land, to gather the fruit and remove 
 the same." 
 
 4. Fixtures. — In England, the maxim, quod pkm- 
 tdtur solo, solo cedit, is applied strictl}-, almost harshly. 
 Accordingly, buildings, or other structures,'' originally in- 
 tended as permanent accessions to the land, although at 
 the time of the contract doomed to removal,' machinery,* 
 
 1 Bostwick V. Leach, 3 Day (Conn.), 476 (1821); Piimer v. Plercy, 
 40 Md. 212, 224, 225 (1874). 
 
 2 Firrest v. Greenwich, 8 E. & B. 890 (1858). 
 
 3 Lavery v. Pursell, 39 Ch. D. 508 (1888). 
 
 4 Walmeslay v. Milne, 7 C. B. n. s. 115 (1859). 
 
NATURE AND FORMALITIES OP THE CONTRACT. 25 
 
 and house decorations ^ affixed in a permanent manner to 
 tlie building, are treated as real estate. So are gold, sil- 
 ■ver, and other metals which have become so imbedded in 
 the bricks of a smelting furnace that they cannot be re- 
 moved without pulling down the furnace or breaking up 
 some of the brick. ^ As between the life tenant and re- 
 mainder man, also between the landlord and tenant, this 
 rule has been relaxed "for the benefit of the public, to 
 encourage tenants for life to do what is advantageous to 
 the estate during their term,'"* and "for the benefit of 
 trade." * Still, trade fixtures appear to be treated in 
 England not as goods, and a contract for their sale trans- 
 fers only the right to sever them.^ 
 
 (a) Trade Fixtures in the United States. — In the 
 United States, however, the maxim is applied less rigor- 
 ouslj'. Trade fixtures are not only favored, but the law 
 deals with them as chattels." Accordingly, stone piers, 
 built by a railroad company as a part of its equipment, 
 are to be treated as personalty upon the abandonment of 
 the road, for the reason that articles merely accessory to 
 a business carried on upon land, and not intended as 
 permanent accessions to the land, "retain the personal 
 character of the principal to which they belong, and are 
 subservient."' It has been judicially declared that in 
 " appljing the Statute of Frauds, buildings are not classed 
 with forest trees, but with growing crops, nurserj- trees, 
 and fixtures attached to realty. And buildings are realty 
 
 1 D'Eyncourt v. Gregory, L. R. 3 Eq. 382 (1866). 
 
 2 Tottenhan v. Swansea Zinc Ore Co., 52 L. T. 738 (1885). 
 8 Lawton v. Lawton, 3 Atk. 14 (1743). 
 
 4 Sanders v. Davis, 15 Q. B. D. 268 (1885). 
 
 6 Lee V. Gaskell, 1 Q. B. D. 700, 701 (1876). 
 
 8 Russell V. Richards, 10 Me. 429 (1833) ; Strong v. Doyle, 110 
 Mass. 92 (1872). 
 
 ' Wagner v. Cleveland & Toledo Railway, 22 OUo St. 563, 577, 
 578 (1853). 
 
26 THE LAW OF SALES. 
 
 or personaltj-, according to the intention of the parties. 
 And when the parties in interest agree that they may be 
 severed and moved from the realty, buildings are held and 
 treated as personalty." ^ In most jurisdictions, however, 
 the parties cannot by an oral contract convert a building 
 from real propertj' into a chattel. Hence, if the land and 
 the building are owned by the same person, an oral reser- 
 vation of the building b}' the owner when conveying the 
 laud by deed is inoperative ; ^ and a contract for the sale 
 of the unsevered materials of a ruined building is one for 
 the transfer of an interest in land, and not for the sale of 
 chattels.^ 
 
 5. Contract for Sale of Land and Goods. — A single 
 contract for the sale of chattels, and for the transfer of 
 an interest in land, is not one for the sale of goods ; and 
 unless in writing is void in toto.^ The law of Louisiana 
 treats as " part of the immovable " those things that have 
 been added by the owner for the improvement and service 
 of the propert}-, such as cattle used in the cultivation of 
 land. Implements of husbandr3-, seeds, beehives, mills, 
 kettles, and niachinerj', and all movables attached to a 
 building bj* the owner with plaster or moisture. Never- 
 theless, it permits the unpaid vendor to enforce his privi- 
 lege on the movable sold, even as against a mortgagee 
 of the vendee.^ 
 
 § 7. The Property. 
 
 In order that a contract be one for the sale of goods, 
 it must have for its object the transfer of the general 
 
 1 Long V. White, 42 Ohio St. 59 (1884). 
 
 2 Noble V. Boswortli, 19 Pick. (Mass.) 314 (1837); Leonard v. 
 Clough, 133 N. Y. 292 (1893). 
 
 8 Movers V. Schemp, 67 111. 469 (1873). 
 4 Thayer v. Rock, 13 Wend. 53 (1834). 
 6 Baldwin v. Young, 47 La. Ann. 1466 ; 17 So, R. 883 (1895). 
 
NATUBE AND FORMALITIES OF THE CONTRACT. 27 
 
 property as distinguished from a special property there- 
 in.^ Tiie purchaser becomes the general owner of the 
 goods, with untrammelled power to dispose of such owner- 
 ship. 
 
 1. A Sale differs from a Mortgage. — The buyer's 
 rights are clearly distinguishable from those of a mort- 
 gagee of goods, who, at common law, is the transferee of 
 the general property therein, but with his ownership sub- 
 ject to defeasance by the mortgagor's performance of the 
 mortgage conditions." Even if the conditions are not per- 
 formed, and the mortgagee's title becomes absolute at law, 
 it is subject still to an equity of redemption.' 
 
 2. A Sale differs from a Pledge. — His rights differ 
 even more widely from those of a pledgee, who acquires 
 onl}' a special property in the goods. ^ The pledgor re- 
 mains the owner of the general property therein, and 
 may sell it subject to the pledgee's interest. Such pur- 
 chaser, even after default in pajing the loan for which the 
 goods are pledged, may maintain trover for them, if the 
 pledgee refuses to deliver them to him upon his tender of 
 the debt.^ Moreover, a change of possession is necessary 
 to the validity of a pledge, but not to the validity of a 
 sale or a mortgage at common law.^ 
 
 3. A Sale differs from a Lien. — Still broader is the 
 distinction between the rights of a purchaser of goods and 
 those of a lienor. The latter has a personal right to hold 
 
 1 Sewell u. Burdick, 10 App. Cas. 74 (1884). See definition of 
 general ownership by Folger, J., in Farmers' Bank v. Logan, 74 N. Y. 
 568, at p. 581 (1878). 
 
 2 Brown v. Bement, 8 Johns. (N. Y.) 96 (1811). 
 8 Putchin V. Pierce, 12 Wend. 61 (1834). 
 
 * Cortelyou v. Lansing, 2 Gaines Cases, 200 (1805). 
 6 Franklin v. Neate, 13 M. & W. 481 (1844). 
 6 Parshall o. Egert, 54 N. Y. 18 (1873) ; Ex parte Hubbard, 17 
 Q. B. D. 690, 697, 698, Bowen, L. J. (1886). 
 
28 THE LAW OF SALES. 
 
 the goods, but has no authority to sell them, nor to trans- 
 fer his right of possession.^ 
 
 4. Application of Foregoing Rules. — While the legal 
 distinction between a pledge, a lease, a consignment, or 
 other bailment on the one hand, and a sale or an exchange 
 on the other, is clear and unquestioned,^ its apphcation to 
 a concrete case is often difficult.' In determining whether 
 a particular transaction is a bailment or a sale, we must 
 look to its substance rather than to its form. If it gives 
 to one party all the rights which a vendor can legally 
 claim, and confers upon the other all the rights which a 
 purchaser can legally demand, it is a sale, no matter what 
 name the parties may have applied to it.* On the other 
 hand, if it is in form a hiring of the goods, and gives to 
 the hirer no proprietary right in them, and no lieu or in- 
 terest of any sort beyond the right to keep and use them 
 for a stipulated time, it is not a sale, nor a contract to 
 sell, although the lessor binds himself to sell upon the 
 final payment of rent, and the hirer has the option to pur- 
 chase by making the rent payments agreed upon. It is 
 an agreement of hiring only, with an option to the hirer to 
 become a purchaser.^ 
 
 However, if the transaction assumes the form of a lease, 
 with a proviso for a sale, for the purpose of evading stat- 
 
 1 DonaLl v. Suckling. L. R. 1 Q. B. 585, 612 (1866) ; Scliofield i;. 
 Xational El. Co., 67 N. W. 645, Minn. (1896). 
 
 •' Smith V. Cl,irk, 21 Wend. 83 (1839) ; The South Australian Ins. 
 Co. t>. Randall, L. R. 3 P. C. 101 (1869). 
 
 8 Crosby i. Dplaware & Hudson Can. Co., 119 N. Y. 334 ; 128 
 N. Y. 641 (1S91); Brown v. John Church Co., 53 111. App. 615 
 (1S94) ; The Peoria Manufacturing Co. v. Lyons, 153 111. 427 (1894). 
 
 * Hutton V. Llppert, 8 App. Cas. 309 (1883). 
 
 " Rowe V. Sharp, 51 Pa. St. 26 (1865) ; Brown v. Billington, 163 
 Pa. St. 76 ; 29 At. 904 (1894) ; Helby v. Matthews (1895), App. Cas. 
 471 ; 11 Rep. 1, distinguishing Lee v. Butler (1893), 2 Q. B. 318 ; 
 4 Eep. 563. 
 
NATURE AND FORMALITIES OF THE CONTRACT. 29 
 
 utes which require conditional sales or chattel mortgages 
 to be registered, or if it is opposed to the policj' of the 
 local law which prohibits secret liens, the courts will re- 
 fuse to treat it as a bailment, and will declare it a sale or 
 a mortgage, according to the facts. ^ 
 
 The English statute expresslj- provides that its provi- 
 sions " relating to contracts of sale do not applj' to anj' 
 transaction in the form of a contract of sale which is in- 
 tended to operate bj' waj' of mortgage, pledge, charge, or 
 other securitj'." ^ 
 
 § 8. The Price. 
 
 The paj'raent of a money consideration or price, or an 
 agreement therefor, is necessary to a sale of goods. This 
 element distinguishes it from a gift. But the two trans- 
 actions differ in other respects. In a present sale delivery 
 of the property is not necessary to pass title ; while a gift 
 of a specific chattel by words in presenti will not pass title 
 without delivery ; " although the delivery maj' precede the 
 words of gift* Again, if a gift leaves the donor insolvent, 
 it may be avoided bj' existing creditors without proof that 
 it was made with intent to defraud them, while a sale can 
 be impeached by creditors only upon such proof.^ 
 
 1. Sale or Barter. — k. money consideration also dis- 
 tinguishes a sale from a barter. It has been said that 
 
 1 Greer v. Chnrch & Co., 13 Bush (Ky.), 430 (1877) ; Heyford v. 
 Davis, 102 U. S. 235 (1880); Gross v. Jordan, 83 Me. 380 (1891); 
 Comm. V. Hai-mel, 166 Pa. St. 89 ; 30 At. 1036 (1895). 
 
 ^ Sale of Goods Act, 1893, § 61 (4). 
 
 8 Noble «. Smith, 2 Johns. (N". Y.) 52 (1806); Cochrane w. Moore, 
 25 Ch. D. 57 (1883). But see Shaffer v. Stevens, 42 N. E, 620, Ind. 
 (1896). 
 
 * "Wing V. Merchant, 57 Me. 383 (1869); Kilpin v. Ratley, 1 Q. B. 
 582 (1892). 
 
 "■ RuM V. Phillips, 48 N. Y. 125 ; 8 Am. R. 522 (1871); Davis v. 
 Schwartz, 155 U. S. 631; Book 39, L. ed. 289; 15 Sup. Ct. 237 
 (1895). 
 
30 
 
 THE LAW OF SALES. 
 
 when a statute refers in terms to contracts of sale, it has 
 no application to contracts of exchange,^ and this view has 
 prevailed with some courts,'' but not with others.' Under 
 the common-law system of pleading and practice, it was 
 error to describe an agreement to exchange goods as a 
 sale, or to sue in debt instead of for a breach of contract.'' 
 Again, as a power of sale under a statute, a decree, a deed, 
 or authorit}- of anj- kind, is strictlj' construed, the possessor 
 of such a power has no authority' to exchange or barter the 
 property.^ But for most purposes the rules applicable to 
 exchange are the same as those governing sales.^ Not in- 
 frequently, judicial opinions use the terms interchangeably.'' 
 2. If Price is not stipulated. — In English law, it is 
 not necessary to the validity of a contract to sell, nor of a 
 present sale, that the price should have been expressly fixed 
 b}' the parties. It is enough if the price can be inferred 
 from their previous dealings, or if it is to depend on a 
 
 1 Chalmers' Sale of Goods Act (2cl ed.), p. 4. 
 
 2 Massey v. State, 74 Ind. 368 (Intoxicating Liquor Statute) 
 (1881). 
 
 ^ Howard v. Harris, 90 Mass. 297 (Intoxicating Liquor Statute) 
 (1864); Dowling o. McKenney, 124 Mass. 478 (Statute of Frauds) 
 (1878). 
 
 4 Mitchell V. Gill, 12 N. H. 390 (1841); Beirnew. Dunlap, 8 Leigh 
 (Va.), 514 (1837) ; Slayton v. McDonald, 73 Me. 50 (]881). 
 
 5 Williamson v. Berry, 8 How. 495, 544 (1850); Edwards u. Cottrell, 
 43 la. 194 (1876). 
 
 8 Anonymous, 3 Salk. 157 (1692) ; Emanuel v. Dane, 3 Camp. 299 
 (warranty) (1812); La jSTeuville v. Nourse, 3 Camp. 351 (caveat emptor) 
 (1813); Hudson Iron Co. w. Alger, 54 N. Y. 173 (revenue law) (1874); 
 First Nat. Bank v. Reno, 73 la. 145 (title passing without delivery) 
 (1887). 
 
 7 Sturm V. Baker, 150 U. S. 312, 329, 330 ; 14 Sup. Ct. E. 99, 104 
 (1893). " When there is no obligation to return the specific article, 
 and the receiver is at liberty to return another thing of value, he be- 
 comes a debtor to make the return, and the title to the property is 
 changed. The transaction is a sale." 
 
NATURE AND FOKMALITIES OP THE CONTRACT. 31 
 
 future event ; ^ or if it can be made certain as by reference 
 to a price current at a specified time and place, ^ or by 
 reference to the price of gold on a given da}',' or by the 
 verdict of a jury,^ or by the valuation of a third party/ 
 In the last case, if the chosen arbiter does not appraise 
 the property, the contract to sell should be deemed avoided, 
 inasmuch as it was conditioned upon his performance of 
 the stipulated act ; ° but if the purchaser has appropriated 
 any of the goods, under such a contract, he is liable for a 
 reasonable price ; ' and if the failure of the arbiter to act 
 is due to the fault of either party, he is liable in damages 
 to the other.* This topic is discussed more fully in a later 
 chapter. 
 
 3. Reasonable Price. — Reasonable price is generally 
 the market price. Such is not the case, however, if the 
 latter is abnormal, as in case of a speculative corner,' or of 
 a trust combination ; ^° nor if there is no market at the 
 place of delivei-y." 
 
 The Supreme Court of Michigan has declared ^° that a 
 price fixed by a trust combination is unlawfully fixed, and 
 " the fact that they, the manufacturers, deemed the price 
 
 1 Newell y. Smith, 53 Conn. 72 (1884). 
 
 2 McConnell v. Hughes, 29 Wis. 537 (1872). 
 8 Ames V. Quimby, 96 U. S. 324 (1877). 
 
 « Shealy v. Edwards, 73 Ala. 175 (1882). 
 
 5 New England T. Co. v. Abbott, 162 Mass. 148 (1894). 
 
 6 Sale of Goods Act, § 9 ; contra, Phippen v. Stickney, 3 Met. 
 (Mass.) 384 (1841). 
 
 ■> Clarke v. Westrope, 18 C. B. 765 ; 25 L. J. C. P. 287 (1856) ; 
 Stone V. Heissler, 120 111. 433, 443, 444 (1887). 
 
 s Sale of Goods Act, § 9 (2) ; c/. Humaston u. Am. Tel. Co., 20 
 ■Wall. 20 (1873). 
 
 « Kouutz V. Kirkpatrick, 72 Pa. St. 376 (1872). 
 
 w Lovejoy v. Miohels, 88 Mich. 15, 23, 24 ; 49 N. "W. 901 ; 45 A. L. 
 J. 8 (1891). 
 
 11 Dunkirk Colliery Co. v. Lever, 9 Ch. D. 20, 25 ; 41 L. T. N. S. 
 633 (1878). 
 
0-! THE LAW OF SALES. 
 
 fixed to be reasonable, does not purge it of its unlawful 
 character. Independently of its " unlawful character, " a 
 price so fixed cannot be regarded as anj' better evidence 
 of value than that fixed bj- anj' vendor upon his own wares. 
 A price so fixed is not to be entitled to rank as a market 
 price. It is not a market price within the contemplation 
 of the law. The market price of an article manufactured 
 hy a number of different persons is a price fixed by buyer 
 and seller in an open market in the usual and ordinary 
 course of lawful trade and competition. It cannot be di- 
 vested of these incidents and retain its character. Asso- 
 ciations of this character give the buyer no voice, and close 
 the market against competition." 
 
 § 9. Price and Part Payment under the Statute of Frauds. 
 
 A contract for the sale of goods is not within the statute, 
 unless the price or monej' consideration reaches a certaia 
 limit, — £10 in England, S.30 to $300 in the United States. 
 If the price is fixed by the express agreement of the 
 parties, there is no difficulty in determining whether the 
 statute applies. In other cases, however, the question is 
 not so simple. 
 
 1. iS'-V'-ra/ Articles hought at one Iniervietr. — It may 
 happen that several articles are sold by A. and bought by 
 r>. during a single interview, and that the agreed price for 
 each article is below the limit, while the aggregate price 
 exceeds it. Whether the statute applies depends upon the 
 severability of the transaction, as disclosed by the facts in 
 each case. If one person bargains with another for vari- 
 ous articles which are separately selected and agreed upon, 
 and asks that one statement of the whole be rendered, 
 there is but a single contract.^ Even in the ease of auction 
 sales, the parties may convert into a single contract what 
 
 1 Baldy v. Parker, 2 B.& C. 37 (1823) ; Allard «. Greasert, 61 N. Y. 
 1 (1874J. 
 
NATURE AND FOBMALITIES OP THE CONTRACT. 33 
 
 would Otherwise be distinct transactions ; ^ but where the 
 parties contract for articles of different kinds, which are 
 to be delivered and paid for at distinct times, places, and 
 prices, the transaction is severable.^ 
 
 2. Uncertainty of Aggregate Sum. — Even where the 
 sale contract is entire, the aggregate sum to be paid may 
 be unknown and ascertainable only in the future ; as where 
 a crop of grain or of fruit is sold at a stipulated price per 
 bushel, or the offspring sired b}' a certain animal during a 
 designated period are bargained for at a fixed price per 
 head.' Whether such a contract is within the statute 
 depends upon the sequel. 
 
 Again, an indivisible contract may embrace a sale of 
 goods and a distinct undertaldng, such as the transporta- 
 tion of the goods, or the agistment of animals. In that 
 event, if the price of the goods, whether separately agreed 
 upon or not, exceeds the limit, the whole contract is under 
 the statutory ban.* 
 
 3. Earnest and Part Payment. — The statute is satis- 
 fled if the buyer gives " something in earnest to bind the 
 bargain or in part of paj'ment." In earl3' English law, 
 earnest was " a distinct pa3-ment for the seller's forbear- 
 ance to sell or deliver a thing to any one else." ^ It has 
 a different meaning in the Statute of Frauds, although its 
 present signification is a matter of disagreement between 
 the courts of England and those of the United States. 
 According to the view of the former it "is mone}' or a 
 
 ' Mills V. Hunt, 20 Wend. (IT. Y.) 431 (1838) ; Jennett v. Wendell, 
 51 N. H. 63 (1871). 
 
 2 Aldrich v. Pyatt, 64 Barb. (N. Y.) 391 (1872) ; cf. Tipton v. 
 Feitner, 20 N. Y. 423 (1859). 
 
 8 Carpenter v. Galloway, 73 Ind. 418 (1881). 
 
 * Harman d. Reeve, 2 5^L. J . (IP. 257 (1856) ; Irvine v. Stone, 6 
 Cusk (Mass.) 508 (1852). 
 
 6 Pollock and Maitland's History of English Law, vol. 2, p. 206 ; cf. 
 Moyle's Contract of Sale in the Civil Law, 48, 172. 
 
 3 
 
34 THE LAW OF SALES. 
 
 valuable thing, not forming part of the price of the goods 
 sold, and given bj' the buj-er to the seller, and accepted by 
 the seller, in order to mark the assent of both parties to 
 the agreement." ^ 
 
 In this country the term is understood to be synonymous 
 with part payment. What is given must be delivered and 
 accepted as a part of the price, ^ and not simplj' as evidence 
 that the parties are in earnest.^ Accordingly, if the par- 
 ties make a deposit which is to belong to the one who is 
 ready to perform if the other neglects performance, the 
 deposit does not satisfy the statutorj' requirement of earnest 
 or part payment* It is not necessarj' that legal tender 
 monc}- be used. Part payment may be made " in money 
 or property, or in the discharge of an existing debt, in 
 whole or in part. . . A mere agreement to apply the 
 purchase-money to either of these objects would not be 
 enough, because the contract would still rest in words, 
 and nothing more."^ 
 
 The New York statute requires part payment to be 
 made at the time of the contract. "It is in substance 
 held that payment subsequently made, although conform- 
 ing to the oral agreement, is insufficient of itself to make 
 the prior oral agreement valid. There must be enough in 
 addition to the act of payment to show that the terms of 
 the prior oral contract were then in the minds of the 
 parties, and were reaffirmed by them ; and this being 
 shown, a cause of action arises, not on the prior oral 
 
 1 1 Law Quar. Rev., p. 17; cf. Howe o. Smith, 27 Ch. D. 89, 102 
 (1884). In Scotland it is sometimes ealled "dead earnest" to distin- 
 guish it from part payment. Brown's Sale of Goods Act, 26. 
 
 2 Edgerton v. H^dge, 41 Vt. 67 (1869). 
 
 8 nSinet )'. Weir, 100 Iml. 501 (1884); 115 Ind. 525 (1888). 
 * Howe V. Hayward, 108 Mass. 54 (1871). The statutes of some 
 States omit the term " earnest." It is retained in Massachusetts. 
 5 Brabin v. Hyde, 32 N. Y. 519 (1865). 
 
NATURE AND FORMALITIES OF THE CONTRACT. 35 
 
 contract, but on the new contract made at the time of the 
 payment" ' 
 
 § 10. The Form of the Contract. 
 
 1. Nature of the Memorandum. — The common law 
 prescribed no requirements of form for the contract of 
 sale. It was equallj' valid and enforceable, whether oral 
 or written. .But by the Statute of Frauds, in the absence 
 of part paj"ment, or of acceptance and receipt of part of 
 the goods, the only evidence receivable to establish the 
 contract, in an action for its enforcement, is a note or 
 memorandum in writing, signed by the party to be charged 
 or his duly authorized agent. However, the statute does 
 not make this form essential to the validity of the con- 
 tract,^ but to its enforceability against the party pleading 
 the statute.^ 
 
 (a) Memorandum not a Written Contract. — More- 
 over, such a note or memorandum is not a written contract. 
 When the parties freely and deliberately embodj' their 
 sale agreement in a written instrument, thej' satisfy the 
 statute, indeed ; but they do more. They make the writ- 
 ing the best evidence of the terms of the contract, and 
 they preclude each other from giving oral evidence to 
 vary its provisions. On the other hand, the statute pre- 
 supposes an oral contract, which is not merged in the 
 subsequent note or memorandum. Hence, although the 
 statutory writing is made and signed by the party to be 
 charged, it is not conclusive as to the terms of the con- 
 tract actually agreed upon. It may be disregarded save 
 as an explainable admission when part payment, or re- 
 ceipt and acceptance, is proved.* It may be shown by 
 
 1 Jackson v. TupiieT, 101 N. Y. 515 (1886). 
 
 2 Bird V. Mimroe, 66 Me. 337 (1887). 
 
 3 Crane u.'PoweTl, 139 N. Y. 379 (1893). 
 
 < Lockett u..Nicklin, 2 Ex. 93 ; 19 L. J. Ex. 403 (1848). 
 
36 _ THE LAW OP SALES. 
 
 oral evidence not to be a true memorandum of the con- 
 tract, bj- reason of its containing terms not agreed to or 
 omitting some stipulated term.^ 
 
 (5) Terms of an Acnirnte Mcmoroiulum not to he 
 2Li<]if,ed by Orul JEcideiire. — When a true and sufficient 
 memorandum has been made, an oral agreement to varj- 
 the contract thus noted is unavailable, either to defeat an 
 action on the original contract ^ or to sustain one on the 
 new agreement.^ An accepted performance of the new 
 agreement, however, is a good defence to an action on the 
 original contract bj- way of accord and satisfaction ; * and 
 on principle, the mutual rescission of the contract, although 
 oral, should be equally effective.^ 
 
 2. I'hi/sical Iltmtisit(.s of ih<: Muhioraiidiim. — While 
 the note must be a writing, the statute is satisfied if the 
 words are written with a lead pencil," or are printed,' and 
 the writing maj' consist in part of abbreviations, conven- 
 tional signs, or initials.' The statute does not require a 
 formal instrument, nor a single document. The memo- 
 randum may be made up of several pieces of writing, if all 
 are signed by the party to be charged ; " or if all were 
 physically connected when any one was so signed ; " or if 
 
 1 Mcieafi^ V. gicoU^ 7 Jurist (n. s.), 999 (1861) ; Boardman »,. 
 Spooner, 13 Allen (Mass.), 353 (1866). 
 
 2 Nohle <■, "Ward, L. R. 1 Exch. 117 ; 2 Ibid. 135 (1867). But 
 see Jlacpherson v. 'Wanier, 9 T. L. E. 397 (1893) ; 9 Law Quar. 
 R.-V. 366. 
 
 3 Clark w.FeL. 121 N. Y. 470 (1890). 
 
 ■1 MootT' v. Campbell, 10 E.xcli. 320 (1854) ; Long v. Hartwell, 34 
 N. J. L. 116 (1870). 
 
 5 Blackburn on Sales (2d ed.), 118, 119. 
 « Jlerritt v. Clos.son, 12 Johns. 102 (1815). 
 
 7 Saunderson v. Jackson, 2 B. & P. 238 (1800). 
 
 8 Phillimore v. Barry, 1 Camp. 513 (1808) ; Barry v. Coombe, 1 
 Pet. 640 (1828). 
 
 9 Thayer v. Luce, 22 Ohio St. 62 (1871). 
 
 i» Tallman v. Frankhn, 14 N. Y. 584 (1856). 
 
NATURE AND FORMALITIES OP THE CONTEACT. 37 
 
 the signed writing refers to and identifies the unsigned 
 papers.' English courts have declared that signed and 
 unsigned documents relating to the same transaction may 
 be connected by oral evidence.- ^Vhere the memorandum 
 is in duplicate and each part is signed bj- one of the 
 parties,^ or where the paper signed by each is the comple- 
 ment of the other and the two are delivered at the same 
 time/ they are to be construed as tliough thej' were a 
 single instrument. A written offer signed by the party to 
 be charged satisfies the statute, although the acceptance 
 bj- the other party is oral, and although the acceptance is 
 not concurrent with the tender of the offer. ^ 
 
 3. Contents of the Memorandum. — The statutory 
 requirement of a written note has for its purpose the pre- 
 vention of mistakes or falsehoods as to the terms of the 
 bargain. It seems clear, therefore, that the writing should 
 contain all of the terms. It should identify the parties 
 and show the relationship of seller and buyer ; it should 
 identify the propertj- bargained for ; " and it should specif}'' 
 the price and terms of payment, if these have been fixed 
 bj' the parties, as well as all the terms of the contract. 
 Upon the first and second points there is substantial agree- 
 ment. The only difference of opinion relates to the ques- 
 tion whether, if tlie writing does not disclose tlie seller, 
 parol evidence is admissible to show which party was the 
 owner of the property when the bargain was made.^ 
 
 1 Brown y . Wliimilg, 58 N. H. 229 (1877). 
 
 2 Qlixer^u. Hnntin < >. 44 Ch. D. 205 (1890). But see Potter v. 
 Peters, 72 L. T. Pi.. 624 (1895). 
 
 ^ Lerned v, Wannemacher, 9 Allen, 412 (1864). 
 
 * Peabody v. Speyers, 56 N. Y. 230 (1874). 
 
 6 Sanborn v. Flagler, 9 Allen, 474 (1864) ; Reuss u. Picksley, L. R. 
 1 Ex. 342. Contra, Coe v. Tough, 116 ¥. Y. 273 (1889). 
 
 s Waterman v. Meigs, 4 Cush. (Mass.) 497 (1849) ; Doherty «. Hill, 
 144 Mass. 465 (1887) ; Macdonald v. Longhottom, 1 E. & E. 977. 
 
 ' Newell V. Badfoid, L. R, 3 C. P. 52 (1867) ; Frank v. Eltring- 
 
38 THE LAW OF SALES. 
 
 (a) Statement of Price. — It is generally agreed that 
 a memorandum is defective which does not state the price 
 when that has been fixed by the parties ; ■" but whether the 
 writing must contain all of the promises of the buyer 
 and seller, or need contain only those of the part}- to be 
 charged, is a question upon which the courts differ. In 
 England it seems to be unsettled.^ It is affected to some 
 extent in this country by statutory provisions that the 
 consideration must be stated, or that it need not be 
 stated, in the memorandum.^ The prevailing view is, how- 
 ever, that the writing must contain all of the terms of the 
 sale contract.^ 
 
 4. Intent a-ith which Made. — The memorandum need 
 not be written with a view to satisfy the statute. It will 
 bind the party signing it if it is put to any use by him, — 
 for example, if he directs his book-keeper to lay it in the 
 safe,^ or if he communicates it to a third partj-," or if he 
 employs it as a repudiation of his obligation under the 
 oral agreement,' or as a request for release therefrom, or 
 if he embodies it in a pleading." It is sometimes said 
 that " an entrj' on the defendant's own private books 
 never communicated to any one " will suffice.^ The cases 
 
 ham, 65 M iss. 281 (18S7). Such evidence appears to have for its sole 
 object putting the court into the position of the parties when the in- 
 formal and hasty memorandum was made. 
 
 1 Smith V. Stanton, 15 Vt. 685 (1843). Contra, Ellis v. Bray, 79 
 Mo. 227 (1SS3). 
 
 2 1 Law Quar. Rev. 20 ; Campbell on Sales (2d ed.), 317, 318. 
 8 Hayes o. Jackson, 159 Mass. 451 ; 34 N. E. 683 (1893). 
 
 « Bacon v. Eccles, 43 Wis. 227 (1877) ; McMuUen v. Halberg, L. R. 
 6 Ir. 463 (1880) ; Browne, Statute of Frauds (2ded.), §§ 384, 398. 
 
 6 Djury V. Young, 58 Md. 546 (1882). 
 
 1 Moore v. Mountcastle, 61 Mo. 424 (1875). 
 
 7 Bexton !>. Eust, L. E.. 7 Exch. 279. 
 
 8 Jones D. Lloyd, 117 111. 597. 
 
 ' Benjamin on Sales, Bennett's note (6th ed. ) 208. 
 
NATUBE AND FORMALITIES OP THE CONTRACT. 39 
 
 cited do not bear out the statement, and the true doctrine 
 seems to be that the memorandum must have been com- 
 municated to the plaintiff or to some third person.' 
 
 5. The Signature. — This need not be at the end of 
 the writing, unless subscription is expressly required, as in 
 New York.^ It ma}- be at the top or in the body of the 
 note ; it may be by initials or by a mark, and it may be 
 printed or written, provided it is shown to have been 
 "intended to relate, and refer to, and in fact does relate 
 to, everj' part of the instrument." * The signature may be 
 written before the memorandum is complete, and even 
 before any part of it has been committed to paper ; but in 
 such a case the blanks must be filled up bj' an authorized 
 agent, or the signature must be adopted as governing the 
 completed instrument.' It is not necessary that the signa- 
 ture be made for the purpose of satisfying the statute. 
 The signer may intend not to be bound,' or he may attach 
 his name simply as a verification of the correctness of a 
 record which contains the memorandum as one of its 
 items." The signatures of both parties are not required. 
 It is enough that the note is signed by the party to be 
 charged. The memorandum is not the contract, but only 
 evidence of its terms.'' 
 
 6. Signature by Agent. — The statute treats a memo- 
 randum signed by a duly authorized agent as equally 
 binding on the principal with one bearing his personal 
 
 1 1 Law Qnar. Rev. 19 and cases cited ; Kemington v. Linthioum, 
 U Pet. 84, 93 (1840). 
 
 2 James i'. Patton, 6 N. Y. 9 (1851 ) . 
 
 8 Caton V. Caton, L. R. 2 H. L. 127, 143 (1867). 
 
 4 Stewart v. Eddowes, L. R. 9 C. P. 311 (1874) ; Ulen v. Kittredge, 
 7 Mass. 233 (1810) ; cf. Blackburn on Sales (2d ed.), 70. 
 
 6 Johnson v. Dodgson, 2 M. & W. 653 (1837). 
 
 6 Jones V. Victoria Graving Dock Co., 2 Q. B. D. 314 (1877). 
 
 ' Justice u. Lang, 42 N". Y. 493 (1870). Contra, Wilkinson v. 
 Heavenrich, 58 Mich. 574 ; 55 Am. R. 708 (1886). 
 
40 THE LAW OF SALES. 
 
 signature. It will not be necessaiy to discuss the prin- 
 ciples of Agency applicable to this provision.^ A brief 
 statement of the rules on this point will suffice. An agent 
 authorized to make a contract of sale is authorized to 
 bind his principal bj- a proper memorandum^ if made 
 during his agency.' The signature of such an agent may 
 be treated as that of his undisclosed principal,* except 
 for the purpose of discharging himself^ An auctioneer 
 is the authorized agent of both parties to make a memo- 
 randum at the time of the sale, but he cannot make it at 
 a later time on behalf of the purchaser without special 
 authority." 
 
 7. Jj/oA'ti-f:' Notes. — A broker who negotiates an oral 
 sale contract has apparent authority to make a memoran- 
 dum on behalf of both buj-er and seller. Unless required 
 by statute, custom, or agreement, this need not be made 
 in any particular place or form.' It is said that in Eng- 
 land " a precise and accurate broker, when he has made 
 a contract, reduces the terms to writing, and dehvers to 
 each party a copy signed by him. The copy delivered to 
 the seller is commonly called the sold note ; that which he 
 delivers to the buyer is generally called the bought note. 
 Besides these, he makes an entry in his book." ^ 
 
 {ii) Briih:r"s Entry is generalhj a Memorandum only. 
 — The broker's entry in writing may be more than a stat- 
 utory memorandum ; it may be a contract in writing, as 
 when made in the presence of both parties and assented 
 
 1 Huffcut on Agency, §§ 26, 111-114, 120-124. 
 
 2 Murphy v. Boese, L. R. 10 Exch. 126 (1875). 
 8 Elliot V. Barrett, 144 Mass. 256 (1887). 
 
 4 ■Williams ii. Bacon, 2 Gray (68 Ma.ss.), 387 (1854). 
 6 Calder v. Dobell, L. R. 6 C. P. 486, 496, 497 (1871). 
 6 Mews V. Carr, 1 H. & C. 484 (1856) ; Hortou v. llcCart)', 53 Me. 
 394 (1866) ; Price v. Durin, 56 Barb. 647 (1868). 
 
 ' Richey v. Garvey, 10 Irish Law Reports, 544 (1847). 
 8 Blackburn on Sales, 2d Eng. ed., p. 84. 
 
NATURE AND FORMALITIES OP THE CONTRACT. 41 
 
 to by them as the coutract.' Ordinarily his writing is a 
 memorandum onlj-. If he makes a book entry, and de- 
 livers bought and sold notes, and all are of the same 
 tenor, and conform to the terms of the oral agreement, no 
 difficulty ensues. Even though he makes no book entry, 
 if the bought and sold notes agree, and are retained b}' 
 the principals, there is no difficulty, for thej' furnish satis- 
 factory evidence of the terms of the original contract,^ or 
 they prove that the parties have assented to the new terms 
 therein stated.^ 
 
 (6) Where the Notes differ. — If one note only is put 
 in evidence, it warrants the inference that the other agrees 
 with it,* and satisfies the statute as against the party on 
 whose behalf and with whose authority it was signed.^ 
 
 Again, in case the broker does not make a liook entry, 
 and delivers bought and sold notes which differ in some 
 material respect, but which are retained by the parties, if 
 the note retained by the part}' to be charged is in accord- 
 ance with the terms of the oral contract as counted on hy 
 the plaintiff, it should satisfy the statute, and there is 
 authority to that effect.' Notwithstanding some of the 
 earlier decisions, a mere memorandum in the broker's 
 book, signed bj- him, is not the contract; it is at most 
 only evidence of the contract in cases where he has au- 
 thority to make it.' Accordingly, if he delivers pi'opcrly 
 signed bought and sold notes of the same tenor which are 
 
 1 Durrell v. Evans, 1 H. & C. 174 (1862). 
 
 2 Chapman v. Partridge, 5 Esp. i56 (1804). 
 
 3 Goom <.. Aflalo, 6 B. & C. 117 (1826) ; Thornton v. Charles, 9 
 M. & W. 802 (1842). 
 
 « Hawes v. Foster, 1 Mood. & Rob. 368, 371 (1834) ; Parton v. 
 Crofts, 16 C. B. (n. s.) 11 (1864). 
 
 5 Thompson v. Gardiner, 1 C. P. D. 777 (1876). 
 
 ^ Campbell on Sales, 2d ed., 567, 568, and cases cited. 
 
 ' Thornton v. Meux, M. & M. 44 (1827). See Campbell on Sales, 
 2d ed., 569, 570. 
 
42 THE LAW OF SALES. 
 
 retained by the principals, but signs a book entry at vari- 
 ance with them, thej- will satisfy the statute, unless the 
 defendant can show that the oral contract differs from the 
 notes, and that he has not assented to the new terms 
 stated in them.^ 
 
 In the United States it is said that bought and sold 
 notes should be taken together for the purpose of deciding 
 whether they constitute a sufficient memorandum.^ 
 
 8. WJwn Made. — The statute is silent on this subject, 
 but the weight of authority favors the view that the memo- 
 randum must be made before a suit is brought to enforce 
 the contract.' There is high authority, however, for what 
 appears to be the better doctrine, that, as the memoran- 
 dum is onl3- evidence of the sale, and not the sale contract, 
 it is immaterial whether this evidence is obtained before or 
 after the suit is brought.* 
 
 1 Authorities cited above. 
 
 ^ Bibb V. Allen, 149 U. S. 481, 495 ; 13 Sup. Ct. 950 (1892). 
 s Lucas V. Dixon, 22 Q. B. D. 357 (1889) ; Bird v. Munroe, 66 Me. 
 337 (1877). 
 
 * Eemiugton v. Linthicum, 14 Pet. 84, 92, Taney, C. J. 
 
BARGAIN AND SALE. 43 
 
 CHAPTER 11. 
 
 BARGAIN AND SALE. 
 
 § 1. Its Nature. 
 
 We have seen that a contract of sale may operate as a 
 present conveyance of the property in goods, even though 
 delivery and payment are to take place in the future.* 
 Such a transaction is known to the common law as a bar- 
 gain and sale. It is often called an executed sale,^ but 
 this designation is not a happy one, for the engagements 
 of neither party may be executed fully ; and it appears to 
 have induced confusion of thought and erroneous decisions.' 
 
 § 2. The Goods must be Specific. 
 
 In order that a transaction amount to a bargain and 
 sale, not only must the subject-matter be in existence, but 
 it must consist iu specific or ascertained goods. A con- 
 tract to sell a horse or a picture from a number owned by 
 the seller cannot operate as a bargain and sale. "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." ^ Until the party hav- 
 ing the right to designate the particular horse or picture 
 exercises that right, the contract may be satisfied by the 
 appropriation of any one of the various horses or pictures 
 
 1 Supra, p. 2. 
 
 2 Beardsley v. Beardsley, 138 U. S. 262 ; 11 Sup. Ct. 318 (1890). 
 8 Supra, p. 2. 
 
 4 Kimberly v. Patchiu, 19 S. Y. 330, 333 (1859). 
 
44 THE LAW OP SALES. 
 
 among whicli the choice is to be made ; and the law knows 
 no such thing as a floating right of property which may 
 attach itself to one chattel or another, according to the 
 exigencies of the party having the right of choice.^ 
 
 1. (.'on tract for Sale of Part of Mass. — To this ex- 
 tent all courts are agreed. But suppose the contract is 
 for the sale and purchase of a designated quantity from a 
 larger mass of goods of the same kind and quality, as of 
 1000 bushels of wheat, or 100 barrels of flour, can it take 
 effect as a bargain and sale before the stipulated portion 
 is severed from the mass? The English courts and those 
 of some of our States answer in the negative, holding 
 that until such severance no one can say which part of 
 the mass the seller has agreed to deliver ; the subject- 
 matter has no individuality, and the purchaser cannot 
 bring detinue, because he cannot describe the particular 
 thing.^ Such, however, is not the prevailing view in this 
 countr}'. When goods " are sold, not by a description 
 which refers to and distinguishes the particular thing, 
 but in quantities which are ascertained by weight, meas- 
 ure, or count," and "can be identified only in masses 
 or quantities, and in that mode, therefore, are viewed in 
 the contracts and dealings of men," if the agreed " quan- 
 tity and the general mass from which it is to be taken are 
 specified, the subject-matter is thus ascertained, and it 
 becomes a possible result for the title to pass." ^ All of 
 
 1 Scudder v. Worster, 11 Cush. (65 Mass.), 673, 580 (1853). 
 
 "^ Gillett V. Hill, 2 Crorap. & M. 530 (1»34) ; Waldo v. Belcier, 11 
 Iredell (N.C.), 609 (1850); Com. Bank v. Gillett, 90 Ind. 268 (1883); 
 Hutchinson v. Railway, 59 N. H. 187 (1879). Even the English 
 courts hold that such a contract confers upon the purchaser an 
 insurable interest in the goods. Stock v. Inglis, L. R. 12 Q. B. 564 ; 
 10 App. Gas. 263 (1885). 
 
 8 Kiniberly u. Patchin, 19 N. Y. 330, 333 (1859) ; Hurfifw. Hires, 
 40 N, J. L. 581 ; Brownfleld v. Johnson, 128 Pa. SK 267 ; 18 Atl. 
 543 (1889). 
 
BARGAIN AND SALE. 45 
 
 these conditions must concur. Hence, if the larger quan- 
 tity is composed of parcels differing in qualit},^ or pos- 
 sessing distinct individuality,'' or if the contract permits 
 the agreed quantity to be taljen from a particular mass or 
 from anj' other of like kind,^ the transaction cannot operate 
 as a bargain and sale. 
 
 2. Title ?iot Lost by Remingling an AiypropHated 
 Part irith the Mass. — Even in England it is admitted 
 that if the vendor once appropriates a part of the mass 
 to the contract, title to such ascertained part may vest at 
 once in the purchaser, and cannot be divested hy the vend- 
 or's minghug it again indistinguishablj' with the mass.* 
 In the case last citcd^the assignee in bankruptcy of the 
 seller was held liable in conversion to the purchaser for 
 exercising dominion over the whole mass, although when 
 it came to his possession, the part once appropriated to 
 the contract had lost its identity. No one could tell what 
 part of the mass was owned by the purchaser, and un- 
 questionably the assignee could have escaped liability hj- 
 tendering an}' seventj'-eight quarters of wheat from the 
 specified heap. If the purchaser can retain title to 
 seventy-eight quarters of wheat after the seller has inter- 
 mingled them with the bulk from which they had been 
 separated, it is difficult to see whj- he cannot obtain title 
 while so intermingled.^ 
 
 3. English Rule Modified hy Usage of Warehouse- 
 men. — Some courts, while adopting the English doctrine, 
 have not hesitated to hold that the owner of grain which 
 is in the possession of a warehouseman, maj- pass title to 
 a part thereof by a delivery order to the purchaser, duly 
 
 1 Foot'ii. Marsh, 51 N. Y. 288 (1873). 
 
 2 Hutchinson v. Hunter^ 7 Pa,. St. 140, 146 (1847). 
 
 3 Golden;. Ogden, 15 Pa. St. 528 (1850). 
 
 4 AWridge I). Johnson, TE.&'B. 835 (1857). 
 
 5 Kimberly v. Patchiii, 19 N. Y." at pp. 334, 335. 
 
46 THE LAW OP SALES. 
 
 accepted b3- the bailee. This acceptance is deemed an ap- 
 propriation to the use or credit of tlie purchaser, Trhereby 
 the latter acquires "title, right of possession, and con- 
 structive possession of the grain so purchased." ' Stat- 
 utes have been passed in a few States supporting and 
 extending this rule.^ 
 
 4. Title by Estoppel. — Although the goods may not 
 have been specified, the vendor or a bailee may estop him- 
 self to deny that title has passed.' " There maj- be also a 
 good title by estoppel to things which do not require any 
 instrument to transfer them ; as, for instance, goods : if 
 an action is brought upon the ground that the property in 
 goods has passed to the vendor of the plaintiff, and if that 
 question depends upon whether a particular parcel of goods 
 has been set apart and appropriated to the contract between 
 the vendor of the plaintiff and the defendant, an admission 
 by the defendant, the owner of goods, that there had been 
 a setting apart of the goods would be effectual as against 
 him to pass the property in the goods to the plainthTs 
 vendor." ^ 
 
 § 3. Contract to sell may become a Bargain and Sale. 
 
 This transformation may occur without further act by 
 either partj-, as where a chattel is delivered upon an agree- 
 ment that the transferee shall pay a certain sum for it, if 
 it is damaged while in his possession.^ More commonly 
 it is caused by an agreed act of one of the parties, or liy 
 their concurrent acts, such as the despatch of the goods 
 
 J Eseler v. Goodwin, 111 Mass. 490 (1873). 
 
 2 Mass. Pub. Statutes, c. 72, § i ; Minn. Gen. St. 1878, c, 124, 
 §§ 13-20; Hall ... Pillsbnry, 43 Minn. 33; 44 N. W. 673 (1890); 
 Maine Rev. St. (4th Revision) p. 333, § 9. 
 
 8 Gillett V. Hill, 2 Cromp. & M. 530 ; Knights u. Wiffen, L. R. 
 5 Q. B. 660 (1870) ; Watts v. Hendry, 13 Fla. 523 (1870). 
 
 ■1 Simra V. Anglo Am. Tel. Co., 5 Q. B. D. 188, 215, 216 (1879), 
 
 6 Bianchi v. Nash, 1 M. & W. 545 (1836). 
 
BARGAIN AND SALE. 47 
 
 by the seller to the buj-er/ or their inspection by a com- 
 mon agent,^ or their designation by the seller and accept- 
 ance by the buyer,' or their selection and appropriation 
 by the buyer.* This topic will be discussed more fully in 
 the next chapter. 
 
 § 4. The Contract must be Unconditional. 
 
 Even when the contract relates to specific goods, and 
 the language is that of a present sale, it will not operate 
 to pass title to the purchaser, If the parties intend that it 
 shall not have that effect. ° An unequivocal statement of 
 their intention is conclusive upon the parties. How far 
 it is binding on third persons will be considered hereafter. 
 If their intention has not been clearly expressed, it is to 
 be ascertained from "the terms of the contract, the con- 
 duct of the parties, and the circumstances of the case." •* 
 
 1. Presumption tKat Contract for Specific Goods is 
 one of Bargain and Sale. — It Is well settled that a con- 
 tract for the sale of specific goods is prima facie a bargain 
 and sale, immediately vesting the title to the goods in the 
 purchaser and a right to the price in the seller.' Nor Is 
 this presumption changed by the fact that the seller en- 
 gages to deliver the property at a future time and a desig- 
 nated place ; "^ nor in England by the fact that it is a sale 
 
 I fra g-ano v. Long , 4 B. & C. 219 (1825). 
 
 a Whitcomb v. " Whitney , 24 Mich. 486 (1872). 
 
 8 Rhodes v. Thwaites, 6 B. & C. 388 (1827). 
 
 4 Fash V. Eockford Veneer Co., 67 N. W. Ill, Mich. (1896). 
 
 6 Platter v. Acker, 13 Ind. App. 417 ; 41 N. E. 832 (1895). 
 
 6 Sale of Goods Act, § 17 (2) ; Linffham v. EggdsiOlL 27 Mich. 
 324 (1873); Kost v. Reilly, 62 Conn. 57 (1892). 
 
 1 Blackburn on Sales (2d ed.), 124, 171, 172 ; Thompson v. Bran- 
 nin, 94 Ky. 490 ; 21 S. W. 1057 (1893) ; Van Broecklin v. Smeallie, 
 140 N. Y. at p. 72. 
 
 « Terry v. Wheeler^ 25 N. Y. 520 (1862); Penley v. Bessey, 87 Me. 
 530; 32 At. 879 (1895). 
 
48 THE LAW OP SALES. 
 
 for cash,^ except in the case of goods sold in a retail 
 shop.^ 
 
 2. Is a Sale for Cash Conditional? — But in this 
 countrj- there are numerous dicta and a few decisions to 
 the effect that a present sale contract of specific goods- 
 " for cash " or " for ready monej-," is conditional, and that 
 title does not pass unless the condition is performed or 
 waived. In an earlj' case the doctrine is stated in this 
 form: "But if the sale be for monej- to be immediately 
 paid, or to be paid upon delivery, 'payment of the price is 
 a precedent condition of the sale, which suspends the 
 completion of the contract until the condition is performed, 
 and prevents the right of property from passing to the 
 vendee, unless the vendor chooses to trust to the personal 
 credit of the vendee. If credit be not given, this bargain 
 is considered nothing more than a communication."' 
 
 This view is adopted by Chancellor Kent, who declares 
 that "Where no time is agreed on for payment, it is under- 
 stood to be a cash sale, and the pa3-ment and delivery are 
 immediate and concurrent acts, and the vendor may refuse 
 to deliver without payment, and if the payment be not 
 immediately made, the contract becomes void."* It ap- 
 pears to be the law in some of the States.* 
 
 1 Sale of Goods Act, § 18, Rule 1 ; Camiibell's Sale of Goods (2d. ed.), 
 340 ; Blackburn, supra. 
 
 2 Bussey v. Bomett, 9 M. & W. 312 (1842). 
 
 8 Copland v. Bosquet, 4 Wash. C. Ct. 588 (1826) (at six months, 
 "payable in Philadelphia, or if his principal prefers cash, three per 
 cent discount, acceptance to be perfectly satisfactory "). 
 
 * 2 Kent's Commentaries, 496, citing as authorities Comyns's Digest, 
 tit. Agreement, B. 3, & Bell on Sales, Edin. (1844) 20, 21. Uudoubt- 
 
 6 Turner i'. Moore, 68 Vt 455 (1886) ; The Evansville Railway v. 
 Erwin, 84 Ind. 457 ; Halt v. Mo. Pac. Ry., 50 Mo. App. 179 (1892) ; 
 Com. V. Devlin, 141 Mass. 423 (1886). But see Morse v. Sherman, 
 106 Mass. 430 (1871), and Haskins v. Warren, 115 Mass. 514 (1874). 
 
BAEGAIK AND SALE. 49 
 
 3. Cash Sale is not Conditional in Most Jurisdic- 
 tions. — In most jurisdictions, however, a contract for tlie 
 sale of specific goods for casli on deliver}' 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 b}- evidence of the course of dealing be- 
 tween 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 reall}' 
 at issue has been, not whether title had passed, but whether 
 the buj-er was entitled to possession.^ 
 
 4. Payment or Security may he a Condition of Title's 
 Passing. — A stipulation that the buyer shall immediately 
 take out of circulation and redeliver to the seller -bills out- 
 
 edly the Scotch law treats such -i. term as a suspensive condition. 1 
 Bell's Commentaries (9th ed.), § 103; and Comyns lays down the rule 
 as stated by Kent; but the oases which he cites do not support it, al- 
 though the decision in Dyer, 29 b, has a dictum that such is the rule 
 in case of a cash sale in a retail shop. The case of Cowper v. Andrews, 
 Hob. 39, 41, declares that if " I sell you my horse for ten pounds, you 
 shall not take my horse except you pay me ten pounds," but contains 
 no intimation that failure to pay immediately avoids the .sale. 
 
 1 Rail u. Little Falls Lumber Co., 47 Minn. 422; 50 N". "w. 471 
 (1891) ; Phillips I Moor, 71 Me. 78 (1880); Hayden v. Demets, 53 
 N. Y. 426, 431 (1873) ; Clark v. Greeley, 62 N. H. 394 (1882). 
 
 2 Paul V. Reed, 52 N. H. 136 (1872). 
 
 ' Copland v. Bosquet, supra ; Tyler w. Freeman, SCush. 261 (1849). 
 
 ^ The Evansville Ry. v. Erwin, 84 Ind. 457 (1882). 
 
 6 Hodgson V. Barrett, 33 Ohio St. 63 (1877); Johnson-Brinkhan 
 Co. V. Cent. Bk., 116 Mo. 558 ; 38 Am. St. R. 615 : 22 S. W. 813 
 (1893). 
 
 4 
 
50 THE LAW OF SALES. 
 
 Standing against tlie latter,^ or that he shall give a chattel 
 mortgage on the goods,^ or that he shall give his negotiable 
 paper for the goods," renders the contract conditional. 
 "A negotiable security is more beneficial to the vendor 
 than a sale on account ; it gives him conclusive proof of 
 his debt, and is more available for use by enabling him to 
 raise money on it. " " 
 
 5. Sale upon Condition Subsequent. — A condition 
 subsequent does not alter the nature of a bargain and sale. 
 Hence, a contract for the present sale of a specific chattel, 
 with an option to the purchaser to return, passes the 
 title sul)ject to its defeasance by the buyer's exercise of 
 his option.^ 
 
 1 Bishop V. Shillito, 2 B. & Aid. 329, note (a) (1819). 
 
 ' Empire State Foundry Co. u. Grant, 114 N. Y. 40 ; 21 N. E. 49 
 (1889). 
 
 8 Whitney v. Eaton, 15 Gray (81 Mass.), 225 (1860). 
 
 * Eay V. Thompson, 12 Cush. 281 (1853) ; Stunn v. Baker, 150 
 U. S. 312 (1893); Foley v. Felrath, 98 Ala. 176 (1892) ; Lynch v. Will- 
 ford, 59 N. \V. 311 (1894). But see Sale of Goods Act, § 18, Rule 4. 
 
CONTEACT TO SELL. 51 
 
 CHAPTER HI. 
 
 CONTRACT TO SELL. 
 
 § 1. Existing or Specific Goods. 
 
 We have seen that a bargain and sale transfers the 
 general property in goods to the buyer. On the other 
 hand, a contract to sell goods, whether these are specific 
 or general, does not operate to pass title, but contemplates 
 its conveyance in the future. To which of these classes 
 a particular agreement belongs, may or may not be clear 
 from the language emploj-ed and the circumstances of the 
 case. But even where the parties have failed to disclose 
 their intention on this subject, if a litigation ensues, it 
 must be decided. Accordingly, courts have found it neces- 
 sary to adopt and adhere to certain rules in determining 
 whether cases before them fall within one or the other of 
 these classes, and if they belong to the second class, at 
 what time title passes to the buyer. In England these 
 rules have been codified.^ In this country thej' are to be 
 deduced in each jurisdiction from the decisions of its 
 courts.^ One of these rules was discussed in the preceding 
 chapter; the others will now be considered. 
 
 1. Goods to be made deliverable by the Seller. — We 
 have seen that a stipulation for the future delivery of 
 specific goods does not raise a presumption that the parties 
 intend to postpone the passing of title. Such a presump- 
 tion is created, however, when the seller engages to do 
 
 1 Sale of Goods Act, § 18. 
 
 2 Except in a few States which have codified them. 
 
52 , THE LAW OF SALES. 
 
 something to the goods for the purpose of putting them 
 into a deliverable state. The reason for this presumption 
 has been stated as follows : " 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 trans- 
 ference 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 pur- 
 chaser to accept the goods as corresponding to the agree- 
 ment, 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." ^ 
 
 Accordingly, if the seller, before the goods are deliver- 
 able, is under obligation to sever the trunks of certain 
 trees, '^ or to fatten animals," or to gin, bale, and bag 
 cotton,* or to trim and paint a vehicle,^ or to finish the 
 tanning of hides,' or to put fish on flakes and further dry 
 them,' or to complete the burning of charcoal,' or to pay 
 off all charges or liens upon the goods, ^ or to shell corn,^° 
 the title will be deemed not to pass unless other facts ap- 
 pear showing that the parties intend that it should pass. 
 
 1 Blackburn on Sales (2d ed.), 175. 
 
 2 Acraman v. Morris, 8 C. B. 449 (1849). 
 
 s Kourke v. Bullens, 8 Gray (Mass.), 549 (1857) ; Eestal u. Enge- 
 mon, 67 N. W. 1146 (1896), Minn. 
 
 * The Elgee Cotton Cases, 22 AVall. 180 (1874). 
 
 5 Halterline v. Rico, 62 Barb. 693 (1863). But the parties may cob- 
 tract for the present sale of unfinished wagons and for their completion 
 by the seller after the passing of title. Paine v. Young, 56 Md. 314. 
 
 « Pritchett v. Jones, 4 IJawle (Pa.), 259 (1833). 
 
 ' Foster v. Ropes, 111 Mass. 10 (1872). 
 
 8 Hall V. Huntley, 21 Vt. 147. 
 
 9 Malone ». Minn. Statue Co., 36 Minn. 325; 31 K. W. 170 
 (1887). 
 
 If Thompson v. Conover, 36 N. J. L. 148 (1873). 
 
CONTRACT TO SELL. 53 
 
 (a) Notice to Buyer that Goods are deliverable. — The 
 English statute requires that the buj'er shall have notice 
 that the goods have been put into a deliverable state be- 
 fore title shall pass, though the notice need not be given 
 bj' the seller. The provision was added on a suggestion 
 from Scotland that it was " inequitable that the buyer 
 should be liable to undertake a risk of which he was 
 ignorant." ^ 
 
 2. Weighing, Measuring, or Testing by the Seller. — 
 When the contract binds the seller to do either of these 
 acts, even though it is to be done for the sole purpose of 
 ascertaining the price, the English statute declares that 
 "the property does not pass until such act or thing be 
 done, and the bvi3'er has notice thereof." This rule, ex- 
 cept the provision as to notice, had been established by 
 judicial decisions in England, although it had encoun- 
 tered serious opposition.^ The suggestion that it was 
 "somewhat hastily adopted from the civil law, without ad- 
 verting to the great distinction made by the civilians be- 
 tween a sale for a certain price in money and an exchange 
 for anything else," is borne out by the opinions in the 
 early English cases on the subject,^ and by the decisions 
 in Louisiana based upon the civil code of that State. 
 
 Article 2456 declares that a sale is perfect and the prop- 
 erty passes to the purchaser "as soon as there exists an 
 agreement for the object and for the price thereof. " Article 
 2458 provides, " When goods, produce, or other objects 
 are not sold in a lump, but by weight, by tale, or by measure, 
 the sale is not perfect, inasmuch as the things sold are at 
 the risk of the seller, until they fce weighed, counted, or 
 
 1 Brown's Sale of Goods, 88. 
 
 2 Blackburn on Sales (2d ed.), 174 ; Martineau v. Kitching, L. R, 
 7 Q. B. 436 ; Cockburn, C. J. (1872). 
 
 8 Hanson v. Mej'er, 6 East, 614 (1805) ; Withers v. Lyss, 4 Camp. 
 237 (1815) ; Simmons v. Swift, 5 B. & C. 857 (1826). 
 
54 THE LAW OF SALES. 
 
 measured." The price is not agreed upon and ascer- 
 tained, if the contract is for the sale of all the corn in a 
 specified elevator, estimated at six or eight thousand 
 bushels at sixtj--five cents a bushel. "Had the elevator 
 taken fire, and the corn been consumed before it was 
 weighed, defendant could not have sued for any specific 
 sum as the ascertained price of the corn. . . . There 
 can be no sale in lump except for a lumping price.'" 
 
 (a) Weighing or Me((siiri)ig to Identify the Goods. — 
 If the agreement is not for the sale of specific goods, and 
 the weighing, measuring, or testing is to be done by the 
 seller, for the purpose of identifying the subject-matter or 
 of appropriating it to the contract, the intention of the 
 parties that title is not to pass until such act is done 
 seems to be fairly inferable. It is an act which the seller 
 must do, before he can call on the buyer " to accept the 
 goods as corresponding to the contract." In many of the 
 cases which support the rule that where the seller is bound 
 to weigh, measure, or test the goods, it is the presumed 
 intention of the parties that such act shall be a condition 
 precedent to title passing, the act was necessary not simjily 
 to arrive at the exact price for which suit could be brought, 
 but to ascertain the subject-matter,'' or to put the goods 
 into a deliverable state. ^ 
 
 1 Peterkin v. Martin, 30 La. An. 894 (1878) ; cf. Abat v. Atkinson, 
 21 La. An. 4U (1869) ; Goodwyn v. Pritchard, 10 La. An. 250 (185.5). 
 
 2 Joyce V. Adams, 8 N. Y. 291. 297 (1853) (259 bales of cotton, but, 
 not " the cotton stored at 296 'Water St. Any other bales of cotton of 
 the description specified would " have satisfied the contract). Martin 
 V. Hurlburt, 9 Minn. 142 (1864) ("all logs cut by me . . with the 
 exception of 175,000 feet"). Pike v. Vaughan, 39 Wis. 499, 505, 
 (a half million feet of logs fit for use). Eosenthal v. Kahn Bros., 19 
 Ore. 571, 577 (1890) (2,900 cords of good, merchantable fir-wood four 
 feet in length). 
 
 3 Rugga. Minet, 11 East, 210 (casks of turpentine to be filled); 
 Frost u. Woodruff, 54 111. 155 (1870) (wood to be chopped and piled) ; 
 
CONTRACT TO SELL. 55 
 
 (6) Weighing or measuring to ascertain Sum to be 
 paid. — Where, however, speci-fic goods are to be weighed, 
 measured, or tested by the seller solely- for the purpose of 
 ascertaining the aggregate sum to be paid bj' the buyer, 
 there seems to be no more reason for the inference that 
 the parties intend title shall not pass at once ^ th<an where 
 the seller is to deliver the goods at a specified time and 
 place. This view is held in a number of States.^ 
 
 However, the English rule is accepted generally by our 
 courts ; and in not a few jurisdictions the earlier form of 
 the rule is maintained, that whether the weighing, measur- 
 ing, or testing is to be done by the seller or by the buyer, 
 if this is necessary to fix the aggregate -sum to be paid, 
 title will not pass until it is done, unless the parties dis- 
 close a different intention.' Actual* or "symbohcal"^ 
 delivery of the goods by the seller to the purchaser, before 
 they are weighed, measured, or tested, is evidence of 
 mutual intention that title shall pass at once. 
 
 Moreover, if the weighing, measuring, or testing has 
 been done, the title will pass, although the mathematical 
 computation necessarj^ to the ascertainment of the sum 
 
 Lingham v. Eggelston, 27 Mich. 324 (culls to be separated from the 
 better quality). Although Kein v. Tapper, 52 N. Y. 550 (1873), is 
 frequently cited in support of 'this rule, the decision is based on the 
 fact that the purchaser had not had an opportunity to compare the 
 bulk with the sample ; Hamilton v. Gordon, 22 Ore. 557, 560 (1892) 
 (all my crop of wheat sacked in good merchantable sacks). 
 
 1 Gf. Burrows v. Whitaker, 71 N. Y. 291, 296, 297 (1877). 
 
 '^ Morgan v. Perkins, 1 Jones' Law (N. C), 171 (1853) ; Farmers' 
 Phosphate Co. v. Gill, 69 Md. 537 (1888); 16 At. 214; Sanger v. 
 Waterbury, 116 N. Y. 371; 22 N". E. 404 (1889). 
 
 8 Barrett v. Goddard, 3 Mason, 111 (1822) ; Nicholson v. Taylor, 
 31 Pa. St. 128 (1858) ; Prescott v. Locke, 51 K H. 94 (1871). 
 
 * Cunningham v. Ashbrook, 20 Mo. 553 (1855) ; Scott v. Wells, 6 
 W. & S. (Pa.) 357 (1843); Burrows v. Whitaker, 71 N. Y. 291. 
 
 6 Macomber v. Parker, 13 Pick, 175 (1832) ; Leonard v. Davis, I 
 Black (U. S.), 476 (1861). 
 
56 THE LAW OF SALES. 
 
 paj'able has not been made,' and although the data for 
 such computation may be unknown to the purchaser.^ 
 
 (c) Destruction of Goods before Weighing or Meas- 
 uring. — It has been held that where the contract is to 
 sell by weight, measure, or count, and the goods are de- 
 stroyed before they have been weighed, measured, or 
 counted, the seller cannot recover for goods bargained 
 and sold, even though title has passed.' In the case last 
 cited, Bayley, J., said: "So here the contract made 
 weighing necessary, for without that the price could not be 
 ascertained. Suppose the plaintiff had declared special!}' 
 upon this contract, he must have alleged and proved that 
 he sold the bark at a certain sum per ton, that it weighed 
 so many tons, and that the price in the whole amounted 
 to such a certain sum." Littledale, J., said : " The mere 
 bargain would not sufHce, because no specific price was 
 fixed ; nor could the plaintiff recover on a quantum vale- 
 bat, for the contract was to pay by weight ; and, therefore, 
 until the commodit}' was weighed, there would be nothing 
 to guide the jury in the amount of damages to be given." 
 This is not the prevailing view. In such a case, "the 
 seller may recover the price ... by ascertaining the 
 amount as nearly as you can."* 
 
 3. Sale of Specific Goods on Approval. — A contract 
 of this nature is not a bargain and sale. It provides for 
 the passing of title in the future, at the option of the pur- 
 chaser. Under the English statute, title vests " {<t) when 
 the buyer signifies his approval or acceptance to the seller, 
 
 1 Tiinsley v. Turner, 2 Bing. N. C. 151 (1835). 
 
 2 Bradley v. Wheeler, 44 N. Y. 495 (1871). But see the English 
 statute, § 18, Rule 3. 
 
 8 Simmons y. Swift, 5 B. & C. 857. 
 
 « Martineau v. Kitching, L. R. 7 Q. B. 436 (1872), Blackburn, J. ; 
 Upson V. Holmes, 51 Conn. 500, 503 (1883) ; GUI t. Benjamin, 64 
 Wis. 362 ; 25 N. W. 445 (1885). 
 
CONTRACT TO SELL. 67 
 
 or does any other act adopting the transaction ; (b) if he 
 does not signify his approval or acceptance to 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 a reasonable time. What is a reason- 
 able time is a question of fact." ^ 
 
 The American decisions accord with these provisions in 
 the main,'' 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 buj'er of itself; that it is evidence only of ac- 
 ceptance by the purchaser.' Mortgaging tlie goods is an 
 "act adopting the transaction," and changing it from a 
 conditional contract to buj' into a bargain and sale.^ Noti- 
 fying the seller that the buyer will have the defects remedied 
 at the former's expense is an act of the same nature.* 
 
 («) Sale or Return. — The English statute, following 
 the decisions of England and Scotland, makes no distinc- 
 tion between a " sale or return," and a sale on approval." 
 In this country, however, the former is treated as a bar- 
 gain and sale upon a condition subsequent.' 
 
 1 Sale of Goods Act, § IS, Rule 4 ; Moss v. Sweet, 16 Q. B. 493 
 (1851). 
 
 2 Delamater v. Chappell, 48 Md. 244 (1877) ; Columbia Rolling Co. 
 V. Beckett Co., 55 N. J. L. 391 (1893) ; Forsaith Machine Co. u. Jlen- 
 gel, 99 Mich. 280 ; 58 N. W. 305 (1894) ; Butler v. School District, 
 149 Pa. St. 351 (1892) ; Gibson v. Vail, 53 Vt. 476 (1881). 
 
 8 Hunt V. Wyman, 100 Mass. 198 (1868); Kahn v. Kabunde, 50 
 "Wis. 235 (1880) (but in this case the buyer was to return the horse 
 within a fixed time, or the seller was to go for it). 
 
 * Lynch v. Willford, 59 N. W. 311 (1894). ' 
 
 6 Stutz V. Coal Co., 131 Pa. St. 267 (1889). If the trial of the 
 property results in its partial consumption, the use of more than is 
 necessary to a fair trial may amount to an adoption of the transaction. 
 
 8 Sale of Goods Act, § 18, Rule 4. 
 
 ' Supra, p. 50 ; Buswell v. Bicknell, 17 Me. 344 (1840). " The 
 property in the thing passes, and the remedy of the former owner rests 
 
58. THE LAW OP SALES. 
 
 § 2. Unascertained or Future Goods. 
 
 A contract for the sale of such goods cannot operate as 
 a bargain and sale ^ until and unless the goods described in 
 the contract are unconditionally appropriated to it bj- one 
 of the parties with the assent of the other. ^ " In the case 
 of executor}' contracts," to quote from a leading English 
 case, "when the goods are not ascertained, or may not 
 exist at the time of the contract, from the nature of the 
 transaction no property in the goods can pass to the pur- 
 chaser bj- virtue of the contract itself; but when certain 
 goods have been selected and appropriated by the seller, 
 and have been approved and assented to bj' the buyer, 
 then the case stands, as to the vesting of property, very 
 much in the same position as upon a contract for the sale 
 of goods which are ascertained at the time of tlie bargain. 
 In most cases of such executory contracts, something more 
 would generally remain to be done, such as, for instance, 
 selection or appropriation, approval, and deliver}' of some 
 kind, before the property would be considered as intended 
 to pass, and upon that taking place the property might 
 pass, if it was intended to do so, equally as in the case 
 of a contract for specific and ascertained goods. Lord 
 Wensleydale, in the case of Dixon y. Yates (5 B. & Ad., 
 at p. 340), put the case of the sale of a specific chattel 
 upon the same footing as the sale of an unascertained 
 chattel after delivery, for the purpose of showing that the 
 property vested in the latter case upon delivery, and in 
 the former by the contract itself" ' 
 
 in contract. It is the option conceded to the party receiving which 
 produces this effect." But the parties may expressly provide that title 
 shall remain in the vendor when the transaction becomes a conditional 
 sale. Crocker v. Gullifer, 44 Me. 491 (1858) ; "Wright v. Barnard 
 Bros., 89 la. 166 ; 56 N. W. 424 (1893). 
 
 1 Supra, ch. ii. 
 
 2 Sale of Goods Act, § 18, Rule 5. 
 
 8 Heilbutt V. Hickson, L. R 7 C. P. 438, 449, 450 (1872). 
 
CONTRACT TO SELL. 59 
 
 1. The Described Goods. — 'When the subject-matter 
 of the contract is not a specific chattel, it is a condi- 
 tion precedent to the passing of title from the seller to 
 the buyer, that the goods appropriated to the contract 
 shall be those which the seller has agreed to deliver and 
 the bujer has agreed to accept.^ Otherwise it would be 
 possible for one party to transmute the title to goods 
 without the other's assent.^ Hence, if the goods appro- 
 priated to the contract bj' either party are not such as 
 have been stipulated for, title will not pass unless the 
 other elects to substitute them for those agreed upon.' 
 
 2. Unconditionally Apijropriated. — Under a contract 
 such as we are now considering, the seller does not bind 
 himself to deliver a particular chattel. He satisfies his 
 obligation by delivering any chattel which answers the 
 stipulated description.* Hence, merely setting apart such 
 a chattel for the buyer will not preclude the seller from 
 changing his mind and selling it to another ; " nor will 
 such act alone vest title in, or transfer the risk to, the 
 buyer.® 
 
 Even when the subject-matter of the contract is so far 
 ascertained that the seller cannot dispose of the chattel 
 and substitute another in its stead without a breach of his 
 obligation to the buyer, title will not pass by force of the 
 
 1 Aultman v. Clifford, 55 Minn. 159, 161 ; 56 N. W. 593 (1893). 
 
 - Gardner v. Lane, 12 Allen (94 Mass.), 39, 43 (1866). 
 
 ** Gardner v. Lane, 98 Mass. 517 (1868) ; Graff v. Osborne Co ., 42 
 Pac. E. 705 ; 66 Kg. 162 (1895). 
 
 * Benjamin on Sales (6th Am. ed. ), § 358; Atkinson v. Bell, 8 
 B. & C. 277 (1828) ; Jojinson v. Hun t. 11 Wend. (N. Y.) 135, 138 
 (1834) ; Schreyer v. Kimball Lumber Co., 54 Fed. 653, 655 (1893). 
 
 ° Winslow , Lan ier & Co. r. Leonard. 24 Pa. St. 14 (1854) ; Com- 
 fort "tmSedTse Barb. 472 (1857) ; Bryans v. Nix, 4 M. & W. 
 775, 792, 793 (1839). 
 
 « Anjjrews v. Cheney., 6g KT- TJ. 404 (1882); Black u. Webb, 20 
 Ohio, 304 (1851). 
 
60 THE LAW OP SALES. 
 
 contract, unless the parties agree that it shall pass. Ac- 
 cordinglj', if one promises to sell a particular vessel,^ or 
 vehicle,^ when finished in a specified manner, or a particu- 
 lar cargo of grain, when the purchaser accepts a draft for 
 the price,' title does not pass at once ; but the vendor may 
 transfer the property to a third person, who can hold it 
 against the first purchaser. On the other hand, if the 
 seller delivers the stipulated article to the bu3er or to 
 some one for transmission to him, pursuant to a term of 
 the contract, and does not reserve the right of disposal, 
 such act amounts to an unconditional appropriation of the 
 article,* passes title to the purchaser, and is irrevocable.'^ 
 This rule is unquestioned, but its application to particular 
 cases is beset with difficulty,^ as will appear more fully 
 when we consider in the next section what amounts to a 
 reservation of the right of disposal. 
 
 3. Mutual Assent. — Even though one of the parties 
 has unconditionallj' appropriated to the contract goods 
 conforming to the stipulated description, title will not pass 
 
 1 Merritt v. Johnson, 7 Johns. (N. Y.) 473 (1811) ; Laidler o. 
 Burlison, 2 M. & W. 602 (1837). 
 
 2 Halterline v. Rice, 62 Barb. (N. Y.) 593. 
 
 3 Wait V. Baker^ Exch. 1 (1848). 
 
 * SalTJf Goods Act, § 18, Eale 5 (2). 
 
 6 ^hil^. D.JVireman, 88 Pa. St. 264 (1879) ; "Vligtgn v. Bowlej', 
 130 Mass. 252 (1882^^ " ^ 
 
 ^ " Whether the selection by one partj' 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 sometimes of 
 some nicety." Blackburn on Sales (M ed.), 129-131, citing Fragano 
 V. Long, 4 B. & C. 219, and Atkinson v. Bell, 8 B. & C. 277. It will 
 appear in the next section that "a determination of a right of elec- 
 tion" may be conditional, e. g., upon the purchaser's accepting or 
 paying a draft on him for the purchase-price. Whether it is condi- 
 tional or final is a question for the jury, unless the undisputed facts 
 will warrant but one inference. Merchants' Nat. Bank v. Bangs, 102 
 Mass. 291, 295, 296 (1869). 
 
CONTRACT TO SELL. 61 
 
 until both parties have assented thereto.* However, this 
 assent may precede the act of appropriation, and need not 
 be given in express terms. If a Chicago merchant orders 
 from a New York jobber a quantity of silk of a specified 
 pattern and quality, he impliedly assents in advance to an 
 appropriation of the goods to the contract by the jobber.^ 
 This is in accordance with the rule "that when from the 
 nature of an agreement an election is to be made, the 
 party who is by the agreement to do the first act, which 
 from its nature cannot be done till the election is deter- 
 mined, has authority to make the choice in order that he 
 may perform his part of the agreement." * But in case 
 the order for goods does not give to the seller express or 
 implied authority to despatch them to the buyer,- the seller 
 has no right of election, and he cannot appropriate any 
 goods to the contract so as to pass title to the purchaser 
 without the latter's subsequent assent.* The same doc- 
 trine is applied by most courts to an order for goods from 
 a manufacturer,* although in some jurisdictions it is held 
 that the manufacturer has implied authoritj' to appropriate 
 the finished article to the contract.^ 
 
 (a) 3Iutual Assent to the Passing of Title is subsidi- 
 ary to Contract to Sell. — The latter view would not have 
 been entertained had the judges borne in mind the fact 
 that the mutual assent of the parties to the passing of title 
 is distinct from, and subsidiary to, the principal agreement 
 in a contract for the sale of future goods.' This assent 
 
 1 Reeder v. Machen, 57 Md. 56 (1881). 
 
 2 Smith V. Edwards, 15 6 Mass. 221 (1892). 
 
 3 Blackburn on Sales (2d ed.), 130. 
 
 ^ Hague_y. Porter, 3 TTi 11 f/^. Y.\. 14 1 (1842). 
 
 5 Muoklow V. Mangles, 1 Taunton, 318 (1808) ; Moody v. Brown^ 
 34 Me. 107 ; 56 Am. Deo. 640 (1852) ; Rider u. Kelly, 32 Vt. 268 (1859). 
 
 ° Bement ;-. Smith. 1 .5_Wend. fN. Y. l 493 (1836); Shawan ». 
 Van Nest, 25 Ohio St. 490 (1874). 
 
 ' Brown's Sale of Goods Act, p. 89. 
 
62 THE LAW OP SALES. 
 
 may be subsequent to the agreement to sell and in the 
 nature of a new meeting of minds. ^ This is brought out 
 ver}- clearly in the following extracts from the cases in the 
 last note: "But here the question turns, not upon the 
 original contract between the plaintiflf and Smitli & Bryant, 
 but upon the circumstances which afterwards took place, 
 viz. : the payment by the plaintiff, after the greenhouse 
 had been completed, of the stipulated price, the appro- 
 priation and setting apart by the bankrupts of the green- 
 house for the plaintiff and his assent to such appropriation. 
 ... It may be that the original contract did not pass the 
 property ; but the parties may be said to have entered into 
 a new contract." " If the seller subsequently selects the 
 goods, and the buyer adopts his acts, the contract which 
 before was a mere agreement is converted into an actual 
 sale, and the property passes to the buyer." 
 
 Or it may be provided for by a subsidiary term of the 
 original contract. Such a term exists whenever either 
 party is authorized by the contract to despatch the goods 
 to the other, ^ or to deliver them at a stipulated place,' 
 unless it is clear that the parties intend that title shall not 
 
 1 Wilkins v. Bromhead, 6 Man. & Gr. 963 (1844) ; Hatch u. Oil 
 Co., 100 U. S. 124, 136 (1879) ; Piatt v Peck, 70 "Wis. 620 (1888). 
 
 2 Supra, p. 61. 
 
 " Hunt V. Thurman, 15 Vt. 336, 343, 344 (1843). " "Whatever wood 
 was delivered agreeably to the contract became the property of the 
 defendants ; and the plaintiff had no right, afterwards, to take it 
 away . . the place of delivery" was "part of the contract of sale.'' 
 "White V. Harvey, 85 Me. 212, 214 (1892). " The delivery at a place 
 agreed is for the buyer's accommodation. Instead of his taking the 
 goods, they are sent to him at his direction. Then the seller's re- 
 sponsibility is ended, and an acceptance is implied. The buyer, in 
 effect, agrees that such delivery shall operate as a complete transfer of 
 the property. The buyer is not, however, precluded from the right 
 of inspection or examination, unless such right has been previously 
 exercised, and of subsequently objecting that the goods are not accord- 
 ing to the contract. To that extent the acceptance may be considered 
 as conditional." 
 
CONTRACT TO SELL. 63 
 
 pass until some further act is done, such as measuring and 
 removing wood.^ In a case of this kind, what is called a 
 place of delivery is really a place of deposit ; and the final 
 appropriation of the goods to the contract is made by the 
 purchaser with the precedent assent of the seller. 
 
 (5) Withdrawal of Precedent Assent. — If the pre- 
 cedent assent of either party is withdrawn before the 
 property is finally appropriated to the contract by the 
 other partj-, title will not pass upon such unilateral 
 appropriation, although the one withdrawing his assent 
 may subject himself to an action for breach of contract.^ 
 
 (c) Waiver of Subsidiary Provision. — A subsidiary' 
 provision concerning the despatch or delivery of goods 
 must be complied with,^ or waived,* in order to have an 
 appropriation under it operate to pass title.^ 
 
 § 3. Reservation of the Right of Disposal. 
 
 In every case of a contract to sell, as distinguished from 
 a bargain and sale, the seller may reserve the right to dis- 
 pose of the goods until certain conditions are fulfilled." 
 
 1. Specific Deliverable Goods. — Title to these may be 
 retained by the seller until the purchase price is paid, or 
 some other condition is performed,' if the parties so 
 stipulate. 
 
 1 Home Insurance Co. o. Heck, 65 111. Ill (1872). 
 
 2 Unexcelled Fire Works Co. u. Polites, 130 Pa. St 536 ; 18 Atl. 
 1058 (1889). 
 
 3 Wheelhouse v. Parr. 141 Mass. 593 ; 6 N". E. 787 (1886) ; Jones v. 
 Schneider, 22 Minn. 279 (1875) ; Downer w. Thompson, 2 Hill (N. Y.), 
 137 (1841). 
 
 * Sparkes v. Marshall, 2 Bing. N. 0. 761 (1836) ; Hanauer v. 
 Bartels, 2 Col. 614 (1875) ; Downer v. Thompson, 6 Hill (N. Y.), 208 
 (1843). 
 
 5 Ramish v. Kirschbraun, 40 Pac. 1045 ; 107 Cal. 229 (1895). 
 
 6 Sale of Goods Act, § 19. 
 
 ' Marvin Safe Co. v. Norton, 48 N. J. L, 410; 7 At. E. 418 (1886). 
 The rights of the parties and of third persons, under such contracts, 
 will be discussed later. 
 
G4 THE LAW OF SALES. 
 
 2. Specific Goods to he made Deliverable. — As the 
 title to these does not pass until they have been put into 
 such a state that the seller can " call upon the purchaser 
 to accept them as corresponding to the agreement," it 
 follows that the seller, without the buyer's consent, may 
 reserve the right of disposal by annexing some condition 
 to the transfer of the property.^ 
 
 3. Future Goods. — Where the contract relates to 
 specific goods, the condition imposed b}- the seller is gen- 
 erall}' express and unequivocal. In transactions concerning 
 future goods, however, it is often difficult to determine 
 whether a condition has been imposed or not." When the 
 communications between the parties have been reduced to 
 writing,^ or when the facts of the transaction are undis- 
 puted and warrant but one inference as to the intention of 
 the seller,* the question is one for the court. If, however, 
 the facts are in dispute or the intention as disclosed by 
 parol evidence is doubtful, the question is one for the jury .° 
 
 For cases of this kind, two rules of construction have 
 been established.' 
 
 Bide 1. Goods deliverable to Shipper's Order. — The 
 seller \s prima fane deemed to reserve the right of dis- 
 posal, when by the bill of lading the goods are deliverable 
 to his or his agent's order.' 
 
 1 Nicholson v. Tayler, 31 Pa. St. 128 (1858). 
 
 ' Wiilley V. jrontgomery, 3 East, .585 (1803); Wilmsliurst ■«. Bowker, 
 2 Man. & G. 70-2 (1841) ; s. c. on appeal, 7 Man. & G. 882 (1844). 
 
 ' Key V. Cotesworth, 7 Exch. 595 (1852). 
 
 « Smith r. Edwards, 29 Hun (N, Y.), 493 (1883) ; Wigton v. 
 Bowley, 130 Mass. 252 (1881). 
 
 " False !•. Fletcher, 34 L. J. C. P. 146 ; 18 C. B. (x. s.) 403 (1865) ; 
 Merchants' Nat. Bk. v. Bangs, 102 Mass. 291 (1869) ; Al. G. S. Ry. v. 
 Mt. Vernon Co., 84 Ala. 173 ; 4 South. 356 (1887). 
 
 6 English Sale of Goods Act, § 19, sub. (2) & (3). 
 
 ' Ogg V. Shuter, 1 C. P. D. 47 ; Dows v. Nat. Ex. Bk., 91 U. S. 
 618 (1875). "These bills of lading unexplained are almost conolusiTe 
 proof of an intention to reserve to the shipper the jus dispmiendi," at 
 p. 631. 
 
CONTRACT TO SELL. 65 
 
 This inference of intention may be rebutted bj- otiier 
 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 protecting 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 contradicts the bill of lading, as by declaring that 
 the vendor shipped the goods by the order and for account 
 and risk of the purchaser,' title may pass to the- purchaser 
 notwithstanding the form of the bill of lading. 
 
 The foregoing rule applies, although the shipper is the 
 consignee's agent to buy and ship the goods, provided he 
 advances his own money or credit for the purchase of the 
 property .° " Where a commercial correspondent, how- 
 ever, set in motion by a principal for whom he acts, 
 advances his own money or credit for the purchase of 
 property, and takes a bill of lading in his own name, 
 looking to such property as the reliable and safe means of 
 reimbursement up to the moment when the original prin- 
 cipal shall pay the purchase price, he becomes the owner 
 of the property instead of the pledgee, and his relation to 
 the original mover in the transaction is that of an owner 
 under a contract to sell and deliver when the purchase 
 price is paid." " 
 
 ( 1 Van Casteel v. Bowker, 2 Ex. 691 (1848). 
 
 2 Joyce V. Swan, 17 C. B. (N. s. ) 84 (1864). Of. Garbarron v. Kreeft, 
 L. R. 10 Ex. 274 (1875), which shows that the vendor may retain the 
 right of disposal, if the bill of lading and other evidence clearly disclose 
 his intent to do so in violation of his original agreement. 
 
 8 Coxe V. Harden, 4 East, 211 (1803), as explained in Blackburn 
 on Sales (2d ed.), 148 ; Browne v. Hare, 4 H. & N. 822 (1858). 
 
 * AA''alley v. Montgomery, 3 East, 585 (1803). Compare the invoice 
 in this case with that in Dows v. Nat. Ex. Bk., 91 U. S. 618, at p. 622 
 (1875) ; and see definition of invoice in Sturm v. Bowker, 150 U. S. 
 328 (1893). 
 
 » Jenkyns v. Brown, 14 Q. B. 496 (1849). 
 
 « Moors V. Kidder, 106 N. Y. 32, 40 (1887). 
 5 
 
66 THE LAW OP SALES. 
 
 Rule 2. Bill of Lading as Security for Draft for 
 Price. — The right to dispose of the goods is reserved, 
 where the seller draws on the buyer for the price and 
 transmits the draft to the bu3-er with the bill of lading to 
 secure acceptance or paj-ment of the draft,^ even though 
 hy the bill of lading the goods are deliverable to the buyer 
 or his order.'' In cases of this kind, the shipper ordinarily 
 takes the bill of lading to his own order and conditionally 
 endorses it to the buyer ; or, if it is taken in the buyer's 
 name, the seller delivers it as securit}- for a draft for the 
 price discounted b3' a bank. 
 
 If the bill of lading ^ or railroad receipt * is taken in the 
 name of the purchaser, and forwarded to him, the fact that 
 the seller draws upon him for the price will not warrant 
 the inference that the right of disposal is reserved. If 
 title has passed b}- an unconditional shipment of the goods 
 it cannot be regained by the seller's sole act.' 
 
 § 4. The Risk of the Loss. 
 
 This, as a rule, attends the ownership of goods.' Hence, 
 in the case of a bargain and sale, it passes with the title 
 to the buyer, as soon as the contract is made.' If the 
 goods remain with the seller, his liability with respect to 
 them is that of a bailee.' j\Ir. Justice Chalmers declares 
 that " there appears to be no decision defining the nature 
 of such bailment." In the United States the bailment is 
 considered one of hire, where the seller has bound himself 
 
 1 Shepherd v. Harrison, L. R. 5 H. L. 116 (1S71). 
 
 2 Emery's Sons v. Imng Nat. Bk., 25 Ohio St. 360 (1874). 
 s E.r parte Banner, 2 Ch. D. 27S (1876). 
 
 < Phil. Ry. V. "VVireman, 88 Pa. St. 264 (1878). 
 ' Wigtonv. Bowley, 130 JIass. 252 (1881). 
 8 Joyce 0. Adams, 8 N". Y. 291 (1853). 
 ' Lansing v. Turner, 2 Johns. 13 (1806). 
 8 Sale of Goods Act (2d ed.), 47. 
 
CONTRACT TO SELL. 67 
 
 bj' the contract of sale to keep the goods, but gratuitous 
 where they remain in his possession, through the fault of 
 the vendee in not taking them away.' In the case of a 
 contract to sell, the risk is borne by the seller, so long as 
 the general property is in him.'' The expense of keeping 
 the property during this period is also to be borne by the 
 seller." 
 
 1. HisJc may be transferred without the Title. — By 
 agreement of the parties the risk may be separated from 
 the ownership, and may be cast upon the buyer before 
 he acquires title, or may remain with the seller after he 
 ceases to be the owner.* 
 
 2. Bisk when Delivery improperly delayed. — The 
 English statute provides that where delivery "has been 
 dela3'ed through the fault of either buyer or seller the 
 goods are at the risk of the party in fault as regards anj' 
 loss which might not have occurred but for such fault." ° 
 This rule was suggested bj' Blackburn, J., in 1872,° in the 
 following words : It " is perfectly good sense and justice, 
 though it is not necessary to the decision of the present 
 case that," although " the property did not pass," and "there 
 were no express stipulation about risk, j-et because the 
 non-completion of the bargain and sale, which would ab- 
 solutely transfer the propertj", was owing to the delay of 
 the purchaser, the purchaser should bear the risk just as 
 much as if the property had passed." 
 
 1 Story on Bailments (ith ed.), § 300 b ; Koon v. Brinkerhoff, 39 
 Hun (N. Y.), 130 (1886). 
 
 2 McCandlish v. Newman, 22 Pa. St. 460 (1854) ; Brock v. O'Don- 
 nell, 49 K. J. L. 230 (1886). 
 
 8 Chalmers v. McAuley, 33 At. 767. 
 
 * Castle V. Playfair, L. R. 7 Exch. 98 (1872) ; Stock v. Inglis, L. R. 
 12 Q. B. 564 ; 10 App. Gas. 263 (1885) ; Cushman v. Holyoke, 34 Me. 
 289 (1852). 
 
 6 Sale of Goods Act, § 20. 
 
 6 MartineaxiD. Kitching, L. R. 7 Q. B. 436 (1872). 
 
68 THE LAW OF SALES. 
 
 It has been followed in some of the United States.' In 
 the case last cited, the contract was for the purchase and 
 sale of a crop of potatoes to be delivered by the seller on 
 the cars, the seller to give full measure and good mer- 
 chantable stock ; and the bu3'er to furnish sacks which 
 were to be filled and sewed by his servants. The jury 
 found that the potatoes were " good, merchantable stock" 
 when put into the sacks, and there was evidence that the 
 subsequent decay was due to the purchaser's fault in hav- 
 ing them transported in sacks instead of barrels or boxes. 
 The court held that the question whether the risk was on 
 the purchaser during the transit to the cars and before 
 title had passed was properly submitted to the jury. A 
 different view is taken in New York,'' where it is said that 
 the default of one party entitles the other to rescind the 
 contract and proceed at once for damages ; but that, while 
 the contract remains in force, an accidental loss must be 
 borne bj' the general owner of the goods ; that such loss 
 is ' ' not the necessar)' consequence of the " default and 
 "has no connection with" it. 
 
 1 Barker v. Freeland, 91 Tenii. 112 (1891). 
 
 2 McConihe v. N. Y. & E. By. Co., 20 N. Y. 495, 497, 498 (1859). 
 
ACCEPTANCE AND EECEIPT. 69 
 
 CHAPTEE IV. 
 
 ACCEPTANCE AND RECEIPT. 
 
 § 1. To pass Title at Common La^v. 
 
 We have seen that actual receipt of the goods by the 
 buj-er is not necessary to the passing of title at common 
 law ; ^ that in case of a bargain and sale, title passes by 
 virtue of the contract, without any overt act of acceptance 
 or receipt ; that in case of a contract to sell, the title 
 passes upon the unconditional appropriation of the goods 
 to the contract by the seller with the assent of the buj^er, 
 and that this assent may precede the appropriation. '^ 
 
 § 2. To satisfy the Statute of Frauds. 
 
 The foregoing rules have been modified by this statute. 
 Under its provisions, a contract, whether it be a bargain 
 and sale or an agreement to sell, is not enforceable, in the 
 absence of part-payment, earnest, or a written memoran- 
 dum, if the goods exceed a specified sum, unless the buyer 
 accepts and actually receives a part of them. 
 
 1. Acceptance. — The courts have experienced much 
 difficulty" in defining this statutory term, and in many 
 
 1 Van Broecklin v. Smeallie, 140 N. Y. 72 ; 35 N. E. 415 (1893). 
 
 2 Kelsea ». Ramsey Co.. 55 N. J. L. 320, 322 ; 26 Atl. 907 (1893) ; 
 Brigham v. Hibbard, 43 Pao. R. 383 ; 28 Ore. 386 (1896). 
 
 8 Marviin ). Wallis, 6 El. & Bl. 726 (1856). " I believe that the 
 party who inserted the words had no idea what he meant by ' accept- 
 ance.' " Erie, J., at p. 734. 
 
70 THE LAW OP SALES. 
 
 judicial opinions it is confounded with actual receipt.^ 
 But the two are quite distinct. There maj- be an accept- 
 ance without a receipt, or a receipt without an acceptance. 
 The statute requires both. It also requires the fact of ac- 
 ceptance as well as the fact of actual receipt to be estab- 
 lished by proof of acts of the buyer, over and above the 
 words of his oral sale contract. - 
 
 (a) Statute requires more than Evidence of a Bargain. 
 — Even in the case of a bargain and sale of specific goods, 
 the statutory acceptance is not made out by evidence that 
 the seller orall3- offered a particular deliverable chattel for 
 a specified price to the buyer, and that the latter orally 
 accepted the offer.' Some additional act of the buyer 
 
 ' Clianlin v . EogersJ East, 192 (1800), Lord Kpnyon's opinion. 
 Shiudlev v. Houston, 1 N. Y. 261 (18i8). Wright, J., speaks of " the 
 act of accepting and receiving required to dispense with a note ; " ap- 
 parently treating acceptance and receipt as inseparable. Denny x,. 
 "Williams, 5 Allen (87 Mass.), 1. "Superadded to the language of the 
 contract, there must he some act of the parties amounting to a transfer 
 of the possession, and an acceptance thereof by the buyer." Chapman, 
 J., at p. 3. 
 
 2 Cases in the last two notes. 
 
 ' A different view has been expressed by eminent writers. It is 
 said in Langdell's Cases on Sales (p. 1021) " If the contract be for 
 specified goods, the acceptance takes pjlace at the time of the bargain, 
 and tlie same evidence which proves the bargain will also prove an ac- 
 ceptance." See Browne, On tlie Statute of Frauds, § 321 a, 5th ed. 
 Each writer cites Cusack v. Robinson, 1 B. & S. 299 ; 30 L. J. Q. B. 
 261, as the principal authority for this proposition. But Blackburn, J., 
 is careful to state : " There was also sufficient evidence that the defend- 
 ant had at Liverpool selected these specific 156 firkins of butter as those 
 which he then agreed to take as his property as the goods sold, and 
 that he directed those specific firkins to be sent to London." This di- 
 rection was in writing and was subsequent to the agreement. In the 
 same opinion attention is called to the fact that in Marvin v. Wallis, 6 
 Eh & Bl. 726 and Beaumont v. Brengeri, 5 C. B. 301, "the specific 
 chattel sold was ascertained, and there appear to have been acts indi- 
 cating acceptance, subsequent to the agreement, which changed the 
 nature of the possession." 
 
ACCEPTANCE AND RECEIPT. 71 
 
 must be shown, from which a jnr}', if the evidence is con- 
 flicting, or a court, if it is not, maj' find that he assented 
 to the seller's proposal that certain goods should be part 
 of the goods sold.^ The buyer does such an act when he 
 directs goods, which he has inspected and approved, to be 
 shipped to a designated place,^ or by a specified carrier,' or 
 takes into his possession and keeps a part * or the whole ^ 
 of such goods, or exercises an act of ownership over them, 
 such as ordering a carriage out for a drive," or reselling a 
 stack of haj'.' 
 
 (6) Acceptance to satisfy the Statute need not he Final. 
 — In England, an act of the buj-er may satisf3' the statu- 
 tor}' requii'ement of acceptance without amounting to an 
 acceptance in performance of the contract.' " Having re- 
 gard to the mischiefs at which the statute was aimed, it 
 would appear a natural conclusion that the acceptance 
 contemplated by the statute was such a dealing with the 
 goods as amounts to a recognition of the contract," ' e. g., 
 comparing the bulk with the sample. This view is not 
 generallj' entertained in the United States. On the other 
 hand it is held that the statutorj^ acceptance is an ulti- 
 mate acceptance which precludes the buj-er from taking 
 any objection to the quantities or quality of the goods 
 
 ' Law Quarterly Review, vol. i. 14. 
 
 2 Cusack V. Robinson , supra. 
 
 8 Cross V. O'Doimell, 44 N. Y. 661 (1871). 
 
 4 Vincent v. Germond. 11 Johns. 283 (1814). 
 
 6 Pinkliam v. Mattox, 53 N. H. 600, 606 (1873)., Even though he 
 has the option to reject them, his conduct In retaining them qn un- 
 reasonable time imports acceptance, and is acceptance in law. Hobbs 
 V. Massasoit Co., 158 Ma.ss. 194, 197 (1893). 
 
 8 Beaumont v. Bren^eri, supra. 
 
 ' OhanHn. v. Rogers, 1 East, 192 (1800). 
 
 8 Sale of Goods Ictll 4 (3). 
 
 9 Bowen, L. J., in Paget ;. Morgan. 1 5 Q. B. D. 228 (1885); Remick 
 V. Sanfoi-d, 120 Mass. 309, 316 (1876). 
 
72 THE LAW OF SALES. 
 
 sold and received;^ "though it does not preclude the 
 purchaser from refusing to accept the residue of the 
 goods, if it clearl}' appears that they do not conform to 
 the contract." ^ 
 
 2. Actual Receipt. — The courts are agreed that the 
 question whether the buyer has actually received a part 
 of the goods is one of fact ; and that the question whether 
 the evidence warrants a finding of actual receipt is one of 
 law." Nor have they any difficulty in dealing with a case, 
 where the buyer has taken a part of the goods into his 
 physical possession as his property. Often, however, the 
 goods are not removed bj' the purchaser, and j-et the 
 parties clearly intend that both title and possession shall 
 pass immediately. In order to satisfy the statutory re- 
 quirement of actual receipt, in such cases, some act of 
 the buyer must be shown, in addition to his oral contract, 
 even where this purports to effect a present sale of a specific 
 chattel. 
 
 (/i) What Act amounts to a Receipt. — Any deahng 
 with the goods by the purchaser as owner with the seller's 
 assent is such an act.^ So is a subsequent oral agreement 
 between the parties, that the seller shall thereafter hold 
 the goods as the buyer's bailee ; ° provided it is clearly 
 established that the seller intends to divest himself of his 
 lien for the purchase price.' In a few jurisdictions it has 
 
 1 aone ; '. Browning. 51 N. Y. 211 (1872) ; 68 N. Y. 598 (1877); 
 Howes V. Jo"rdan, 39 Md. 472 (1873). 
 
 2 Clifford, J., in Garfield v. Paris, 96 U. S. at p. 563 (1877). 
 8 Hinchman v. Lincoln, 124 U. S. 38 (1887). 
 
 « Marshall u. Green, 1 C. P. D. 35 (1875) (cutting trees and sell- 
 ing tops and stumps) ; Becker u. Holm, 89 Wis. 86, 92 ; 61 N. W. 
 307 (1894) (taking a steamboat out of the river and preparing it for 
 shipment by rail). 
 
 6 Marvin v. Wallis, 6 El. & Bl. 726 (1856) ; Webster v. Anderson, 
 42Mic'h. 554 (1880). 
 
 6 Eglmes_D . H oakin, 9 Exch. 753 (1854); Young </. Blaisdell, 60 
 Me. 272 (1872). 
 
ACCEPTANCE AND RECEIPT. 73 
 
 been held that " receipt and acceptance must be evidenced 
 by some act of the parties, and that no mere words, how- 
 ever significant, are sufflcieut." Kirby v. Johnson, 22 
 Mo. 354, 355 (1856) ; Malone v. Plato, 22 Cal. 103 (1863) ; 
 Bowers v. Anderson, 49 Ga. 143 (1873). In the first two 
 of these cases it was clear that the seller's lien was not 
 divested, and the decisions maj' be sustained on that 
 ground. The third case seems to have been wrongly de- 
 cided, even under the foregoing rule. After the oral con- 
 tract was made, the purchaser's agent oflTered the seller 
 the money, but the latter requested the agent to keep it 
 subject to the seller's check, which was done. It was also 
 agreed that the cotton should remain in the seller's gin- 
 houses, free of storage, until hauled awaj', but at the pur- 
 chaser's risk ; and the purchaser had the cotton insured. 
 
 If the buj-er has possession of the goods, when the sale 
 contract is made, any subsequent dealing with them by 
 him as owner satisfies the statute.^ In case they are in 
 the possession of a third party, as bailee, his subsequent 
 attornment witli the seller's assent to the buj'er is equiva- 
 lent to actual receipt bj' the latter.' 
 
 (b) If Goods are on the Land of a Third Party. — 
 The proposition that if the goods are on the land of a 
 third person, who is not bailee, or are in some public place 
 to which the buj-er and seller have equal right of access, 
 the possession as well as title may be transferred by the 
 
 1 Edan v . Dndfield. 1 Q. B. 302 ; 5 Jurist, 317 (1841) (selling at 
 a lower price than he had a right to take, unless he had become owner). 
 Snidei ;iJ. Thrall. 56 Wis. 674 (1883) ; Dorsey v. Pike, 50 Hun, 534 
 Tis'siH s. c. again in 32 N. Y. St. Reporter, 258 (1890). In Texas 
 Ry. u. Beard, 68 Tex. 265 (1887), the oral contract of sale was treated 
 as passing title, without any subsequent act by the purchaser ; but 
 this holding was not necessary to the decision. 
 
 2 Godts V. Rose, 25 L. J. C. P. 61 (1855) ; Townsend v. Hargraves, 
 118 Mass. 325, 332 (1875) ; Wing v. Peabody, 67 Vt. 19 (1885). 
 
74 THE IjAw of sales. 
 
 mere agreement of the parties to that effect,^ is not sus- 
 tained by judicial authorit}' in cases arising under the 
 Statute of F'rauds. If, subsequent to the agreement of 
 sale, the vendor puts " the goods at the disposal of the 
 vendee," and suffers "the latter to take actual control of 
 them," the statute is satisfied.^ 
 
 (c) Common Carrier has Implied Authority to Re- 
 ceire, but not to Accept. — A common carrier to whom the 
 seller unconditionally delivers goods for transmission to 
 the buyer pursuant to the oral agreement, is the latter's 
 agent to receive them, although he cannot accept them on 
 behalf of the buyer, unless speciallj' authorized thereto." 
 
 {d) Actucd Receipt involves Mutual Assent. — Mutual 
 assent of the seller and buj-er is necessarj- to actual re- 
 ceipt. Hence a tender to the buyer of goods which he 
 ought to receive, but which he rejects, in violation of the 
 terms of the oral agreement, does not satisfy the statute.* 
 On the other hand, if the seller, in violation of such agree- 
 ment, refuses to deliver the goods, the buyer cannot make 
 
 1 Langdell on Sales, p. 1023, § 20. In Tansley v. Turner, 2 Bing. 
 N. C. 1.51 (1835), and Cooper v. Bill, 3 H. & C. 722 (1864), cited in 
 support of this proposition, there was a memorandnm in writing which 
 satisfied the statute, and the vendee took and retained actual control of 
 the goods. Nor do the American cases cited in Tiffany on Sales, p. 64, 
 sustain this view. Leonard v. Davis, 1 Black, 476 (1861), was brought 
 on a written contract. In Thompson v. Railway Co., 28 Md. 396 
 (1867), the specific goods were pointed out by the vendor to the vendee, 
 after the contract was made, "for the purpose of malcincj delivery" 
 thereof, and were charged in the vendor's books to the vendee by the 
 latter under the former's directions. In Cotterill i'. Stevens, 10 Wis. 
 422 (1860), by the terms of sale, the bnyer was to take the logs where 
 he could find them, and did receive a portion of them. 
 
 2 Benjamin on Sales, § 178, and cases in the preceding note. 
 
 3 Frostburg Mining Co. u. N. E. Glass Co., 9 Gush. (Mass.) 115 
 (1851) ; Caulkins v. Hcllman, 47 N. Y. 449 (1872). 
 
 « 1 Law Quar, Rev. 15 ; Remick v. Sanford, 120 Mass. 309, 316 
 (1876). 
 
ACCEPTANCE AND RECEIPT. 75 
 
 out a case of actual receipt by forciblj' seizing them.^ A 
 delivery by the seller to a third party to hold until the 
 buyer pays the purchase-price, does not amount to accept- 
 ance and receipt by the buyer. ^ 
 
 (e) Receipt of a Part satisfies the Statute. — The 
 statute is satisfied by the acceptance and actual receipt 
 of a part of the goods, however trifling this part maj- be, 
 and even though it may also serve as a sample of qualitj' ; ^ 
 or though some of the goods are not in existence,* or are 
 of a diilerent species ; ^ provided it is a portion of the 
 bulk stipulated for and enters into the agreed price.' If, 
 however, a portion is received, not in part performance of 
 the oral agreement, but pursuant to a new proposition by 
 the buyer, it cannot satisfj' the statute.' 
 
 (/■) Receipt of Document of Title instead of the 
 Goods. — The actual receipt of a bill of lading or other 
 document of title to goods ma}' be equivalent to that of 
 the goods themselves ; ^ and in jurisdictions where the 
 term " goods " includes intangible property, the acceptance 
 and receipt of the representative of the thing sold will 
 satisfy the statute, because the deliver}' of such represen- 
 tative is " the only delivery possible of the thing sold." ' 
 
 1 Baker v. Cuyler, 12 Barb. (N. Y.) 667 (1852) ; Brand v. Focht, 1 
 Abb. App. (N. Y.) 185 (1867) ; ■Washington Ice Co. v. Webster, 62 
 Me. 341, 361 (1873). Cf. dictum of Abbott, C. J., in Tempest v. 
 Fitzgerald, 3 B. & Aid. 680 (1820). 
 
 2 Hincbman v. Lincoln, 124 U". S. 38 (1887). 
 8 Hinde v. Whitehouse, 7 East, 558 (1806). 
 
 * Scott V. By., 12 M. & W. 33 (1843). 
 
 6 Elliott V. Thomas, 3 JI. & W. 170 (1838). 
 
 6 Garfield v. Paris, 96 U. S. 557 (1877). 
 
 ' Atherton v. Newhall, 123 Mass. 141 (1877). 
 
 8 Currie v. Anderson, 2 E. & E. 592 (1860) ; Andriend v. Randall, 
 3 Cliff. (U. S. Cir. Ct.) 99 (1868), Cf. Quintard v. Bacou, 99 Mass. 
 185 (1868). 
 
 9 Jones V. Reynolds, 120 N. Y. 213 (1890) ; Meehan v. Shai'p, 151 
 Mass. 564 (1890). 
 
7& THE LAW OF SALES. 
 
 (ff) Heceipt and Acceptance under Contract of Sale 
 with Option to Resell or Repurchase. — In case the con- 
 tract is for the sale of goods, with an option to the seller 
 to repurchase ^ or to the buj-er to resell,-' acceptance and 
 receipt by the original buj'er satisfies the statnte both as 
 to the original sale and as to the resale. The provision 
 relating to the resale is not an independent contract,^ but 
 one of the terms in the original contract of sale. The 
 property passes between the original vendor and pur- 
 chaser, subject to a condition subsequent. 
 
 1 Williams v. Burgess, 10 Adol. & EU. 499 (1839). 
 
 2 Fay V. Wheeler, 44 Vt. 292 (1872). 
 
 8 Johnston v. Trask, 116 N. Y. 136 (1889). 
 
sbllee's duties. — buyek's eights. 77 
 
 CHAPTER V. 
 
 -/ sellee's duties. — buyer's eights. 
 
 § 1. Duties and Rights Dependent upon Seller's Engage- 
 ments : Conditions and Warranties. 
 
 The sale contract has for its primary object the transfer 
 of the general property in certain goods from the seller to 
 the buyer.-' Hence, the principal duties of the seller are 
 to confer upon the buyer title to the agreed chattels, and 
 to give possession of them to him.^ 
 
 These, however, maj' be conditioned, modified, or sup- 
 plemented by express stipulations of the parties, or by 
 implications from all the circumstances of the case. 
 Moreover, such engagements, whether express or im- 
 plied, may be essential elements of the sale contract ; 
 or, while relating to its subject-matter, they may be 
 collateral to it. 
 
 In the English Sale of Goods Act engagements of the 
 former kind are called conditions ; those of the latter kind, 
 warranties. The breach of a condition gives rise to a right 
 . to treat the contract as repudiated, while the breach of a 
 warranty gi'sjes rise to a right to a claim for damages 
 only.= 
 
 § 2. (a) Classification of Conditions. 
 
 "While the English statute does not classify conditions, 
 nor specifically define the term, its draftsman has called 
 
 1 Supra, pp. 1,' 2. 
 
 2 Martineau v. Eitching, L. E. 7 Q. B. 436, 449 (1872). 
 8 Sale of Goods Act, §§ 10-15, 62 (1), "Warranty." 
 
78 THE LAW OF SALES. 
 
 attention to the "important distinction between wliat 
 may be called promissory conditions, and contingent or 
 casual conditions. In ttie latter case the obligations of 
 both parties are suspended till the event takes place. In 
 the former case the non-performance of the condition by 
 the promisor (unless excused by law) gives a right to the 
 promisee to treat the contract as repudiated ; that is to 
 say, he is discharged from his part of the contract, and, 
 further, he has a claim for damages. In the one case the 
 obligation of the contract does not attach. In the other 
 case the contract is broken." ^ 
 
 1. 7'he Nature of Promissory Conditions. — It is well 
 settled that every engagement of the seller, which is an 
 essential term of a contract to sell, is a promissory con- 
 dition. Upon the seller's failure to perform an engage- 
 ment c '■'■« character, the buyer can defend an action 
 broughu ..^ -■ upon the contract;^ and also he 
 
 can recover damages for the seller's breach of such 
 engagement.^ 
 
 (a) An Essential Term as a Condition Precedent. — 
 In Graves v. Legg, the plaintiff contracted to sell to the 
 defendant fleece-wool to be shipped from Odessa to Eng- 
 lish ports with all despatch, and the names of the vessels 
 to be declared as soon as the wools were shipped. With 
 reference to the last stipulation, Baron Parke said: "In 
 the state of things on this record, the sini[)le question is 
 whether this contract was originally a condition precedent 
 or not. Looking at the nature of the contract, and the 
 great importance of it to the object with which the con- 
 tract was entered into with the knowledge of both parties, 
 we think it was a condition precedent, quite as much, 
 indeed, as the shipping of the goods at Odessa with all 
 
 1 Chalmers' Sale of Goods Act (2d ed.), 165. 
 
 2 Graves v. Legg, 9 E.xcli. 709 (1S54). 
 
 8 Josling V. Kingsford, 13 C. B. (x. s.) 447 (1863). 
 
seller's duties. — buyer's eights. 79 
 
 despatch after the end of August." He also declared 
 that if the buyer had accepted the goods, he " could not 
 have insisted on the neglect to name in due time, but if 
 there had been any such neglect, would, nevertheless, 
 have had his remedj' for the damage by cross action on 
 the contract to declare the names." 
 
 (p) Damages for its Hreach, when its Effect as a 
 Condition is waived. — The law upon this point in Eng- 
 land is well stated by Justice Brett ^ as follows : "In this 
 action, we must decide whether there was not only a 
 breach of contract, but such a breach of contract as 
 entitled the charterer to refuse to load or reload. The 
 question in such cases is said to be whether the warranty 
 was a condition. I apprehend that a stipulation amount- 
 ing to a condition is necessarily also a warrant}', and 
 there may be circumstances preventing its beitt;.' 'iitreated 
 as a condition, and then it is available as a wan'feuity ; as, 
 for instance, when the stipulation is that the ship shall be 
 ready to load within a fixed time or a reasonable time, and 
 the cargo is loaded and carried ; though before loading 
 this might be a condition precedent, inasmuch as the 
 charterer has loaded and derived benefit from the charter, 
 he cannot rely on it as a condition, but must treat it as a 
 warranty." ^ 
 
 (c) A Promissory Condition is not a Collateral Agree- 
 ment. — Although an essential term of a contract is spoken 
 of, in the foregoing extract, as " necessarily also a war- 
 ranty," the English decisions draw a sharp distinction 
 between such an engagement and the collateral agreement 
 of warranty. In a comparatively' early case brought by 
 the buyer against the seller for damages, the buyer 
 alleged a special warranty by the seller that goods 
 ordered and furnished as scarlet cuttings were of a 
 
 1 Stanton v. Richardson, L. R. 7 C. P. 421, 436 (1872). 
 
 2 Gf. Behn v. Bumess, 3 B. & S. 751, 756 (1863). 
 
80 THE LAW OF SALES. 
 
 merchantable qualitj- ; and in another count, " an under- 
 taking that they were scarlet cuttings." No special 
 warrant}- was proved, but Lord Ellenborough ruled that 
 if the goods " were sold by the name of scarlet cuttings, 
 and were so described in the invoice, an undertaking that 
 they were such must be inferred ; " ^ and the plaintiff 
 recovered damages for the breach of such undertaking, 
 but not on the special warrant}-. 
 
 A modern case brings out the distinction between an 
 essential term, which is a promissory condition, and a 
 collateral agreement, which is a mere warranty, still more 
 clearly. The plaintiff contracted for the purchase of a 
 quantity of oxalic acid from defendant, for tlie quality of 
 which the defendant declined to become responsible. 
 After a considerable part of the acid had been used by 
 the plaintift', he had it analyzed, when it was found to 
 contain a considerable admixture of sulphate of magnesia, 
 a defect not discoverable by ordinary inspection. He 
 declined to take more of the article, and sued the defend- 
 ant upon his contract, charging in one set of counts the 
 non-deliver}- of oxalic acid in accordance with the con- 
 tract, and in another set a breach of warrant}-, averring 
 special damage. Chief Justice Erie charged the jury that 
 there was no evidence of any warranty; but "that the 
 defendant could only perform his part of the contract by 
 delivering that ■ which in commercial language might 
 properly be said to come under the denomination of 
 oxalic acid ; and' that, if they should be of opinion that 
 the article delivered by the defendant as oxalic acid did 
 not properly fulfil that description, tliey should find for the 
 plaintiff." They returned a verdict for the plaintiff for 
 £400. The ruling was sustained on appeal.^ 
 
 {d) Distinction bttireen Promissory Conditions and 
 Warranties. — The question, what engagements on the 
 
 1 Bridge v. Wain, 1 Stark. 504 (1816). 
 
 2 Josling V. Kingsford, 13 C. B. (n. s.) 447 (1863). 
 
seller's duties. — buyer's rights. 81 
 
 part of the seller are essential terms of his contract, or 
 promissory conditions, and what are collateral agree- 
 ments, or mere warranties, will be more fully discussed 
 in the next section ; and an attempt will be made to state 
 the leading views on this subject which obtain in various 
 jurisdictions. 
 
 (e) Classification of Sale Contract Provisions. — 
 These may be divided into three classes. 
 
 First. Mere conditions, that is, provisions which are 
 available as a defence to the party in whose favor they are 
 made, but the non-fulfilment of which does not subject the 
 other party to any legal liability. 
 
 Second. Engagements, which are available to the party 
 in whose favor thej' exist as conditions precedent, and the 
 non-performance of which subjects the other party to a 
 liability for damages. 
 
 Third. Engagements, which from the beginning are 
 collateral to the main object of the sale contract, are never 
 available as conditions precedent to the partj' in whose 
 favor they are made, and a breach of which subjects the 
 other party to a liability for damages only. 
 
 (b) Provisions which are Mere Conditions. 
 
 The non-fulfilment of a provision of this character is 
 available only as a defence, and may so operate that the 
 obligation of the contract will not attach to either part}-, 
 for example, if the contract is for the sale of goods of a 
 certain description to arrive bj' a designated vessel, neither 
 party is bound, unless the described goods arrive by the 
 spcQifled ship.' So, if it is for the future sale of specific 
 
 I Shields v. Peii£fi»AN. Y. 122 (1850). But the seller may lose 
 the advantage of either of these conditions. If he engages that the 
 goods in question are on board, Hall v. Eawson, 4 C. B. (n. s. ) 85 
 (1858), or that they are equal to sample, Dike v. Eeitlinger, 23 Hun, 
 (N. Y. Sup. Ct. ), 241 (1880), his contract obligation attaches upon 
 the arrival of the ship. 
 
82 THE LAW OF SALES. 
 
 existing goods/ or goods to be obtained from a specific 
 source,^ neither part}' is bound in case, witliout tlie seller's 
 fault, the goods peristi or cannot be obtained from the 
 stipulated source. 
 
 1. Sale of Goods to be Apjoraised. — Contracts for the 
 future sale of goods subject to the approval or to the ap- 
 praisal of a third person illustrate this class of conditions. 
 If the parties "agree on a method of settling the price 
 irrespectively of anything to be done by themselves, it is 
 the same between them when subsequently' settled as if the 
 sum had been an original condition of the bargain ; but if 
 the person to whom the naming of it was referred die in 
 the mean time, or refuse to act, the contract is at an end. 
 Such a sale is conditional, but not esecutorj* lilje a con- 
 tract to sell at a day to come, which is complete in itself, 
 though some act remain to be done in pursuance of it ; on 
 the contrary, it is a contract, which, being imperfect in 
 itself as regards one of its terms, is to take effect only 
 when the deficiencj' is supplied by the performance of a 
 condition precedent, the prevention of which, b}' the act 
 of Providence or the obstinacy of the agent, defeats the 
 sale entirel}'." ' Until the agreed person names the price, 
 no obligation attaches to either seller or buyer ; and the 
 latter has no interest in the goods, which maj' have been 
 set apart bj' the seller for him, nor has he a right of action 
 arising out of the contract.* If either part}', however, 
 wrongftilly prevents a valuation of the goods bj' the 
 appraiser, he renders himself liable to an action for 
 
 1 Dexter v. Norton. 47 K. Y. 62 (apparently tliis was a present 
 sale, but the court treated it as a contract to sell). 
 
 2 Howell V. Coupknd, L. R. 9 Q. B. 462 (1874), opinion of Black- 
 burn, J., 1 Q. B. D. 258 (1876), opinion of Clesby, B. 
 
 8 Smyth !). Craig, 3 ff. & S. (Pa.) 14, 20 (1841); Tickers v 
 Yickera, L. B. 4 Eg. 529 (1867). '~~~ 
 
 « Davis V. Davis, 49 Me. 282 (1862). 
 
seller's duties. — btjyer's eights. 83 
 
 damages ; ^ and if the buj-er has received and appropriated 
 any of the goods, he becomes liable for the fair value of 
 such portion.'^ 
 
 2. Sale of Goods to be approved by a Third Person. — 
 The foregoing doctrine applies to contracts for the sale of 
 goods to be approved bj' a third person. Hence, an agree- 
 ment for the purchase of a specified horse for a stipulated 
 price, "provided that within a month he trots 18 miles 
 within one hour, and J. N. to be the judge of the perform- 
 ance," imposes no obligation on either party if J. N. re- 
 fuses to act.^ Nor can a recovery be had upon the contract 
 in England, even if the refusal of the third person to act 
 is caused hy the wrongful interference of one of the par- 
 ties.'' Resort must be had to an action for damages.^ 
 
 In this country, however, if the third person withholds 
 his approval "from motives of selfish interest, bias, par- 
 tiality, or corruption, the party prejudiced by such action 
 maj', notwithstanding the absence of such approval, re- 
 cover on the contract for the non-acceptance of the article 
 furnished. In such contracts, it is an implied condition 
 that the person designated to approve shall act with entire 
 good faith to both of the contracting parties. Both parties 
 have the right to insist upon such good faith, and the want 
 
 1 Sale of Goods Act, § 9 (2). Holliday v. Marshall, 7 Johns. (N. Y.) 
 211 (1810). " Although the covenant proidded for an appraisement of 
 the improvements, in case the land was not sold to the plaintiff, yet 
 the defendant was not a party to the appraisement. He refused to 
 unite in it, and there is nothing in the covenant making an ex parte ap- 
 praisement binding on the defendant. . . . The plaintiff's claim is, there- 
 fore, to be considered as resting in unliquidated damages " (p. 213). 
 
 2 Kenniston v. gain, 29 N. H. 601, 506 (1854). Sale of Goods Act, 
 § 9 (1). 
 
 8 Brogden v. Marriott, 2 Bing. N. C. 473 (1836). 
 1 Vickers v. Vickers, L. R. 4 Eq. 529 (1867). 
 5 Batterbury v. Vyse, 2 H. & C. 42 ; 32 L. J. Ex. 177 (1863) ; Lud- 
 brook V. Barrett, 46 L. J. C. P. 798 (1877). 
 
84 THE LAW OF SALES. 
 
 of it will dispense with the condition requiring the ap- 
 proval." ' If the goods, or any portion of them, have been 
 received and retained b}' the purchaser, he must paj' the 
 contract-price.^ 
 
 (a) Effect of Third Party'' s Decision. — When the 
 third party acts in good faith, his decision is final, although 
 it may be erroneous.^ An English writer ' declares : " There 
 is a great practical difl'erence between the case of an ex- 
 ecutory contract for sale, and that of a contract for work 
 to be done, e. g., upon the house or land of another. When 
 there is a contract for worlt to be done, and the payment 
 for the worlf is conditioned upon the act of a third party, 
 the contractor may lose the fruit of his labor altogether 
 if the condition fails without the fault of the other. . . In 
 the case of an executory sale of goods, however, . . . the 
 seller is simply left with the goods on his hands." The 
 contractor would not lose the fruit of his labor in this 
 country." 
 
 3. Contracts conditioned vpon the goods heing satis- 
 factory to the buyer — maj' be considered in this connection. 
 At times they expressly provide that there shall be no sale 
 unless the article satisfies the purchaser." Even in the ab- 
 sence of such explicit language, the intention of the parties 
 appears to be, that while the seller shall be bound to fur- 
 nish the described article, and the purchaser to inspect' or 
 test it,* if these are done and the purchaser is dissatisfied 
 
 1 Bait. F.y. v. Brydon, 65 Mil. 198, 227 (1885). 
 
 2 Badser v. Kerber, 61 111. 328 (1871). 
 
 s N. E. Trust Co. v. Abbott, 162 Mass. liS, 154 (1894). 
 
 « Campbell on Sales (2d ed.), 4.34. 
 
 6 United States v. Robe,son, 9 Pet. (U. S.) 319, 326 (1835) ; SuUiyan 
 c. Byrne, 10 S. G. 122 (1877), and similar decisions. 
 
 6 Wood Co. V. Smith, 50 Mich. 565, 569 (1883). 
 
 ' School Furniture Co. v. Warsaw Sch. D., 130 Pa. St. 76, 93 
 (1889). 
 
 8 Daggett v. Johnson, 49 Vt. 345 (1877). 
 
seller's duties. — buyer's rights. 85 
 
 with it, no otlier contract obligation shiall attach to either 
 party. It is sometimes said that the seller does not per- 
 form his contract, in case he fails to satisfy the purchaser. ' 
 This statement assumes that the condition is promissory ; 
 when in fact it is contingent or casual. It does not give 
 the purchaser the right to refuse the goods and also to 
 claim damages for a breach of contract by the seller. It 
 suspends the obligations ^ (save those above noted) of both 
 parties, until the purchaser's satisfaction is gained or 
 waived.^ The condition may be waived by retaining the 
 goods. ^ In a recent English case ^ Lord Blackburn lays 
 down the general rule that where " it appears that both 
 parties have agreed that something shall be done, which 
 cannot be effectually done unless both concur in doing it, 
 the construction of the contract is that each agrees to do 
 all that is necessary to be done on his part for the carrying 
 out of that thing, though there may be no express words 
 to that effect." Applying this rule to a contract for the 
 sale of a digging machine, on condition that it should be 
 capable of excavating a given quantity of clay in a fixed 
 time on a properlj' opened up face at C, it was held that 
 the buyer must pay for the machine, although its capabilitj- 
 of doing the stipulated work had not been demonstrated, 
 because the seller had been prevented from performing the 
 condition, by the buyer's refusal or neglect to furnish the 
 means of applying the stipulated test. 
 
 1 MeClure v. Briggs, 58 Vt. 82, 87 ; 2 At. 583 (1886). 
 
 2 Exhaust Co. 0. Chicago Co., 66 Wis. 218, 225, 226 ; 34 N. W. 509. 
 "We think the true rule in such a case is that if the fans are not hon- 
 estly and in good faith satisfactory to the defendant, and the defendant 
 notified the plaintiff of the fact in a reasonable time, then and in that 
 case there had been no sale." See Hoffman v. Gallaher, 6 Daly (N. Y.), 
 42-44 (1875). 
 
 8 Supra, p. 56. 
 
 * Campbell C o. u. Thorg, infra. 
 
 6 Maokay v. Dick, 6 App. Gas. 251, 263 (1881). 
 
86 THE LAW OF SALES. 
 
 4. Judicial Construction of these Contracts. — Con- 
 tracts of the kind now under consideration often prove 
 ver3' unprofitable to the seller. In such cases, he is apt 
 to insist that the condition is fulfilled if the goods are such 
 as ought to satisfj' the purchaser, whether they do satisfy 
 him or not ; and some courts have upheld him in this con- 
 tention.^ They have refused to apply to such agreements 
 the ordinary canons of construction,^ but, examining them 
 in the light of the fierce competition developed by modern 
 business methods, have reached the conclusion that even 
 carefully worded expressions in written instruments are to 
 be deemed, not the sober language of a contract, but a 
 drummer's hj-perbole.' Such, however, is not the pre- 
 vailing view.* 
 
 § 3. Promissory Conditions Binding on the Seller. 
 
 {A) To Confer Title on the Buyer. — That this is one 
 of the fundamental engagements of the seller is apparent 
 from the nature of the sale contract. Persons who enter 
 into an agreement for the sale and purchase of a horse 
 intend to effect a transfer of the general property in that 
 
 1 Duplex Co. .-. Garden, 101 N. Y. 387; 4 N. E. 749 (1886). "An- 
 other rule has prevailed where the object of a contract was to gratify 
 taste, serve pei-sonal convenience, or satisfy the individual preference " 
 (p. 390). 
 
 - Compare C,am£benCo. v. Thorp. 36 Fed. 414, 418 (1888), with 
 Hawkins v. Graham, infra. 
 
 3 Hawkins v. Graham, 149 Mass. 284, 287 ; 21 F. E. 312 (1889). 
 In this ease, as in Duplex Co. v. Garden, sufra, and in Iron Co. v. 
 TSest, 14 Mo. App. 503 (1884), the contract was not for the sale of a 
 chattel, which would be left in the seller's possession upon its rejection 
 by the buyer as unsatisfactory, but for an addition to the buyer's 
 realty, so that the materials and services of the plaintiff would be 
 largely or wholly lost, unless paid for by the defendant. Cf. Campbell 
 on Sales (2d ed.), p. 434, sufra, p. 84. 
 
 4 Osborne Co. v. Francis, 38 W. Va. 312 (1893). 
 
seller's duties. — buyer's eights. 87 
 
 horse, not to sell and buy a lawsuit.^ Hence, "unless the 
 circumstances of the contract are such as to show a differ- 
 ent intention, there is an implied condition on the part of 
 the seller that in the case of a sale he has a right to sell the 
 goods, and that in the case of an agreement to sell, he will 
 have the right to sell the goods at the time when the prop- 
 erty is to pass." ^ 
 
 1 . This Engagement is not Collateral to the Sale Con- 
 tract. — Before the enactment of this statute the English 
 cases called sued engagement a warrantj' ; ° and that term, 
 rather than condition, is emplo5-ed by American judges* 
 and writers.^ In both countries, however, there is ample 
 authority for the view that this undertaking is an essential 
 element of the sale contract, "^ a breach of which entitles 
 the purchaser to treat the contract as repudiated. Its 
 true character is accuratel}' presented in an early Ken- 
 tucky decision.' "This implied warranty is not of the 
 character supposed in the argument, which requires a 
 recovery of the goods hy tlie right owner before an action 
 can be maintained b}' the purchaser, but is in the nature 
 of an implied undertaking on the part of the seller that 
 the commodity he sells is his own ; and that in an action 
 upon such an undertaking, it is a sufficient breach to allege 
 
 1 Edwards v. Pearson, 6 Times Law R. 220 (1890). Counsel for 
 the seller argued that "in our law it is held that the purchaser buys 
 the horse as it is. (Lord Esher. — Not a horse which belongs to the 
 seller ?) No ; it has been held in effect that he only buys the bargain. 
 ( Lord Esher. — That is, a lawsuit ? I should think that in real truth 
 he intends to buy the horse.) If the purchaser in such a case intends 
 to buy the horse, no more can be said. (Lord Esher. — We think so.) " 
 
 2 Sale of Goods Act, § 12 (1). 
 ' Edwards v. Pearson, supra. 
 
 4 Shattuek v. Green, 104 Mass. 42, 45 (1870). 
 
 5 2 Kent's Com. 478 ; Biddle on "Warranties, §§ 224-262. 
 
 6 Ei chholz V. Bannister, 17 C. B. (n. s.) 708 (1864) ; Marshall w. 
 Duke, 51 Ind. 62 (1875), and authorities hereafter cited. 
 
 ^ Payne v. Eodden, 4 Bibb, 304 (1816). 
 
05 THE LAW OP SALES. 
 
 that the property belongs to some other." The same view 
 is held in Tennessee,^ Massachusetts,^ West Virginia,'' and 
 perhaps other States.^ 
 
 2. It i» treated as Collateral by some Courts. — In 
 some jurisdictions, however, this engagement of the seller 
 is treated as a warrant}' in its narrow sense. It is deemed 
 collateral to the sale contract, not one of its essential 
 terms. One court has held that the seller warrants "a 
 title sufficient to retain the possession in the vendee of the 
 chattels," and that this warranty is not broken " until the 
 vendee's possession of the goods is in some way disturbed, 
 by reason of the title of the true owner." ^ 
 
 Other courts liken this engagement of the seller of 
 chattels to the covenant for quiet enjoj'ment of land, and 
 hold that " when the vendee relies upon it he must either 
 restore to the true owner the property in question, or be 
 prepared to prove its loss uuder compulsory proceedings, 
 
 1 'Word v. Gavin, 1 Head, 506 (1858). " The implied stipulation, 
 resulting from the contract, that the property was in the seller . is 
 undoubtedly false, and, in view of the law, is broken the instant it is 
 made, if the title were in a third person." 
 
 2 Grose v. Hennessey , 13 Allen, 389 (1866). The buyer was allowed 
 to recover as ilamages the purchase-price of chattels, although he had 
 not been disturbed in their possession. It was said: " The rules wdiich 
 belong to the covenants of seisin and warranty in conveyances of real 
 property have no application." 
 
 ' Byrnside v. Burdett, 15 AV. Va. 702, 720. Story on Sales is re- 
 ferred to as op[iosed to this view; but he suj)ports it. " Where there 
 is a total failure of title on the part of the vendor, the vendee may, it 
 the contract is executory and unfulfilled, refuse to perform it, and re- 
 claim any portion of the purchase-money which he may have advanced. 
 So, also, if the contract be executed, he may rescind it, and bring an 
 action of money had and received to recover his advances. " § 203 
 (4th ed.). 
 
 * See Jlatheny u. Mason, 73 Mo. 677 (1881) ; Flynn v. Allen, 57 
 Pa. St. 482 (1868). 
 
 " Gross V. Kierski, 31 Calif. Ill (1871). 
 
seller's duties. — buyer's rights. 89 
 
 or the payment of money through judgment obtained 
 against him, or voluntarily in answer to a claim made, 
 and in that case must also affirmatively establish that the 
 claimant was the true owner, and that his vendor was 
 without title." ^ 
 
 (a) Beasons assigned for this View. — Various con- 
 siderations are suggested in support of this doctrine. It 
 is said, " the owner may never claim and enforce his title, 
 or if he does, the seller may settle with him." ^ Again, 
 "if" the buyer's "possession remains undisturbed, his 
 title will be perfected by lapse of time." ^ Still again, 
 " the breach implies no bad faith, and is, therefore, com- 
 patible with fair dealing ; and the indemnity is complete 
 by responding therefor after a recovery under the para- 
 mount title." * In some cases, which announce this doc- 
 trine, the buyer was in undisturbed and unquestioned 
 possession of the property,^ or he did not offer to prove 
 to whom it did belong.^ In the last-cited case, Vreden- 
 burg, J., said: "It will hardly do, when a person has 
 thus reaped the benefit of a sale, and is holding the pro- 
 ceeds in his pocket, when called upon to pay, to answer : 
 True, I bought ; true, I am enjoying the thing I purchased ; 
 true, I cannot say who does own it ; true, nobody else 
 claims it ; but, if the court will permit me, I will entertain 
 them and the jurj' some da3-s, seeing if I can find some- 
 body in whom I can show some claim." 
 
 3. Engagement for Quiet Possession. — Undoubtedly 
 the seller's engagement for quiet possession, whether ex- 
 
 1 0.'Biien u. JoneS; 91 N. Y. 193, 197 (1883). 
 
 2 CaseK. _Hall, 24 Wend. (N. Y.) 102 (1840). 
 
 = Johnson v. (Ebmiiig, 95 Ala. 189; 10 So. 430 (1891), holding that 
 the buyer cannot rescind the contract and return the property to the 
 seller, although the latter had not title. 
 
 * Close V. Crossland, 47 Minn. 500, 502 ; 50 N. W. 694 (1891). 
 
 6 Linton v. Porter, 31 111. 107. 
 
 6 "Wansler v. Messier, 29 N. J. L. 256. 
 
90 THE LAW OF SALES. 
 
 press or implied, is collateral to the main purpose of the 
 sale contract. The buj'er's rights, therefore, in case of 
 its breach, do not extend to a repudiation of the sale and 
 a recovery of the purchase-price, but are confined to a 
 claim for damages.^ 
 
 4. Seller's Engagement that the Goods are not en- 
 cumbered. — The English statute distinguishes a warranty 
 against encumbrances from the seller's engagement as to 
 title,"^ because a breach of the former does not go "to the 
 whole value of the contract." ' This distinction has re- 
 ceived but little attention from -writers ^ or judges.^ In 
 fact, some of the judicial opinions which have maintained 
 most strenuously the doctrine, that the seller's engage- 
 ment as to title is a warranty as distinguished from a 
 condition, have been pronounced in cases where the sole 
 issue was the seller's liability for a breach of his stipula- 
 latiou against encumbrances." 
 
 5. Damages for Breach of Engagement as to Title. — 
 ■It appears to be the general rule in this countr}' that the 
 measure of damages, upon a failure of title, is the purchase- 
 price paid with interest.' In England, however, the buyer 
 
 1 Cases in the last four notes ; Sale of Goods Act, § 12 (2). In 
 Scotland, and in a few of our States, a breach of warranty entitles the 
 buyer to rescind the sale. li\fm. 
 
 2 Sale of Goods Act, § 12 (3). 
 
 8 Sanders v. Maclean, 11 q. B. D. 327, 337, Brett, M. E. (1883). 
 ^ Biddle on Warranties, § 231 ; Benjamin on Sales, Bennett's Notes, 
 p. fiP,2 (1892). 
 
 5 Dresser v. Ainsworth, 9 Barb. 619 (1850) ; Brown v. Cockburn, 37 
 Up. Can. Q. B. 592 (1876). 
 
 6 Hunt V. Sackett, 31 Mich. 18 (1875) ; Clcse v. Crosslaud, 47 
 Minn. 500 (1891). 
 
 ' Converse v. Miner, 21 Hun (N. Y.), 367, 375 (1880) ; Moorehead 
 V. Davis, 92 Ind. 303, 306 (1883); Suth. on Damages, § 669. The 
 vendor cannot cut down the recovery by showing that the goods were 
 worth much less than he sold them for. Wilkinson v. Ferree, 24 Pa. St. 
 190 (1855). 
 
sellee's duties. — buyer's eights. 91 
 
 may recover the purchase-price if paid ; or he ma}' sue for 
 unliquidated damages.^ This view is held in some of our 
 States ; and if he sues for damages, he maj' recover the 
 ' ' difference in value between such title as he took and 
 such title as the " seller engaged to convey.^ Even in 
 New York, if the seller's failure of title prevents him 
 from delivering the goods, the buyer may recover as 
 damages the difference between the contract-price and 
 the value at the time of breach.' 
 
 6. Damages for Breach of Engagement as to Quiet 
 Possession and Encumbrances. — In case the warrant}' 
 for quiet possession or the warranty against encumbrances 
 is broken, the buj-er maj' recover as damages, not only the 
 value of the property, but all his losses resulting from 
 such breach.^ 
 
 Such is the rule, too, upon a breach of the condition as 
 to title, if the buyer is unable to restore the goods because 
 of their alteration, consumption, destruction, or the like. 
 
 7. When these Engagements will not be Implied. — The 
 foregoing condition and warranties will not be implied 
 when the circumstances show that the parties intended 
 thej' should not attach to the contract. Such intention is 
 apparent where the subject-matter of the contract is not 
 the general property in the goods, but whatever title or 
 interest the seller has.^ Accordingly, if the seller offers 
 the goods in an official capacitj-, or as the owner of a 
 limited interest, such as assignee in insolvency,^ adminis- 
 
 1 Chalmers' Sale of Goods Act (2d ed.), p. 26. 
 
 2 Grose v.' Hennessey, 13 Allen (Mass.), 389 (1866). 
 
 8 Lister v. Windmuller, 52 N. Y. Supr. Ct. (20 J. & S.) 407 (1885). 
 The time of breach was declared to be either when the seller absolutely 
 refuses to deliver, or announces his inability to deliver. 
 
 4 Thurston v. Spratt, 52 Me. 202 (1863). 
 
 6 Gouldj'. B ourgeois , 51 N. J. L. 361 (1889). 
 
 8 jSmson V. La rbouni. 5 6 Minn. 332 ; 57 N. W. 933 (1894). 
 
92 THE LAW OP SALES. 
 
 trator or executor,^ commission merchant,^ or other agent 
 offering tlie goods as those of his disclosed principal,^ 
 constable or sheriff,* mortgagee,* pledgee" or trustee/ 
 or if tliej' are offered with notice to the buyer of an ad- 
 verse claim bj- a third person,' or at the buj'er's risk,'' any 
 implied condition or warranty is negatived. 
 
 («) Sale of Goods not in Vendor's Possession. — It 
 has been held to be negatived, also, when the goods 
 offered for sale are not in the seller's possession.^" The 
 judicial deliverances in support of this view, /Kowever, 
 are mainlj' dicta. Ordinarily the language of the con- 
 tract and the attending circumstances, exclusive of the 
 seller's lack of possession, will disclose the intention of 
 the parties.-'^-' 
 
 {B) To Furnish the Agreed Article.- — "\yhen the 
 parties contract for the sale and purchase of a specific 
 chattel, which each can examine and judge of for himself, 
 this engagement of the seller is satisfied bj- the delivery 
 of such chattel. The doctrine of caveat emptor applies,^^ 
 
 1 Mellen t). Boorman, 21 Miss. 100 (1S49). 
 
 2 Irwin V. Thompson, 27 Kans. 643 {1SS2). 
 
 8 Seenmller v. Fuchs, 64 Md. 217 ; 1 At. 120 (1885), holding an 
 auctioneer who sold without disclosing his princijjal liahle on an im- 
 plied warranty of title. 
 
 * Forsythe v. Ellis, 4 J. J. Marshall (Ky.), 298 (1830). 
 
 5 Harris v. Lynn, 25 Kans. 281 (1881). 
 
 " Mfilie^^y. AtteiVborough, 3 Exch. 500 (1849). 
 
 ' Cohn V. Ammidown, 120 N. Y. 398 (1890). 
 
 8 Barbee d. Williams, 4 Hei.ik. (Tenn.) .')22 (1871). 
 
 i* Eoder V. Brigh t, 82 Pa. St. 441 (1876). 
 
 i» Huntingdon u. Hall, 36 Me. 501 (1853) ; Scranton u. Clark, 39 
 N. Y. 220 (1868). '""' 
 
 11 Eichholz V. Bannister, 17 C. B. (n. s.) 708 (1864), opinion of 
 Byles, J. 
 
 12 Salisbuij ■;. Stemer^ 19 Wend. (N. Y.) 159 (1838) ; Barnard v. 
 Kellogg, 10 Wall. (U. S.) 383 (1870). 
 
seller's duties. — buyer's rights. 93 
 
 and the biij-er must take the agreed article for better or 
 for worse. ^ 
 
 If, however, the character of the article cannot be dis- 
 covered upon a reasonable examination bj' the buj^er, and 
 the parties are treating, not for a specific chattel, whatever 
 its character maj^ turn out to be, but for a chattel possess- 
 ing certain characteristics, then its possession of those 
 characteristics is of the essence of the contract. Tlic 
 seller is bound to furnish, and the buj-er has a right to 
 demand, not simply a particular mass of materials, but 
 that mass possessed of the stipulated characteristics. 
 Accordingh', if the subject-matter of the contract is a 
 crop of Skirving's Swede turnip-seed then growing on 
 certain land ; or a particular parcel of blue vitriol or of 
 Paris green ; or specified stacks of hemp, — the seller does 
 not satisfj' his obligations by delivering that crop of seed, 
 if it is in fact not Skirving's Swede turnip-seed ; ^ or that 
 particular parcel of vitriol, if it is saltsburger and not blue 
 vitriol ; ^ or the particular green substance, if it is chrome 
 and not Paris green ; ' or the specified stacks, if thej' are 
 composed mainlj' of weeds and not of hemp.^ 
 
 1, This Rule is applied most frequently to Contracts 
 to sell. — This rule, that when goods are sold bj^ descrip- 
 tion there is an implied condition that thej- shall cor- 
 respond with the description, is much more frequently 
 applied to agreements to sell than to contracts of present 
 
 1 Kirkpatrick v. Gowan, 9 Ir. R. C. L. 521 (1875). ["A stack of 
 Cumberland and small Welsh coal mixed, lying in a shed in my yard," 
 and DO allegation that this description was an essential term of the 
 contract.] And he has a right to refuse any other article. Webster 
 Co. u. Dryden, 90 la. 37 ; 57 N. W. 637 (1894). 
 
 2 Allan V. Lake, 18 Q. B. 560 (1852). 
 
 8 Hawkins v. Pemberton, 51 N. Y. 198 (1872). 
 
 « Jones V. George, 61 Tex. 345 (1884). 
 
 6 Foggs' Adm'r v. Rodgers, 84 Ky. 559 ; 2 S. W. 248 (1886). 
 
94 THE LAW OF SALES. 
 
 sale.^ If the buyer orders "Calcutta linseed," ^ or " xx 
 pipe-iron,"^ or "strictly No. 1 long berry sound red 
 wheat,"* or "steel scrap consisting of cHppings and 
 punchings from the steel plates and angles and beams 
 used in the construction of the U. S. cruisers built by the 
 seller," ^ the seller is bound to appropriate to the contract 
 goods which answer to that description. " AVhen the 
 subject-matter of a sale is not in existence or not ascer- 
 tained at the time of the contract, an undertaking that it 
 shall, when existing or ascertained, possess certain quali- 
 ties is not a mere warranty, but a condition, the perform- 
 ance of which is precedent to anj' obligation upon the 
 vendee under the contract ; because the existence of those 
 qualities being part of the description of the thing sold 
 becomes essential to its identitj-, and the vendee cannot 
 be obliged to receive and pay for a thing different from 
 that for which he contracted." " 
 
 (a) Sale with all Faults. — The description of the 
 goods does not cease to be of the essence of the contract, 
 although the sale is with all faults. This additional pro- 
 vision means "such faults or defects as the article sold 
 might have, retaining still its character and identity as 
 the article described." ' 
 
 1 "The rule is almost necessarily confined to executory contracts, 
 for where goods are identified and agreed upon at the time the contract 
 is made, they cannot, in the ordinary case, be said to be sold by descrip- 
 tion." Brown's Sale of Goods Act, p. 63. 
 
 2 \yjekL "■ Schlizzi, 17 C. B. 619 (1856). 
 8 Dounce v. Dow, 64 N. Y. 411 (1876). 
 
 « Fogel V. Brubaker, 122 Pa. St. 17 ; 15 At. 692 (1888) ; cf. Shisler 
 V. Baxter, 109 Pa. St. 443 (1885). On sale of "Wakfield cabbage- 
 seed " by dealer, no undertaking that the seed corresponds with the 
 description. 
 
 6 Columbian Iron Works i-. Douglas, 34 At. 1118; Md. (1896). 
 
 « fop e V. Allis, 115 U. S. 363, 371, 372 ; 6 Sup. Ct. 69 (1885). 
 
 ' Whitney v. Boardman, 118 Mass. 242, 247 (1875); c/. Taylor w. 
 BuUen, 6 Exch. 778 (1850). Ship described as " teak-built," but to 
 
sbllek's duties. — buyer's eights. 95 
 
 2. Sale by Description and hy Sample. — The contract 
 maj' be for the sale of goods by description, and also by 
 sample : when there are two implied conditions, one that 
 the goods shall conform to the description, and the other 
 that they shall conform to the sample.^ In fact, a sale by 
 sample is but a species of sale bj- description. The 
 sample is employed instead of words as a means of com- 
 munication between the parties. Its function is to inform 
 the buyer of the essential characteristics of the article he 
 is contracting for ; '' to represent it.' 
 
 (a) When a Sale is by Sample. — A specimen of an 
 article raay, indeed, be used during the negotiation for a 
 different purpose. It ma}' be presented bj"^ the seller and 
 examined bj' the buj'er, to enable the latter " to form a 
 reasonable judgment of the commodity." ^ In this case 
 the seller does not engage for the conformity of the bulk 
 to the sample. His onl}' undertaking is that the sample 
 is an honest and not a fraudulent one ; * that it has been 
 taken from the bulk in the usual way.^ The sale is made 
 upon inspection, not by description. Caveat emptor 
 applies. 
 
 To which of these classes a particular transaction be- 
 
 be taken with all faults and without allowance for any defect or error 
 whatever. It was not teak-built, but this misdescription, it was held, 
 was nullified by the subsequent stipulation as to "any error whatever." 
 
 1 Bach V. Levy, 101 N. Y. 511 ; 5 N. E. 345 (1886) ; Gould i'_;_Steiji^ 
 149 Mass. 570 ; 22 N. E. 47 (1889). In Parker v. Palmer," 4 B. & C. 
 387, 391 (1821), it is said: "The words ' per sample ' are not a descrip- 
 tion of the commodity sold, but a mere collateral engagement on the 
 part of the seller that it shall be of a particular quality." This view is 
 not tenable. 
 
 2 Drnmmnnd v . Van Ingen 12 App. Cas. 284, 297 (1887). 
 
 8 Bradford v. Manly, 13 Mass. 138 (1816) ; Russell v. Nicolopuco, 
 8 C. B. (N.sT) 362 (1860). 
 
 * Gardner u. Gray, 4 Camp. 144 (1816) ; White v. Dougherty, 18 
 Ret. (Sc. Sess. Cas. 4th ser.), 972 (1891). 
 
 6 Waring v. Mason, 18 Wend. (N. Y.) 425, 434 (1837). 
 
96 THE LAW OF SALES. 
 
 longs is a question of fact/ and often a difficult one.^ If 
 the contract has been committed to writing, and no refer- 
 ence is made to a sample, it is clear that conformitj- of the 
 bulk to the sample is not an agreed term.' So if the buj-er 
 is required to inspect the goods for himself.^ 
 
 3. Fitness for a Particular Purpose. — (o) Express 
 Engagement. — If the parties expressl}- stipulate that the 
 described article shall be suitable for a particular purpose, 
 it is clear that the seller does not furnish the thing agreed 
 upon unless it possesses the fitness stipulated for. Such 
 fitness is an essential characteristic of the article. A stip- 
 ulation of this kind exists when a buj-er asks for " copper 
 for sheatiiing a vessel," and is assured by the seller that 
 " he will supply him well." ^ 
 
 (6) Iiiipilied Engagement. — It is not necessary, how- 
 ever, that the undertaking be in express words. When- 
 ever the facts of a case fairly warrant the inference that 
 tlie parties understood the subject-matter of the sale con- 
 tract to be not a designated article merely, but that article 
 possessed of fitness for a known use, the seller engages to 
 
 1 Beirne v. Dord, 5 N. Y. 95, 99 (1851). Sale of Goods Act, § 15. 
 
 2 Ames V. Jones, 77 N. Y. 614 (1879) ; Atwater d. Clancy, 104 
 Mass. 369 (1871). 
 
 ' Meyer v. Everth, 4 Camp. 22 (1814). A bill of parcels, or memo- 
 randum of certain facts connected with the transaction, is not a written 
 contract. Bradford r. Manly, 13 Mass. 139(1816). 
 
 4 Barnard v. Kellogg, 10 Wall. (U. S.) 383 (1870) ; White a. 
 Dougherty, supra. It is apparent from the opinion in this case that, 
 in Scotland, a failure to preserve and identify the sample is strong evi- 
 dence that the parties did not intend to contract for conformity of bulk 
 to sample ; cf. Brown's Sale of Goods Act, p. 77. 
 
 ^ Jones V. Bright . 5 Bing. 533 (1829). " Whether or not an article 
 has been sold for a particular purpose is, indeed, a question of fact ; 
 but if sold for such purpose, the sale is an undertaking that it is fit. . . . 
 Here there has been, in my opinion, an express warranty " (in the sense 
 of condition precedent). Best, J., 544, 545. See opinion of Burrough, 
 J., 548, 549. 
 
selleb's duties. — buyer's rights. 97 
 
 supply the article with this attribute.^ In the language of 
 Justice Brett, "You must therefore first determine from 
 the words used, or the circumstances, what, in or accord- 
 ing to the contract, Is the real mercantile or business de- 
 scription of the thing whicli is the subject-matter of the 
 bargain of purchase or sale, or, in other words, the contract. 
 ... If the subject-matter be an article or commodity to 
 be used for a particular purpose, the thing offered or de- 
 livered must answer that description ; that is to saj', it must 
 be that article or commodity, and reasonably fit for the 
 particular purpose. The governing principle, therefore, is 
 that the thing oflfered and delivered under a contract of 
 purchase and sale must answer the description of it which 
 it contained in words in the contract, or which would be 
 so contained if the contract were accurately drawn out.'' 
 Such an engagement is fairly inferable whenever the 
 buyer apprises the seller of the particular purpose for 
 which the article is required, and has a right to rely and 
 does rely on the seller's skill or judgment in suppl3-ing the 
 agreed thing.^ 
 
 (c) Seller must be notified of Particular Piirpose. — 
 The notification by the buyer may be made directly to the 
 seller or through a third person ; ^ it may be communicated 
 by express words or by conduct,' but it must in some way 
 be brought home to the seller. If the buyer is known to 
 the seller as a woollen merchant, but not as a tailor, his 
 order for a quantit}^ of "indigo blue cloth" does not 
 amount to a notification that he requires the goods for the 
 
 1 Randall v . Newson. 2 Q. B. D. 102, 109 (1877). 
 
 2 Sale of Goods Act, § U. 
 
 « Englehardt v. Clanton, 83 Ala. 336, 341; 3 So. 680 (1887). 
 
 4 Gillespie v. Cheney, 65 L. J. Q. B. 652 (1896), 2 Q. B. 59. 
 Wliether " the particular purpose for which the goods were required " 
 was made known to the seller may "be gathered from the course 
 pursued and the conduct and acts and correspondence of the parties 
 antecedent to the contract." Lord Russell, 564, 655. 
 
 7 
 
98 THE LAW OF SALES. 
 
 purpose of making them into servants' liveries.^ Nor will 
 the seller's supposition that the buj'er proposes to use the 
 goods for a particular purpose avail the latter, when their 
 fitness for such use does not enter into the negotiations." 
 
 (d) Reliance on Seller's Skill or Judgment. — The 
 buyer has a right to rel.y on the skill and judgment of the 
 seller, not only when this is clearly stipulated for,' but 
 whenever their relations are such that in the ordinary 
 course of things inspection by the purchaser is impracti- 
 cable,' or the seller has, or assumes to have, superior 
 skill and judgment ^ in determining its suitableness for the 
 required purpose. If one agrees to sell to another, who is 
 buj'ing hogs for the market, a number of hogs for imme- 
 diate shipment, the buyer, not having an opportunity to 
 inspect them before delivery, must necessarily rely upon 
 the seller's judgment in the* selection of particular hogs 
 and their appropriation to the contract.^ 
 
 (e) The Superior Skill and Judgment of a Manufac- 
 turer or Producer. — The seller of an article, who is also 
 its manufacturer, producer, or grower, is in a much better 
 position to judge of its fitness for a designated purpose 
 than the ordinary buyer. He is, or holds himself out to 
 be, conversant with its qualities and its adaptability, as well 
 as with the processes of its manufacture,' or the conditions 
 of its production. "VThen such a seller accepts an order 
 
 1 Jones V. Mgett, 24 Q. B. D. 650 (1890). 
 
 2 Hight «. Bacm^ 126 Mas3. 10 (1878). 
 
 8 Brown v. Eddington, 2 Man. & Gr. 279 (1841). 
 
 4 Morse v. Stockyard, 21 Ore. 289 ; 28 Pac. 2 (1891). 
 
 6 Reals V. Olnistead, 24 Vt. 114 (18.52). 
 
 6 Best K. Flint, 58 Vt. 543; 5 At. 192 (1886). 
 
 ' Drummond v. Van Ingen, 12 App. Cas. 284 (1887). " It wonld 
 be unreasonable to expect from the merchant an exact knowledge, not 
 only of the sort of article which he wants, but also of the processes by 
 which it is to be manufactured. He has a right to presume that the 
 manufacturer understands his own business, and will use such methods 
 
seller's duties. — buyer's rights. 99 
 
 for his product to be put to a particular use, " it is plainly 
 to be inferred that both parties understand the purchase 
 to be made upon the judgment and responsibility of the 
 seller."^ In such cases, he impliedly engages that the 
 article is fit for the designated purpose ; and such engage- 
 ment extends to latent defects which might have been 
 guarded against by his exercise of reasonable skill during 
 the process of its manufacture, growth, or production.^ 
 The manufacturer who undertakes to supply a cloth mer- 
 chant with " coatings," is bound to furnish material which 
 is fit to be made into coats in the usual manner. If he 
 supplies cloth which is unsuitable for such use, because of 
 a latent defect resulting from the mode of manufacture, he 
 does not perform his contract.' 
 
 Nor does the manufacturer of a windmill, which is 
 ordered for use at a particular place, perform his contract 
 by supplying a mill which will not work well at that place. 
 " It would be most unreasonable to hold that the buyer 
 was bound to pay for a mill that would not work at all 
 in the place agreed upon. . . . The manufacturer was 
 bound to know whether the mill would work well at the 
 place chosen, and, as it did not, he has no right to compel 
 paj'ment of the agreed price. The price agreed upon was 
 for a windmill that would work well on the place selected, 
 and not one that would work well in an open plain or upon 
 a hill- top."* 
 
 as may be proper to produce a good article of the kind ordered. The 
 burden of ascertaining beforehand that this can be done, or how it Is 
 to be done, does not rest upon him " (at p. 288). 
 
 1 Hoe V. Sanborne, 21 N. Y. 552, 563 (1860). 
 
 2 Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116 (1883). In- 
 deed, if the undertaking of the manufacturer is to supply an article fit 
 for the particular purpose, it is immaterial whether he exercises reason- 
 able skill or not. His engagement is absolute. Eodgers v. Niles, 11 
 Ohio St. 48, 56 (1860); Randall v. Newson, 2 Q. B. D. 102 (1877). 
 
 3 See note 7, p. 98. 
 
 * McClarmock v. Flint, 101 Ind. 278, 282 (1884). 
 
100 THE LAW OP SALES. 
 
 (/) The Rule applies to Quarrymen and Seedgroin- 
 ers. — The same doctrine applies to a quarrj-man who sells 
 granite blocks to a contractor foi' use in the construction 
 of a particular sewer. He impliedlj' engages that the 
 blocks shall be such as the sewer contract requires.' It 
 is applicable, also, to the grower of seeds, who " must be 
 presumed to be cognizant of any omissions or negligence 
 whereb}- thej' have been deteriorated or rendered unfit foi 
 use." In contracting to sell to a market-gardener a quan- 
 tity of " large Bristol cabbage-seed," he impliedl}- engages 
 that the seed supplied under the contract is " free from 
 anj' latent defect arising from the mode of cultivation." ^ 
 Although the seed furnished was raised upon Bristol cab- 
 bage stocks, j-et if "these stocks were planted in the 
 vicinity of stocks of other -^-arieties of cabbage and were 
 fertilized by the pollen therefrom, and in consequence of 
 the crossing of the varieties " the seed became impure and 
 lost the character and quality of large Bristol cabbage- 
 seed, it was not the article contracted for. 
 
 (g) Buyer relies on liis Judgment in Case of a Speci- 
 fied Article bought under its Trade Name. — The cases 
 which we have been considering are clearly distinguish- 
 able from those where the parties contract for " a specified 
 article under its patent or other trade name."8 Here the 
 buyer does not veiy on the seller's superior skill and judg- 
 ment. He takes the risk of its answering the fiurpose for 
 which he procures it. Accordingly, if the buj'er gives an 
 order to the manufacturer for " j-our patent hopper and 
 apparatus to fit up my brewing-copper with your smoke- 
 consuming furnace ; " ■* or for " your Challenge auger outfit 
 
 1 Breen v. Moran, 51 Minn. 525, 530 ; 53 N. W. 755 (1892). 
 
 2 White V. Miller, 71 N. Y. 118 (1877). 
 8 Sale of Goods Act, § 14 (1). 
 
 4 Chanter v. Hopkins, 4 M. & W. 399 (1838). "It appears to me 
 that this is the ordinary case of a man who has had the misfortune to 
 order a particular chattel on tlie supposition that it will answer a par- 
 ticular purpose, but finds it will not" (p. 405). 
 
seller's duties. — buyer's rights. 101 
 
 for boring wells ;" ^ or if the manufacturer declares, "I 
 undertake to make j'ou a two-color printing-machine on 
 mj' patent principle ; " ^ of,. " I contract to sell eight hundred 
 tons of my No. 1 and No. 2 foundry pig-iron ; " ' or, " I 
 agree and contract to supply a No. 2 size refrigerating 
 machine as constructed by me, and- to put it in operation 
 in your brewerj-," * — there is no implied engagement on 
 the part of the seller that the specified article shall serve 
 the special purpose for which the buyer obtains it. ' ' Such 
 a contract assumes that tlie parties know what is the char- 
 acter of the article " about which they are treating. 
 
 Whether a particular transaction is a sale by descrip- 
 tion, or a sale of a specified article under its trade name, 
 is often a question of difficulty. In a recent decision upon 
 this topic, Lord Chief Justice Russell said, that the trade- 
 name provision of the English statute " is intended to 
 meet the case, not of the supply of what I may call for 
 this purpose raw commodities or materials, but for the 
 supply of manufactured articles, — steam-ploughs, or any 
 form of invention which has a known name, and is bought 
 and sold under its known name, patented or otherwise."^ 
 
 (h) JNo Reliance by Buyer when he specifies the Mate- 
 rials or Methods. — Nor does the buyer rely on the 
 
 1 Goulds V. Brophy, 42 Minn. 109 ; 43 N. W. 834 (1889). " Here 
 the defendant simply ordered a specific article of a known, recognized, 
 and defined make or description, which was manufactured by the plain- 
 tiffs, and in the market. There was an implied warranty — or more 
 correctly speaking, condition of the contract — that it should conform 
 to the description and be of good material and workmanship according 
 to that description, but none that it would answer the purpose described 
 or supposed. The rule of caveat emptor applies " (p. 112). 
 
 2 OlUvant V. Bayley, 5 Q. B. 288 (1843). 
 
 « Beck V. Sheldon, 48 N. Y. 365, 370 (1872). 
 4 ^eitz K. Brewers' Co., 141 TJ. S. 510 (1891) ; 12 Sup. Ct. 46. 
 6 Gillespie TTSheney (1896), 2 Q. B. 59, 64 (coal for bunkering 
 steamers). 
 
102 THE LAW OP SALES. 
 
 superior skill or judgment of the manufacturer in respect 
 of materials or methods for which he clearly stipulates.^ 
 "It cannot be admitted that an artificer of anj' sort is 
 to be considered as undertaking that an}- machine, in- 
 strument, or vessel, which he makes for the use and by 
 the direction of another, and according to specifications 
 furnished by his employer, shall answer the purpose 
 for which it was designed by the projector. It is the 
 projector, the man who designs the instrument and con- 
 trols its material, shape, and mode of construction, who 
 is responsible for its adaptation in material, shape, 
 and mode of construction to the end for which it is 
 intended." ^ 
 
 (i) The Engagement of Hreeders of Animals. — We 
 have seen that the grower of seeds, upon selling them, 
 engages that they are free from any latent defect arising 
 from the mode of cultivation. Does the breeder of an 
 animal, in selling it for breeding purposes, impliedly en- 
 gage that it is suitable for that use? The decisions upon 
 this subject have been made in cases where the contracts 
 related to specified chattels under their trade names, or the 
 circumstances have shown that the buyer made his own 
 selection. Still the judges have declared that no reason 
 exists in these cases for holding the seller to such an im- 
 plied undertaking. It is said that whether the animal pos- 
 sesses the power of begetting or bearing offspring does not 
 depend upon the breeder's methods, nor is it a subject 
 upon which the breeder has, or can fairly be presumed to 
 have, more knowledge than the buyer, " until the course of 
 
 1 Cuiiningham v. Hall, 4 Allen (Ma^s.), 268, 275 (1862). J. I. Case 
 Plow 'Works V. Niles, 90 Wis. 590, 6«3 (1895) ; 60 N". W. 1013. "The 
 contract was not for the manufacture of wheels generally to satisfy a 
 required purpose, hut for the manufacture and delivery of » specific 
 kind or plan of wheels of specified dimensions." The purchaser rehed 
 upon his own judgment. 
 
 s Eicketts v. Sisson, 9 Dana (Ky.), 358, 359 (1840). 
 
seller's duties. — buyee's rights. 103 
 
 nature has developed the truth.'" In a case where the 
 plaintiffs bought a bull which proved impotent, the court 
 said : " Because the defendants raised the bull they sold to 
 plaintiffs, thej- are not chargeable with any knowledge, or 
 opinion even, in respect to a matter beyond the reasonable 
 scope of human knowledge, namelj', whether the bull would 
 prove impotent and to be wholly destitute of the power of 
 procreating his kind ; and hence the ground of presumed 
 or reasonably imputed knowledge as a foundation in this 
 case of an implied warranty " (condition) " wholly fails." 
 The rule of the civil law is different.'' 
 
 It is submitted, however, that the doctrine stated in the 
 following paragraph should be applied to the sale of 
 animals. 
 
 (j) Is a Dealer's Undertaking the same as a Manu- 
 facturer's ? — In England and in many of our jurisdictions 
 the seller, who is accustomed to deal in the articles which 
 are ordered for a particular purpose, incurs the liability 
 which we have seen attaches to the selling manufacturer." 
 Some of our courts hold, however, that he does not im- 
 pliedly engage for the suitableness of the article. It is 
 said, "In the case of a purchase of this description" 
 (powder sold to be used for blasting), " the purchaser 
 knows that the dealer relies upon the character and repu- 
 
 i Simcoe Society v. Wade, 12 Up. Can. Q. B. 614, 616 (1855); Mc- 
 Quaid V. Ross, 85 Wis. 492, 495 (1893) ; 55 N. W. 705. 
 
 ^ See Moyle's Contract of Sale, p. 195 ; Pothier's Contract of Sale 
 (Cushing's ed. 1839, 126-134). 
 
 8 Sale of Goods Act, §§ 14, 15. Gammell v. GmiiaJlo., 52 Ga. 
 504 (1874) ; Dushane v. Benedict, 120 TJ. S. 630, 636 ; Zimmerman v. 
 Druecker, 44 N. E. 557. Ind. App. (1896). This is also the rule of the 
 civil law. "It is the same in regard to the dealer whether he is or is 
 not the maker of the articles which he sells. By the public profession 
 which he makes of his trade he renders himself responsible for the good- 
 ness of the merchandise which he sells for the use to which it is 
 destined." Pothier's Contract of Sale, 132 ; Bulkley v. Honold, 19 
 How. U. S. 390 (1856), applying the law of Louisiana. 
 
104 THE LAW OF SALES. 
 
 tatioQ of the manufacturer, and the purchaser has the 
 same opportuuitj' of determining as to any latent defects 
 in the merchandise as the seller, and consequently, under 
 such circumstances, the rule of caveat emptor applies." ' 
 This doctrine appears to have originated^ in Parkinson v. 
 Lee,' a case which, after having been practically overruled, 
 has been nullified by the Sale of Goods Act.* 
 
 The better view is that where " the purchaser does not 
 designate any specific article, but orders goods of a par- 
 ticular quality or for a particular purpose, and that purpose 
 is known to the seller, the presumption is the purchaser 
 relies upon the judgment of the seller, and the latter, by 
 undertaking to furnish the goods, impliedly undertakes 
 they shall be reasonably fit for the purpose for which they 
 are intended ; and he will be answerable for any defect in 
 the material, or in the construction, by which the value is 
 diminished." ^ 
 
 (k) The Manufacturer as a Dealer. — Some courts 
 have narrowed the manufacturer's implied engagement by 
 treating him as a dealer, with respect to materials, which 
 he buys from others and uses in producing the agreed 
 article. Where this view obtains, a manufacturer who, for 
 example, sells circular saws, to be used by the purchaser 
 in a circular-saw mill, is liable " for any latent defect not 
 disclosed to the purchaser, arising from the manner in 
 which the article was manufactured ; and if he knowingly 
 
 1 Kaiii i>. Larldn^.38 N. Y. Suppl. 546 (1896); Healy v. Brandon, 
 66 Hun, f.l5 ; Affid. 142 N. Y. 681 (1894) j Forrow v. Andrews & Co., 
 69 Ala. 96 (1881). 
 
 2 Sands u. Taylor, 5 Johns. 395, 407-409 (1810); Dickinson i). 
 Gay, 7 Allen, 29, 32 (1863). 
 
 3 2 East, 314 ; see Randall v. Newson, 2 Q. B. D. at p. 106. 
 « Chalmers' Sale of Goods Act (2d ed.), 33, 34. 
 
 6 Gerst V. Jones & Co., 32 Gratt. 518, 521, 522 (1879), distin- 
 guishing .Mason v. Chappell, 15 Gratt. 572, as a case of sale of a speci- 
 fied article under its trade name. 
 
seller's duties. — buyer's eights. 105 
 
 uses iinpropei- materials, he is liable also ; but not for any 
 latent defect in the material which he is not shown and 
 cannot be presumed to have known." ' 
 
 4. Seller engages that Goods are Merchantable. — 
 Whether the seller is manufacturer or dealer, he impliedly 
 engages that goods sold by description are merchantable. 
 ' ' The purchaser has a right to expect a salable article 
 answering the description in the contract. . . . He cannot 
 without a warrant^' insist that it shall be of an^' particular 
 qualit3- or fineness ; but the intention of both parties must 
 be taken to be that it shall be salable in the market under 
 the denomination mentioned in the contract between them. 
 The purchaser cannot be supposed to hxxy goods to lay 
 them on a dunghill." ^ 
 
 (a) Extension of this Rule in England. — This rule is 
 applied in England to present sales as well as to contracts 
 to sell ; and to cases where the buyer had an opportunity' 
 to examine the goods, provided he did not examine them, 
 or the unmerchantableness was of such a character as not 
 to be revealed upon a proper examination.^ But it is 
 not applied to a sale of specified articles, as distinguished 
 from a sale of articles of a particular kind. 
 
 (b) Rule restricted in the United States. — In this 
 country man}' courts restrict the rule to contracts to sell 
 by description,* or to present sales without an opportunity 
 of inspection.* The seller satisfies his obligation if the 
 article supplied is merchantable generallv, although not 
 
 1 Hoe V. Sanborn , 21 K. Y. 55?, 566 ; Bragg v. Morrill, 49 Vt. 45 
 
 (187^ 
 
 2 Gardiner v. Gray, 4 Camp. 144, 145 (1815). 
 
 » Chalmers' Sale of Goods Act (2d ed.),§ 14, and oommeutary thereon. 
 
 1 Howard v. Hoey, 23 Wend. 350 (1840). " "When the contract is 
 executory," it " always carries an obligation that it shall be at least 
 merchantable, — at least of medium quality or goodness" (p. 351). 
 ■^insOTi). L^mJiajd, 18 Pick. 57 (1836). 
 
 5 Moore v. McKinley , 5 Calif. 471 (1855). 
 
106 THE LAW OF SALES. 
 
 salable for every purpose for which, if perfect, it might 
 be used,^ also if it is salable in the market under its con- 
 tract name, although somewhat adulterated.^ 
 
 (c) Present, not Future, Mer charitableness. — The 
 seller's implied engagement for merchantableness does not 
 extend, as a rule, beyond the time of the appropriation of 
 the goods to the contract. Whether he has supplied the 
 articles agreed upon, depends upon their character and 
 condition when supplied. He does not undertake that 
 they shall continue merchantable.' Even if he agrees to 
 deliver them at a distance, he is not liable for such deteri- 
 oration as is necessaril3' incident to their transportation.^ 
 But when they are furnished for shipment, whether he pays 
 for their carriage or not, he impliedlj' engages that, they 
 are fit for such shipment.^ If the buyer insists upon hav- 
 ing the article prepared and delivered at a particular time, 
 he absolves the seller from liability for anj' unmerchant- 
 ableness due to the latter's compliance with the order.* 
 
 1 Hart V. Wright, 17 "Wend. 267 (1837) (flour fit for many pur- 
 poses but unsuitable for starch). Jones v. Padgett, 24 Q. B. D. 650 
 (1890). 
 
 2 Gosler u. Eagle Sugar Refineiy, 103 Mass. 331 (1869) (manila 
 sugar which contained four per cent of sand). 
 
 s Lord V. Edwards, 148 Mass. 476 ; 20 N". E. 161 (1889); EugUsh v. 
 Spokane Com. Co., 57 Fed. 451 (1893) (seller, in Omaha, contracted 
 to ship a car-load of strictly fresh eggs to buyer in Spokane Falls). 
 
 « Bull V. Robinson, 10 Exch. 342 (1864). 
 
 s Mann v. Evertson, 32 Ind. 355 (1869) ; Carleton f.Lombajd, 149 
 N. Y. 137 (1896). "The plaintiffs were not only entitled to the thing 
 described, but to that thing in such condition and so free from hidden 
 defects as to make it available to them as an article of commerce and 
 fit for transportation" (p. 150) (petroleum, improperly refined, which 
 corroded the cans in which it was placed by sellers for transportation 
 by buyer to India). 
 
 " Mattoon v. Rice, 102 Mass. 236 (1869) (a marketman ordered a 
 butcher to kill a good hog that night and deliver it the next morning, 
 although the butcher had notified him that the weather was unsuitable). 
 
seller's duties. — buyer's rights. 107 
 
 5. Engagement of the Vendor of Provisions. — In 
 most jurisdictions, the foregoing rules govern tiie sales 
 of provisions.^ If tiie purchaser selects the article, caveat 
 emptor applies.'' If he orders an article to be used as 
 food, the seller who undertakes to fill the order impliedly 
 engages that it is fit for that use.° 
 
 {a) Does he engage tJiat they are Wholesome ? — There 
 are some decisions, and many dicta, however, in this 
 country to the effect that, upon a sale of provisions for 
 immediate domestic use, the seller impliedly engages that 
 they are wholesome. These judicial utterances are based ^ 
 upon a statement by Blackstone that, " In contracts for 
 provisions, it is always implied that they are wholesome ; 
 and if they be not, the same remedy" (action for "dam- 
 ages for this deceit") "may be had." ^ But, as Mr. 
 Benjamin has pointed out, no authorities are cited for 
 this proposition, and " the notion of an implied warranty 
 in such cases appears to be an untenable inference from 
 the old statutes which "made " the sale of unsound food 
 punishable."^ Courts which still maintain this doctrine 
 
 1 Benjamin on Sales (Bennett's ed. 18^2), §§ 670-72, and pp. 647, 648. 
 '■' Burnby i;. Bollett, 16 M. & W. 644 (1847) ; Giroux v. Stedmau . 
 145 Mass. 439 ; 14 N. E. 538 (1888). 
 
 3 Smith .;. Baker, 40 L. T. (n. s.) 261 (1878). "In this case, if 
 the butcher had not gone and selected his meat, but had ordered it, 
 there would have been, no doubt, an implied warranty on the part of 
 the" dealer "that it was of merchantable quality" (p. 263). 
 
 4 Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468 (1815). The 
 seller knew that the beef was unsound and unwholesome, and did not 
 communicate the fact to the buyer. Fleet v. Hollenkemp, 13 B. Mon. 
 (Ky.) 219, 227 (1852) (action against druggists for damages caused 
 by negligently mingling cantharides with snake-root and Peruvian 
 bark, when filling a prescription for plaintiff). 
 
 ^ 3 Blackstone's Commentaries, p. 165. 
 
 ' Benjamin on Sales, supra. Goad v. Johnson, 6 Heisk. (Tenn.) 
 340 (1871). 
 
108 THE LAW OF SALES. 
 
 urge in its support tliat it is conducive '-to healtli and 
 personal safety."' In the case last cited it is said : -'And 
 where articles of food are bought for consumption, and the 
 vendor sells them for that express purpose, the conse- 
 quences of unsoundness are so dangerous to health and 
 life, and the failure of consideration is so complete, that 
 we think the rule, which has often been recognized, that 
 such sales are warranted, is not onl3' reasonable, but 
 essential to public safety-. ... It is safer to hold the 
 vendor to a strict accouutabilitj' than to, throw the risk 
 on the purchaser." This consideration does not apply 
 to sales of food for animals.^ 
 
 6. Quantitij as an Essential Term or Condition Pre- 
 cedent. — Quantity, as well as qualitj', may bean essential 
 term of the sale contract. When it is, the seller is bound 
 to furnish, not only the kind, but the amount of goods 
 agreed upon. If the contract is "for 250 barrels of 
 cement," the seller has a right to that amount, and can 
 reject the tender of a different quantity ; ' unless a larger 
 number is tendered to insure a full compliance with the 
 contract, and without any charge for the excess.* The 
 seller, who supplies and demands payment for a larger or 
 
 1 Hoover v. Peters, 18 Jlich. 51 (1Sd9). 
 
 2 Lukeiis V. Freiund, 27 Kans. 664, 670 (1882). 
 
 8 Downer v. Thompson, 2 Hill (a. Y.) 137 (1841) ; Barters. Kane, 
 17 Wis. 371 (1868). So if the contract is for " half a chest of French 
 plums, 2 hogsheads of raw sugar, and 100 lumps of white sugar,'' 
 Champion o. Short, 2 Camp. 53 (1807), or for "a pair of horses," 
 Hamilton v. Hart, 8 Sess. Cas. 1st Series, 596 (1830). 
 
 4 Downer ^. Thompson, 6 Hill (N. Y.), 208 (1843). " The excess 
 would hardly seem to be so large as to preclude a jury from inferring 
 that it was only added to make sure of having delivered enough, thei-e 
 being some doubt perhaps as to the manner in which the defendant 
 might wish the quantity determined, the article moreover being liable 
 to some loss by leakage, and the excess being of no very great value 
 as compared with the anticipated profit upon the whole." 
 
seller's duties. — buyer's rights. 109 
 
 smaller quantity than that agreed upon, attempts " to 
 change the subject of the contract."^ 
 
 (a) Effect of Such Words as '' About." — When a 
 specified quantit3' of goods is the subject of the contract, 
 the addition of such qualifying words as " about," " more 
 or less," and the like " is only for the purpose of provid- 
 ing against accidental variations arising from slight and 
 unimportant excesses or deficiencies in number, measure, 
 or weight." ^ Hence, a contract for " about 300 quarters, 
 more or less, of foreign rye," does not warrant the seller 
 in supphing 345 quarters ; * nor is one for " 23,000 feet 
 of lumber, more or less," performed by furnishing 16,000 
 feet.* In these cases, the deficiency or excess was so 
 great that people would not ordinarilj' consider it as in- 
 cluded in the qualifying words,^ and the court properly 
 held that the seller had not complied with his contract. 
 As a rule, however, it is a question for the jurj' whether 
 the permitted deviation has been exceeded.' 
 
 {I) An Estimated Quantity. — A specific quantity 
 may be named, however, riot to define the subject of the 
 contract, but as an estimate of the probable amount to be 
 
 1 Stevenson v. Burgin, 49 Pa. St. 36, 44 (186.5). 
 
 2 Brawley v. U. S. , 96 U. S. 168, 172 (1877). 
 
 8 Cross V. Elgin, 2 B. & Ad. 106 (1831). "The meaning probably 
 was, that if the quantity came to anything near that which had been 
 named, and there was a little excess, the plaintiffs would not incon- 
 venience the defendants by leaving it upon their bands" (p. 110). 
 
 4 Creighton v. Comstock, 27 Ohio St. 548 (1875). 
 
 " Morris v. Levison, 1 C. P. D. 155, 158 (1876). " I think the 
 direction to the jury has always been that the deviation must not be 
 very large. The difference must be such as people would ordinarily 
 consider as included in the word ' about.' There can be no exact rule 
 of law as to the percentage of difference allowed, but I have known 
 juries often allow in practice 3 per cent." Cabot v. Winsor, 1 Allen 
 (Mass.), 546 (1861). 
 
 6 Clapp V. Thayer, 112 Mass. 296 (1873). 
 
110 THE LAW OF SALES. 
 
 supplied. Such is the case where the parties agree upon 
 the purchase and sale of a particular lot of iron, estimated 
 bj' the buj-er "at about 150 tons," and bj-'the seller at 
 that "or more," but which contained only 44 tons;' or 
 of 880 cords of wood, more or less, as shall be determined 
 to be necessar}' by the post commander for the current 
 j'ear's supply for the garrison of his post ; ^ or of the 
 whole of the steel for the Forth Bridge, "the estimated 
 quantity to be 30,000 tons, more or less ; " ^ or of all the 
 steers and dry cows on the seller's range, and to be 
 acquired under certain contracts, estimated at 6,500 head, 
 more or less.* 
 
 In each instance the quantitj' is specified, not for the 
 purpose of making it an essential term of the contract, 
 but by way of stating what the parties " understood to 
 be the fact." ^ The substantial engagement, in the ab- 
 sence of fraudulent representations, is to supply the par- 
 ticular lot of iron, the year's supply of wood as determined 
 bj' the post commander, the whole of the steel for the 
 Forth Bridge, whatever the quantity, and all the steers 
 and drj' cows on the seller's range or acquired under the 
 described contracts, however numerous. 
 
 (c) Contract for a '•'•Cargo." — The quantity of goods 
 which the seller must supply under a contract for "a 
 cargo," generalh' depends upon the circumstances of each 
 case. If the parties use the term with reference to a par- 
 ticular ship, the subject of the contract is the quantity of 
 the described goods which that ship will safely carry ; ^ 
 unless a different intention is disclosed b}' other provisions 
 of the agreement." When no vessel is designated, and no 
 
 1 McLay v. Perry, 44 L. T. (n. s.) 152 (1881). 
 
 ' Brawley v. U. S ., supra. 
 
 8 Tarred n.'Steel Co., 15 App. Gas. 125, 135 (1890). 
 
 4 Morris v. Wibaux, 159 111. 627, 643, 644 (1896). 
 
 ' Pembroke Iron Co . v. Parsons, 5 Gray (Mass.), 589 (1856)._ 
 
 6 Bourne v. Seymour, 16 C. B. 337 ; 24 L. J. C. P. 207 (1855). 
 
seller's duties. — buyer's eights. Ill 
 
 reference is made to the size of the cargo, the seller is 
 probably bound to supply a full cargo by a vessel usually 
 engaged in transporting goods of the agreed kind over the 
 stipulated route. ^ Ordinarily, however, if no vessel is 
 designated, the agreement contains, in addition to the term 
 " cargo," some specification of quantitj-, as " a cargo of 
 barley of about nine thousand bushels." ^ It then becomes 
 necessary to decide whether the subject of the contract is 
 the entire load of the vessel by which the goods are in fact 
 shipped, or whether it is the quantity specified. 
 
 The English courts have generally construed contracts 
 of this kind to call for "the entire quantity of goods 
 loaded on board a vessel on freight for a particular voy- 
 age." ^ It is said, "There are various reasons why a 
 purchaser maj' wish to bu}' the whole quantity of goods 
 loaded on board a particular vessel. Such a contract 
 gives him the complete control of the vessel. It enables 
 him to select the port of discharge, to appoint the place in 
 the port at which the discharge is to take place, to be free 
 from the inconvenience of other persons' goods being un- 
 loaded at the same time with his own, and from the com- 
 petition arising from other persons' goods being readj' for 
 sale at the same place and at the same time with his." 
 It also saves him from danger of being "required to paj' 
 freight for the whole cargo, before he could obtain posses- 
 sion of what was his own." ^ 
 
 This view has been taken by our courts.* The head-note 
 to the case last cited is misleading. The court did not 
 hold that " a contract for the sale of a cargo of from seven 
 hundred to eight hundred tons of sugar to be shipped from 
 
 1 Flanagan v. Demorest, 3 EoM. (K Y.) 173, 181, 182 (1865). 
 
 2 Borrowman v. Drayton, 2 Exch. Div. 17, 19 (1876). 
 8 Kreuger v. Blanck, L. R. 5 Ex. 179, 184 (1870). 
 
 * Flanagan v. Demorest, supra; Standard Sugar Refinery v. Gas- 
 tano, 43 Fed. 279 (1890). 
 
112 THE LAW OP SALES. 
 
 a certain port is fulfilled by the delivery of only seven hun- 
 dred tons, though shipped from said port as part of a 
 cargo of eight hundred and forty-one tons," but that " as 
 the defendants might have performed their contract by 
 shipping a cargo of seven hundred tons, in assessing dam- 
 ages for a breach of the contract, they may select that 
 alternative which is least burdensome to them ; " and that, 
 as plaintiff received seven hundred tons at the contract- 
 price, although without prejudice to its right, if any, to 
 demand tlie deliverj' of the remainder of the cargo of eight 
 hundred and forty-one tons, plaintiff conld not recover any 
 damages. But the court expressly declares, " If the price 
 of sugar had fallen instead of advanced, the plaintiff might 
 have declined to receive any part of the cargo, on the 
 principle that a cargo means the entire load of the ship 
 which carries it ; and that a contract for a cargo of from 
 seven hundred to eight hundred tons is not performed if 
 more or less than that quantity is delivered." 
 
 7. Goods must not be mingled v:ith Others. — The 
 seller does not supply the agreed chattel when he tenders 
 an article answering the contract description so mixed 
 with other goods that the buj-er incurs the risk of being 
 charged with an acceptance of all, or is put to any difH- 
 culty in separating it, or is subjected to any liability for 
 the care of the other goods.' Nor does the seller improve 
 bis position by offering to pay the buyer for any trouble 
 or expense incurred in separating the goods which con- 
 form to the contract from the others." The buyer has a 
 right to stand upon the original contract, and is not bound 
 to make a new one. 
 
 1 Levyt>. Green, 28 L. J. Q. B. 319, 320 (1859); Tarlingf. O'Eiordan, 
 L. R. 2 Ir. 82, 87 (1878); Hoffmau v. King, 58 Wis. 314, 317 (1883). 
 " Tliere should be such an offer of delivery by one party that the other 
 party could intelligently accept or reject it, without anything required 
 to be done by him involving delay, labor, and expense." 
 
 2 Walker v. Davis, 65 N. H. 170 ; 18 At. 196 (1889). 
 
seller's duties. — buyer's rights. 113 
 
 (a) Modification of this Rule in many Jurisdictions. — 
 In jurisdictions which approve the doctrine of Kimberlj- v. 
 Patcbin/ the seller may satisfy his contract obligation by 
 furnishing the specified quantity of goods as a part of a 
 larger bulk of uniform kind and quality, where the act of 
 separation throws no additional burden on the buyer,* or 
 when the terms of the contract ^ or the prior dealings of 
 the parties * warrant this mode of performance. 
 
 8. Seller engages for Inspection hy Buyer. — Whether 
 the goods furnished by the seller are the goods agreed 
 upon is not determinable by him alone. If it were, he would 
 have it in his power to force upon the buyer goods without 
 the latter's consent. Clearly the sale contract gives the 
 seller no such right. On the other hand, it binds liim " to 
 do an act which he cannot completely perform without the 
 concurrence of the " buj-er ; ^ and it entitles the buyer to 
 reject the goods if they do not conform to the agreement." 
 This right cannot be exercised unless the buyer can inspect 
 the goods. Accordingl}-, in every case of sale bj' verbal 
 description or by sample, the seller impliedly engages that 
 the buyer shall have a reasonable opportunity to inspect 
 the goods, in order to discover whether thej' are the goods 
 agreed upon.'' The time within which inspection is to be 
 made, as well as the place of inspection, ma}' be expressly 
 agreed upon. In such cases the parties must abide by 
 their stipulations.* Whether a reasonable opportunity for 
 
 1 Kimberly v. Patchin, 19 K. Y. 330 (1859). 
 
 2 Brownfield v. Johnson, 128 Pa. St. 254 (1889). 
 
 3 Lockhart v. Bonsall, 77 Pa. St. 53 (1874) (five thousand barrels 
 of oil in bulk-cars to be pumped from cars by purchaser). 
 
 4 Iron Cliff Co. v. Buhl^2 Mich. 86 (1879). 
 
 6 Startup V. Macdonald, 6 Man. & 0. 593, 610 (1843). 
 6 Groetzinger's Sons v. Kann, 165 Pa. St. 578; 30 At. 1043 (1895). 
 ' Lorymer v. Smith, 1 B. & C. 1 (1822) ; Pope v. Allis, 115 U. S. 
 363; 6 Sup. Ct. 69 (1885). 
 
 8 Potter V. Lee, 94 Mich. 140 ; 53 N. "W. 1047 (1892). 
 
114 THE LAW OF SALES. 
 
 inspection has been afforded may depend upon custom.' 
 
 Ordinai'il}-, however, it is a question of fact " to be deter- 
 mined by the jury upon all the circumstances, including as 
 well the situation and liability of injury to the vendor from 
 dela}', as the convenience and necessities of the vendee."^ 
 (a) Place of Delivery is generally the Place of Inspec- 
 tion. — Although the place of inspection, in the absence 
 of special agreement or custom, is presumably the place 
 of delivery," yet the circumstances may show that such 
 place would be an unreasonable one,^ or that the parties 
 did not contemplate an inspection there. ^ " The ordering 
 of goods of a specific qualitj' by a distant purchaser of a 
 manufacturer or dealer, with directions to ship them by a 
 carrier, is one of the most frequent commercial transac- 
 tions. It would be a most embarrassing and inconvenient 
 rule, more injurious even to the dealer or manufacturer 
 than to purchasers, if delivery to the carrier was held 
 to conclude the party giving the order from rejecting 
 the goods on arrival, if found not to be of the quality 
 ordered." ^ 
 
 1 Sanders i,. Jackson, 2 C. & K. 557 (1848) (a custom of the 
 Liverpool corn-market that inspection must be made on the day of sale). 
 McLeunan v. McDermid, 52 Mich. 379 (1883) (customary place of in- 
 spection was St. Ignace and not place of delivery). 
 
 2 Pierson v. Crooks, 115 N. Y. 539, 551 (1889). 
 
 8 Brownlee v. Bolton, 44 Jlich. 218 (1880) (timber to be delivered 
 on rail of vessels to be furnished by buyer). Peikins v. Bell (1893), 1 
 Q. B. 193 (grain to be delivered by the grower at a designated railway 
 station, from which point it was to be shipped by the buyer to various 
 customers). 
 
 * Grimol.lby w. Wells, L. R, 10 C. P. 391, 395 (1875) (tares to be 
 sent part way in seller's cart and then transferred into buyer's cart by 
 latter's servant. Eeld, not reasonable to compel buyer to examine 
 them at half way of the journey). 
 
 » Pierson u. Crooks, 115 N. Y., at pp. 548, 549, 22 N. E. 349 
 (1889) (iron ordered by New York merchants from Liverpool dealers 
 through New York agents of latter, to be delivered free on board at 
 
seller's duties. — buyer's eights. 115 
 
 The circumstances may be such that no question of fact 
 for the jury is involved ; as where the goods are tendered 
 in closed casks/ or at an hour which is unquestionably 
 seasonable,'' or as clearly unseasonable.^ 
 
 (b) Reasonable Opportunity of Inspection. — While 
 the seller is bound to afford a reasonable opportunity for 
 inspection, he is under no duty to do more. Upon the 
 sale of a ship which is afloat, the seller is not bound to 
 place the vessel in a dry dock in order that the buyer 
 can there examine her.'' 
 
 (c) Inspection may necessitate Uxe of Property. ■ — In 
 some cases a reasonable inspection of the goods necessi- 
 tates such a dealing with them as would ordinarily indi- 
 cate a final acceptance, as where lumber is sent in box 
 cars, and an examination cannot be made without unload- 
 ing, measuring, and pihng it.' Reasonable inspection 
 maj^ extend even to the destruction of a portion of the 
 goods. If the buyer cannot determine whether an article 
 is " the best commercial whiting," without using a portion 
 of it, he has the right to use " so much thereof as, under 
 all the circumstances, may become actually necessarj- for 
 that purpose without liability for its value." ^ 
 
 "When the buyer, however, can determine the non-con- 
 formity of the goods to the contract, without consuming 
 any of them, his use of a portion, even for the purpose 
 of providing evidence of unfitness, is in excess of his 
 
 Liverpool, but sliipped on steamers selected by sellers, and no notice 
 given of shipment in time to enable buyers to inspect in Liverpool). 
 
 1 Isherwood v. Whitmore, 11 M. & "W. 347 (1843). 
 
 '' Startup V. Macdonald, supra. 
 
 ' Croninger v. Crocker, 62 N. Y. 151 (1875). 
 
 * Lincoln «. Gallaghe r, 79 Me. 189 ; 8 At. 883 (1887). 
 
 6 Holmes V. Gregg, 28 At. 17 ; 66 W. H. 621 (1890). 
 
 6 Whiting Co. ^. White Lead Works, 58 Mich. 29, 36 ; 24 N. W, 
 881 (1885). 
 
116 THE LAW OF SALES. 
 
 right of inspection, and will preclude him from rejecting 
 them.^ 
 
 {d) Transfer of Title may precede Inspection. — 
 While the seller's engagement to afford the buyer a rea- 
 sonable opportunitj' for inspection is a condition precedent 
 to the transfer of title, ordinarily, the circumstances of the 
 case vaa,y show that it is not to have such effect. If the 
 transaction is one of " sale or return," — that is, a present 
 sale with an option in the buyer to return the goods if upon 
 inspection they do not conform to the contract stipula- 
 tions, — the seller's engagement can operate only as a 
 condition subsequent. 
 
 (e) Example of Sale or Return. — In a recent Iowa 
 case,^ the court was called upon to determine whether or 
 not an express stipulation by the seller that the buyer 
 might inspect certain liquors, after their receipt, and return 
 tliem if they were not as represented, operated to prevent 
 the transfer of title until inspection could be made. This 
 was dealt with as " wholly a question of intention, to be 
 arrived at from the contract and the acts and conduct of 
 the parties.'' After considering the terms of the contract 
 and the acts of the parties thereunder, the court declared: 
 " We are satisfied from the fact that the drayman, who 
 must be considered as plaintiffs' (buyers') agent, paid the 
 freight on these liquors, took them from the carrier and 
 delivered them to plaintiffs, and from the further fact that 
 the plaintiffs credited defendants with the liquors as soon 
 as they received the bills for them, which was in advance 
 of the delivery of the goods, with the understanding that 
 the}' were to have credit for such as might be returned, 
 that both parties intended title to pass when the goods were 
 
 1 Cream City Glass Co. v. Friedlander, 84 Wis. 53 ; 54 N. W. 28 
 (1893). 
 
 2 Wind V. Her & Co., 61 N". W. 1001 ; 27 L. R. A. 219 ; la. 
 (1895). 
 
seller's duties. — buyer's rights. 117 
 
 delivered to the railroad companj- at Omaha, Neb., for 
 transportation to Ottumwa; and that the sale was not one 
 on trial or on approval, or if satisfaetorj' to plaintiffs, but 
 rather a completed sale, with an option in plaintiffs to 
 return them if they did not meet the test plaintiffs pro- 
 posed to give them." 
 
 (/) Conditional Title before Inspection. — There is 
 authorit}' for the proposition that, whenever the bu3-er 
 authorizes the seller to appropriate goods to the contract, 
 title may pass conditionally at the time of their appropria- 
 tion, although the buyer has the right of inspection upon 
 their receipt, and is entitled to reject them if they do not 
 conform to the contract. The following extract from a 
 recent New York decision fairly presents this view : " It is 
 said that on the delivery of the iron on shipboard at Liver- 
 pool the title vested in the plaintiffs, and that the vesting 
 of the title in the vendees implies an acceptance, and is 
 inconsistent with the alleged right of inspection and rejec- 
 tion on its arrival in New York. There can be no doubt 
 that on delivery- to the carrier of iron corresponding with 
 the contract the title would immediatel3' vest in the pur- 
 chasers, and the iron would thereafter be at their risk. 
 Nor is there any doubt of the general rule that delivery of 
 goods corresponding with the contract is a condition prece- 
 dent to the vesting of the title in the vendee. But assum- 
 ing that the title to the iron for some purposes vested in 
 the plaintiffs on delivery to the steamers, it was, as between 
 the vendors and vendees, a conditional title subject to the 
 right of inspection and rejection for inferior quality on 
 arrival at New York. The circumstances strongly con- 
 firm the view that the parties did not contemplate that the 
 right of inspection should be exercised at Liverpool." ^ 
 
 1 Piersjon v. Crooks, 115 N. Y. 539, 548 (1889); cf. Alden v. Hart, 
 161 Mass. 576 ; 37 N. E. 742 (1894). Campbell on Sales (2d ed.), 516. 
 
118 THE LAW OF SALES. 
 
 ((/) Absolute Title before Inspection. — The parties 
 maj' agree that title shall pass absolutelj' before inspec- 
 tion. If they do so agree, the seller's engagement for 
 inspection cannot have the effect of a condition precedent, 
 suspending the vesting of title in the buyer ; nor of a con- 
 dition subsequent, warranting him in revesting title in the 
 seller ; but it can operate only as a collateral agreement, 
 enabling the buyer to ascertain what damages he has suf- 
 fered " in consequence of the inferiority of the goods." ^ 
 
 Mr. Benjamin's criticism of Heyioorth v. Hutchinson is 
 based upon a strange misconception of the case. He sa3-s 
 it compelled the buyer " to accept the goods, although the 
 propert}' had not passed to him, although he had not had 
 an opportunitj' of inspection before purchase, and although 
 the goods were much inferior in qualitj' to the warranty in 
 the written contract."^ But all of the judges based their 
 opinions upon the fact that the agreement was a bargain 
 and sale. It was assumed that the propertj- passed by 
 force of the contract ; and the only question was whether 
 there was anything in the writing importing a condition 
 that the buyer might reject the goods if not about similar 
 to samples. Their unanimous conclusion was that the 
 writing contained "merely a warranty as distinguished 
 from a condition." 
 
 § 4. Warranties. 
 
 Many of the foregoing conditions are frequently called 
 warranties ; but the latter term is properh* confined to 
 those engagements of the seller which are collateral to 
 the main purpose of the sale contract.' It was defined 
 
 1 Heyworth v. Hutchinson, L. R. 2 Q. B. 447, 451 (1867) ; ^ 
 Anthon y Lumbe r Co^'i). Bardwell Co ., 60 Minn. 199 ; 62 N. W. 274 
 (189S). 
 
 ^ Benjamin on Sales (Bennett's ed. 1892), § 889. 
 
 3 Down V. Fisher, 1 Cush. (Mass.) 271, 273, 274 (1848) ; Fairbank 
 Canning Co. v. Jletzger, 118 N. Y. 260, 265. "All contracts of Sale 
 
■ buyer's kights. 119 
 
 by Chief Justice Shaw in these words : " A warranty is a 
 separate, independent, collateral stipulation, on the part 
 of the vendor, with the vendee, for which the sale is the 
 consideration, for the existence or truth of some fact 
 relating to the thing sold. It is not strictly a condition, 
 for it neither suspends nor defeats the completion of the 
 sale, the vesting of the thing sold in the vendee, nor the 
 right to the purchase-money in the vendor. And, not- 
 withstanding such warranty, or any breach of It, the 
 vendee may hold the goods, and have a remedy for his 
 damages by action." 
 
 Whether a particular engagement of the seller is an 
 essential term of the sale contract, and hence a condi- 
 tion, or is collateral to its main purpose of transferring 
 the title and possession of a chattel, and, therefore, a 
 warrant}-, depends upon the intention of the parties as 
 disclosed by the language of the contract and the attend- 
 ant circumstances. It is perfectly competent to the par- 
 ties to agree that any stipulation in the sale contract shall 
 form one of its essential terms. When this agreement is 
 explicit, the task of the courts is easy ; but when no 
 express agreement upon this point appears, they are com- 
 pelled to determine from the entire transaction ' ' whether 
 the particular stipulation goes to the root of the matter, 
 so that a failure to perform it would render the perform- 
 ance of the rest of the contract by the ' promisor' a thing 
 different in substance from what the" promisee "has 
 stipulated for ; or whether it merely partially affects it, 
 and may be compensated for in damages."^ 
 
 with, warranty, therefore, must contain two independent stipulations : 
 First, an agreement for the transfer of title and possession from the 
 vendor to the vendee. Second, a further agreement that the subject of 
 the sale has certain qualities and conditions." 
 
 1 Bettini v. Gye, 1 Q. B. D. 183, 188 (1876), applying the rule 
 stated by Parke, B., in Graves v. Legg, 9 Ex. at p. 716 (1854), where 
 
120 THE LAW OF SALES. 
 
 The earlier cases on this subject were decided upon 
 distinctions so nice and technical that no rule was de- 
 ducible from them.^ Later, attempts were made to lay 
 down definite rules for discovering whether the parties 
 intended a stipulation to be a condition or a warranty ; ''■ 
 but, being more or less artificial, thej' did not meet with 
 general acceptance. In this country the courts have 
 declared that in determining the question now under 
 discussion, they "are to be governed, not bj* technical 
 and artificial rules, but by the true intention of the parties 
 as expressed by the language of the contract." ^ This 
 doctrine has received legislative approval in Great 
 Britain.'' 
 
 (a) Express Warranties. 
 
 It is not necessary that the word " warranty " be used.^ 
 Any statement of fact by the seller upon which the buyer 
 rightfully relies as a material inducement to his entering 
 into the sale contract, if not one of its essential terms, is a 
 warrant^'. 
 
 it was held that a stipulation that "the names of the vessels to be 
 declared as soon as the wools were shipped " was a condition or essential 
 term of the contract for the sale of the wools. 
 
 1 Pordage v. Cole, 1 Saund. 319, note 2 (ed. 1871, p. 549), 
 
 2 Benjamin on Sales (ed. 1892), § 562 (a modified statement of 
 the rules in the note to Pordage v. Cole, supra). 
 
 8 Howland u. Leach, 11 Pick. (28 Mass.) 151, 154 (1831) ; Mary- 
 land Co. V. Lorentz, 44 Md. 218, 232 (1875). "Our duty is to 
 construe the contract in evidence by the standard of intention 
 apparent on its face." 
 
 ' Brown's Sale of Goods Act, 49, 50. See the editor's criticism of 
 the English rules of construction aud the reasons assigned for not 
 incorporating them in the statute. It is expressly declared in § 11 
 (1), (b): " A stipulation may be a condition, though called a warranty 
 in the contract." 
 
 6 Chapman u. Murch, 1 9 John. 290 (1822) ; Eiddle o. "Webb, 13 
 So. 323; 110 Ala. 599 (1895). 
 
seller's duties. — buyer's rights. 121 
 
 1. Fact versus Opinion and Commendation. — A rep- 
 resentatioQ by the seller that certain tobacco which he 
 offered to the buj-er was " first and second rate," ^ or that 
 a railroad bond was "A No. 1,"^ has been deemed an 
 expression of opinion, rather than the assertion of a fact. 
 Such puffing statements are to be distrusted by the buyer. 
 This rule of law, it is said, is hardly "to be regretted, 
 when it is considered how easily and insensibly words of 
 expectation are converted by an interested memory into 
 statements of quality and value when the expectation 
 has been disappointed." ^ The declarations by the seller 
 that certain sheep would shear from three to nine pounds 
 a head, and that the buyer could pay for the sheep b^- 
 their wool in two j-ears, and have wool left, are matters 
 of opinion,^ but an assertion that the sheep are young and 
 healthy is one of fact.'' Generally, a seller's statements 
 as to the value of his goods are treated as expressions 
 of opinion ; but if he declares that thej' are selling in 
 market at a named price, or that they are the onl}- 
 articles of their kind which can be bought for that price, 
 the buyer may rely on such declarations as statements of 
 fact.* 
 
 2. Intention of Seller. — Whether the seller's statement 
 of fact amounts to a warranty depends not on his undis- 
 closed thought, but upon the impression which his conduct 
 is " calculated to produce upon the mind of the vendee." ^ 
 
 1 Towell V. Gatewood, 3 111. 22 (1839) ; cf. Hobartw. Young, 63 Vt. 
 363 ; 21 At. 612 (1891). 
 
 2 Deming v. Darling, 148 Mass. 504, 506 ; 20 N. E. 107 (1889). 
 
 3 Bryant v. Crosby, 40 Me. 9, 18 (1855). That a young and unti-ied 
 stallion will " make his mark as a foal-getter," is a matter of opinion 
 and prediction. Eoherts v. Applegate, 153 111. 210 ; 36 N. E. 676 
 (1894) ; tut the assertion that a stallion is a reasonable foal-getter is 
 one of fact. Eyers v. Haddem, 70 Fed. 648 (1895). 
 
 4 Peck V. Jenison, 99 Mich. 326; 58 N". W. 312 (1894). 
 i Hawkins v. Pemberton, 51 N. Y. 198, 202 (1872). 
 
122 THE LAW OP SALES. 
 
 "If the contract be in writing and it contains a clear 
 warrantj', the vendor will not be permitted to say that he 
 did not intend what his language clearlj' and explicitly 
 declares ; and so if it be by parol, and the representation 
 as to character or quality of the article sold be positive, 
 not mere matter of opinion or judgment, and the vendee 
 understands it as a warrant}', and he relies upon it and is 
 induced by it, the vendor is bound bj' the warranty, no 
 matter whether he intended it to be a warranty or not." 
 Such, at least, is the prevailing view, and the only one to 
 be supported upon principle.' 
 
 (a) Peculiar Views. — In a few jurisdictions a different 
 doctrine prevails. The Indiana courts hold that a mere 
 affirmation of soundness '• is not per se a warranty. It is 
 itself only a representation. To give it the effect of a 
 warrant}', there must be evidence to show that the parties 
 intended it to have that eflfect." ^ 
 
 In a leading Penns^'lvania case, it is said, "The naked 
 averment of a fact is neither a warranty itself nor evidence 
 of it. In connection with other circumstances it certainly 
 may be taken into consideration ; but the jury must be 
 satisfied from the whole that the vendor actually, and not 
 constructively, consented to be bound for the truth of his 
 representation."^ Judge Gibson deemed this view the 
 only one consistent with the doctrine of caveat emptor. 
 Later cases in that State have approved it, because it dis- 
 courages those who are disappoiuted in the advantages 
 
 1 Anson on Contracts, Huffcut's ed. p. 169, *p. 137. 
 
 2 House u. Fort, 4 Blackford, 293, 296 (1837). In this case, the 
 buyer asked as to the horse's eyes, and the seller said, "They are as 
 good as any horse's eyes in the world." Of. Kircher v. Conrad, 9 
 Mont. 191 (1890) (buyer asked for spring wheat, and when the wheat 
 was shown to him said, " Are you sure it is spring wheat ? " and the 
 seller replied, " What do you take me for ? " Held, not a warranty). 
 
 8 McFarland v. Kewman, 9 Watts, 65 (1839). 
 
seller's duties. — buyer's rights. 123 
 
 expected from a bargain from drowning their " sorrows in 
 the excitement of an action at law." ^ 
 
 According to Vermont decisions, " to constitute a rep- 
 resentation a warranty, it must have been so intended 
 and understood by the parties, botli vendor and vendee ; 
 or intended by the parties as a part of the contract ; or 
 have formed the basis of the contract." '^ 
 
 3. May include Patent Defects. — Words of general 
 warranty will not be construed, as a rule, to cover defects 
 whicli are obvious to the buyer, in the sale of specific 
 chattels. Hence, a warranty of soundness does not ex- 
 tend to a bunch on a horse's leg which was seen by the 
 purchaser ; ^ but it does cover crooljed joints and lameness,* 
 or foot-rot,^ when the buyer does not in fact inspect the 
 animals and relies on the seller's representation, although 
 he has an opportunity of inspection. " But the warranty 
 may be so expressed as to protect the buyer against the 
 consequences growing out of a patent defect ; " ^ as where 
 the seller warrants sheep to be free from foot-rot, although 
 the buyer has discovered, as he believes, that they have 
 that disease ; ' or the seller guarantees that the enlarge- 
 ment of a stallion's bag "in no way troubles him,"* or 
 that " the small puff on the inside left hock joint will all 
 disappear entirely." ' If, however, the warrant}' stipulates 
 
 1 WetheriU v. Neilson, 20 Pa. 448, 453 (1853) ; Mahaffey v. 
 Ferguson, 156 Pa. 156, 170 ; 27 At. 21 (1893). In the earlier of 
 these caSKS, the seller's statement that certain soda-ash then afloat 
 was of 48 degrees strength, English test, was held to be a representa- 
 tion and not a warranty. 
 
 2 Enger v. Dawley, 62 Vt. 164, 165 ; 19 At. 478 (1890). 
 8 Leavitt v. Fletcher, 60 N. H. 182 (1880). 
 
 1 Kenner v. Harding, 85 111. 264, 269 (1877). 
 
 6 First Nat. Bank v. Grindstaff, 45 Ind. 158 (1873). 
 
 " Benjamin on Sales (Bennett's ed., 1893), § 616. 
 
 ' Pinney v. Andrus, 41 Vt. 631, 641 (1869). 
 
 8 Watson t>. Roode, 30 Neb. 264, 276 ; 46 N. W. 491 (1890). 
 
 8 Fitzgerald v. Evans, 49 Minn. 541 ; 62 N. W. 143 (1892). 
 
12-1 THE LAW OF SALES. 
 
 for something which " is physically impossible, and this is 
 so obvious or notorious as to have been presumably in the 
 contemplation of both parties," it is void.' 
 
 4. The Warranty need not he the Sole Inducement to 
 the Purchase. — It is enough that it "entered into the 
 contract as an intended element thereof, and as a part of 
 the consideration for the purchase." ^ But some degree of 
 reliance must be placed on it.* Even a statement of fact 
 by the seller as to the quality of the article sold, which 
 does not operate at all as an inducement to the purchaser, 
 does not amount to an actionable warranty. If the war- 
 rant}' is given after the sale of the article, it must have a 
 new consideration.* 
 
 5. May extend to the Future. — Although Blackstone 
 understood that a warranty is limited to the state of things 
 existing when the contract is made,^ and although a war- 
 ranty of the quality of chattels is ordinarily confined to 
 their then condition,^ there is no reason why the seller 
 may not engage for the future condition of an article ; and 
 undertakings of this kind are frequently entered into.' 
 Sometimes these are so qualified as to diminish the liability 
 of the seller ; as where he warrants for a limited period ' 
 
 1 Campbell on Sales (2d ed. ), 430 ; cf. McCormick v. Kelly, 28 
 Minn. 135 (1881). 
 
 2 Sherdon v. Kyler, 87 Ind. 38, 41, 42 (1882). 
 
 8 Harrington y. Smith, 138 Mass. 92, 98 (1884); Deyot). Hammond, 
 102 Mich. 122 ; 60 N. "W. 455 (1894). 
 
 ' Cady V. Walker, 62 Mich. 157 ; 28 N. W. 805 (1886) ; White v. 
 Oakes, 88 Me. 367, 374; 34 At. 175 (1896). 
 
 6 3 Bl. Com. 166. 
 
 « Bowman v. Clemmer, 50 Ind. 10, 14 (1875) ; Lord v. Edwards, 
 148 Mass. 476 (1889). 
 
 ' Osborn v. Nicholson, 13 Wall. (U. S.) 654 (1871) (warranty that 
 a negro is "to be a slave for life"). Snow c. Schomacker Manuf. Co., 
 69 Ala. Ill (1881) (" every piano warranted for five years"). 
 
 8 Chapman v. Gwyther, L. E. 1 Q. B. 463 (1866). 
 
seller's duties. — buyer's eights. 125 
 
 or stipulates that the buyer shall examine and approve the 
 goods before they are taken from his premises.^ 
 
 6. Province of Court and of Jury. — If the contract is 
 oral, and the language used by the parties is in dispute or 
 of doubtful significance, a proper question for the jury is 
 presented.^ When the facts are undisputed and the lan- 
 guage is unequivocal,^ as well as when the contract is in 
 writing/ it is the duty of the court to declare whether a 
 warranty exists. 
 
 7. Oral Warranty cannot be added to a Written Con- 
 tract. — If the contract is reduced to writing, that in- 
 strument, in the absence of fraud or mutual mistake,' 
 determines the rights of the parties ; " nothing which is 
 not found in the writing can be considered as a part of the 
 contract." ° But " where the whole matter passes in parol, 
 all that passes may sometimes be taken together as form- 
 ing parcel of the contract, though not always, because 
 matter talked of at the commencement of a bargain may 
 be excluded by the language used at the termination." ° 
 If the writing in which the sale is referred to is a receipt, 
 a mere bill of parcels, or other informal document not in- 
 
 i Leitch V. Gillette Co., 67 N. "W. 352 ; Minn. (1896). 
 
 2 Halliday t>. Bviggs, 15 Neb. 219, 221; 18 N. W. 55 (1883). 
 
 » Holmes v. Tyson, 147 Pa. St. 305 ; 23 At. 564 (1892). But see 
 Jones t). Quick, 28 Ind. 125-127 (1867), holding that where the language 
 used is not a warranty in terms, whether it was intended as a warranty, 
 " is a question of fact for the jury and not of law for the court." In 
 Lynch v. Curfnan, 68 N. W. 5 ; Minn. (1896), the seller, after 
 making statements which might have amounted to a warranty of qual- 
 ity, upon being asked to warrant, refused to do so. The evidence being 
 undisputed, the court held that there was no question for the jury. 
 
 4 Scott Lumber Co. v. Hafner Co., 91 "Wis. 667 ; 65 N. W. 513 
 (1895); Watson v. Beckett, 2 Eans. App. 232 (1896). 
 
 6 Aultman v. Falkum, ^1 Minn. 562 ; 53 N. W. 875 (1892). 
 
 8 Kain v. Old, 2 B. & C. 627, 634 (1824) ; Eodgers v. Perrault, 41 
 Eans. 385; 21 Pac. 287 (1889); Hobart v. Young, 21 At. 612; 12 
 L. E. A. 693; 63 Vt. 363 (1891). 
 
126 THE LAW OF SALES. 
 
 tended by the parties " to be a complete and final state- 
 ment of the whole of the transaction," '■ it does not preclude 
 evidence of an oral warranty.^ Nor does a formal written 
 contract preclude evidence of an implied condition or war- 
 ranty annexed to it by the usage of trade/ nor does an 
 express warrant^' in such contract negative an implied one 
 unless inconsistent therewith.* 
 
 (b) Implied 'Warranties. 
 
 All of the seller's engagements, which were formerly 
 called implied warranties in England, and which are still 
 called by that name in this countrj', have been considered 
 under the head of conditions.^ 
 
 § 5. Buyer's Rights upon Breach of Seller's Engagement. 
 
 1 . Against the Seller. — In case the seller fails to per- 
 form any essential term of the sale contract, the buyer 
 may reject the goods and recover such damages " as he has 
 sustained by the seller's breach. Nor is this right of re- 
 jection subject to any duty on the buyer's part to return 
 
 1 Seitz V. Brewers' Co., 12 Sup. C. K. 46; 141 U. S. 510, 517. 
 
 2 Cases in the last two notes. 
 
 > Sale of Goods Act, § 14 (3) ; cf. Robinson v. United States, 13 
 Wall. (U. S.) 363 (1871). 
 
 « Sale of Goods Act, § 14 (4); AVilcox v. Owens, 64 Ga. 601 (1880). 
 A written warranty of analysis of guano does not negative an implied 
 warranty of its fitness for known use. B kickmore v. Fairbanks, 79 la. 
 282, 288-290 ; 44 N. W. 548 (1890) ; Carleton v. Lombard, 149 N. Y. 
 137 (1896). Nor is Case Plow Works v. Niles, 90 Wis. 590, 604, 605 ; 
 63 N. W. 1013 (1895), opposed to this view. 
 
 s The only obligations of the seller which are termed implied war- 
 ranties in the English Sale of Goods Act are those for quiet possession 
 and freedom from encumbrance. § 12. These were discussed in con- 
 nection with the implied condition as to title. Supra. 
 
 6 Anson on Contracts (Hufifcut's ed.), p. 368 ; Taylor v. Saxe, 134 
 K. Y. 67 ; 31 K. E. 258 (1892). 
 
seller's duties. — buyer's eights. 127 
 
 the goods. ^ "It would be very hard if it were so. By 
 the supposition the vendor has not complied with his con- 
 tract, and has sent goods which as against the purchaser 
 he had no right to send. Why should he be entitled to 
 impose upon the purchaser, who never bargained for such 
 goods, and who had a right to reject them, the burden of 
 sending them back, possibly for a considerable distance at 
 a considerable expense 1" '^ 
 
 (a) Prompt Action required. — When the buyer wishes 
 to exercise the right of rejection, he should act promptly 
 and unequivocally.^ If he retains the property for an un- 
 reasonable length of time, without objection, or if, while 
 complaining that it does not conform to the contract, he 
 exercises a dominion over it inconsistent with ownership 
 in the seller, he will be held to have accepted it* Whether 
 the buyer's retention and use of the property amount to 
 an acceptance is a question of fact, and at times a difficult 
 question,^ depending in part upon the conduct of the seller,^ 
 or upon trade usages." 
 
 (6) Effect of Acceptance. — As soon as the goods are 
 accepted, the title passes to the buyer, and he cannot 
 thereafter revest title in the seller without the hitter's con- 
 sent.' If they are accepted " in full discharge of the 
 contract," the buyer's rights are satisfied and he cannot 
 thereafter sustain a claim for damages ; ^ but in England, 
 
 1 Starr v. Torrey, 22 N. J. L. 190, 196 (1849). 
 
 2 Grimaldby ». Wells, L. B. 10 C. P. 388, 394 (1875) ; Alden v. 
 Clark, 161 Mass. 576, 582 ; 37 N. E. 742 (1894). 
 
 i Rosenfield v. Swenson, 45 Minn. 190 ; 47 N. W. 718 (1391). 
 
 4 Brown v. Foster, 108 N. Y. 387, 391 (1888). 
 
 5 C. & C. Electric Co. ». D. Frisbie Co., 66 Conn. 67, 88-91; 33 At. 
 604 (1895). 
 
 ^ Doane v. Dunham, 79 111. 131 (1875) (usage among Chicago 
 wholesale sugar-dealers). 
 
 ' Sale of Goods Act, § 53 (1). 
 
 8 Underwood v. ■Wol£..131 111. 425, 442 ; 23 N. E. 598 (1890). 
 
128 THE LAW OP SALES. 
 
 and in most of our jurisdictions, he may accept goods which 
 do not conform to the contract, thereby becoming their 
 owner, and precluding himself from subsequently rejecting 
 them, and yet retain his right to damages for their non- 
 compliance with the contract. 
 
 The prevailing view is presented in a recent decision as 
 follows: " The fact of acceptance, however, as a matter 
 of evidence, maj^ have great weight on the question of 
 satisfactorj' or suflflcient performance. In the first place, 
 it raises considerable presumption that the article delivered 
 actually corresponded with tlie agreement. In the next 
 place, it is some evidence of a waiver of any defect of 
 quality, even if the article did not so correspond, evidence 
 of more or less force according to the circumstances of 
 the case. If the goods be accepted without objection 
 at the time, or withiu a reasonable time afterwards, the 
 evidence of waiver, unless explained, might be considered 
 conclusive. But if, on the other hand, objection is made 
 at the time, and the vendor notified of the defects, and the 
 defects are material, the inference of waiver would be alto- 
 gether repelled. But acceptance accompanied bj- silence 
 is not necessarih' a waiver. The law permits explanation, 
 and seeks to know the circumstances which induced ac- 
 ceptance. It might be that the buyer was not competent 
 to act upon his own judgment, or had no opportunity to 
 do so, or declined to do so, as a matter of expediencj', 
 placing his dependence mainly, as he has a right to do, 
 upon the" engagement " of the seller. Upon this question 
 the facts are generally for the jury under the direction of 
 the court." ^ 
 
 (c) A DIjferent Yiew of the Effect of Acceptance. — 
 According to this view the buj'er, by taking title to the 
 property, may transform a promissory condition into a 
 
 1 Morse v. MnorP, 83 Me. 473, 481 ; 22 At. 362 (1891) ; I jorthwestem 
 Cordage Co. v. Rice, 67 N. W. 298 ; N. D. (1896). 
 
seller's duties. — buyer's rights. 129 
 
 warranty.^ In some jurisdictions, however, no such elec- 
 tion is accorded to the bu^-er. If the seller's engagement 
 as to the quality of the article is a condition, — that is, an 
 essential term of the sale contract, and not a mere war- 
 ranty or collateral agreement, — the purchaser by accepting 
 the article deprives himself " of any right to make com- 
 plaint of its inferior quality," provided its defects were 
 known to the purchaser, or could have been discovered 
 upon a reasonable inspection.^ The right is not lost, how- 
 ever, in case the defects "are such as would not appear 
 upon an inspection to ascertain whether the article deliv- 
 ered corresponded with that described in the contract." ' 
 
 (d) This View leads to Arbitrary Distinctions. — The 
 courts which deny that a right to damages can survive the 
 buyer's acceptance of goods which do not conform to the 
 seller's description, find it necessarj' to resort to rather 
 arbitrary distinctions. For example, the seller's engage- 
 ment to furnish " No. 1 extra foundry pig-iron of the 
 Coplay Iron Co. (Limited) make," although that language 
 is descriptive of " a grade of pig-iron of certain well-known 
 quality in the market," is treated as a condition that does 
 not survive acceptance of the goods by the purchaser ; * 
 while his engagement to furnish " Powelton coal of same 
 quality and kind as furnished you during the past j'ear " 
 is held to be a warranty and to survive acceptance.^ 
 
 1 Anson on Contracts (Huffcut's ed.), 183 ; Sale of Goods Aot, § 11 
 (1) (a) ; Wolcott v. Mount, 36 N. J. L. 262, 267 (1873). 
 
 2 Caplay Iron Co . v. Pope. 10 8 N. Y. 232, 236 ; 15 N. E. 335 (1888); 
 Parks I'. O'Connor, 70 Tex. 377, 390 (1888) ; McClure v. Jefferson, 85 
 Wis. 208 ; 54 N. "W. 777 (1893) ; Talbot PaYing C o. u. Gorman^ 103 
 Mich. 403 ; 61 IT. W. 655 (1894). 
 
 8 Carleton u. Lombard, 149 N. Y. 137, 153 ; 43 N. E. 422 (1896); 
 Biermanu. City Mills Co., 151 N. Y. 482 ; 45 N. E. 856 (1897). 
 
 4 Coplay Iron Co. v. Pope, 108 N. Y. 232 ; 15 K E. 335 (1888). 
 
 ' Zabriskie w. Cent. Vt. Ry., 131 N. Y. 72 ; 29 N. E. 1006 (1892). 
 Compare Gavlord Mnfj^. Cp . v. kWep. 53 N. Y. 515, with Fairbank Co, 
 u.^JIetzger, 118 N. Y. 260. "' 
 
130 THE LAW OF SALES. 
 
 (e) Effect of Acceptance (1) when Contract is Entire ; 
 (2) vihen it is /Severable. — If the contract is entire,' the 
 buyer cannot accept a part and reject the remainder of the 
 goods in the absence of an agreement to that effect. By 
 receiving and retaining a portion he transforms the condi- 
 tion into a warrant^', and limits himself to a claim for 
 damages.^ In case the contract is severable, however, the 
 buyer may accept any class of the goods without affecting 
 his right to reject other classes.' Whether a particular 
 contract is entire or severable depends upon the intention 
 of the parties as disclosed by all of the facts of the case.* 
 
 2. Against Third Parties. — The rights of the buyer 
 against third parties, who have obtained possession of the 
 goods as a result of the seller's breach of an essential term 
 of his sale contract, depend upon the question whether 
 such breach has prevented title vesting in the buyer. We 
 have seen that the seller's engagement to furnish the agreed 
 article, and also his engagement to afford a reasonable 
 opportunity for inspection, are conditions precedent to his 
 transfer of title to the buyer. Until title has vested in the 
 buyer, the seller has the power to transfer it to a third 
 person who can hold the property to the exclusion of the 
 first contractee ; although by so doing the seller subjects 
 himself to damages for a breach of his contract.* 
 
 1 Cahen v. Piatt, 69 N. Y. 348 {1877) (contract for the sale of 
 10,000 boxes of glass of approved standard qualities). 
 
 2 Sale of Goods Act, § 11 (1) (c). Lyon v. Bertram, 20 How. (U. S.) 
 149, 154, 155 (1857). ~ ~" 
 
 » Pierson v. Crooks, 115 N. Y. 539, 554, 555 (1889) (contract for a 
 specified quantity of iron hoops at a fixed price and a designated quan- 
 tity of iron sheets at a difierent price). Potsdamer v. Kruse, 57 Minn. 
 193 ; 58 N. W. 983 (1894) (contract for ten different styles of neck- 
 ties, the quantity, description, and price of each style being separately 
 specified). 
 
 * Cases in the last three notes and Young v. Wakefield, 121 Mass. 
 91 (1876). 
 
 5 Garbarron v. Kreeft. L. R. 10 Exch. 274 (1875) ; Emery's Sons ». 
 Irving Nat. Bk., 25 Ohio St. 360 (1874). 
 
seller's duties. — buybb's eights. 131 
 
 On the other hand, as soon as title has vested in the 
 buyer, by his acceptance of the property, even though he 
 might have rejected it because of the seller's breach of a 
 condition precedent, the seller's power, as a rule, to confer 
 rights upon third persons has ceased. Neither such third 
 persons nor the seller can thereafter set up the latter's 
 breach of a condition precedent as against the buyer.' 
 
 In the Colorado case, cited in the last note, the vendor 
 engaged to sell and deliver at the buyer's place of business 
 in Denver certain flour. The flour was shipped by the 
 vendor, but the latter's agent diverted it from the buyer to 
 a third person. The buyer made a demand upon such 
 person for the flour, who refused to deliver it, whereupon 
 the buyer brought an action in replevin therefor. It was 
 held that the vendor had the power to sell the flour to a 
 third person at any time before it was accepted by the 
 buyer ; but that if no sale had been made prior to the buj-- 
 er's acceptance, when he made his demand upon the third 
 person for the flour, such acceptance vested the ownership 
 in the buyer and entitled him to maintain his action. The 
 stipulations in the sale contract, that the flour should be of 
 a particular quality, and that it should be delivered at a 
 prescribed place without charge for freight to the buyer, 
 were declared to be for his benefit, and he could waive 
 compliance with them. 
 
 § 6. Buyer's Rights upon Breach of Warranty. 
 
 A breach of this collateral agreement by the seller does 
 not entitle the buyer to return the goods ; it gives him 
 only a right to damages, save in a few jurisdictions. 
 Such is the rule, whether this engagement is collateral 
 from the first, or whether, being an essential term of the 
 contract and available as a condition precedent to the 
 
 1 Hanauer v. Bartels, 2 Colo. 514, 522 (1875) ; Rechten y. McGary, 
 117 lud. 132; 19 N, E. 731 (1888). 
 
132 THE LAW OF SALES. 
 
 buj'er, he has taken title to the goods, and, waiving his 
 right to treat the engagement as a condition, can take ad- 
 vantage of it onlj' as a collateral agreement. In either 
 case, the title to the goods, having vested in the buj-er 
 with the assent of both parties, cannot be divested b^' the 
 sole act of either.^ 
 
 1. Right to Damages Only. — The leading case in the 
 United States upon this subject is Thornton r. Wynn,^ 
 and in England, Street v. Blaj-.^ In the latter case, all pre- 
 vious decisions were carefully examined hy Lord Tenter- 
 den, who, after considering the dicta of Lord Eldon and 
 others, that upon a breach of warrantj' the buyer might 
 "return the goods and bring an action to recover the 
 full money paid," declared : " It is, however, extremely 
 difficult, indeed, impossible, to reconcile this doctrine with 
 those cases in which it has been held, that where the 
 propert}' in the specific chattel has passed to the vendee 
 and the price has been paid, he has no right, upon the 
 breach of the warrant}', to return the article and revest 
 the propertj' in the vendor, and recover the price as money 
 paid on a consideration which has failed, but must sue upon 
 the warranty, unless there has been a condition in the 
 contract authorizing the return, or the vendor has received 
 back the chattel and has therebj' consented to rescind the 
 contract, or has been guiltj' of a fraud, which destroys the 
 contract altogether. . . . On the other hand, the cases have 
 established that the breach of the warranty may be given 
 in evidence in mitigation of damages, on the principle, as 
 it should seem, of avoiding circuit}- of action ; . . . and 
 
 1 Mondel u. St'el, 8 M. & ^\ . 858, 870 (1841). " The perforinancG 
 of the warranty not being a condition precedent to the payment of the 
 price, the defendant, who received the chattel warranted, has therehy 
 the property vested in him indefeasibly, and is incapable of returning 
 it back." 
 
 2 12 Wheat. (U. S.) 183, 193 (1827). 
 ' B. & Ad. 456, 462 (1831). 
 
seller's duties. — buyer's rights. 133 
 
 there is no hardship in such a defence being allowed, as 
 the plaintiff ought to be prepared to prove a compliance 
 with his warranty, which is part of the consideration for 
 the specific price agreed by the defendant to be paid." ^ 
 
 2. Right to rescind. — Some of our State courts, how- 
 ever, hold that the buyer may rescind an executed contract 
 of sale for a breach of warranty, and upon seasonably 
 returning the property, may recover the purchase-price, if 
 he has paid it, or ma}' set up such breach as a complete 
 defence to an action for the price, if it is unpaid. 
 
 (a) False and Innocent Warranty confounded. — It is 
 to be noted, in the first place, that these decisions make no 
 distinction between the buyer's rights upon a breach of 
 warranty and his rights in case of fraudulent representations 
 as to quality. This is apparent from the following ex- 
 tracts : " If there was a fraud in the sale, or an express 
 warranty and a breach of it, in either ease the defendant 
 might avoid the contract bj' returning the ox within a 
 reasonable time." ^ "A warranty may be treated as a con- 
 dition subsequent at the election of the vendee who may, 
 upon a breach thereof, rescind the contract and recover back 
 the purchase-money as in the case of fraud." ° " He relies 
 upon the warranty, and the breach of it is equally injurious 
 to him, whether the seller acted in good or bad faith."* 
 
 (b) Breach of Warranty as a Tort. — This anomalous 
 doctrine is to be accounted for, it is believed, bj' the fact 
 that originally the action for breach of warranty was one 
 in tort. As late as 1839, Chief Justice Shaw declared : ^ 
 
 ^ Lightburn v. Cooper, 1 Dana (Ky.), 273 (1833); Case v. John, 10 
 Watts (Pa.), 107, (1840) ; Voorhees u. Kellogg, 2 Hill (N. Y.), 288 
 (1842) ; Allen v. Anderson, 3 Humph. (Tenn.) 581 (1842) ; West v. 
 Cutting, 19 Vt. 535 (1847); Wright v. Davenport, 44 Tex. 164 (1875), 
 accord. 
 
 2 Perley v. Balch, 23 Pick. (Mass.) 283, 285 (1839). 
 
 8 Dni-r n. -FisW . 1 Cush. (Mass.) 271, 274 (1848). 
 
 * Marston u.^ight, 29 Me. 341, 345 (1849). 
 
 5 Salem India Rubber Co. v. Adams, 23 Pick. 256, 265. 
 
134 THE LAW OP SALES. 
 
 ' ' Where there is an express warranty on the part of the 
 defendant, embodied in and made part of the contract of 
 sale, and this warranty is false, case will lie, on the ground 
 that by means of the warranty the buyer is killed into 
 security and prevented from making any examination." 
 For this proposition he cited Williamson v. Allison,^ in 
 which Lord Ellenborough used this language : " The war- 
 rant}' is the thing which deceives the buyer who relies on 
 it and is therebj' put off his guard. Then if the warrantj' 
 be the material averment, it is sufficient to prove that 
 broken to establish the deceit. . . . The ancient method 
 of declaring was in tort on the warranty broken. ... No 
 other proof was required to sustain the former mode of de- 
 claring than the warrant}' itself and the breach of it. 
 Here, then, the plaintiff will be equallj- entitled to recover 
 in tort upon the same proof, by striking out the whole 
 averment of the scienter." 
 
 (c) JFailure to distinguish Warranty from Condi- 
 tion. — In the second place, some of the courts holding 
 the doctrine now under consideration have failed to ob- 
 serve the distinction between a promissory' condition and 
 a warranty.^ In a leading case, it is asserted that there 
 is no such difference between " the effect of an implied 
 and an express warranty as deprives a purchaser of any 
 
 1 2 East, 446, 451 (1802). And see argument for defendant in 
 Bryant v. Isburgh, 13 Gray (Mass.), 607, 609, 610 (1859), and Beemau 
 V. Buck, 3 Vt. 53 (1830). 
 
 2 Boothby ^. So.iles, 27 'U'is. 626, 636 (1871) (condition that the 
 article sold was reasonably fit for the-parpose to which it was to he 
 applied) ; siich was the case, too, of Woodle c. "Whitney, 23 Wis.. 55 
 (1868), and Mannfaeturing Co. v. Stark, 45 Kans. 606 ; 26 Pac. 8 (1891). 
 In Sparling y. Marks, 86 III. 125 (1877), the contract, as interpreted by 
 the court, was for the sale and purchase of a pin, which was understood 
 by both parties to be a diamond, when it was in fact a crystal. Clearly, 
 the seller's engagement tliat the pin was a diamond was not a collateral 
 stipulation of warranty. 
 
sblleb's duties. — buyer's rights. 135 
 
 legal right of rescissioa under the latter, which he has 
 under the former." ' The transaction, then, before the 
 court was a bargain and sale of a specific chattel — a 
 horse — with an express warranty of soundness. The 
 latter engagement was " a separate, independent, collateral 
 stipulation " which did not suspend " the vesting of the 
 thing sold in the vendee." ^ And j-et the court was unable 
 to distinguish the case from one where the contract was 
 for the sale bj' sample of cloves, which were found upon 
 subsequent delivery to be of an inferior species. Here 
 the seller's undertaking that the bulk should correspond 
 with the sample was clearly an essential term of the sale 
 contract. With respect to such a transaction — a sale by 
 sample — it had been properly held that the seller "cer- 
 tainly undertakes . . . that the thing is the same, generi- 
 cally and speciflcallj', as that which he shows, . . . and if 
 a different thing is delivered, he does not perform his con- 
 tract, and must pay the difference, or receive the thing 
 back and rescind the bargain, if it is offered him." " 
 
 (d) This Fundamental Distinction discarded by a Few 
 Courts. — The distinction between these two classes of 
 cases, in one of which the seller's engagement as to quality 
 is a condition precedent to the vesting of title in the pur- 
 chaser, while in the other it is a stipulation collateral to 
 an executed sale, was clearly stated in Street v. Blay,^ 
 and is recognized by most courts as fundamental.^ 
 It has been deliberately discarded, however, in a few 
 jurisdictions." 
 
 1 Bryant v. hburgh, 13 Gray (Mass.), 607, 611 (1859). 
 "■ Dorr V. Fisher, 1 Gush. (Mass.) 271, 273, 274 (1848). 
 » Bradford v. Manly, 13 Mass. 13;, 145 (1816). 
 * 2 B. & Ad. at p. 463. 
 
 s Houghton V. Carpenter, 40 Vt. 688, 595, 596 (1868). 
 " Rogers v. Hanson, 35 la. 283, 287 (1872) ; Thompson v. Harvey, 
 86 Ala. 519, 521 (1888). 
 
136 THE LAW OF SALES. 
 
 In Louisiana ttie buyer is entitled to return the goods 
 and regain tlie price, vvtietlier tlie article is warranted or 
 not, and even though the seller was ignorant of the defects, 
 pro\'ided thej' are such that had they been made known 
 to the buyer he would not have purchased.^ 
 
 3. Rejected Goods must be returned. — We have seen 
 that the buyer who exercises his right to reject goods pur- 
 suant to a condition in his favor, is not bound to return 
 them to the seller. But the courts which accord him the 
 right to reject an article upon a breach of warranty require 
 him to return it. ' ' There must be actual restoration or 
 its equivalent." ^ 
 
 4. Alternative Rights under Special Agreements. — 
 If the seller warrants the article and also agrees that it 
 maj' be returned if it does not possess the warranted 
 qualities, the buyer has the option of returning it, or of 
 keeping it and recovering damages.' The special agree- 
 ment may be so framed as to limit the buyer to a return 
 of the property.' 
 
 § 7. Seller's Duty to deliver Possession. 
 
 Thus far in this chapter we have been concerned mainly 
 with the duties of the seller which are incident to iiis en- 
 gagement " to pass the property in the thing sold " to the 
 buyer, and with the correlative rights of the latter. We 
 proceed now to the consideration of the seller's duties 
 growing out of his other principal engagement, " to dehver 
 possession of the article." ^ 
 
 1 . JSTature of this Engagement. — It is not necessary 
 that this engagement be expressly stated in the contract. 
 
 1 Melancon v. Robich.aux, 17 La. (o. s. ) 97. 
 
 2 Xvler V . Augusta. 88 Me. 504 ; 34 At. 406 (1896). 
 s Evers v. Haddem. 70 Fed. E. 648 (1895). 
 
 4 Himes v. Kiehl, 154 Pa. St. 190 ; 25 At. 632 (1893). 
 s Martineau v. Kitching L. K., 7 Q. B. 436, 449 (1872). 
 
sellee's duties. — buyer's eights. 137 
 
 " The obligation to deliver, if not expressed, is implied," ^ 
 although in the absence of agreement to the contrary-, it is 
 conditioned upon payment by the purchaser. Hence, in 
 case of a bargain and sale, if the seller refuses to allow 
 the buyer to take possession of the purchased article, for 
 which he has paid or offered to pay, the latter ma}- force 
 his way upon the seller's premises and take the property, 
 without committing trespass ; ^ or upon offering perform- 
 ance on his part, may recover the value of the goods. ^ 
 Nor is this engagement of the seller altered by the fact 
 that the goods are on the premises or in possession of a 
 third party. It is still a part of his sale contract that pos- 
 session shall be delivered,' free from liens.* 
 
 2. Formal Tender not Necessary. — While the seller 
 does engage to give possession of the goods to the buyer, 
 he is under no duty to send them to him, unless he specially 
 agrees to do so. He performs his obligation by having 
 the goods in readiness for the buyer at the proper time 
 and place, and by giving the latter notice thereof.^ Even 
 if he is bound to send the goods to a stipulated place, he 
 need not make a formal tender of them there. " Readi- 
 ness and willingness to perform the contract, with notice 
 to the '' buj'Cr, are the measure of his duty.' Where the 
 
 1 Gray v. Walton, 107 N. Y. 254 ; 14 N. E. 191 (1877). 
 
 a y-nof[ !!. Manly, ll Ad. & E. 34 (1839). 
 
 « Buddie V. Green, 27 L. J. Exch. 33 (1857). " Here the plaintiff 
 bought the slates, and although they were in the possession of third 
 persons, it was a portion of the contract that they should be delivered 
 within a reasonable time." Martin, B., p. 34. 
 
 * Davis i). Gilliam. 14 Wash. 206 ; 44 Pae. 119 (1896). 
 
 6 Eobbius y. Luce, 4 Mass. 474 (1808) ; Bjllestaj v. Hostetter. 46 
 Minn. 393 ; 49 N. W. 192 (1891) ; Bliss Co. w. U. S. Co., 149 N. Y. 
 300 ; 43 N. E. 859 (1896). In the last-cited case the action was for the 
 contract-price of the goods. 
 
 8 Jackson v. AUaway, 6 M. & G. 942 (1844) (here the action was 
 for damages for non-acceptance). Smith w. Wheeler, 7 Oregon, 49 
 
138 THE LAW OF SALES. 
 
 place of deliver}' is to be designated by the purchaser, the 
 seller discharges his whole duty bj' notifying the former of 
 his readiness to perform.^ 
 
 In jurisdictions which enforce the doctrine of Bement v. 
 Smith,^ a formal tender of the goods hy the seller may be 
 necessary in order to pass title to the buyer and put them 
 at his risk.^ 
 
 3. The Place of giving Possession. — In the absence 
 of an agreement upon this point, possession of specific 
 goods, which are bargained and sold, is to be given " at 
 the place where thej' are at the time of the sale ; " * while 
 possession of goods, which are to be appropriated to the 
 contract after it is made, is to be given at the seller's place 
 of residence or of business. If the goods are to be pro- 
 duced by the seller, his manufactory ^ or farm ^ is the place 
 where possession is to be given ; if they are goods which 
 he is to procure, the^' are deliverable at the place of busi- 
 ness where he deals in such articles ; ' and if there is no 
 
 (1879) (action for purchase-price, following in this respect the New 
 York rule) ; cf. Smith v. Lewis, 26 Conn. 110, 119 (1857). 
 
 1 Hunter v. "Wetsell, 84 N". Y. 549, 555 (1881). 
 
 2 15 Wend. 493, supra. 
 
 3 Roush V. Emerick, 80 Ind. 551 (1881). 
 
 ♦ Gray v. Walton, 107 N. Y. 254, 258 ; 14 N. E. 191. The lan- 
 guage of the English statute is : " Apart from any such contract, ex- 
 jiress or implied, the place of delivery is the seller's place of business, 
 if he have one, and if not, his residence ; provided that if the contract 
 he for the sale of specific goods, which to the knowledge of the parties 
 when the contract is made are in some other place, then that place 
 is the place of delivery.'' Judge Chalmers notes that this rule was 
 hased, not on Judicial authority, for there was none, hut on ordinary 
 practice and on Art. 342 of the German Commercial Code. Sale of 
 Goods Act (2ded.), 60, 61. 
 
 s Bliss Co. V. U. S. Incandescent Co., 149 N. Y. 300, 305 ; 43 N. E. 
 859 (1896). 
 
 6 Lobdell V. Hopkins, 5 Cow. (N. Y.) 516 (1826). 
 
 ' Janney v. Sleeper, 30 Minn. 473, 475; 16 X. W. 365 (1883). 
 
seller's duties. — buyer's eights. 139 
 
 such place of business, then at his residence.^ " The law 
 judges of the place according to the nature and subject- 
 matter of the things to be performed. In other words, 
 the law supposes the implied understanding of the parties, 
 and it is its province to advance their will in a fair and 
 honest contract." ^ 
 
 (a) Cumbrous Articles and Portable Goods. — In some 
 jurisdictions it is held that if the time of giving possession 
 is fixed by the parties, but the place is not designated, the 
 duty of the seller varies with the nature of the goods. If 
 they are portable he must offer possession of them at the 
 vendee's residence ; ^ but if they are cumbersome, he " is 
 not bound to carry them to the vendee, but must seek him 
 a reasonable time before the day of delivery, to ask him to 
 appoint a place of delivery." " This obligation to tender 
 the goods or to seek for the designation of a place of de- 
 liver}' is rested upon the fact that the seller, in this class 
 of cases, " must become the first actor, in order to fulfil 
 his contract," while if neither time nor place is stipulated, 
 the buyer is to be the first " actor, by going to demand 
 the articles." 
 
 {b) When the Parties name a Definite Place. — If the 
 parties agree on a particular spot as the place where pos- 
 session is to be given, the seller is bound to have the 
 goods there, unless he can show a legal excuse for non- 
 performance.* A change in the condition of the specified 
 
 1 WUmoutli V. Patton, 2 Bibb (Ky.), 280, 282 (1811). 
 
 2 Goodwin v. Holbrook, 4 Wend. 377 (1830) (salt to the value of 
 $1,000, packed in barrels, was deemed portable). Barr v. Myers, 3 
 W. & S. (Pa.) 295 (1842) (two thousand mulberry-trees were treated 
 as portable goods). 
 
 8 Allen V. Woods, 24 Pa. St. 76 (1854) (fifty thousand bricks were 
 deemed cumbersome articles). 
 
 4 Hatch V. Oil Co., 100 U. S. 124, 135 (1879) ; cf. U. S. -. Peek, 
 102 U. S. 64 (1880) (seller's failure to perform was due to buyer's 
 acts). 
 
140 THE LAW OP SALES. 
 
 place is not necessarily an excuse.^ Their agreement upon 
 a particular place of delivery need not be expressly stated 
 in the contract ; it may be disclosed by extrinsic facts, 
 such as the business usages of the parties,^ or their acts 
 under the contract ; ' in short, by the circumstances of 
 the case. 
 
 (c) Whe?i they designate a Locality, leaving Exact 
 Sjiiit to be fixed. — Oftentimes the contract designates a 
 locality as the place of deliver}-, leaving the specification 
 of the exact spot to one of the parties. It then becomes 
 his duty to notify the other of the selected place, before 
 that other can be treated as in default.* When the buyer 
 has the right of selection and fails to exercise it, the seller 
 may appoint the spot ; ^ and, by delivering the goods there 
 with notice to the buyer, may put them at his risk, if the 
 transaction is one of bargain and sale. The same result 
 
 1 Howard v. Miner, 20 Me. 325, 330 (1841). 
 
 2 BroQson v. Gleason, 7 Barb. (N. Y.) 172, 475, 476 (1849). "We 
 also know . . that the plaintiffs were dealers in the article of salt ; 
 and had, previous to the date of the contract in question, purchased 
 salt of the defendant, which he had transported in boats, and by him- 
 self and hands delivered the same to the plaintiffs upon their dock at 
 Oswego." 
 
 8 Field V. Runk, 22 N. J. L. 525, 529 (1850). " A part of the 
 gi'ain bargained for was actually delivered there by one of the defend- 
 ants ; and the other defendant, when he had resolved to violate the 
 contract, declared he wonld not take it. Take it where ? Why, by 
 fair inference, where he had already taken the 98 bushels, — to the 
 plaintiflTs mills. There can be no doubt as to the place of deliveiy 
 contemplated by the parties to this contract." 
 
 * Davies V. McLaen, 28 L. T. (N. s.) 118 ; 21 W. R. 264 (1873) 
 (one hundred tons lard ex quay or warehouse in Liverpool ; the seller 
 was bound to give the buyer notice of the particular quay or warehouse 
 from which delivery was to take place). Kunkle v. Mitchell, 56 Pa. 
 100 ("on the cars at Indiana station 75,000 feet of lumber;" the 
 buyer was bound to notify the seller that cars were at the station). 
 
 6 j:.inco l n v. Gallagher, 79 Me. 189 (1887) ; 8 At. 883 (bargain 
 and sale of a ship to be delivered in Portland Harbor). 
 
seller's duties. — buyer's rights. 141 
 
 would follow, though the transaction were a contract to 
 sell, provided it were within a jurisdiction where the 
 doctrine of Bement v. Smith ^ obtains. 
 
 4. Time of giving Possessio7i. — If this is not fixed 
 \>y the express terms of the contract, or is not fairly 
 inferable from the facts of the case, possession is to be 
 given or taken within a reasonable time. What is a 
 reasonable time is a question of fact depending upon all 
 the circumstances of the case.^ "There is, of course, no 
 such thing as a reasonable time in the abstract. It must 
 alwaj-s depend upon circumstances," and " the onlj- sound 
 principle is that the reasonable time should depend on the 
 circumstances which actuall}' exist," provided that " those 
 circumstances, in so far as they involve delay, have not 
 been caused or contributed to by the " party charged with 
 undue delay .' 
 
 (a) Delay due to Extraordiivxry Causes. — Accord- 
 ingly, it has been held that if no time of delivery is 
 agreed upon, the seller is not responsible for a delay of 
 several weeks beyond the usual time of making delivery 
 of such goods as the contract calls for, in case this delay 
 is due to strikes or other extraordinary causes bej^ond his 
 control.^ "The principles which must govern" the de- 
 cision of such a case " are as old as the law of 
 contract. . . . The condition of reasonable time has 
 invariably been held to mean that the part}' upon whom 
 it is incumbent duly fulfils his obligation, notwithstanding 
 
 1 15 Wend. 493 (1836). 
 
 2 Bagbj^y. Walker . 78 Md. 239, 247 ; 27 At. 1033 (1893). If facts 
 are undisputed aiidbut one inference possible, the question may be 
 disposed of by the court. Pinney v. Railroad, 19 Minn. 251 (1872). 
 Under a contract for 2500 cigars "to be shipped at once," the seller 
 cannot wait 19 days before shipping. Fisher v. Boynton, 87 Me. 
 395; 32 At. 995 (1895). 
 
 8 Hick V. Raymond (1893), A. C. 22, Lord Ch. Herschell, at p. 29. 
 « Taylors v. Maclellan, 19 Sess. Cas., 4th series, 10 (1891). 
 
142 THE LAW OF SALES. 
 
 protracted delaj', so long as such delaj' is attributable to 
 causes beyond his control, and he has neither acted negli- 
 gently nor unreasonably." ^ 
 
 (b) Heasonable Hour. — If the contract fixes the day 
 of delivery, but does not specify the hour, possession must 
 be given at an hour which is reasonable, having regard to 
 the circumstances of each case.^ 
 
 (c) Time of Delivery an Essential Term. — A stipula- 
 tion, in a contract of sale, for the delivery of the goods at 
 a specified time, is an essential^ and not a collateral term. 
 If the parties bargain for " No. 1 Eglinton Scotch pig-iron 
 for shipment by sail in December, 1879," their contract is 
 not for iron of an}' kind, nor for No. 1 Eglinton Scotch 
 pig-iron simplj', but for such iron shipped at the stipulated 
 time. If the seller delivers the described iron at any 
 other time than that specified, the buyer has a right to 
 say. The article you tender is not the article I agreed to 
 buj'.* In the case last cited Cairns, L. C, said: "It is 
 a mercantile contract, and merchants are not in the habit 
 of placing upon their contracts stipulations to which they 
 do not attach some value and importance, and that alone 
 might be a sufficient answer " (to the question why time 
 of shipment should be deemed an essential term). " But, 
 if necessar}', a further answer is obtained from two other 
 considerations. It is quite obvious that merchants making 
 contracts for the purchase of rice, contracts which oblige 
 them to paj' in a certain manner for the rice purchased, 
 
 ^ Hick V. Raymond, siipra (Lord Watson, at p. 32), affirming Hick 
 V. Rodocanachi (1891), 2 Q. B. 626, which had been followed in 
 Taylors v. Maclellan, supra. 
 
 2 Croninger v. Crocker, 62 N. Y. 151, 158 (1875). Sale of Goods 
 Act, § 29 (4). This provision annuls the technical rules laid down in 
 Startup V. Macdonald, 6 M. & G. 593 (1843). 
 
 ' Ellinger v. Comstock, 13 Ind. App. 696 ; 41 N". E. 351 (1895). 
 
 « Hill V. Blake, 97 N. Y. 216, 220, 221 (1884) ; Bowes v. Shand, 2 
 App. Cag. 455, Blackburn, L., 480, 481. 
 
seller's duties. — buyer's eights. 143 
 
 and to be ready with funds for making that payment, may 
 well be desirous both that the rice should be forthcoming 
 to them not later than a certain time, and also that the 
 rice shall not be forthcoming to them at a time earlier 
 than it suits them to be ready with funds for its pay- 
 ment. . . . There is still another explanation, . . . that 
 these contracts were made for the purpose of satisfying 
 and fulfilling other contracts." 
 
 (d) Strict Performance may he waived. — While the 
 buyer has a right to insist upon having possession of the 
 goods at the agreed time, and may reject them if offered 
 at a different time, he can waive strict performance by the 
 seller.^ Mere receipt of a part of the goods, without 
 knowledge of the seller's inability to supply all within the 
 stipulated period, will not constitute a waiver,^ and if the 
 remainder is offered after the expiration of such period, 
 the buyer may reject the whole. Nor, in most jurisdic- 
 tions, will the mere acceptance of the goods, after the 
 time fixed in the contract, operate as a waiver of the sel- 
 ler's breach of this term. The buj-er may accept the 
 belated goods, transfer the condition precedent into a 
 warranty ex post facto, and claim damages for the breach 
 of what is now a collateral term of the contract.' 
 
 (e) Instalment Deliveries : Mitire not Divisible Con- 
 tracts. — Oftentimes the sale contract provides for the 
 deli\'ery of goods by instalments, and for separate pay- 
 ments therefor. In such cases, the mere fact that the 
 deliveries and paj'ments are to be made at different dates, 
 extending over a considerable period of time, does not 
 split up the agi-eement into separate contracts for each in- 
 
 1 Supra, p. 63. 
 
 2 Nightingale v. Eissman, 121 K. Y. 288, 292, 293 ; 24 N. E. 475 
 (1890). ~ 
 
 8 Bagby v. "Walker, 68 Md. 239, 244, 245 ; 27 At. 1033 (1893), 
 and stipra, p. 128. 
 
144 THE LAW OF SALES. 
 
 stalment.^ It is true the parties may so frame their agree- 
 ment as to resolve it into several distinct contracts.^ On 
 the other hand, the}' ma}' expressly declare that a breach 
 of any instalment obligation by one shall give to the other 
 party the right to rescind the entire agreement.' But in 
 the absence of any such express stipulations, the courts 
 generally construe an instalment contract as an entire and 
 not as a divisible contract.^ 
 
 Accordingly, a breach as to any instalment may give 
 the party not in default a right to repudiate the whole con- 
 tract, if the breach relates to the first instalment ; or, if it 
 is connected with a subsequent one, to repudiate the con- 
 tract so far as it is unperformed. 
 
 if) Unsatisfactory State of Authorities. — It must be 
 admitted that judicial authority upon this subject is in an 
 unsatisfactory state on both sides of the Atlantic ; and 
 that British legislation has failed to provide a complete 
 solution of the difficulty for that country. 
 
 (g) How Far they are Agreed. — Upon one proposi- 
 tion, however, the courts appear to be in accord. If the 
 breach is of such a nature as to show an intention on the 
 part of the one committing it to renounce the contract,^ or 
 
 ' Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434, 439 (1884) ; 
 Norrington v. Wright, 115 U. S. 188 ; 6 S\ip. Ct. 12 (1885). In some 
 jurisdictions a different view prevails. See Myer v. Wheeler, 65 la. 
 390, 396 (1884). This case was decided before the report of either of 
 the foregoing cases appeared, and was founded in part on the authority 
 of the note to Norrington v. Wright (at circuit), in 21 Am. L. R. (s.s.) 
 395. 
 
 ■' Morgan v. McKee, 77 Pa. St. 228 (1874) (an agreement for the 
 sale of four thousand barrels of oil was split up into eight separate writ- 
 ten contracts for monthly deliveries of five hundred barrels each). 
 
 ' Cherry Valley Iron Works v. Florence Iron Co., 64 Fed. Rep. 569 
 (1894). 
 
 * Rugg V. Moore, 110 Pa. St. 236; 1 At. 320 (1885). 
 
 " Otis V. Adams, 56 N. J. L. 38 ; 27 At. 1092 (1893). 
 
seller's duties. — buyer's eights. 145 
 
 his inability to perform," the other party may decline 
 further performance. They are agreed also that, if the 
 language of the contract, or the circumstances of the case, 
 disclose a mutual intention that a breach with respect to 
 any instalment shall give to the party not in default a 
 right to withhold further performance, such ihtention is to 
 be respected and carried out. 
 
 (A) Default must ainount to a Renunciation of the 
 Contract. — But in many jurisdictions the courts refuse to 
 recognize a right to repudiate a continuing contract for the 
 breach of an instalment provision in any other case. This 
 appears to be the rule in Britain, notwithstanding consid- 
 erable authoritj- to the contrary. In a recent decision of 
 the House of Lords, it is said, " You must look at the 
 actual circumstances of the case in order to see whether 
 the one party to the contract is relieved from its future 
 performance by the conduct of the other ; j'ou must ex- 
 amine what that conduct is, so as to see whether it 
 amounts to a renunciation, to an absolute refusal to per- 
 form the contract, such as would amount to a rescissioi] if 
 he had the power to rescind, and whether the other party 
 ma3' accept it as a reason for not performing his part." ^ 
 Accordingl}', it was held that the failure of the buyer to 
 pay promptly for one instalment, his postponement being 
 
 1 Morgan u. Bain, L. R. 10 C. P. 15 (1874). Insolvency, unac- 
 companied by any subsequent intention to perform the contract on the 
 part of the insolvent or his assignee, may justify the other party in 
 concluding that the insolvent has abandoned the contract (p. 28). 
 Hobbs V. Columbia Co., 157 Mass. 109; 31 N. E. 756 (1892) ; Florence 
 Mining Co. v. Brown, 124 U. S. 385; 8 Sup. Ct. E. 531 (1888). The 
 mere insolvency of one party, however, is not equivalent to a rescis- 
 sion or a breach, although the vendee's insolvency does relieve the 
 vendor from his agreement to give credit, and entitles him to cash on 
 delivery. Pardee v. Kanady, 100 N. Y. 121; 2 N. E. 885 (1885). 
 
 ^ Mersey Co. v. Naylor, 9 App. Cas. 434 ; Lord Ch. Selborne, at 
 pp. 438, 439, and see opinion of Lord Watson. 
 
 10 
 
146 THE LAW OF SALES. 
 
 in good faith and due to erroneous legal advice, did not 
 entitle the seller to refuse further deliveries. 
 
 This rule has been adopted by some American courts.^ 
 In the case last cited, the seller had failed to deliver the 
 first of three instalments of silk, owing to the lateness of 
 the crop, but he showed no intention to abandon the con- 
 tract. On the other hand, he expressed a willingness to 
 compensate the buyer for this default and to deliver the 
 other instalments on time. The majoritj- of the court held 
 that the delivery of one instalment — even of the first — 
 was not a condition precedent to the continuing obligation 
 of the contract, and that a breach as to an}- instalment, 
 unless amounting to an intentional abandonment of the 
 contract bj' the part}' in default, did not give the other 
 party the right to repudiate the contract. In an able dis- 
 senting opinion, Van Syckel, J., declared that this rule per- 
 verts " a contract for goods in instalments into an agree- 
 ment to engage in a succession of lawsuits, if the vendor 
 so elects, for such damages as the purchaser may be able 
 to recover, as a substitute for what he expressly bargains 
 for, and during all this period the purchaser cannot safely 
 secure his needed supplies elsewhere, because he cannot 
 know until the due days arrive whether the vendor will 
 make further default." 
 
 (i) Breach going to the Whole Consideration. — In 
 other jurisdictions it is held that a breach of an instalment 
 contract, which does not show abandonment by the party 
 in default, will not entitle the other party to repudiate the 
 contract unless the breach goes to the whole considera- 
 tion.^ The reasons for this view have been admirably 
 stated by an eminent English judge: "Such a contract 
 for the successive deliveries of goods at a sum per meas- 
 
 1 fisrli V. Pnidehord Silk Co.. 57 N. J. L. 432 ; 31 At. 401 ; 30 L. 
 R. A. 61 (1894). 
 
 2 Osgood V. Bander, 75 la. 550, 558; 39 N. W. 887 (18C8). 
 
seller's duties. — bttyek's eights. 147 
 
 ure, is a somewhat modern kind of contract, but it has 
 now been in existence for many j-ears. It has been fre- 
 quentlj' considered, and the rule with regard to its con- 
 struction seems to me to be this, that when the deliveries 
 are to be so made, and the price of each to be so deter- 
 mined, then, inasmuch as the failure to perform one of the 
 deliveries can be satisfied by damages, the failure in re- 
 spect of one delivery does not prevent the party from 
 having the other deliveries. . . . The courts have not laid 
 down that doctrine as an abstract proposition of law, but 
 tbej' have gathered it from the course of business amongst 
 merchants." ^ 
 
 (j) Sreach of any Essential Term of an Instalment 
 Contract. — Still a third rule has been laid down by other 
 courts, to the effect that the breach of an essential term of 
 an instalment contract, whether evincing an intention to 
 abandon it or not, gives to the partj' not in default a 
 right to refuse further performance on his part, and to treat 
 it as repudiated. This rule appears to be sound in prin- 
 ciple, to be supported \iy the weight of authority in this 
 countrj-, and to be gaining in favor. If the breach con- 
 sists in failure to deliver the first instalment, it is clearly 
 one which goes to the root of the agreement ; " "it would 
 in most cases entirely frustrate the object of the contract." ' 
 The same view has been taken of the breach of a subse- 
 quent instalment,* even where the defaulting party claimed 
 in good faith not to be committing a breach.^ 
 
 1 Honck V. Muller, 7 Q. B. D. 92, 103, 104. Dissenting opinion by 
 Brett, L. J. 
 
 2 Norrington v. Wright, 115 U. S. 188 ; 6 Sup. Ct. 12 (1885) ; Pope 
 V. Porter, 102 K Y. 366 ; 7 N. E. 304 (1886). 
 
 3 King Philip Mills v. Slater, 12 R. I. 82, 85 (1878). 
 
 4 £lfiaSweJL V. Martindale, 63 Fed. R. 84, 86 ; 27 U. S. App. 277 
 (1894). " Nor was the vendees' breach of thi.s contract slight or in an 
 
 6 Cf. Winchesters. Newton, 2 Allen (98 Mass.), 492, 495 (1861). 
 
148 THE LAW OF SALES. 
 
 (k) Is Time of Payment an Essential Term of Instalr 
 ■inent Contracts? — In England, the engagement of the 
 buyer to pay for goods at a fixed time is not treated as of 
 the essence of the contract, unless the parties have dis- 
 closed a different intention by tlie terms of their agree- 
 ment.i In this country, the time of payment fixed in 
 mercantile contracts is generally deemed an essential 
 term ; and a breach of it is attended by the consequences 
 which follow the breach of an engagement to deliver. ^ 
 Such is the rule in Scotland also, where, it is said, the 
 courts pay " greater regard than in England to the unity 
 of the contract and the mutuality of its obligations." ' 
 
 TurnbuU . . McLean, 1 Sess. Cas. 730, 4th series (1874), 
 is very instructive on this point. The purchaser made 
 default in paying for an intermediate instalment, claiming 
 a right to deduct certain demurrage charges from this 
 price instalment, whereupon the seller refused to make 
 further deliveries. The buj-er contended that the settle- 
 ment of the price of one month's deliveries was a matter 
 altogether apart from the obligation to deliver in subse- 
 quent months ; that the time of paj'ment was not of the 
 
 iramatfirial part. It was substantial, and went to the Tery root of the 
 contract. It consisted in their refusal to accept 282 cattle " (the fourth 
 instalment), "and to pay .$7,896 for them, at the time and place they 
 agreed to accept and pay for them under the contract. These cattle 
 had been gathered by the vendor from a range 40 miles square, by the 
 labor of many men for many days, and driven to the railroad station 
 to be delivered to the vendees." 
 
 1 Sale of Goods Act, § 10 ; Mersey Steel Co. v. Naylor, supra, p. 145. 
 
 2 Stokes V. Baars, 18 Fla. 656 (1882); Barnesv. Denslow, 30 X. S. R. 
 315, 318 (1890) ; K. S. Co. v. Inman, 134 N. Y. 92; 31 N. E. 248 
 (1892) ; Hess Co. u. Dawson, 149 111. 138 ; 36 N. K. 557 (1894). Of. 
 Miller v. Steen, 30 Cal. 402, 408 (1866), holding that time of payment 
 is not of the essence of the contract in case of a conditional sale, where 
 title remained in seller, who retook the property and retained the 
 payments which had heen made. 
 
 ' Brown, Sale of Goods Act, pp. 151, 152. 
 
seller's duties. — buyer's rights. 149 
 
 essence of the contract. But the court declared this posi- 
 tion untenable ; that the time of pa^-ment was not less of 
 the essence of the contract than the pajment itself; that 
 " by the law of Scotland (1) stipulations on either side, 
 in mutual contracts, are the counterparts of and the con- 
 sideration given for each other ; (2) that a failure to per- 
 form any material or substantial part of the contract by 
 one will prevent him from suing the other for performance ; 
 (3) that where one party has refused or failed to perform 
 his part of the contract in any material respect, the other 
 is entitled either to insist for implement, claiming dam- 
 ages for the breach, or to rescind the contract altogether, — 
 except so far as it has been performed." ^ In a concurring 
 opinion, Lord Nevers added, "To say that, where a con- 
 tract is to be implemented by instalments, the furnishings 
 for one month are totally independent of the next, is an 
 egregious fallacy and contrary to the dealings of ordi- 
 nary life. In a contract of labor, in which monthly pay- 
 ments are stipulated, could it be said that if the servant 
 has not received payment for the last month, that has 
 nothing to do with his obligations to work during the next 
 month?" 
 
 (Z) Right to Rescind may he Waived. — The right to 
 rescind an instalment contract, because of the other party's 
 default, may be waived if the buj'er continues to receive 
 and retain partial instalments ; ^ and if, while claiming dam- 
 ages for previous breaches, he accepts later deliveries, his 
 right of rescission is lost.' Likewise the seller may lose his 
 right to rescind by insisting upon the purchaser's accept- 
 ing and paying for instalments which the latter has failed 
 to take, thus showing his election to continue the contract 
 in force.* 
 
 1 Lord Justice-Clerk, at p. 738. 
 
 2 McN"augliton v. Cassady, 4 McLean (U. S. Cir. C.) 530 (1849). 
 8 Miller v. Moore, 83 Ga. 684, 693 ; 10 S. E. 360 (1889). 
 
 * Providence CoaljCo. v. Coxe, 35 At. 210, 211 (R. I. ) (1896), semhU. 
 
150 THE LAW OF SALES. 
 
 5. Manner of giving Possession. — What the seller is 
 bound to do in the performance of his Axxly to give posses- 
 sion to the buyer, depends in each case, as a rule, " on the 
 nature of the thing, and the relation of the parties to it at 
 the time. ... In all cases the essence of deliver}' is that 
 the deliveror, b}' some apt and manifest act, puts the 
 deliveree in the same position of control over the thing, 
 either directly' or through a custodian, which he held him- 
 self immediately before the act." ^ 
 
 At present we are concerned • with but one species of 
 delivery : that which the seller must make in order to 
 perform his engagement to give possession to the buyer. 
 What constitutes delivery under the Statute of Frauds has 
 been discussed already : what acts of delivery will divest 
 the vendor's lieu, or prevent his stopping the goods in 
 transitu, will be considered in the next chapter. 
 
 (a) Transfer of Possession without Change of Location. 
 
 The seller can perform his dut}' of giving possession of 
 the goods without actually handing them over. Any act 
 on his part which puts the buyer in the same position of 
 control which he has been holding himself, will suffice. 
 Accordingly, if the seller offers the goods to the buyer for 
 removal, and the latter requests the former to retain them 
 as bailee, and this is assented to, the seller's duty to give 
 possession is discharged, and he can maintain an action 
 for goods sold and delivered.^ But the circumstances 
 must show that the seller's acts were intended to divest 
 his vendor's lien, and to change the nature of his posses- 
 sion from that of unpaid vendor to that of bailee, or of 
 servant of the buyer. ^ There is evidence of such inten- 
 
 1 Pollock and Wright on Possession, 46, 47. 
 
 2 Janvrin v. Maxwell, 23 Wis. 51 (1868). 
 
 8 Saffiord v. lIoDonoiigli_, 120 Mass. 290 (1875) ; Mitchell v. LeClair, 
 165 Mass, 308; 43 N. E. 117 (1896). 
 
seller's duties. — buyer's rights. 151 
 
 tion where the goods, being on the seller's premises at 
 the time of sale, are to remain on storage for an agreed 
 sum ; ^ or where, at the bu3-er's request, the seller delivers 
 with the bill of sale samples of the goods to be used by 
 the purchaser in reselling them ; ^ or where the buyer, after 
 inspecting the goods, declares that he takes possession of 
 tliem and arranges with the seller for shipping them as the 
 former "should send word;"' or where the buyer, after 
 examining and accepting them, places placards on them 
 stating that he is their owner, and employs persons to 
 guard them.^ 
 
 (ci) Delivery of Goods already in Buyer'' s Possession. 
 — It often happens that the subject-matter of a sale is in 
 the buyer's possession when the contract is made. In 
 such a case it is not necessary for the seller to take the 
 property into his actual possession and then return it to 
 the possession of the buyer. If, with the seller's assent, 
 the buyer liolds it, after the sale, as owner, a good delivery 
 is established.^ And so when one partner or tenant in 
 common sells to another, " the delivery does not so much 
 consist in the actual tradition of the chattels from the one 
 to the other, as in the surrender and relinquishment of the 
 possession by the seller to the purchaser, thereb}' giving 
 him the absolute and exclusive occupation and control of 
 what before he held in common for himself and others." ' 
 
 In an early English case,' the goods were on the pur- 
 
 1 Kopes V. Law, 11 Allen (93 Mass.), 591, 600 (1866). 
 
 » IngaUs V. Hen-ick. 108 Mass. 351 (1871). 
 , 8 Parry v . Libbey, 166 Mass. 112; 44 N. E. 124 (1896). 
 
 * Williams & Co. i;. Brinton&Co.,174 Pa. St.299; 34 At. 442 (1896). 
 
 6 Snider v. Thrall, 56 Wis. 674, 677 ; 14 N. W. 814 (1883). 
 
 6 Shnrtlefify. Willard, 19 Pick. (36 Mass.) 202, 210 (1837). 
 
 ' Manton v. Moore, 7 D. & E. 67, 72 (1796). The arbitrator seems 
 to have rested his decision in part on the symbolical delivery of the 
 half-penny; but this circumstance is not alluded to in the judges' 
 opinions. 
 
152 THE LAW OP SALES. 
 
 chaser's premises at the time of sale, having been brought 
 there by the seller to be used by him in constructing 
 bridges and locks thereon. The 011I3' delivery consisted in 
 the execution and transfer of a bill of sale of these and 
 other goods, and the delivery of one copper half-penny 
 as a symbol or representative of the property. It was 
 held that the transaction amounted to a change of posses- 
 sion. "It would have been absurd," said Ashurst, J., 
 " to have removed the goods from the place where they 
 were lying, since they must have been afterwards brought 
 back to the very same spot in order to be used." 
 
 (p) Actual Traditio/i iirqyracticahle. — The transfer of 
 possession, without a change in the location of the goods, 
 occurs most frequently in the case of ponderous articles, 
 or of property so situated that its actual tradition is im- 
 practicable. Upon the sale of a quantity of logs in a 
 boom, if the seller shows them to the buyer and the latter 
 accepts them as his property, the possession is clianged. 
 Such acts are as effectual " for such kind of property as 
 a delivery over in hand of a chattel capable of such per- 
 sonal possession." ^ 
 
 (c) Symbolical Delivery. — A delivery of this sort is 
 often spoken of as symbohcal ; ^ and in some cases tlie 
 parties have stipulated that a part of the goods should be 
 delivered as a symbol of the whole ; ' but the transaction 
 is quite unlike the transfer of a bill of lading of goods in 
 transit, or of the grand bill of sale of a ship at sea. Here 
 we have examples of true symbolical delivery. " A cargo 
 while in the hands of the carrier is necessarily incapable of 
 physical delivery. During the period of transit and voy- 
 
 1 Jewett V. Warren, 12 Mass. 300, 302 (1815). 
 
 2 Leonard v. Davis, 1 Black (U. S.), 482 (1861). 
 
 3 Boynton v. Veazie, 24 Me. 286 (] 844). A delivery of one raft of 
 boards, having the same mark as that on all the lumber and logs sold, 
 was made for the whole property thus marked. 
 
SEtLLER'S DUTIES. — BUYEK'S KIGHTS. 153 
 
 age the bill of lading by the law merchant is universally 
 recognized as its symbol, and the indorsement and delivery 
 of the bill of lading operates as a symbolical delivery of 
 the cargo." ^ " If a ship is sold whilst at sea, the delivery 
 of the grand bill of sale amounts to a delivery of the ship 
 itself. It is the only delivery which the subject-matter is 
 capable of. The bill of sale is the only muniment of the 
 propert}' ; by the vendee's taking that, he prevents the 
 vendor from defrauding others." ^ But in the case of pon- 
 derous goods, or of timber afloat in ponds and streams, or 
 so situated as to render actual tradition difficult merely," 
 the parties do not deal with a symbol of the chattels ; their 
 acts relate to the chattels themselves ; and the sole ques- 
 tion is, has the seller, " by an apt and manifest act," put 
 the buyer in the same position of control over them which 
 he has been occupying.^ 
 
 (d) Delivery hy Tradition of Key. — Such is the 
 nature of the act, when the key of a building in which the 
 goods are located is delivered bj- the seller to the buyer, 
 for the purpose of passing "the full control of the place 
 to which admission is to be gained by means of the key." ^ 
 A delivery of this kind is real, not symbolical, although 
 the latter term has been applied to it frequently.' More 
 than a century ago, Lord Hardwicke said, " delivery of 
 the key of bulky goods, where wines, &c., are, has been 
 allowed as delivery of the possession, because it is the way 
 
 1 Sanders v. Maclean, 11 Q. B. D. 327, 341 (1883). 
 
 2 Atkinson o. Maling, 2 D. & E. 462, 465,'466 (1788). A ship 
 may be sold, and title to it pass, while it is at sea, without a transfer of 
 the grand bill of sale ; but this will not operate to change the posses- 
 sion. Scranton v. Coe, 40 Conn. U^ (1873). 
 
 8 Kingsley v. White, 57 Vt. 565 (1885). 
 < Ludwig v. Fuller, 17 Me. 162, 166 (1840). 
 6 Hilton ,.. Tucker, 39 Ch. D. 669, 676 (1888). 
 « Kellogg Co. V. Peterson, 162 111. 158, 160 ; 44 N. E. 411 (1896), 
 and the case in the last note. 
 
15-1 THE LAW OP SALES. 
 
 of comiug at the possession or to make use of the thing, 
 and therefore the key is not a symbol, which would not 
 do."'' The same doctrine was more couciselj^ stated in 
 an early New York case : " The goods in the storehouses 
 were actually delivered at the time, by the delivery of the 
 keys of the stores.'"' In a recent English treatise,' after 
 an analysis of the English cases, the conclusion is reached 
 that " the key is not a symbol in the sense of representing 
 the goods, but the delivery of the key gives the transferee 
 a power over the goods which he had not before, and at 
 the same time is an emphatic declaration (which, being by 
 manual act, instead of word, may be called symbolic) that 
 the transferor intends no longer to meddle with the goods." 
 In Scotland the giving up of the key of a repository of 
 goods is deemed an act of real delivery. " It differs from 
 symbolical deliverj- in this, that a symbol is nothing more 
 than the sign of the thing transferred ; whereas the delivery 
 of the key gives to the buyer access to the actual posses- 
 sion of the subject and power over it while the seller is 
 excluded." * 
 
 (e) Delivenj by Attornment of Third Party. — If the 
 property is in the possession of a third party at the time 
 of sale, and a transfer of its possession without a change 
 in its location is desired, it becomes necessary for such 
 third party to attorn to the buyer ; that is, to " acknowl- 
 edge to the buyer that he holds the goods on his behalf." ' 
 "A custodian cannot become the servant of another in 
 respect of his custody except bj' his own agreement. And 
 a fortiori, when that custodian does not yield, but main- 
 
 1 Ward V. Turner, 2 Ves. Sr. 431, 443 (17.51). 
 
 2 Wilkes u. Ferris, 5 Johns. 335, 344 (1810) ; cf. Carter k. WiUard, 
 19 Pick. (36 Mass.) at p. 8 (1837). 
 
 " Pollock and Wright on Possession, 61-68. 
 
 » 1 Bell's Cora. (McLaren's ed.) 186. 
 
 * Sale of Goods Act, § 29 (3), and cases infra. 
 
seller's duties. — buyer's eights. 155 
 
 tains his own possession, it is clear that his custod}- can- 
 not enure to the benefit of another, as if it were the pos- 
 session of that other, unless the bailee consents to hold 
 for him subject to his own rights." ^ 
 
 This consent may be given in advance, as where the 
 third party assures the buyer before the purchase that if 
 the latter buys the goods they shall be subject to his call ; ^ 
 or where he issues a bill of lading, or other negotiable 
 document of title.' 
 
 In England and in most American jurisdictions the com- 
 mon law is understood to " draw a hard and fast distinction 
 between bills of lading and other documents of title. The 
 lawful transfer of a bill of lading was always held to oper- 
 ate as a dehvery of the goods themselves. . . . But the 
 transfer of a deliver}- order or dock warrant operated only 
 as a token of authority to take possession, and not as a 
 transfer of possession." '' 
 
 Some courts have held, however, that no such distinc- 
 tion existed at common law, but that the delivery of a 
 warehouse receipt gave the deliveree all the rights possessed 
 
 1 Hallgarten u. Oldham, 135 Mass. 1, 10 (1883). If the third 
 person is a mere servant of the seller, his possession is the seller's pos- 
 session, and attornment is not necessary. Pollock and Wright on 
 Possession, 60; Hardy v. Potter, 10 Gray, 89 (1857). 
 
 2 Wood V. Manley, 11 Ad. & E. 34 (1839). 
 
 8 Whitlock V. Hay, 58 N. Y. 484, 488 (1874). " When a purchaser 
 who has a contract for the sale and delivery to him of a specified 
 quantity of grain or other property, . . . accepts, instead of a delivery 
 of the property, a guaranteed receipt of a warehouseman, made nego- 
 tiable by the Act of 1858, the presumption is that he accepts such re- 
 ceipt as a performance and satisfaction of the contract by the vendor." 
 It was accordingly held that the buyer had a right of action against 
 the warehouseman for any deficiency in quantity, but none against the 
 seller. 
 
 * Chalmers' Sale of Goods Act (2d ed.), 61. The author adds, 
 "As between immediate parties, there is nothing to modify the com- 
 mon-law rule." 
 
156 THE LAW OF SALES. 
 
 by an assignee of a bill of lading.^ Such appears to have 
 been the view entertained bj' English merchants, and by 
 a few judges in that country ; but one which was finally 
 overruled ^ in Farina v. Home.' 
 
 (/) Does Notice to Third Party dispense witJt Attorn- 
 me?it f — There is some authority for the statement that 
 attornment by the third party is not essential to a com- 
 plete deliver}' by the seller ; that notice to him of the sale 
 is sufficient to constitute delivery- .^ In most of the cases 
 cited for this doctrine, however, there was ample evidence 
 of the third party's consent to hold the property as bailee 
 of the buyer ; ^ and the doctrine itself seems to have origi- 
 nated in jurisdictions where it is held that actual transfer 
 of possession is necessary to the transfer of title as against 
 creditors of the seller or his subsequent vendees.' More- 
 over, none of the cases cited decide or discuss the question 
 whether a seller performs his dut}' of giving possession of 
 the thing sold by notifying the third-partj- possessor of the 
 
 1 Hood V. Barker, 8 Cal. 609 (1857) ; Havis v . Russell. 52 Cal, 611 
 (187S) ; Gibson v. Stevens, 8 How. (U. S.) 381 (1850). In Hang.^rten 
 ■0. Oldham, supra, Holmes, J., declares that " the simplest explanation 
 of Gibson v. Stevens would be that delivery was not necessaiy by the 
 law of Indiana,'' and that the true question in that case " was only 
 whether title had passed." But this explanation will not dispose of 
 McNeil V. Hill, 1 ffoolworth (U. S. Cir. Ct.), 96 (1865), nor of Harris 
 V. Bradley, 2 Dillon (U. S. Cir. Ct.), 284, 287 (1872), nor of First 
 Nat. Bk. .;. Bates, 1 Fed. 702, 710 (1880) ; cf. Allen v. Maury, 66 Ala. 
 10, 18 (1880), and Yennie c. MoNamee, 45 N. Y. bl4, 620, 621 
 (1871). 
 
 2 Benjamin on Sales (Bennett's ed., 1892), 796. 
 8 16 M. & W. 119 (1846). 
 
 * Benjamin's Principles of Sales, 133, 134, and cases. 
 
 6 Freiberg v. Steenbock, 54 Minn. 514 ; 56 N. W. 175 (1893), is a 
 fair sample ; the bailees expressly agreed in advance to surrender to the 
 buyer. 
 
 6 Tierce !•. Chipman, 8 Vt. 334, 339 (1836) ; Hodges u. Hurd, 47 
 111. 363 (1868). 
 
seller's duties. — buyer's eights. 157 
 
 sale.^ The dicta in Massachusetts cases upon this sub- 
 ject have been robbed of all authority by the decision in 
 Hallgarten v. Oldham, supra. 
 
 (b) Transfer of Possession by Delivery to a Carrier. 
 
 We have seen that the place of giving possession, in the 
 absence of an agreement upon this point, is the seller's 
 place of business or abode, or the place where the goods 
 are at the time of sale ; and that the seller is not bound to 
 despatch the goods. But he may, and often does, agree 
 to send them to the buyer. In such a case, his duty of 
 giving possession is performed when he has delivered the 
 goods to a suitable carrier, in proper condition for trans- 
 portation, correctlj' addressed, and has exercised due care 
 and diligence in providing the buyer with a remedy against 
 the carrier.^ 
 
 (a) Implied Authority to deliver to a Carrier. — As 
 early as 1803, Lord Alvanley declared it "to be a proposi- 
 tion as well settled as any in the law that if a tradesman 
 order goods to be sent by a carrier, though he does not 
 name an}- particular carrier, the moment the goods are 
 delivered to the carrier it operates as a delivery to the 
 purchaser." ° Deliver}' to the carrier does not have this 
 effect, however, unless it is made with the bu3'er's assent,* 
 although that "may be implied from the course of trade." ^ 
 If the buyer designates a particular carrier, the seller has 
 
 1 Before the Sale of Goods Act, " the law of Scotland seems to have 
 been satisfied with intimation to the custodier, without acknowledg- 
 meut by him.'' Brown's Sale of Goods Act (Edinburgh, 1893), 139, 
 and Black v. Incorporation of Brokers, 6 Sess. Gas. 3d series, 141, 144 
 (1867). 
 
 2 Kelsea v. Ramsey Co., 55 N. J. L. 320 ; 26 At. 907 (1893). 
 
 3 Dutton V. Solomonson, 3 B. & P. 582, 584; cf. Comstock v. 
 Affouter, 50 Mo. 411 (1872). 
 
 4 Loyd w. Wight, 20 Ga. 574 (1856). 
 
 ' Hague V. Porter, 3 Hill (N. Y.), 141, 144 (1842). 
 
158 THE LAW OP SALES. 
 
 no authority to send bj' anj' other. If he does despatch 
 the goods by another, such carrier is his agent, and not 
 the bu^-er's, " and he cannot be allowed to assert that he 
 has made a complete delivery." ^ 
 
 (b) Goods must be /i?'e/>«''ef? for Transportation. — 
 The seller's agreement to despatch the goods uudoubtedlj' 
 binds him to exercise reasonable care in preparing them 
 for transportation. " If a vendor is to ship a set of dishes 
 to his vendee, it requires no argument to establish that 
 his dutj' would not be performed by putting them in a box 
 ■without any packing to prevent breakage, and then deliver 
 them to a carrier." Nor does the seller of fruit make a 
 good delivery of it to the buyer, by shipping it in a box 
 car unprotected during freezing weather, vfhen it might 
 have been made perfectly safe hj proper packing and the 
 use of a refrigerator car.^ 
 
 (c) Goods rmist he correctly Addressed. — In order 
 that delivery to the carrier maj' operate as delivery to the 
 buyer, the goods must be correctly addressed by the seller. 
 If he gives insufficient ^ or inaccurate directions to the 
 carrier, and in consequence thereof* the goods do not 
 reach the buyer, the seller cannot recover for goods sold 
 and delivered, and if the buyer has paid for them, he can 
 recover the price. 
 
 (d) Care in providirig the J3uyer a Remedy against 
 the Carrier. — The degree of care and diligence required 
 
 1 Wheelhouse v. Parr, 141 Mass. 593, 596 ; 6 N. E. 7S7 (1886) ; 
 cf. lasigi l: Eosenstein, 141 N. Y. 414 ; 36 N. E. 509 (1894), where 
 the steamer of .shipment was named, but that of arrival was not, and 
 evidence of usage of transshipment at Liverpool was held admissible ; 
 reversing same case in 65 Hun, 591. To the same effect is Harrison r. 
 Fortlage, 161 U. S. 57, 64 ; 16 Sup. Ct. 488 (1895). 
 
 2 Wilson V. ^Yestern Fruit Co., 11 Ind. App. 89, 93; 38 N. E. 
 827 (1894). 
 
 8 Finn v. Clark, 10 Allen (92 Mass.) 479 (1865). 
 4 Garretson v. Selby, 37 la. 529 (1873). 
 
seller's duties. — buyer's rights. 159 
 
 of the seller in providing the buj-er with a renaedy against 
 the carrier is well illustrated by a leading English case ^ 
 which has been cited by our courts frequently. By a well- 
 known rule of the carrier, its liability for packages was 
 limited to £5, unless they were entered and paid for as 
 of greater value. Yet the seller shipped goods worth 
 £51 without making special entry of them. They were 
 lost, and the seller, suing for goods sold and delivered, 
 was defeated. "The plaintiff," said Ellenborough, C. J., 
 " cannot be said to have deposited the goods in the usual 
 and ordinary way, for the' purpose of forwarding them 
 to the defendant, unless he took the usual and ordinary 
 precaution, which the notoriety of the carriers' general 
 undertaking required, with respect to goods of this value, 
 to insure them a safe conveyance ; that is, by making a 
 special entry of them. He had an implied authority, and 
 it was his duty to do whatever was necessary to secure 
 the responsibility of the carriers for the safe delivery of 
 the goods, and to put them into such a course of convey- 
 ance as that in case of a loss the defendant might have 
 his indemnity against the carriers." 
 
 (e) Should the Seller afford the Buyer an Opportunity 
 to insure? — The English statute, adopting a rule of the 
 Scotch law, imposes upon the seller, in the absence of an 
 agreement to the contrarj-, the duty of giving the buyer 
 such notice as may enable him to insure the goods during 
 their sea transit.* No such duty is imposed by English 
 common law. "In the absence of a special contract, the 
 seller of goods is not bound to insure, nor to impart any 
 
 1 Clarke v. Hutchins, 14 East, 475 (1811). 
 
 2 Brown, Sale of Goods Act (§32 (3)), 156-164. The author, after re- 
 viewing the Scottish authorities, on which this sub-section is founded, 
 and noting that under them " the seller's duty was fulfilled if he posted, 
 071 the day of the shipment, a notice to the buyer containing the neces- 
 sary particulars for insurance," adds that the statute seems to impose a 
 heavier duty, and may require "a resort to telegraphic communication." 
 
160 THE LAW OP SALES. 
 
 information upon the subject of insurance." ' Whether 
 the seller is under a contract duty to insure or to give 
 such notice of shipment as will enable the buj-er to insure, 
 ma}' depend upon the course of dealing between them.^ 
 
 (/) Delivery to a Warehousemmi. — " The deliver}- of 
 goods by the seller to a warehouseman, pursuant to 
 authority from the buyer, is a delivery to the buyer."' 
 
 (c) Change of Location v7ithout Transfer of Possession. 
 
 The location of goods may be changed, pursuant to 
 the provisions of a sale contract, while the possession 
 remains in the seller. Accordingly, delivery to a carrier 
 does not transfer possession to the buyer, if the vendor is 
 bound to transport the goods to the vendee. In such a 
 case the carrier holds the property as agent of the vendor, 
 whose obligation to give possession is not performed until 
 that agent makes delivery to the vendee. For delay on 
 the part of the carrier, ^ or negligence in dealing with the 
 goods, ^ or failure to deliver for any cause not due to the 
 fault of the purchaser,^ the seller is responsible. 
 
 Nor is the possession of goods transferred to the buyer, 
 although they are placed on his premises by the seller, if 
 their delivery is made subject to some condition to be ful- 
 
 1 Bartlett v. Jewett, 98 Ind. 206 (1884). 
 
 2 N. Y. Tartar Co. „. French, 154 Pa. St. 273 ; 26 At. 425 (1893). 
 8 Hunter v. Wright, 12 Allen (94 Mass.), 548 (1866). 
 
 * Braddock Glass Co. u. Irwin, 153 Pa. St. 440, 443 ; 25 At. 490 
 (1893). 
 
 6 McNgal f. JBraum, 5 3 N. J. L. 617, 627; 23 At. 687 (1891). 
 
 MrLaughlin v. Marstin, 73 Wis. 670; 47 N. W. 1058 (1891). In 
 this case n quantity of coffee, which plaintiff had agreed to sell and 
 deliver to the defendant at La Crosse, Wis., was attached by a creditor 
 of defendant while in the hands of a carrier in Chicago, to whom plain- 
 tiff had delivered it for transportation to La Crosse. The court held 
 that such attachinent was no excuse for the non-delivery of the coffee 
 at La Crosse. 
 
seller's duties. — buyer's eights. 161 
 
 filled by the former before he is to exercise control over 
 them.^ 
 
 (d) a Partial Delivery under an Entire Contract. 
 
 This does not satisfy the seller's obligation to give 
 possession,^ unless the purchaser waives full perform- 
 . ance,' or the delivery of a part is made and accepted in 
 token of a delivery of the whole.* 
 
 § 8. Buyer's Rights against Third Parties. 
 
 As a rule, the purchaser of personal property acquires 
 DO better title than his vendor had. If he buys goods 
 from a thief, or from a finder, or from an}* other person 
 having no authority to sell, although his purchase is made 
 in entire good faith and for full value, he obtains no right 
 to them as against the true owner. This rule is subject 
 to some exceptions and qualifications, which are now to 
 be considered. 
 
 1. Sale in Market Overt. — In England, " where goods 
 are sold in market overt, according to the usage of the 
 market, the buj'er acquires a good title to the goods, pro- 
 vided he buys them in good faith and without notice of 
 any defect or want of title on the part of the seller." ^ 
 This exception was not recognized prior to Edward I.,' 
 
 1 Bishop V. Shillito, 2 B. & Aid. 329 n (a) (1819); Smith v. Lynes, 
 5 N. Y. 41 (1851) ; Woodbury v. Long, 8 Pick. 542 (1829) ; Seed u. 
 Lord, 66 Me. 580 (1876). 
 
 2 Kuhlman v. Wood, 81 la. 128 ; 46 N. W. 738 (1890). 
 
 8 Brady v. Cassidy, 145 N. Y. 171, 180 ; 39 N. E. 814 (1895). A 
 very interesting and instructive case. 
 
 4 Hobbs V. CaiT, 127 Mass. 532 (1879). 
 
 s Sale of Goods Act, § 22 (1). The cases, in which title may be 
 revested in true owner, are specified in § 24, the second paragraph of 
 which overrides Bentley v. Vilmont, 12 App. Gas. 471 (1887). 
 
 ' History of English Law (Pollock and Maitland), vol. ii. p. 163 : 
 "They enable us to lay down a proposition about the substantive law 
 of the thirteenth century, which, regard being had to what will be said 
 
 11 
 
162 THE LAW OF SALES. 
 
 and is now applicable only " to a limited class of retail 
 transactions." ' It has never " been recognized in any 
 of the United States, or received any judicial sanction." ^ 
 In an early Pennsylvania case,* the court declared : "This 
 efficac}' of markets overt arose from prescription, and was 
 part of the ancient common law. But in this government, 
 we have no such ancient law or custom. On the contrary, 
 the uniform determinations of courts of justice have re- 
 jected such an usage whenever it has been relied on, and 
 great iucon^'eniences would arise from adopting it." 
 
 2. Negotiable Paper. — Negotiable paper affords an- 
 other exception to the general rule governing the transfer 
 of title to personal propertj'. When payable to bearer or 
 indorsed in blank, so as to be transferable b^' deliver}', the 
 transferee acquires a perfect title if he purchases it before 
 due and in good faith.* The exception in the case of 
 such negotiable securities has been "so framed to give 
 confidence and securitj- to those who receive them for a 
 
 in later days, is of no small value. Stolen goods can be recovered by 
 legal action, not only from the hands of the thief, but from the hands 
 of the third, tlie fourth, the twentieth possessor, even though those 
 hands are clean and there has been « purchase in open market." Cf. 
 Peer v. Humphrey, 2 A. & E. 495, 499 (1835), where Williams, J., 
 declares this exception to be as old as the law itself. In Crane !i. 
 London Dock Co., 5 B. & S. 313, 318 (1864), and in Bryant u. 
 Whitcher, 52 N. H. 158 (1872), will be found learned suggestions as 
 to the origin of this doctrine. 
 
 1 Chalmers' Sale of Goods Act (2d ed.), 51. 
 
 2 Ventress v. Smith, 10 Pet. (U. S.) 161, 176 (1836). The oldest 
 reported decision to this effect is Towne v. Collins, 14 Mass. (Supple- 
 ment) 500 (1786). 
 
 8 Hosack V. Weaver, 1 Yeates (Pa.), 478 (1795). 
 
 * Miller v. Race, 1 Burr. 452, 459 (1758): " No dispute oughtto be 
 made with the bearer of a cash-note in regard to commerce, and for 
 the sake of the credit of these notes.'' In Peacock v. Rhodes, 1 Doug. 
 633, 636 (1781), it is said : "If this rule " (the general rule as to sale 
 of goods) " were applied to bills, it would stop their currency." 
 
seller's duties. — buyer's eights. 163 
 
 valuable consideration in the ordinary course of business, 
 . . . and in general a party taking such a security under 
 such circumstances has only to look to the credit of the 
 parties to it, and the regularit}^ and genuineness of the 
 signatures and indorsements." ^ 
 
 3. Transfer by One not Owner, under a Power of 
 Sale. — In some cases, a person in possession of goods, 
 although not their general owner, can transfer a perfect 
 title by reason of a common law or statutory power. This 
 may be done by an officer pursuant to legal process, "unless 
 the writ be void, or the goods taken were the property of a 
 stranger." ^ It may be done, also, by a pledgee,' or liy a 
 master of a vessel in some circumstances.^ 
 
 4. Transfers with Consent of Omner. — All other ex- 
 ceptions and qualifications to which the general rule is sub- 
 ject are grounded in the express or implied consent to the 
 sale of the true owner. In a leading New York case ^ on 
 this subject, it is said : " 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 
 
 1 Wheeler v. Guild, 20 Pick. 545, 550 (1838) ; Spooner v. Holmes, 
 102 Mass. 503 (1869). 
 
 2 Kennedy v. Duncklee, 1 Gray (67 Mass.), 65, 67 (1854). If the 
 goods sold by the officer are exempt from execution, a purchaser with 
 notice of the claim of exemption gets no title. Johnson v. Babcock, 8 
 Allen (90 Mass.), 583 (1864). An attachment creditor has no power 
 to sell the attached property, and cannot give title thereto even to a 
 Joma^* purchaser. Jlett-'T i r Tnh-y, ''-' « W p"'' ] fio^^^^ g'^ fi«o«) 
 
 3 Guinzburg v. Downs, 165 Mass. 467; 43 N. E. 195 (1896). 
 " Butler V. Murray, 30 N. Y. 88 (1864). 
 
 s H.i^„., ., ■F.T.votf, on ■y..T.^^_£fifi^ 279 (I SRS). Cf. Sale of Goods 
 Act, § 21. 
 
164 THE LAW OP SALES. 
 
 notice of any adverse claim, or any circumstances which 
 might lead a prudent man to suspect such adverse claim, 
 will be protected in his title against the original owner in 
 those cases, and those cases onl3', 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 propertj' as owner, or of disposal as an agent." 
 
 ((f) Sale hy Buyer with Voidable Title. — The appar- 
 ent right of property as owner is conferred upon a pur- 
 chaser who has acquired a voidable title from the seller. 
 The vendee from such a purchaser gets a perfect title, if he • 
 buys in good faith and without notice of his vendor's defect 
 of title. When the owner of goods delivers them to a pur- 
 chaser under a de facto contract of sale, he does this with 
 the intention of conferring complete dominion over them 
 upon the purchaser. If that intention has been induced b}' 
 fraudulent representations, the seller has the option of 
 rescinding the contract and retaking the goods, if thej' are 
 still under the purchaser's dominion ; or of enforcing 
 the contract. In case the}' are sold to a bona fide new 
 purchaser, before the seller's option is exercised, the ques- 
 tion arises upon which of two innocent parties the conse- 
 quences of the first purchaser's fraud must fall; and the 
 courts have had little hesitation in answering that it must 
 fall upon the original vendor. It is to his act — generally 
 an act to which something of " negligence, or carelessness, 
 or inadvertence"^ on his part attaches — that the loss 
 
 1 Kingsbury f. Smith, 13 N. H. 109, 120 (1842) ; Wliite ji^jkrden, 
 10 C. B. 919, 92 6 (1851). "The question is one of considerable impor- 
 tance, asf affecting the mercantile transactions of this country ; for if the 
 argument urged on the part of the defendants were well founded, goods 
 at all tainted by fraud might be followed through any number of bona 
 fide purchasers, — a most inconvenient, and, as it strikes me, n most 
 absurd doctrine. A vendor who does not choose to avail himself of 
 means of inquiry, would thus, by trusting the vendee, be giving him 
 unlimited means of defrauding the rest of the world." Jervis, C. J., at 
 p. 927. 
 
seller's duties. — buyer's rights. 165 
 
 is due. He has clothed the first buj-er with title and 
 possession, thus enabling him to transfer title and posses- 
 sion to another. 
 
 (b) Sale by One Who obtained Possession by Trick. — 
 Such is not the case, however, where goods are obtained 
 hy some trick or device from the owner, who has not con- 
 tracted nor intended to transfer his title to the goods to 
 the trickster. Here, no sale is made to the trickster, nor 
 does he obtain even a defeasible title. If A in the name 
 of B orders goods from C, who supplies them under the 
 mistaken idea that he is contracting with and passing title 
 to B, no title is acquired by A, and he can transmit none 
 even to a bona fide purchaser.^ Nor does X obtain any 
 title to goods, nor apparent authority from Y to sell them, 
 when he gains possession by false representation that he 
 is buj'ing as agent for a particular flrm,^ or for an undis- 
 closed principal in good credit with Y.^ In the case last 
 cited, it is said : ' ' The invalidity of the transaction in the 
 case at bar does not depend upon fraud, but upon the fact 
 that one of the supposed parties is wanting, it does not 
 matter how. Fraud onlj' becomes important, as such, when 
 a sale or contract is complete in its formal elements, and 
 therefore valid unless repudiated, but the right is claimed 
 to rescind it. It goes to the motives for making the con- 
 tract, not to its existence ; as when a vendee expresslj' or 
 impliedly represents that he is solvent and intends to pay 
 for goods, when in fact he is insolvent and has no reason- 
 able expectation of paying for them ; or being identified 
 by the senses and dealt with as the person so identified, 
 
 1 Cundv V. Lindsay. 3 Apt). Cas. 459 (1878). 
 
 2 g a.r1;p.r ». Djnsiinorfi. 72 Pa^ _StJ27 (1872). 
 
 8 Eadliff V. Dallinger, 141 Mass. 1, 6; 4 N. E. 805 (1886). If A 
 buys and receives goods from B, he can give good title to C, although 
 B supposed that A was buying for D, A making no false representations 
 and B in no way disclosing his mistaken notion to A. Stoddard v. Ham, 
 129 Mass. 383. 
 
166 THE LAW OP SALES. 
 
 says that he is A when in fact he is B.^ But when one of 
 tlie formal constituents of a legal transaction is wanting, 
 there is no question of rescission ; the transaction is void 
 ab initio, and fraud does not impart to it, against the will 
 of the defrauded part}', a validity that it would not have 
 if the want were due to innocent mistake." 
 
 (c) The Second Purchaser must buy in Good Faith 
 and part with Value. — In order that the second pur- 
 cliaser may hold the goods as against the defrauded 
 vendor, he must be an innocent purchaser for value. If he 
 buys them with notice of his vendor's defective title, or 
 " with knowledge of circumstances to put him to an in- 
 quiry as to the source of that title," ^ his own title is no 
 better than his vendor's. Again, though he acquires the 
 chattels in good faith, his title will be defective unless he 
 paj's a valuable consideration for them. In the case last 
 cited, Allen, J., said : " There is no good reason or equity 
 in placing the burden of a fraudulent sale upon a bona fide 
 vendor rather than upon a bona fide purchaser from the 
 fraudulent vendee, unless the purchaser has parted with 
 liis monej', or some value, upon the credit of possession 
 or some evidence of title in the vendee, received from the 
 original owner, and by means of which he has induced the 
 purchaser to treat with him as owner." In a later case, 
 the same court held that if the purchaser paid value for 
 goods which were represented to be and were in his vend- 
 or's possession, the paj-ment was made upon the credit of 
 that possession, and he could hold the goods. ^ 
 
 {d) Meaning of Valuable Consideration. — What con- 
 stitutes a valuable consideration in this class of cases is a 
 question upon which the courts are at variance. 
 
 1 Edmunds v. Merch. T. Co., 135 Mass. 283 (1883) ; cf. Lord Hath- 
 erk'}''s opinion in Cundy v. Lindsay, supra, 468, 469. 
 
 2 Barnard v. Campbell, 58 N. Y. 73, 76 (1874). 
 8 Parker v. Baxter, 86 N. Y. 586 (1881). 
 
seller's duties. — buyer's rights. 167 
 
 A Creditor receiving Goods in Payment of a Debt is 
 not a Purchaser for Value. — According to one class of 
 decisions, ' ' a valuable consideration means the parting 
 with some value that cannot be actually restored by 
 operation of law, leaving the purchaser in a changed 
 condition, so that he may lose something beside his bar- 
 gain," if compelled to surrender the goods to the de- 
 frauded vendor.^ Where this doctrine prevails, one who 
 takes property in payment of a pre-existing debt ^ or even 
 in " satisfaction and discharge of such debt,"' is not a 
 purchaser for a valuable consideratiori In such cases 
 it is said, " the purchaser will be restored to what he may 
 have yielded up, if the original owner, who has been 
 defrauded, reclaims and recovers the property. The con- 
 sideration having failed, it will be the right of the pur- 
 chaser to be placed in statu quo, and the courts, in the 
 exercise of their remedial power, will be adequate to 
 furnish him the needed relief, even though, as in the 
 present case, there may have been a surrender of a pro- 
 missory note. The purchaser will not, therefore, be 
 materially affected in his legal rigjits bj' the retaking of 
 the goods by the original owner." * It is also said that 
 
 1 Hurd V. Biekford, 85 Me. 217, 220 ; 27 -At. 107 (1892). 
 
 2 Mayer v. Heidelbach, 123 N. Y. 332, 339 ; 25 N. E. 416 (1890). 
 The New York cases treat the transferee of negotiable paper, who takes 
 it in extinguishment of an old debt, as a holder for value ; but in 
 Button V. Rathbone, 137 N. Y. 187, 192 (1891), the goods having 
 been credited on an old debt, it was thought " unnecessary to inqiiire 
 whether the principle so frequently applied to transactions with banks 
 in regard to negotiable paper has any application to transfers of 
 personal property.'' 
 
 3 SchTnss 7,. Felt.n'i ^C\R Mich. m!f ; fil TJ W. 797 (1895), rejecting 
 the New York distinction, supra. 
 
 * Eaton V. Davidson, 46 Ohio St. 355, 369 ; 21 N. E. 442 (1889). 
 On p. 362 it is said the purchaser "must buy for an adequate, 
 valuable consideration.'' In Ohio, one who takes negotiable paper in 
 
168 THE LAW OF SALES. 
 
 taking goods in paj'ixient of a precedent is not a purchase 
 in the usual course of trade. ^ 
 
 The Opposite View. — According to another class of 
 decisions, one who takes property in payment of a prece- 
 dent debt is a purchaser for a valuable consideratiou. 
 Bowen, L. J., did not hesitate to declare'' that such was 
 always the common-law rule "before the reign of Queeu 
 Elizabeth as well as since. Commercial transactions are 
 based upon that very idea. It is one of the elementary 
 legal principles, as it seems to me, which belong to every 
 civilized country. . . . The man who has a debt due him, 
 when he is paid the debt has converted the right to be 
 paid into actual possession of the money ; he cannot have 
 both the right to be paid and the possession of the money. 
 In taking payment, he relinquishes the right for the fruition 
 of the right. In such a case, the transaction is completed ; 
 and to invalidate that transaction would be to lull credi- 
 tors into a false security, and to unsettle business." ° 
 
 payment of an anteoedent debt, is deemed a purchaser for value, 
 because of the policy of the law to facilitate the circulation of such 
 paper. Id. pp. 365, 366. 
 
 1 Root V. French, 13 Wend. (N. Y.) 570 (1835). In New Jersey, 
 one who takes property in payment of a pre-existing debt is a purchaser 
 in good faith, Knowles v. Vacher, 57 N. J. L. 490 (1896) ; but not 
 for a valuable consideration, DeWitt v. Van Sickle, 29 N. J. E. 209, 
 (1878). 
 
 2 Taylor v. Blakelock, 32 Ch. D. 560, 570 (1886). 
 
 " In Butters v. Haughwout, 42 111. 18, 32 (1866), the court said : 
 "A creditor who takes goods in payment, in whole or in part, of a 
 f)recedent debt, in good faith, . is lulled into security. He rests 
 in the belief that his debt is paid, and foregoes all effort to seek other 
 payment or security. ... It is a matter of uncertainty that a party 
 so receiving goods in payment of a precedent debt, is in no worse con- 
 dition if they are taken from him than he was before he received them. 
 If he loses a security he might have obtained, . . or if his vendor 
 becomes insolvent, . . he is in a worse condition." Schufeldt v. 
 Pease, 16 Wis. 659 (1863), accord. 
 
seller's duties. — buyer's eights. 169 
 
 Is a Pledgee a Purchaser for Value ? — The courts also 
 disagree upon the question whether a creditor who talies 
 property, not in paj-ment of an existing debt, but as col- 
 lateral security for it, can hold it as against the defrauded 
 vendor. In England, and in a few of our States,' he is 
 deemed a holder of the property for a valuable considera- 
 tion, to the extent of his demand. It is said that such 
 security induces the creditor " to give time and forbear- 
 ance or some other advantage " to the debtor, " and that 
 is a valuable consideration," ^ or it imposes upon the credi- 
 tor " burdens or duties not resting on him before, the 
 failing to bear or perform which will result in loss or in 
 diminution of his debt," and such "indefinite detriment 
 clearly makes him a holder for value." ' The prevailing 
 view in this country is, however, that a pledge of chattels 
 as security for a pre-existing debt, when there is no con- 
 tract for the extension of time or other advantage to the 
 debtor, " does not constitute the pledgee a holder for value 
 within the meaning of the rule we are considering." * 
 
 (e) An Attaching Creditor or Assignee as a Purchaser 
 for Value. — In most jurisdictions an attaching creditor ^ 
 or an assignee ° in insolvency or bankruptcy is deemed not 
 a purchaser for value of the chattels attached or assigned. 
 
 1 Frecy v. Clifford, 44 Cal. 335 (1872) ; Brem v. Lookhart, 93 N. C. 
 191 (1885). 
 
 2 In re Barker's Estate, 44 L. J. Ch. 487, 490 (1875) ; cf. 2 Bigelow 
 on Fraud, 460. 
 
 8 Bigelow on BUls and Notes, 217, 218. 
 
 * Goodwin ... Mass. Loan Co., 152 Mass. 189, 199; 25 N. E. 100^ 
 (1890) ; Hams v. Lombard, 60 Miss. 29, 33 (1882). Although a 
 creditor receiving property of his debtor as collateral security is 
 entitled to hold it as against other creditors. Surget v. Boyd, 57 
 Miss. 485, 489 (1879). 
 
 s Oswego Starch Factory v. Lendrum, 57 la. 573 (1881), and cases 
 in preceding note. Contra, Van Duzon v. Allen, 90 111. 499 (1878). 
 
 « Beneset v. Weil, 69 Md. 276 ; 14 At. 666 (1888). Contra, 
 Oberdorfer o. Meyer, 88 Va. 384; 13 S. E. 756 (1891). 
 
170 THE LAW OP SALES. 
 
 (/) A Second Purchaser who has promised to Pay. — 
 It is to be borne in mind that the buyer of goods is not 
 entitled to the rights of an innocent purchaser for value 
 simply because he has bound himself to pa}- for thetn.^ 
 He must have paid for them, or parted with a valuable 
 consideration, before receiving notice of his vendor's de- 
 fective title, or he cannot hold them against the defrauded 
 vendor. Accordingly, if A sells and delivers to B per- 
 sonal property in consideration of B's promise to satisf}' a 
 debt and surrender securities, and before such satisfaction 
 and surrender B receives notice of A's defective title, B 
 can acquire no greater rights in the propert}' than A had.^ 
 If the second purchaser has given notes or other engage- 
 ments to pay for the goods, and has disposed of the 
 property to bona fide purchasers, the defrauded vendor 
 may, by appropriate proceedings, obtain such notes or 
 engagements.' 
 
 (^) Legal Holder of Bill of Lading has Apparent 
 Authority to sell. — The apparent right of property as 
 owner is conferred, also, upon the legal holder of a bill 
 of lading. Such an instrument is not only a symbol of 
 the goods therein described, so that its deliverj- while the 
 goods are in transit * is the legal equivalent of the transfer 
 of possession of the goods themselves, but it is an " effec- 
 
 1 Lyttle V. Lansing, 147 U. S. 59 ; 13 Sup. Ct. 254 (1892). 
 
 2 Hayden v. Charter Oak D. P., 63 Conn. 142 ; 27 At. 232 (1893). 
 8 Am. Sugar Co. u. Fancher, 145 N. Y. 552 ; 40 N. E. 206 (1895). 
 * In Barber v. Mej'erstein, L. E. 4 H. L. 317 (1870), at p. 329, 
 
 it is said : "An indorsement of the hill of lading carries witli it the 
 property in the goods when the goods are at sea," and "the bill of 
 lading remains in force at least so long as complete delivery of posses- 
 sion of the goods has not been made to some person having a right 
 to claim them under it." Again, at p. 335, " Unquestionably the 
 bill of lading, as long as the engagement to the shipowner has not 
 been fulfilled, is a living current instrument, and no doubt the transfer 
 of it for value passes the absolute property in the goods." 
 
seller's duties. — buyer's rights. 171 
 
 tive representation of the ownership of the goods," and 
 hence "the parting with a bill of lading is parting with 
 that which is the sj-mbol of property, and which, for the 
 purpose of conve3'ing a right and interest in the propertj-, 
 is the property itself." ■^ As a symbol of the goods and a 
 muniment of title thereto, a bill of lading was treated by 
 the law merchant as negotiable, to some extent, " for the 
 general convenience of commerce ; " and its legal holder 
 might, ' ' b}' indorsement, transfer a greater right than he 
 himself had." ^ His indorsement or assignment thereof 
 to a ho7ia fide purchaser not only cut off an unpaid vend- 
 or's right of stoppage in transitu,^ but enabled the 
 transferee to hold the goods against a defrauded vendor.* 
 
 {h) Bill of Lading not fidly Negotiable. — But a bill 
 of lading was not treated as negotiable for all purposes. 
 Indeed, the contract for carriage and delivery, which is 
 embodied in a bill of lading, did not pass to the indorsee 
 with the property in the goods, and statutes were required 
 to enable him to enforce the rights in respect of this con- 
 tract in his own name.* Nor was a bill of lading, even 
 when considered as a document of titk, possessed of all 
 
 ' Barber v. Meyerstein, supra, 326, 330. 
 
 2 Jenkyns v. Osborne, 7 M. & G. 678, 699 (1844). In this case the 
 one undertaking to transfer the bill of lading was not in possession of 
 it, and the court held that "the interest in the goods did not pass, 
 as it would have done if the transfer had been by assignment of the 
 bill of lading," and that the transferee obtained only such rights as 
 his transferor had. 
 
 8 Lickbarrow v. Mason, 2 D. & E. 63 (1787) ; Dows v. Greene, 24 
 N. Y. 638 (1862). This topic will be considered more fully in the 
 next chapter. 
 
 * The Argentina, L. R. 1 Adm. 370 (1867) ; Winslow v. Norton, 
 29 Me. 419 (1849). 
 
 5 See Bills of Lading Act (1855), 18 & 19 Vict. c. 111. Under this 
 statute, the bona fide transferee of a bill of lading takes it free from all 
 liabilities of his transferor to the shipowner, not stated in the instru. 
 ment. Laduc v. Ward, 20 Q. B. D. 475 (1888). 
 
172 THE LAW OF SALES. 
 
 the characteristics or governed b}' all the rules of negotiable 
 paper. If it was obtained by a trick of such nature as that 
 no title to it passed to the consignee, he could not confer 
 upon an innocent purchaser for value a valid title by its 
 indorsement.^ Nor could the innocent purchaser from a 
 thief ^ or from a finder of a bill of lading acquire title to it ; 
 and if the owner of a bill of lading, made out in two or 
 more parts, transferred one part to a purchaser for value 
 and thus divested himself of title to the goods, he could 
 not bj' a subsequent transfer of another part confer any 
 propertj' rights in them to a second innocent purchaser 
 for value.' 
 
 Again, it was held that ' ' although the shipper may have 
 indorsed in blank a bill of lading deliverable to his assigns 
 his right is not affected b}' an appropriation of it without his 
 authority. . . . The bill of lading onl}' represents the 
 goods ; and in this instance, the transfer of the symbol does 
 not operate more than a transfer of what is represented." ^ 
 To such an instrument, "the doctrine of bona fide pur- 
 chaser onl}' applied in a limited sense." ^ 
 
 (i) NegotiahiJity of Bills of Lading under Statutes. — 
 In many jurisdictions, statutes have been enacted, declaring 
 
 1 Dows V. Perrin, 16 N. Y. 325 (1857). 
 
 2 Brower v. Peabody, 13 N. Y. 121 (18551. 
 
 8 Barber v. Meyerstein, L. E. 4 H. L. 317, 331 (1S70). " There is 
 no authority or reason for holding that the person who first obtains the 
 assignment of a bill of lading, and has given value for it, shall not 
 acquire the legal ownership of the goods it represents. " First Nat. Bank 
 0. Edge, 109 N. Y. 120 ; 4 Am. St. E. 431 ; 16 N. E. 317 (1888). But 
 the carrier is justified in a bona fide delivery of the goods to the holder 
 first presenting a bill of lading. Qlyn Co. v. East Ind. Co.. 7 Api). Cas. 
 591 (1882). A purchaser of goods, under a contract providing for pay- 
 ment in exchange for bill of lading, has no right to demand all three 
 parts as a condition of making payment. Sanders v. Maclean, 11 Q. 
 B. D. 327 (1883). 
 
 * Gurney v. Behrend, 3 E. & B. 606, 634 (1854). 
 
 6 Pollard V. Vinton, 105 U. S. 7, 8 (1881). 
 
seller's duties. — buyer's eights. 173 
 
 bills of lading, warehouse receipts, and other documents of 
 title to be negotiable bj' indorsement and delivery, in the 
 same manner as bills of exchange. Even such legislation, 
 however, has not transformed a document of title to goods 
 into a fully negotiable instrument. Its nature and its func- 
 tions make such a transformation impracticable/ and fully 
 justify the view taken by most courts that these statutes 
 have for their sole objects the regulation of the manner of 
 transferring documents of title to goods, and the declara- 
 tion that the "transfer and delivery of these symbols of 
 propert}- should, for certain purposes, be equivalent to an 
 actual transfer and delivery of the property itself." ^ In a 
 leading case in the U. 8. Supreme Court, this language is 
 used : " It cannot be that the statute, . . . intended to 
 change totally the character of bills of lading, put them 
 in all respects on the footing of instruments which are 
 representati^'es of money, and charge the negotiation of 
 them with all the consequences which usually attend or 
 follow the negotiation of bills and notes. Some of these 
 consequences would be very strange, if not impossible ; 
 such as the liability of indorsers, the duty of demand ad 
 diem, notice of non-deliver^' by the carrier, &c., or the 
 loss of the owner's property by the fraudulent assignment 
 of a thief." 
 
 Even a statute declaring that anj' person to whom a 
 negotiable warehouse receipt " is transferred, must be 
 deemed and taken to be the owner of the things or prop- 
 erty therein specified, so far as to give validity to any 
 
 1 Shaw D. Railroad Co., 101 U. 8. 557, 56 5 (1879). In Tiedeman 
 a. Knox, 53 Md. 612 (1880), there is a dictum to the effect that the 
 extremely rigid statute of that State makes bills of lading " negotiable 
 in the same sense as bills of exchange ; " but see Seal v. Zell, 63 Md. 
 356 (1884). 
 
 2 jS^at. Bank v. Chic. Bur. & N. R. Ry., 44 Minn. 224, 237 ; 20 Am. 
 St. Rep. 566 ; 46 N. W. 560 (1890). 
 
174 THE LAW OF SALES. 
 
 pledge, lien, or transfer made or created hy such person," 
 has been interpreted as conferring upon the receipt only 
 a quasi-negotiable character. It gives to the transfer of 
 the receipt the same effect as the common law gives to the 
 transfer of the goods represented bj' the receipt ; but it 
 does not modify the ' ' common-law right of the owner of 
 personal property to recover it from one who claims under 
 a disposition of it which was unauthorized bj' the owner." ' 
 Any other interpretation of such a statute " would enable 
 an}' one, fraudulentlj' depositing the goods of another, to 
 pass title as against the true owner by obtaining a ware- 
 house receipt in his own name." ^ 
 
 In accordance with this view of the statutes, it has been 
 held that a warehouseman is not a guarantor of the title of 
 property described in his receipt," and that an indorser of a 
 bill of lading does not guarant}' the performance of the 
 contract therein contained.'' In the case last cited, it is 
 said: " If the instrument is fictitious, or if there is any 
 fraud practised in transferring it, any remedy that the 
 transferee would be entitled to would be for that special 
 wrong ; and not by importing into the indorsement a prom- 
 ise to perform what the carrier had agreed or purported to 
 have agreed to do." 
 
 (j) Sole hy One in I'ossession v:itliout other Semhktnce 
 of Avthonty. — The apparent right of property as owner 
 is not conferred, at common law, upon the mere possessor 
 of goods, even though he is in possession with the consent 
 of the owner. " The law is elearl}' laid down that the 
 mere possession of personal property does not convey a 
 title to dispose of it." ' If the owner of lumber delivers it 
 
 1 Com. Bank v. Hurt. ,99 Ala. 130 ; 12 So. 568 (1892). 
 
 2 First Nat. Bank v. Boyce, 78 Ky. 42, 56 (1879). 
 
 3 Insurance Co. u. Kiger, 103 U. S. 352 (1880). 
 
 " Maybee v. Tregent, 47 Mich. 495, 498 ; 11 N. W. 287 (1882). 
 6 Pickering v. Busk, 15 East, 38, Le Blanc, J. (1812). 
 
seller's duties. — buyer's rights. 175 
 
 to A, for shipment in the owner's name to B, for sale, and 
 A ships it in his own name and sells it as his own prop- 
 erty, the purchaser acquires no rights to the lumber as 
 against the owner. ^ Possession in such a case is given to 
 A as bailee, or as agent for the transportation or custody 
 of the goods, and no color of authority is bestowed upon 
 him to sell them. To permit him to transfer a valid title 
 to them would violate that fundamental principle of the 
 common law, " that a man cannot be divested of his title 
 to property without his consent " or the operation of law ; '' 
 and would give to bailees " the dominion over all the goods 
 intrusted to them." ^ 
 
 {Je) Sale by Possessor with Apparent Authority to 
 Sell. — If, however, the owner delivers goods into the 
 possession of another ' ' whose common business it is to 
 sell, without limiting his authority, he thereby confers an 
 implied authority upon him to sell them," and a bona fide 
 purchaser for value from such a possessor can hold the 
 property.* The same result follows where the owner has 
 suffered another to have possession of property and of 
 those documents which are the indicia of property ; ^'as 
 where the owner of a ship in process of construction per- 
 mitted his agent to take out the usual builder's certificate 
 and to have her enrolled in the agent's name as owner ; " 
 or where the owner of bank-stock delivered to his stock- 
 brokers as collateral security the certificate therefor upon 
 which was indorsed a blank assignment subscribed by 
 him.' 
 
 1 Covin V. Hill, 4 Den. (N. Y.) 32-3 (1847). 
 
 2 Leigh Bros. v. Mobile Ey., 58 Ala. 165 (1877). 
 
 3 Wilkinson v. King, 2 Camp. 335 (1809). 
 * Pickering v. Busk, supra. 
 
 5 Dows V. Kidder, 84 N. Y. 121 (1881); O' ConTior's Admx. v. Clark . 
 170^. 318 ; 32 At. 1029 (1895). '^ 
 
 6 Calais Steamboat Co. v. Van Pelt, 2 Black (U. S.), 372 (1862). 
 
 ' McNeil V. Bank, 46 N. Y. 325 (1871). But the mere custody of 
 
176 THE LAW OF SALES. 
 
 (J) Sale hy Conditional Vendee. — In accordance with 
 the foregoing principles, the delivery of goods to one who 
 has contracted to purchase them, but is not to acquire title 
 until they are paid for, does not confer upon him apparent 
 authoritj' to sell either as owner or as agent of the owner. 
 His possession is that of a bailee for a specific purpose,^ 
 not that of a purchaser under a voidable title, ^ nor that of 
 an agent for sale.' Having no title, and no real or ap- 
 parent authority from the owner to sell, he cannot convey 
 to a purchaser any greater rights than he possesses. 
 ' ' Such is the necessary result of carrying into effect the 
 intention of the parties to a conditional sale and deliverj-. 
 An}' other rule would be equivalent to the denial of the 
 validitj- of such contracts." * The common law imposes 
 upon a purchaser the dut}- of inquiry concerning the title 
 of his vendor ; ^ and if he fails to make inquir}', or if his 
 vendor deceives him in respect of such title, an}- loss which 
 ensues, in cases such as we are now considering, is ascrib- 
 
 corporate stock by an agent does not confer upon him the apparent 
 ownership of the stock, nor apparent authority to transfer it ; and a 
 purchaser from him cannot hold it as against the true owner. Knox v. 
 Eden Musee, 148 N. Y. 441 ; 42 N. E. 988 (1896). 
 
 1 Coggill V. Hartford Ry., 3 Gray (69 Jlass.), 545 (1854). 
 
 2 Cole V. Berrj', 42 N. J. L. 308, 314 (1880). 
 
 ' Leigh Bros. v. Mobile Ry., 58 Ala. 165, 180. But the owner may 
 clothe his conditional vendee with apparent authority to sell as the 
 owner's agent. See Rogers v. Whitehouse, 71 Me. 222, 226 (1880) ; 
 Vallentine v. Reid, 22 Sess. Gas. 4th series, 711 (1895) ; Colnmhus 
 Buggy Co. u. Turley, 19 So. 232 ; 73_MisSi_529 (1896). 
 
 ' Coggill V. Hartford Ry., supra. 
 
 5 New Haven Wire Co. Oases, 57 Conn. 352, 386 ; 18 At. 266 
 (1889). " The law does not, as an universal rule, protect a man in the 
 assumption that he who asks for credit is the owner of every article of 
 per.'ioual property of which he has possession ; it imposes upon the in- 
 tending creditor the obligation to inquire into the character of that pos- 
 session; and inasmuch as the inquiry is a necessity, it does not concern 
 the public that the conditions are many ; the answer will reveal all." 
 
seller's duties. — buyer's eights. ITT 
 
 able to his own fault or to liis conficlence in his vendor, 
 and not to any conduct of the true owner having a legal 
 tendency to mislead and victimize him> In the last-cited 
 case, it is said: "The possession of the contemplated 
 purchaser gives him no better opportunitj' to impose upon 
 purchasers than that of an ordinar}' bailee. Possession by 
 a vendor without title has never been held sufficient to 
 confer title upon a purchaser from him. Clearly-, the 
 existence of an executory contract by which a vendor not 
 in possession may acquire title upon the performance of 
 some act by him, will not enable him to confer a title upon 
 a purchaser from him. If neither of these facts separately 
 considered will enable a vendor to confer title, I am unable 
 to see how such result can be produced by uniting them 
 in a vendor." 
 
 "What Right may be acquired by a Purchaser from a 
 Conditional Vendee. — A purchaser from a conditional 
 vendee, before default by the latter, may undoubtedly 
 acquire all of his vendor's rights under the contract, and 
 if the conditions are dulj- performed or tendered b)' his 
 vendor or by himself, he maj' obtain a perfect title to the 
 goods.'' But if they are not full}^ performed or waived, 
 he cannot hold the goods, nor, in most jurisdictions, does 
 he acquire any interest in them, either legal or equitable, 
 bj' reason of partial performance by his vendor or b}- him- 
 self* Some courts, however, hold that " the reservation 
 
 1 Ballard v. Biirgett, 40 N. Y. 314, 316 (1869). The foregoing case 
 is distinguished, in Comer v. Cunningham, 77 N. Y. 391 (1879), from 
 prior decisions, which were viewed as establishing "that a condition 
 that the title shall not pass until payment, when attached to a delivery 
 upon an actual completed contrast of sale, is available only as against 
 the vendee and persons claiming under him, other than honafide pur- 
 chasers." 
 
 2 Day V. Bassett, 102 Mass. 445 (1869). 
 
 » Hawkins v. Hersey, 86 Me. 394, 399 ; 30 At. 14 (1894) ; Empire 
 State F. Co. v. Grant, 114 N. Y. 40; 21 N. E. 49 (1889). 
 
 12 
 
178 THE LAW OF SALES. 
 
 of the title is but as security for the purchase-price, and if 
 the property is recovered by the seller, he must deal with 
 it as security' and with reference to the equitable rights of 
 the purchaser." ' The cases upon this branch of the sub- 
 ject frequently turn upon the construction of particular 
 agreements '■' and a discussion of the legal principles which 
 they involve belongs to a treatise on the general subject 
 of contract, rather than to a hand-book on sales. 
 
 (w) Statutory Reputed Ownershvp. — The common-law 
 doctrine that the possession of goods does not confer ap- 
 parent ownership '' has been modified bj' legislation which 
 has established the doctrine of " statutory reputed owner- 
 ship." It was introduced b}' a provision of the English 
 bankruptcy statute of 1623,^ to the effect "that if any 
 person shall become bankrupt, and at such time as they 
 shall so become bankrupt, shall, hy the consent and per- 
 mission of the true owner and proprietar}', have in their 
 possession, order, and disposition any goods or chattels 
 whereof they shall be the reputed owners, and take upon 
 them the sale, alteration, or disposition as owners," in 
 everj- such case the commissioners in bankruptcj- shall 
 have power to sell the same for the benefit of the bank- 
 rupt's creditors. Under this statute the owner of goods, 
 who has delivered possession to another pursuant to a con- 
 tract commonly known as one of conditional sale, is pre- 
 
 ' Foundry Co. u. Pascagoula Co., 72 Miss. 608, 615 ; 18 So. 364 
 (ISM). 
 
 2 Brewer v. Ford, 54 Hun, 116 ; 59 Id. 17 ; 126 N. Y. 643 (1891) ; 
 Tufts V. Griffin, 107 N. C. 47 (1891). 
 
 ' Lickbarrow v. Mason, 1 H. Bl. 357, 360 (1790). " Possession of 
 goods is jirima facie evidence of title, but that possession may be pre- 
 carious, as of a deposit ; it may be criminal, as of a thing stolen ; it may 
 be qualified, as of things in the custody of a servant, carrier, or factor. 
 Mere possession without a just title gives no property." 
 
 * 21 Jas. I. ch. 19, §§ 10 & 11 ; continued in 46 & 47 Vict. ch. 52, 
 §44. 
 
seller's duties. — btjyer's rights. 179 
 
 eluded from asserting his title as against an assignee in 
 bankruptcy,! unless tlie circumstances of the case, includ- 
 ing trade usages applicable to the transaction,^ rebut the 
 presumption of reputed ownership in the bankrupt. This 
 statutor}' provision, it will be observed, modified the com- 
 mon-law rights of a conditional vendor as against an as- 
 signee in bankruptcy only ; it did not apply to the vendee's 
 purchasers nor to his execution or attachment creditors. 
 
 (n) Reputed Ownership misappUed. — A few American 
 courts, faiUng to note the narrow limitations of the statute, 
 were misled by the decisions which it evoked, to apply 
 the doctrine of reputed ownership to all cases of condi- 
 tional sales, accompanied bj' transfer of possession, in 
 favor of the vendee's hona fide purchasers and creditors.' 
 They considered the doctrine to be as sweeping and as 
 well established in English law as in the law of France or 
 of Scotland. In a leading Pennsylvania case it was de- 
 clared in these terms: " Possession of personal property 
 is the great mark of ownership. It is almost the only 
 index which the world in general has to look to. . . . 
 Here the seller did not retain the possession, but was to 
 retain the property after he had transferred the possession 
 to the buyer. ... It is a rule of general policj', which 
 declares possession to be the evidence of property, and the 
 presumption is, that every man is trusted according to the 
 propertj' in his possession." ^ 
 
 1 Horn V. Baker, 9 East, 215 (1808). 
 
 2 Priestly v. Pratt, L. R. 2 Ex. 101 (1867) ; Crawcour v. Salter, 19 
 Ch. D. 30, 53 (1881). 
 
 s Rose V. Story, 1 Pa. St. 190 (1845) ; Brundage v. Camp, 21 111. 
 330 (1859). See Harkness v. Russell, 118 U. S. 663. at p. 670 (1886); 
 and compare the reasons assigned in Rose v. Story, at p. 196, with 
 those stated in Lord v. Green, 15 M. & "W. 216, at p. 222. The Penn- 
 sylvania and Illinois courts do not apply this doctrine to cases of bail- 
 ment. Ott V. Sweatman, 166 Pa. St. 217 ; 31 At. 102 (1895). 
 
 * Martin v. Mathiot, 14 S. & R. 214 (1826); cf. this with the French 
 
180 THE LAW OP SALES. 
 
 ('.') The Mercantile Vlev. — Although the foregoing 
 extract does not contain an accurate statement of the com- 
 mon law upon this point, it fairly represents the contention 
 of the mercantile community as to what the law should 
 be ; ^ and in compliance with mercantile demands, the doc- 
 trine of reputed ownership has been extended b}* statute in 
 many jurisdictions to conditional sales of personal prop- 
 erty. The provisions of these statutes are so various, 
 however, that no attempt will be made to discuss them.^ 
 
 (2^) Effect giren to the Mercantile Vieio by Factors 
 Acts. — A reputed ownership, also unknown to the com- 
 mon law, has been created in England and in a number of 
 our States bj' statutes commonly known as " Factors Acts." 
 Like the enactments relative to conditional sales, the}' dif- 
 fer too widely in detail to permit of adequate treatment in 
 this place. "^ But, speaking broadlj', they have for their 
 
 maxim, " En fait de meubles possession vaut titre," and the Scotch 
 maxim, " The property of movables is presumed from possession." 
 The Pennsylvania courts have gone further in applying these principles 
 than have those of Scotland ; for the latter have declared that the pos- 
 session of a conditional vendee is not reputed ownership, Murdoch ;;. 
 Greig, 16 Sess. Cas. 395, 4th series (1889), — a decision in accord with 
 Harkness v. Russell, supra. 
 
 1 Chalmers' Sale of Goods (2d ed. ), 118. "The merchants and 
 bankers contended that, in the interests of commerce, if a person was 
 put or left in possession of goods or documents of title, he ought, as 
 regards innocent third parties, to be treated as the owner of the goods." 
 Farmers' Bank v. Logan, 74 N. Y. 568, 686 (1878). 
 
 2 1 vStimson's Am. Statute Law, §§ 45S0-45.55. In a number of 
 States contracts of conditional sale accompanied by a deliveiy to the 
 buyer are declared to be absolutely void as against subsequent purchasers 
 and mortgagees in good faith unless duly filed in -- prescribed office. 
 See 3 N. Y. E. S. (9th ed.), 2609-2612, L. 1884, ch. 315, as amended. 
 English Sale of Goods Act, § 25 (2), applied in Helby t). Matthews, 95, 
 A. C. 471 ; 11 The Reports, 232. 
 
 8 1 Stimson's Am. Statute Law, §§ 4380-4388 ; English Sale of Goods 
 Act, § 25 (1), also 52 & 53 Vict. ch. 45, Factors Act of 1889. See 
 Appendix III. 
 
seller's duties. — buyer's rights. 181 
 
 primaiy object "the protection of third persons who, in 
 good faith and in ignorance of any defects of title, advance 
 money or incur obligations on the faith of property which 
 is apparently owned b}' the persons with whom they deal, 
 who, however, in fact hold it merel}' as factors or agents, 
 having been intrusted by the owners with possession of the 
 property or of documentary evidence of title to it." ^ They 
 do not applj- to cases, however, where ' ' the possession of 
 the factor or agent is, from the beginning, tortious, wrong- 
 ful, and unlawful," but onlj' to cases where the owner has 
 " consciously and voluntarily intrusted the factor or other 
 agent with the possession of the documents or merchan- 
 dise ; " ^ nor to the case of a vendor who is allowed by the 
 purchaser to remain in possession of the goods or of docu- 
 ments of title thereto.^ Nor do they give any rights to the 
 general creditors of the factor or agent in possession, or to 
 his voluntary assignee. In the language of Willes, J., "the 
 authority given by the Factors Acts quoad third persons 
 is an authority superadded and accessor3- to the ordinary 
 authority given bj^ a principal to his agent. It was not 
 intended by those acts to provide a remed}' for all the hard- 
 ships which may occur to innocent persons by dealing with 
 one in the apparent ownership of goods as if he were the 
 real owner ; but onlj' with cases where the agent is in- 
 trusted with and in possession of the goods with the assent 
 of the true owner of them." * 
 
 {q) Vendor's Retention of Possession. — At common 
 law, the title to goods may pass from the seller to the buyer 
 
 1 Commercial Bank v. Hurt, 99 Ala. 130; 12 So. 568 (1892). 
 
 2 Soltau u. Gerdau, 119 N. Y. 380. 390 ; 23 N. E. 864 (1890). The 
 English legislation on this subject has received careful consideration in 
 Campbell on Sales (2d ed.), 539-553. 
 
 « Johnson v. Credit Lyonnais Co., '^ 0. P. V>. .Sp, (1877). 
 
 4 Fuentes v. Montis, L. E. 3 C. P. 268 (1868). ' The court deals in 
 this case with the acts prior to 40 & 41 Vict. o. 39 ; that is, with the 
 statutes after which most American legislation has been fashioned. 
 
182 THE LAW OP SALES. 
 
 without a change of possession. If the contract is an un- 
 conditional one for the present sale of specific chattels, the 
 buyer becomes their owner bj' force of the contract. Title 
 having vested in him, it can be divested only by his con- 
 sent, or by operation of law. These principles, we have 
 .seen, are well established. It follows from them, that after 
 the title to specific goods has vested in the buyer, neither 
 the creditors of the seller nor his subsequent vendees can 
 acquire title from him.-' 
 
 Anomalous Doctrine in a Few States ; Ddlvery of 
 Possession necessary to j^ass Title. — This doctrine of 
 the common law prevails in most of our jurisdictions, save 
 as it has been modified bj' statute. In a few States, how- 
 ever, the courts have adopted the rule " that delivery of 
 possession is necessary to the convej'ance of a title to per- 
 sonal chattels, as against every one except the vendor ; and 
 a subsequent purchaser, with no notice of a prior sale, 
 receiving possession, has a better title than one who has 
 purchased the same thing with no delivery of possession." ^ 
 The decision in which this rule was first announced is 
 based largely on civil-law authorities, which the court 
 understood to be in accord with those of the common law.^ 
 Onlj' two cases are cited in support of the sweeping propo- 
 sition that ' ' when the same goods are sold to two different 
 persons, by conveyances equall}' valid, he who first lawfully 
 acquires the possession will hold them against the other." 
 
 The first is from Massachusetts.* It declared that the 
 
 1 Blackburn on Sales (2d ed.), 260 ; Meade v. Smith, 16 Conn. 346 
 (1844). 
 
 2 Crawford v. Forristall, 58 N. H. 114 (1877). In Reed v. Eeed, 70 
 Me, 504, 506 (1880), it is said ; "The law is well settled that without 
 delivery the title does not pass as against an attaching creditor." See 
 Husehle v. Moms, 131 111. 587 ; 23 N. E. 643 (1890). 
 
 3 Lanfear v. Sumner, 17 Mass. 110 (1821). 
 
 4 Lamb v. Durant, 12 Mass. 54 (1815). See note to this case at 
 p. 59, by D. A. Tyng, criticising it and Lanfear v. Sumner. 
 
seller's duties. — buyer's eights. 183 
 
 sale b}' one partner of a ship at sea did not give to the 
 purchaser for value a complete and perfect title, but " that 
 a subsequent possession within a reasonable time was 
 necessary to complete the transfer ; " and therefore that a 
 third person who bought and received possession of the 
 ship from the other partner, after the first sale but without 
 notice, obtained a complete and perfect title, — the second 
 sale " necessarilj' intercepting the title attempted to be 
 passed bj' the first conveyance." 
 
 Caldwell v. JBall misunderstood by the Massachusetts 
 Court. — The other case which is cited arose out of the 
 transfer of different parts of a bill of lading, bj' the owner 
 of goods, to different parties. Although the action was 
 in trover against the master who had signed the different 
 parts, and the plaintiff claimed as transferee of the part 
 first signed by him, allof the judges declared that the action 
 was to be considered as one between bona fide indorsees of 
 the different parts of the bill, and the only question was 
 which transferee of the instrument was owner of the goods. 
 At the trial, Willes, J., ruled that as the transferees were 
 both " bona fide holders of the bills, he who had first got 
 possession by a legal title ought to be preferred." On the 
 motion to set aside the verdict, which was for the defend- 
 ant, Ashurst, J., observed, "Where equity is equal be- 
 tween the parties, a legal title must prevail. This reduces 
 the question to a mere point of law." He then proceeds 
 to show that the different bills of lading (for the same cargo) 
 were all in substance to the order of the shipper ; that the 
 indorsement of one of the bills to defendant's principals was 
 " an immediate transfer of the legal interest in the cargo," 
 and that as the legal title was ested in such principals, the 
 shipper could not, by a subsequent transfer of the bill first 
 signed bj' the master, convey anj' title to the plaintiff. 
 Buller, J., held the same view ; the bills were to be treated 
 as made to the order of the shipper, and the question was, 
 
184 THE LAW OF SALES. 
 
 " Who has the prior right under him? who has the legal 
 title ? " After referring to the fact that a bill of lading 
 " is assignable in its nature ; and by indorsement the prop- 
 erty is vested in the assignee," he concludes, "Both par- 
 ties claim under Thompson (the shipper), but France & 
 Co. (defendant's principals) have the first legal rights for 
 the two bills of lading were first indorsed to them." ^ 
 
 Clearlj-, this case is no authoritj' for the proposition to 
 which it is cited by the Massachusetts court. 
 
 The Anomalous Doctrine supported by Considerations 
 of Puhlie Policy. — The courts of Illinois, while adopting 
 the Massachusetts rule, have rested it on considerations 
 of commercial policy rather than on common-law principles. 
 The rule of the common law, it is thought, ' ' would oper- 
 ate most injuriously upon the trade of the country, as a 
 person could never be safe in the purchase of personal 
 property if his title was liable to be defeated by a prior 
 sale of his vendor, made in some remote part of the country. 
 . . . Possession of personal property has alwaj's been re- 
 garded as evidence of ownership, and public policy" requires 
 that while personal chattels remain in tlie possession of 
 the former owner, they should as to third persons be re- 
 garded as his." ^ 
 
 These Considerations have induced J^egislution. — 
 Considerations of this nature have led to the enactment of 
 statutes in England' and in some of our States,^ changing 
 the rule of the common law,° and giving to the vendor's 
 
 1 Caldn-ell t>. Ball, 1 D. & E. 205, 210, 214, 215, 216 (1786). 
 
 2 Biiruell V. Robertson, 5 Gilm. (10 111.) 282, 291 (1848). 
 
 3 Sale of Goods Act, § 25 (1). 
 
 ' Claflin V. Rosenberg, 42 Mo. 439, 44S (1868) ; Trimble v. Keet, 
 65 Mo. App. 174 ; 2 Mo. App. Eepr, 1212 (1S9:>). 
 
 6 Johnson v. The Credit Lyonnais . 3 C. P. D. 32 . 40 (1877). "These 
 authorities fail to satisfy me that, at common law, the leaving by a 
 vendee of goods bought, or the documents of title, in the hands of the 
 vendor, till it suited the convenience of the former to take possession of 
 
seller's duties. — buyer's rights. 185 
 
 retention of possession iu certain cases the effect of reputed 
 ownership. 
 
 Delivery under this Rule. — Even in Massachusetts, 
 the fact that the goods are left by the purchaser in the 
 vendor's control will not prevent a " complete and perfect 
 title " passing, provided the latter has delivered the goods 
 to the former and thereafter holds them as the purchaser's 
 bailee.^ But it is said in a recent case, " the deliveri" re- 
 quired bj' the rule in Lanfear v. Sumner is delivery* in its 
 natural sense ; that is, a change of possession." ^ In New 
 Hampshire, if the goods are bulky or immovable, or are at 
 such a distance from the purchaser that he cannot take 
 actual possession at once, his title is valid even against 
 the vendor's creditors or subsequent vendees, "if he take 
 possession in a reasonable time." ' The dutj- of a pur- 
 chaser, in that State, is set forth in the following terms, 
 in a recent decision.* " Admitting the good faith of the 
 parties, and that they stand on equal grounds as to notice 
 of each other's rights, the defendant neglected the very 
 obvious duty of taking possession of the property ; and the 
 plaintiffs, finding it in the control of the vendor, should 
 not be made to suffer for the defendant's neglect. ... It 
 was not at such a distance from the place of the trade 
 that the defendant could not, by ordinarj' diligence, have 
 asserted title and taken possession before the plaintiffs." 
 
 5. Continued Possession by Vendor as Evidence of 
 Fraud. — Although, at common law, the vendee did not 
 endanger his title by leaving the goods in the vendor's 
 
 them, would, on a fraudulent sale or pledge by the party possessed, 
 divest the owner of his property or estop him from asserting his right 
 to it." 
 
 1 Dempsey ■!), Gardner, 127 Mass. 381, 382, and cases cited (1879). 
 
 2 Hallgarten v. Oldham, 135 Mass. 1, 9 (1883). 
 8 Eicker v. Cross, 5 K H. 570 (1832). 
 
 » Crawford v. Forristall, 58 N. H. 114 (1877). 
 
186 THE LAW OF SALES. 
 
 possession, yet under the statute against fraudulent con- 
 veyances/ his failure to take and retain possession was 
 evidence that the alleged sale was a sham. 
 
 The earlier English decisions laid down the proposition 
 that " if a man sells goods and still continues in posses- 
 sion as visible owner of them, such sale is fraudulent and 
 void as to creditors," under the statute.'' This doctrine 
 was modified by later cases, and the rule was finally es- 
 tabhshed that when, in the case of a bargain and sale, 
 " the goods were not taken away, but were left in the 
 hands of the man who had had them previously, that 
 which had been thought before to make the transaction 
 void was really no more than evidence to go to the jury of 
 fraud." ^ Even while the earlier doctrine obtained, it was 
 admitted that if the transaction did not purport to be a 
 bargain and sale, but was a contract to sell, retention of 
 the goods until some event happened or some condition 
 was performed, did not render the transaction fraudulent; 
 nor was a bargain and sale void for fraud upon creditors, 
 if the seller retained possession of the goods in the capacity 
 of agent of the vendee for sale. 
 
 (a) The Earlier English Doctrine approved, hj Some 
 Courts ; Various Reasons. — The earlier English doctrine 
 
 1 The statutes of 13 Eliz. e. 5, and 29 Eliz. u. 5, declared that all 
 feigned, covinous, aud fraudulent gifts, grants, alienations, &c., devised 
 to the intent to delay, hinder, or defraud creditors and others of their 
 just aud lawful actions, &c., should be utterly void unless made upon 
 good consideration and bonajide. 
 
 •'■ Edwards v. Hai"ben, _ 2 D. & E. 587 , 596 (1788). In Twyne's Case, 
 3 Coke, 80 b ; liloore, 638 (1601), it was resolved that a sale of goods 
 was fraudulent because (among other reasons) the seller " continued in 
 possession, and used them as his own; and by reason thereof he traded 
 and trafficked with others, and defrauded and deceived them." In 
 Bump on Fraudulent Conveyances (4th ed.), §§ 85-97, the English 
 cases are carefully examined. 
 
 3 Cooksou V. Swire, 9 App. Cas. 653, 664 (1884). May on Fraudu- 
 lent Conveyances (2d ed.), ch. 6. 
 
seller's duties. — buyer's eights. 187 
 
 has been adopted by a number of courts in this countr3-.^ 
 It received Chief Justice Marshall's approval, because he 
 thought it " best promoted the intent of the statute ; and 
 that fraudulent conveyances, which are made to secure to 
 a debtor a beneficial interest while his property is protected 
 from creditors, will be most effectuallj' prevented by de- 
 claring that an absolute bill of sale is itself a fraud unless 
 possession ' accompanies and follows the deed.' . . . Such 
 a deed must be considered as made with an intent ' to 
 delay, hinder, or defraud creditors.' " ^ 
 
 For similar reasons, a few State courts have adopted 
 this doctrine,^ while others have maintained it on different 
 grounds. Some hold that the purchaser, by leaving the 
 goods in the vendor's possession, confers upon the latter a 
 reputed ownership which is conclusive in favor of his bona 
 fide creditors and vendees ; * others have sustained it be- 
 cause the}' have "thought it better to takeawaj- the temp- 
 tation to practise fraud than to incur the danger arising 
 from the facility with which testimony ma}' be manufac- 
 tured to show that a sale was honest ; " ^ while still others 
 
 1 Connecticut, Florida, Illinois, Kentucky, MontaJa, Xeva'da, New 
 Hampshire, Pennsylvania, and Vermont profess allegiance to this 
 doctrine. 
 
 2 Hamilton v. Russel, 1 Cranch, 310, 318 (1803). In Warner «. 
 Norton, 20 How. (U. S.) 448, 459 (1857), the later English doctrine 
 seems to be approved. 
 
 s Holliday v. McKinne, 22 Fla. 153, 165, 166 (1886) ; Weeks v. 
 Weed, 2 Aik. (Yt.) 64, 68 (1826). 
 
 1 Streeper u. Eckart, 2 Wliar, (Pa.) 302, 807 (1836); Daniels u. 
 Nelson, 41 Vt. 161 (1868). In the latter case it was held that a tax- 
 collector was not a creditor or purchaser of the vendor in possession, 
 and, therefore, acquired no rights as against the vendee, by seizing the 
 goods. But see Stimson v. Wrigley, 86 N. Y. 332. 
 
 6 Huebler v. Smith, 62 Conn. 186, 191 ; 25 At. 658 (1892). But 
 the court held that a sale by a sheriff was not within the letter or the 
 spiiit of this doctrine. May on Fraudulent Conveyances (2d ed.), 133, 
 accord. Stimson v. Wrigley, 86 N. Y. 332, contra. 
 
188 THE LAW OF SALES. 
 
 have argued that it operates to throw the loss, which must 
 be borne b^' one of two innocent parties, upon " him whose 
 act or omission has made or contributed to malje the loss 
 possible." ^ 
 
 When Vendee excused from taking Actual Possession. 
 — Most of the courts which treat the retention of posses- 
 sion by the vendor as fraudulent in law, excuse the vendee 
 from taking actual possession in certain cases, as where 
 the goods are at sea, or a change in their location is im- 
 practicable. In a leading case on this subject it is said : 
 " The retention of pei'sonal chattels, after a sale, is^prfma 
 facie evidence of fraud, and the appropriate evidence to 
 rebut the presumption is not the proof of the general good 
 faith of the grantor, but an explanation of the intention, 
 to show either that it is consistent with the deed^ or is un- 
 avoidable, as in the case of a ship at sea, or is temporary, 
 or for the reasonable convenience of the vendee." ^ 
 
 Statutory Provisions as to Vendor's Retention of Pos- 
 session. — In a few States sales of personal propertj-, un- 
 less accompanied and followed by an actual change of 
 possession, have been declared by statute to be fraudulent 
 and void as against the vendor's b07ia fide purchasers or 
 creditors ; ^ and in most of the States statutes have been 
 passed, pronouncing chattel mortgages and all conve}-- 
 ances of chattels intended to operate as mortgages, which 
 
 1 Stephens v. Gifford, 137 Pa. St. 219, 229 ; 20 At. 542 (1890). 
 
 2 Gibson v. Love, 4 Fla. 217, 241 (1851) ; McKibbin v. Martin, 64 
 Pa. St. 362, 357 (1870) ; Kingsley «. "White, 57 Vt. 565 (1885). Upon 
 this point, the decisions in each jurisdiction require careful and dis- 
 criminating examination. 
 
 3 Rohrbough v. Johnson, 107 Cal. 144 ; 40 Pac. 37 (1895); Finding 
 ■0. Hartman, 14 Colo. 596 ; 23 Pac. 1004 (1890) ; Bowman n. Herring, 
 4 Harr. (Del.) 458 (1847) ; Wessels v. JlcCann, 85 la. 424 ; 52 N. W. 
 346 (1892) ; Claflin u. Rosenberg, 42 JIo. 439 (1868). Stirason's Am. 
 Statute Law, § 4599. Bump on Fraudulent Conveyances (4th ed.), 
 pp. 105-110. 
 
seller's duties. — buyer's rights. 189 
 
 are not accompanied and followed bj' aa actual change of 
 possession from the grantor to the grantee, absolutely 
 void as against tlie vendor's bona fide creditors, purchasers 
 and mortgagees, unless such convej'ances are duly filed or 
 registered.^ Statutes of similar import have been enacted 
 in Britain. The need and the nature of these acts are 
 explained by Lord Blackburn in a recent case in the 
 House of Lords. ^ 
 
 (S) The Later English Doctrine prevails generally in 
 this Country. — While the earlier English doctrine, as 
 laid down in Edwards v. Harben, prevails in many of our 
 jurisdictions, the later doctrine has been accepted in most 
 of the States. Continued possession by the vendor, after 
 title has passed to the vendee, is not conclusive evidence 
 of fraud. " The vendee may, notwithstanding, upon proof 
 that the sale was bona fide and for a valuable considera- 
 tion, and that the possession of the vendor, after such sale, 
 was in pursuance of some agreement, not inconsistent 
 with honesty in the transaction, hold under his purchase 
 against creditors " ^ or against subsequent purchasers from 
 the vendor.^ 
 
 Diverse Applications of the Doctrine. — It is to be noted, 
 however, that the courts which hold this doctrine are not 
 in entire accord in applying it. The}- " are at variance 
 with each other and sometimes with themselves as to how 
 far a vendee must go in such a case in his explanation of 
 the transaction and possession, to exonerate himself." ^ 
 In the case from which the foregoing quotation is made, 
 the court held that " the continuance in possession by the 
 
 1 Stimson's Am. Statute Law, § 4350. 
 
 2 Cookson V. Swire, 9 App. Cas. 653 (1884). 
 8 Brooks V. Powers, 15 Mass. 244 (1818). 
 
 1 Phillips V. Reitz, 16 Kans. 3 96 (1876). 
 
 5 Valley Distilling Co. v. Atkins, 50 Ark. 289, 291 ; 7 S. W. 137 
 (1887). 
 
190 THE LAW OF SALES. 
 
 vendor after the sale ... is prima facie evidence of a 
 secret trust which is fraudulent as to creditors, and if un- 
 explained, the presumption becomes conclusive ; " while 
 other courts treat such continued possession as ' ' only evi- 
 dence of fraud to be submitted to the jurj-." ^ 
 
 However, the prevailing view is, undoubtedly, that a 
 bona fide purchaser from the vendor in possession or his 
 creditor, makes out a prima facie case of sham or fraudu- 
 lent sale by proof that the property remained in the un- 
 changed possession of the vendor ; and that the vendee 
 must give evidence of the fairness of the sale in order to 
 take the case to the jury.^ 
 
 Diverse Views of Possession. — These courts differ, 
 also, as to what constitutes a change of possession. On 
 the one hand, it is said that " a legal or constructive de- 
 livery " is " enough to satisfy the law," and that such a 
 delivery takes place upon a bargain and sale, by the mere 
 agreement of the parties that the A'endor shall thereafter 
 hold the property as the buyer's bailee, although there is 
 no visible change of possession.^ On the other hand, and 
 generally, it is held that while ' ' the bulky and cumber- 
 some character of articles sold affects the nature of acts of 
 deliverjf and taking possession, some act definite and dis- 
 tinct is always required. Actual removal " may not be 
 " necessary, but something tantamount to an actual de- 
 livery, some plain surrender of possession on the one hand, 
 and assumption of it, on the other, is necessary."* 
 
 In Massachusetts, as we have seen, a true delivery is 
 
 1 Reedv. Jewett, 5 Greenl. (Me.) 96, 102 (1827). 
 
 2 Bump on Fraudulent Conveyances (4th ed.), § 111. 
 
 3 Shaul v. Harrington, 51 Ark. 305, 310 ; 15 S. W. 835 (1891) ; 
 Eight V. Harris, 56 Arlt:. 98 ; 19 S. W. 235 (1892). 
 
 « Stimson v. Wrigley, 86 N. Y. 332, 338 (1881); Seavey v. Walker, 
 108 Ind. 78, 82; 9 N. E. 347 (188S); c/. Thorndike i). Bath, 114 Mass. 
 116 (1873). 
 
seller's duties. — buyer's eights. 191 
 
 necessary to perfect the title in the purchaser as against 
 the vendor's creditors and subsequent vendees. If de- 
 livery has been made, subsequent "possession by the 
 vendor is only evidence of fraud, and the sale is not void 
 against a subsequent purchaser, unless fraud in fact is 
 proved." ^ 
 
 § 9. Specific Performance by the Seller may be decreed. 
 
 Suits by the purchaser for specific performance by the 
 seller are rarely maintainable. This is not because of the 
 personal nature of the subject-matter of sale contracts, but 
 " because damages at law calculated upon the market- 
 price of the stocit or goods are as complete a remedy to 
 the purchaser as the deliver}' of the stock or goods con- 
 tracted for, inasmuch as with the damages he may pur- 
 chase the same quantity of the like stock or goods." ^ 
 
 It happens, however, at times, that the articles con- 
 tracted for are of such a character that they cannot be 
 duplicated in the market, and their value cannot be properly 
 ascertained by a jury. Of this kind is "an old altar- 
 piece, made of silver, remarkable for a Greek inscription 
 and dedication to Hercules;"^ or " a silver tobacco-box 
 . . . adorned with several engravings of public transac- 
 tions and heads of distinguished persons;"^ or "china 
 jars of unusual beauty, rarity, and distinction;"^ or "a 
 faithful or family slave, endeared by a long course of ser- 
 vice or early association.'" In the case last cited, it was 
 declared that " no damages can compensate ; for there is 
 
 1 Thacher v. Moss, 134 Mass. 156, 165 (1883). 
 
 2 Adderley v. Dixon, 1 Sim. & Stu. 607, 610 ; 2 Eeener's Cas. Eq. 
 Juris. 13 (1824). 
 
 8 Duke of Somerset v. Cookson, 3 P. Wm. 390 (1735). 
 
 « Fells V. Reed, 3 Ves. 70 (1796). 
 
 6 Falcke v. Gray, 4 Drewrey, 651 (1859). 
 
 Williams v. Howard, 3 Murphey (N. C), 74, 80 (1819), 
 
192 THE LAW OP SALES. 
 
 no standard by which the price of affection can be ad- 
 justed, and no scale to graduate the feelings of the heart." 
 Letters patent and patented articles ' are of the same 
 class. 
 
 The principle governing the foregoing cases applies to 
 contracts for the sale of claims against insolvent persons. 
 A jurj' called upon to value such claims would be forced 
 to resort to conjecture.^ It applies, also, to a contract for 
 the sale of corporate stock which has never been sold in 
 the market, and which b}' the agreement between the 
 parties is to be transferred only in accordance with a 
 stipulated appraisal,' as well as to contracts for goods of 
 which the seller has the onl3' suppl}- fairly available to the 
 buyer.* In such cases the extreme difficult}-, if not im- 
 possibili tj-, of giving the buyer adequate damages at law 
 Tvarrants a court of equity in decreeing specific perform- 
 ance by the seller. 
 
 § 10. Damages for Breach of an Essential Term of the 
 Contract. 
 
 An extended discussion of this topic would not be con- 
 sistent with the plan of the present work ; and j-et a brief 
 statement of the general principles governing the assess- 
 ment of damages for the seller's breach of his contract is 
 proper, if not necessary. 
 
 ' Cogent V. Gibson, 33 Beav. 557 ; 2 Eeener's Cases on Eq. Juris. 
 86 (1864) ; Corbin v. Tracy, 34 Conn. 325 ; 2 Keener's Cases on Eq. 
 Juris. 34 (1S67) ; Hull v. Pitrat, 45 Fed. 94 (1891) ; Adams v. Mes- 
 singer, 147 Mass. 185; 17 N. E. 491 ; 2 Keener's Cases on Eq, Juris. 
 41 (1888). 
 
 2 Cutting V. Dana, 25 N. J. Eq. 265 ; 2 Keener's Cases on Eq. Juris. 
 60 (1874). 
 
 ' N. Eng. Trust Co. v. Abbott, 162 Mass. 148, 154 ; 38 N. E. 432 
 (1894). 
 
 * Equit. Gas Co. u. Baltimore Co., 63 Md. 285; 2 Keener's Cases on 
 Eq. Juris. 35 (1884). 
 
seller's duties. — buyer's eights. 193 
 
 1 . General Rule. — " Where a contract to deliver goods 
 at a certain price is broken, the proper measure of damages 
 in general is the difference between the contract-price and 
 the market-price of such goods at the time when the con- 
 tract is broken, because the purchaser, having the monej- in 
 his hands, maj- go into the market and buy. " ' Accordinglj', 
 one who contracts for the purchase of dies, to be used in 
 the manufacture of lanterns, is entitled to recover as dam- 
 ages from the seller, upon the latter's failure to deliver the 
 dies, the difference between the contract-price and the 
 price at which the\' could be obtained from other sellers.^ 
 Such also is the measure of damages for the seller's breach 
 of his contract to sell and deliver municipal bonds.^ 
 
 («) Market-Price at Time and Place of Delivery. — 
 If the contract fixes the time and place of delivery, the 
 market-price at such time and place is to be resorted to in 
 estimating the damages. " The wrong is done when the 
 contract is broken, and the value of the thing when and 
 where it ought to be delivered, is the indemnity." * 
 
 If they are not fixed by the contract, we have seen that 
 the law regulates them. In such a case, the date of the 
 seller's refusal to deliver is the time at which the market- 
 price is to be taken. " A party's right of recovery must 
 be deemed fixed at some time, and he cannot wait for an 
 indefinite period and speculate upon the changes in the 
 market while taking upon himself none of the risks of 
 decline. . . . A recoverj- which, at the time of the demand 
 and refusal, would have enabled the party to purchase other 
 
 1 Ban-ow v. Arnaud, 8 Q. B. 695, 609 (1846) ; Billraeyer i). "Wagner, 
 91 Pa. St. 92, 95 (1879) ; Peace Eiver Co. v. Grafflin, 58 Fed. K. 550, 
 552 (1893). 
 
 ' Eochester Lantern Co. v. Stiles & Parker Co., 135 N. Y. 209, 218 ; 
 31 N. E. 1018 (1892). 
 
 8 Coffin V. State, 144 Ind. 578 ; 43 N. E. 654 (1896). 
 
 * Shaw V. Nudd, 8 Pick. (Mass.) 9, 14 (1829). 
 13 
 
194 THE LAW OP SALES. 
 
 property of the like kind and of equal value at the same 
 place, is, in the absence of special circumstances, as nearly 
 just as any the law can provide for." ^ 
 
 2. Xo Available Market. — It often happens that the 
 buyer has no market to which he can resort for the purchase 
 of the stipulated goods. In such a case his loss cannot be 
 determined by a comparison of the contract-price with the 
 market-price, for there is no market-price ; it must be 
 determined by some other method. 
 
 The general principle to be apphed in these cases is that 
 upon which the rule, already considered, rests. It was 
 announced in a leading case in these words : " The party 
 injured is entitled to recover all his damages, including 
 gains prevented as well as losses sustained ; and this rule 
 is subject to but two conditions. The damages must be 
 such as ma}- fairly be supposed to have entered into the 
 contemplation of the parties when thej- made the contract; 
 that is, must be such as might naturally be expected to 
 follow its violation ; and they must be certain, both in 
 their nature and in respect to the cause from which they 
 proceed." ^ 
 
 Hence, if there is no market for the stipulated goods at 
 the time and place of delivery, the buyer may show his loss 
 b}' evidence of "the value which he would have received 
 had the seller faithfully performed his contract ; " ' and this 
 value may be arrived at by adding to the prime cost the 
 expense of transit, and a reasonable profit to the buyer ; * 
 or the loss may be shown b}' evidence of the price at 
 which the buyer had contracted to sell them, whether the 
 
 1 Chadwick v. Butler, 28 Mich. 349, 353 (1873). 
 
 2 Griffin c. Colver, 16 N. Y. 489, 494, 495 ; 69 Am. Deo. 718 
 (1857). 
 
 8 Bridge o. Wain, 1 Stark. 504, 506 (1816) (scarlet cuttings for 
 the Chinese market). 
 
 i O'Hanlan v. Great W. Ey., 6 B. & S. 484 (1865). 
 
seller's duties. — buyer's bights. 195 
 
 contract of sub-sale had been notified to the seller or 
 not.i 
 
 If goods similar to those contracted for can be obtained 
 at the place of delivery while the exact goods are not avail- 
 able, the buyer will be justified in purchasing such goods to 
 replace those which the seller has failed to furnish, although 
 their market-price may be higher than the fair value of the 
 stipulated articles. Under such circumstances, it has been 
 held, " the value of the goods contracted to be supplied by 
 the defendants " (the sellers) " at the time of their breach of 
 contract was the price the plaintiff " (the buyer) " had to 
 give for the substituted article." ^ 
 
 3. Special Damage. — The rule on this subject has been 
 stated as follows : " Where the contract is made under such 
 circumstances that particular consequences are at the time 
 of making it in the contemplation of both parties as the 
 necessarj- or probable result of a failure to deliver the 
 goods, then if such failure occurs, and these consequences 
 ensue, the buyer may recover the loss thereby sustained as 
 damages for the breach."' A few cases must suffice to 
 show the application of this rule. 
 
 (a) Particular Consequences not contemplated hy the 
 Seller. — A lumber manufacturer contracted for the pur- 
 chase of two million feet of logs to be delivered on a certain 
 stream from which point they were to be driven by the pur- 
 chaser. The seller was not advised that the buyer was con- 
 tracting for the logs for the supplj' of his mill, or for any 
 other special purpose. They were not delivered, and the 
 buyer sought to recover as damages not only the difiference 
 
 1 Stroud V. Austin, 1 C. & E. 119 (1883) ; Gr ebert- ^r^is v. J Tugent , 
 15 Q. B. D. 85, 87, 88 (1885) ; Loescher d. Deisterberg, 26 111. App. 520 
 (1887) ; Trigg v. Clay, 88 Ta. 330 ; 29 Am. St. U. 723; 13 S. E. 434 
 (1891). 
 
 2 Hinde v. Lindell, L. E. 10 C. P. 265, 270 (1875). 
 
 3 Campbell on Sales (2d ed.), 504. 
 
196 THE LAW OF SALES. 
 
 between the contract-price and the market-price at the time 
 and place of delivery, but also special damages which he 
 had suffered as a manufacturer " bj' reason of his mill 
 standing idle for the want of logs on which to operate." 
 The court rejected his claim for special damages, on the 
 ground that the parties could not be presumed to have had 
 them in contemplation.^ 
 
 (b) The Seller notified of Particular Consequences. — 
 On the other hand, the same court awarded special damages 
 to a buyer who had contracted for a locomotive engine, 
 to take the place of horses and mules in drawing coal-cars. 
 The direct consequence of not getting the engine, it was 
 held, was that the buyer was " obliged to continue trans- 
 porting the coal as before by horses and mules," and " that 
 this consequence must have been in full view of the sellers 
 when they enteredinto the contract," the court entertained 
 no doubt. The buyer was allowed, therefore, to recover 
 as special damages " the difference of expense of trans- 
 portation between the old mode and the one stipulated for 
 in the contract." But this did not content him. He 
 asserted that he could have mined one-third more coal 
 with the engine than by the old mode, and asked for the 
 profits which would have resulted from such enlargement 
 of his business. This claim the court rejected, as there 
 was no evidence that such particular consequences were 
 or ought to have been within the contemplation of the 
 sellers.^ 
 
 (c) Seller and Buyer need not be agreed as to the Pre- 
 cise Consequences. — In a modern English case, the seller 
 sought to escape the payment of special damages, because 
 he and the buyer were " not preciselj' ad idem as to the 
 use of the article in question." He supposed that the " hull 
 of a floating boom derrick," which he contracted to sell, was 
 
 1 Fessler v. Love, 48 Pa. St. 407 (1864). 
 
 2 Pittsburg Coal Co. v. Foster, 59 Pa. St. 365. 
 
seller's duties. — buyer's rights. 197 
 
 to be used by the purchaser as a coal store, when in fact 
 the purchaser intended to place in it large hj'draulic cranes 
 and machinerj' for the purpose of transshipping coal direct 
 from colliers into barges. The court declared that the 
 principle applicable to such a case is this : ' ' Although 
 the buyer may have sustained a loss from the non-deliverj' 
 of an article which he intended to apply to a special pur- 
 pose, and which, if applied to that special purpose, would 
 have been productive of a larger amount of profit, the 
 seller cannot be called upon to malje good that loss, if it 
 was not within the scope of his contemplation that the 
 thing would be applied to the purpose from which such 
 larger profit might result ; and although in point of fact 
 the buyer does sustain damage to that extent, it would 
 not be reasonable or just that the seller should be called 
 upon to pay it to that extent, but to the extent to which 
 the seller contemplated that, in the event of his not fulfil- 
 ling his contract hy the delivery of the article, the profit 
 which would be realized if the article had been delivered 
 would be lost to the other party, to that extent he 
 ought to pay. The buyer had lost the larger amount, 
 and there can be no hardship or injustice in making the 
 seller liable to compensate him in damages so far as the 
 seller understood and believed the article would be applied 
 to the ordinary purposes to which it was capable of being 
 applied."^ 
 
 ((/) /Special Damages when Seller knows the Goods 
 are for Resale. — If the seller enters into the contract 
 aware that the buyer orders the article with a view to 
 selling it again, the profits which would have been realized 
 upon a resale may be recovered by the buj-er as damages." 
 Such profits are certainly within the contemplation of both 
 parties to such a contract. 
 
 1 Cory V. Thames Co., L. R. 3 Q. B. 181, 190 (1868). 
 
 2 Blue Grass Cordage Co. v. Luthy, Ky. ; 33 S. W, 835 
 (1896). 
 
198 THE LAW OP SALES. 
 
 Again, if the seller's default subjects the buj-er to the 
 payment of penalties to his purchaser, because of the pro- 
 visions of the sub-contract made known to the original 
 seller, they maj' form a part of the first buj-er's damages ; ^ 
 and if the default naturallj' brings upon the first bu^-er an 
 action and judgment for damages for his breach, such 
 recovery may be an element in the first buyer's claim for 
 damages against his vendor. The general rule applicable 
 to such cases is, that " the original vendor is liable, in the 
 case of a breach of contract, for the natural consequences 
 of so much of the sub-contract as was made known to 
 him, . . . but only to that extent." ^ That the sub-con- 
 tract was made known to the original seller may be in- 
 ferred from the previous course of dealing between him 
 and the first buyer.' 
 
 (e) Expenses in Transporting and Caring for the 
 Goods, as Special Damages. — So, too, if the seller 
 tenders goods which do not conform to the contract, he 
 will be liable to the buyer for all necessary expenses in 
 testing them, as well as for all reasonable and customary 
 payments by the latter for insurance, freight, cartage, and 
 storage. In such a case, if the buyer is able to obtain the 
 described goods in the market, his total damages would 
 embrace the difference between the market-price and the 
 contract-price, and also the expenses above referred to.* 
 
 if) Conjectural Profits. — It has alreadj- appeared 
 that profits which would have been realized by the pur- 
 chaser, had the seller performed his contract, may be 
 recovered as damages for the seller's breach. The only 
 conditions of recovery are, that they should have been 
 
 1 Elbinger v. Armstrong, L. R. 9 Q. B. 473 (1S74). 
 
 2 Grebert-Borgnis v. Nugent, 15 Q. B. D. 85, 90 (1885). 
 ' Gillespie v. Cheney (1896), 2 Q. B. 59. 
 
 « Whiting Co. v. White Lead Works, 58 Mich. 29 ; 24 ^\ W. 881 
 (1885). 
 
SELLER'S DUTIES. — BUYEfi'S EIGHTS. 199 
 
 fairly within the contemplation of the parties as the 
 natural consequences of the breach, and that their amount 
 should be reasonably certain. 
 
 It is not necessary that the amount be susceptible of 
 exact calculation,^ but the buyer must establish as a fact 
 that profits would have been realized. If the business in 
 which he would have used the articles be a new and un- 
 tried one in his localit}', and his evidence furnishes a basis 
 for conjectures only as to whether any profits would have 
 resulted to him from the vendor's performance of the 
 contract, his claim for profits as an element of damages 
 must fail.'' 
 
 4. Duty of the Injured Party to minimize Damarjes. — 
 Damages are not awarded against one who breaks his con- 
 tract with a view to punishing him, but with a view to 
 compensating the other party for the loss occasioned by 
 the breach. The seller's default, therefore, must be the 
 natural and proximate cause of the loss. If, upon such 
 default, the buyer can mitigate the consequences bj' 
 reasonable efltorts, but fails to make any attempt, he does 
 not act the part of an ordinarily prudent man. The seller 
 has a right to suppose that the buyer will act such a part. 
 Damages which might have been avoided by such action 
 cannot be deemed the natural and probable consequences 
 of the seller's default, but of the buyer's imprudence.' 
 
 Accordingly, the rule has become well settled that the 
 buyer is bound to use all reasonable efforts to minimize 
 the injurious effects of the seller's default.'' Even if the 
 defaulting seller is the only person from whom he can 
 obtain the articles, he may be bound to secure them 
 from such person on the best terms practicable.^ 
 
 1 ■VVakeman w. MannfacturingCo., 101 N. Y. 205; 4N. E. 264(1886). 
 
 2 Gas Co. e. Glass Co., 56 Kans. 614 ; 44 Pac. 621 (1896). 
 
 s Watson v. Kirby, 111 Ala. ; 20 So. 624, 627, 628 (1896). 
 * Copper Co. i). Copper Mining Co., 33 Vt. 92 (1860). 
 4 Lawrence v. Porter, 63 Fed. 62 (1894). 
 
200 THE LAW OF SALES. 
 
 And if he obtains the goods from some other source 
 below the market-price, his damages will be the difference 
 between the contract-price and that which he paid.' 
 
 § 11. Damages for Breach of Warranty. 
 
 Thus far we have been considering the measure of the 
 buyer's damages for a breach by the seller of an essential 
 term of the contract in eases where the buj-er has not 
 taken title to the goods. If, notwithstanding such a 
 breach b}' the seller, the buj'er accepts the goods, he can- 
 not reject them thereafter, but, having waived the opera- 
 tion of the essential term as a condition, is now limited to 
 a claim for damages, precisely as he would have been had 
 this engagement been from the first a collateral agreement 
 or warranty in its narrow sense. ^ 
 
 (a) Gmeral Principles. — The ordinary- measure of 
 damages for a breach of warrant}- is ' ' the difference be- 
 tween the actual v.alue of the article sold and the value of 
 the same article if it had been such as the vendor war- 
 ranted it to be." ' If the contract-price is less than the 
 fair value, the buyer " is entitled to the benefit of the 
 contract." '' And if he resells the property, though with- 
 out a warranty on his part, the price which he receives 
 does not fix the amount of his damages ; ^ at most, it 
 affords evidence of the real value of the propertj'.^ 
 
 (5) Sped III Damages.— 'Y\\^ general principles which 
 are applicable to special damages for the breach of an 
 
 1 Anioia c. Blabon, 147 Pa. 372 ; 23 At. 375 (1892) ; Theiss v. 
 ■\Veiss, 160 Pa. 9; 31 At. 63 (1895). 
 
 2 Sv]<r,i, p. 127 ; Campbell on Sales (2d ed.), 510, 511. 
 ' Brown v. Bigelow, 10 Allen (92 Mass.), 242 (1865). 
 
 * Brook V. Clark, 60 Vt. 551, 553 (1888) ; Murray v. Jennings, 42 
 Conn. 9 (187.5). 
 
 ^ Case Plow "Works v. Niles, 90 "Wis. 590, 606 ; 63 N. W. 1013 
 (1895). 
 
 6 Bach V. Levy, 101 N. Y. 511 ; 5 N. E. 345 (1886). 
 
seller's duties. — buyer's rights. 201 
 
 essential term of the contract, and which have been pre- 
 sented in the last preceding section, govern this species of 
 damages for the breach of a warranty. 
 
 Accordingl}-, if coal is sold with a warrant}' by one 
 knowing that the buyer is purchasing for the purpose of 
 reselling it as coal of the warranted description, the first 
 buyer's damages may include the costs of an action un- 
 successfully defended by him for a breach of his sub- 
 warranty.^ If seed is sold to a market-gardener, and 
 warranted to be Bristol cabbage seed, when it is not, the 
 ■buyer ma}' recover as damages "the difference in value 
 between the crop raised from the defective seed and a crop 
 of Bristol cabbage, such as would ordinarily have been 
 produced in the year in which the seed was sown." ^ 
 
 Diseased Animals : Poisonous /Substances. — Again, 
 a seller of diseased animals, with a warranty of sound- 
 ness, is liable for all the loss sustained by the buyer which 
 was the natural and probable result of the breach. One 
 who sells diseased cows ° or horses or sheep,' with a war- 
 ranty of soundness, to a farmer, who ma}' be expected to 
 put them with other animals, may be liable in damages 
 not only for the difference between the value of the ani- 
 mals with the disease and their value if sound, but also for 
 the injury to other animals with which they were placed. 
 And if oats are sold, with a warranty of fitness for use, to 
 an owner of horses, but which contain a mixture of seeds 
 harmful to horses, the seller may be subject to an exten- 
 sive liability to the buyer for the value of the horses which 
 
 1 Hammond v. Bussey, 20 Q. B. D. 79 (1887). 
 
 2 White V. Miller, 71 N. Y. 118, 132 (1877) ; cf. Wolcott v. Mount, 
 35 N. J. L. 262 (1873) ; Wagstaff v. Shorthorn Dairy Co., 1 C. & E. 
 324 (1885). 
 
 8 Smith V. Green, 1 C. P. D. 92 (1875). 
 
 4 Sherrod v. Langdon, 21 la. 519 (1886) ; Joy v. Bitzer, 77 la. 73, 
 80; 41 N. W. 575 (1889). 
 
202 THE LAW OF SALES. 
 
 died, for the injurj' to those which survived, for the value 
 of their use while sick, and for expenses incurred in doc- 
 toring and caring for them.' 
 
 Profits as /Special Damages. — Profits which the buyer 
 can establish with reasonable certaint3- he would have 
 made had the warranted article conformed to the sale 
 contract, may be recovered if the facts show that such 
 profits were within the contemplation of the parties when 
 the contract was entered into. The manufacturer of a 
 refrigerator, who warrants that it will "keep chickens for 
 the early spring market," will be liable not only for the 
 difference between the value of the refrigerator as fur- 
 nished and its value had it conformed to the contract, but 
 to the spring-market value of the chickens, which were 
 lost because of its defects, less the cost of getting them to 
 market and the expenses of selling them.^ 
 
 § 12. Interest as Damages, 
 
 In England the buyer is rarely entitled to recover inter- 
 est upon his principal claim for damages.^ The " state of 
 the law in this country upon the subject is uncertain." ^ 
 It appears, however, to be the prevailing view that the 
 buyer is entitled to interest on whatever of his principal 
 claim can be treated as liquidated, to be reckoned from 
 the date of the seller's lireach or default ; and that dam- 
 ages will be treated as liquidated when the}' can be " de- 
 termined by computation simply, or bv reference to market 
 values." ^ But if the claim is unliquidated, as in the case 
 
 1 Coyle V. Baum, 3 Okl. 695 ; 41 Pac. 389 (1895). 
 
 2 Beeman v. Banta, 118 N. Y. 538 ; 23 N. E. 887 (1890). 
 
 3 Brown, Sale of Goods Act, 236, 237 ; 3 & 4 \\i\\. IV. e. 42, § 28. 
 * White I). Jliller, 78 N. Y. at p. 395. 
 
 6 White V. Miller, 71 K. Y. at p. 134 ; Gray v. Hall, 29 Kans. 704 
 (1883); Thomas v. Wella, 140 Mass. 517; 5 N. E. 485 (1885). 
 
seller's duties. — buyer's rights. 203 
 
 of damages sustained bj- a purchaser who has bought and 
 planted spurious cabbage seed, which was warranted to be 
 " Bristol cabbage seed," interest cannot be set running 
 either by a demand for damages, or by the commencement 
 of an action therefor.^ 
 
 1 White V. Miller, 78 N. Y. 393 (1879). 
 
204 THE LAW OP SALES. 
 
 CHAPTER VI. 
 
 DUTIES OF BUYER. — RIGHTS OP SELLER. 
 
 Having discussed the duties of the seller to transfer 
 title and to give possession, we pass now to a considera- 
 tion of the corresponding duties of the buyer to take title 
 and possession, and to pay for the property. 
 
 § 1. The Duty to take Title. 
 
 In the case of a contract to sell, as distinguished from 
 a contract of bargain and sale, the title to the goods is to 
 be transferred at a future time. Upon performance, or 
 tender of performance, by the seller, as described in the 
 preceding chapter, it becomes the dutj' of the buyer to 
 accept the goods and thus take title to them. What con- 
 stitutes an acceptance by the purchaser has been discussed 
 in other connections, ■" and need not be reconsidered here. 
 At present we are especiallj- concerned with the conse- 
 quences of the buyer's breach of his dut}- to accept. 
 
 1. Seller's Claim is for Damages. — Can he, by refus- 
 ing to accept goods which are tendered by the seller in 
 conformity to the contract, prevent the transfer of title to 
 him, and thus limit the seller to an action for damages ? 
 In England ^ and in many of our jurisdictions this question 
 has received an afiirmative answer. Even though the 
 buyer has agreed to take title to such goods as are ten- 
 dered, yet till he assents to the transfer of the specific 
 
 1 Supra, pp. 69, 128. Sale of Goods Act, §§ .'34, 35. 
 
 2 Jenner i-. Smith, L. R 4 C. P. 270 (1869). 
 
DUTIES OP BUYEE. — EIGHTS OP feLLEff. 205 
 
 goods which are offered, the property therein will not be 
 changed.^ " Both parties must be pledged, the one to give 
 and the other to accept those specific goods. This is ob- 
 Yiousl}' just, for until both parties are so agreed, the ap- 
 propriation cannot be binding upon either ; not upon the 
 one, because he has not consented, nor upon the other, 
 because the iirst is free." ^ 
 
 Inasmuch as the title to the goods remains in the seller, 
 his right against the buyer, who wrongfully refuses to 
 accept, is to recover such damages as the latter's breach 
 has inflicted upon him, and not to recover the purchase- 
 price.' " The seller may take his goods into the market 
 and obtain the current price for them."* Nor can the 
 seller recover the contract-price as that of labor and mate- 
 rials supplied to the buyer, for the materials are still the 
 property of the seller, and the labor was bestowed upon 
 his property- and not upon that of the buyer.'' 
 
 2. Seller's Right to Price upon Tender of Stipulated 
 Goods. — In some jurisdictions, however, it is held that if 
 the seller duly tenders the goods in conformity to the con- 
 tract, " the right of property passes to the vendee," and 
 that upon the latter's refusal " to accept and paj- the price, 
 the vendor may recover the contract-price, in which case 
 he holds the property as trustee for the vendee." * 
 
 Other courts limit this doctrine to cases where " the 
 subject-matter of the contract is a specific article to be 
 manufactured by the vendor for the vendee," which has 
 
 1 Moody V. Brown, 34 Me. 107 (1852). 
 
 2 Blackburn on Sales (2d ed.), 129. 
 
 8 Jones V. Jennings Bros., 168 Pa. 493, 497 ; 32 A. 51 (1895). 
 
 * Barrow v. Amaud, 8 Q. B. (Ad. & E. N. s.) 604, 610 (1846). 
 
 6 Hosmer v. Wilson, 7 Micli. 294 (1859) ; Butler v. Butler^ 77 N. Y. 
 472 (1879). "" 
 
 8 Hayden v. Demets, 53 N. Y. 426, 431 (1873) ; Shawhan v. Van 
 Nest, 25 Ohio St. 490 (1874). 
 
206 THE LAW OF SALES. 
 
 been made and tendered in accordance with the contract 
 stipulations.' 
 
 Two arguments are urged in support of this view : first, 
 that an article manufactured for a special purpose may be 
 of little value to anj' one else, and therefore it is but fair 
 to the seller that he should recover the contract-price, 
 upon the bu5-er's breach ; second, that this " rule (giving 
 title to the vendee against his will and the purchase-price 
 to the seller) will be less disastrous to the purchaser than 
 a sale in an open market " by the seller, and his recovery 
 of the difference between the price thus obtained and the 
 contract-price.^ 
 
 The answer to the first argument is that if the goods 
 have no market value, the seller may recover as damages 
 for breach of the contract a sum equal to the contract- 
 price ; ° and in replj' to the second argument, it may be 
 said that it is not incumbent upon courts to disregard well- 
 established legal principles in order to relieve a contract- 
 breaker from the ordinary consequences of his acts. 
 
 3. Contract may hind Buyer to pay Price whether 
 Title passes or not. — Undoubtedlj' the contract may be 
 so framed as to give to the seller the right to sue for the 
 agreed price without regard to the time when title is to be 
 transferred, and without regard to the continued existence 
 of the goods.* A buyer who agrees to paj' on a specified 
 day, if he shall not require delivery before that date, upon 
 making default in paj'ment, cannot defend an action for 
 the price on the ground that the goods are still owned by 
 the plaintiff,^ nor is such defence available to one who has 
 
 1 Black River Lumber Co. v. Warner, 93 Mo. 374, 387 ; 6 S. W, 
 210 (1887). 
 
 2 Gordon v. Norris, 49 N. H. 376, 384 (1870), and case in last 
 note. 
 
 3 Tufts V. Grewer, 83 Me. 407, 412; 22 At. 382 (1891). 
 
 « Dunlopw.Grote, 2 C.&K. 153(1845). Sale of Goods Act, § 49 (2). 
 6 Burnley v. Tufts, 66 Miss. 48 ; 5 So. 627 (1888). 
 
DUTIES OF BUYER. — EIGHTS OP SELLER. 207 
 
 bound himself to pay for goods, " in consideration of their 
 delivery for him, freight prepaid, at the express office 
 specified " in the contract.^ 
 
 § 2. Damages for Non-Acceptance. 
 
 Ordinarily, these are the difference between the contract- 
 price and the market-price at the time and place for de- 
 livery.'' If the latter equals or exceeds the former," or if 
 no price is named in the contract,^ or if by its terms the 
 seller is to receive the market-price, or if the seller fails 
 to show a difference between the price agreed upon and 
 the market-price,* his recovery will be coutiued to nominal 
 damages. 
 
 1. W/ien Market-Price is Abnormal. — It may hap- 
 pen, however, that the market-price, at the time and place 
 for delivery, does not represent the fair value of the goods 
 by reason of a wrongful combination of those controlling 
 the price, ° or because the seller monopolizes the supply at 
 the place where delivery is to be made.' In such cases, 
 as well as in cases where there is no market for the goods 
 at the time and place for deliver}', other evidence must be 
 resorted to for the purpose of showing " the loss directly 
 
 1 White V. Solomon, 164 Mass. 516 ; 42 N. E. 104 (1895). The 
 dissenting judges treated the contract as one for a conditional sale, 
 under which the goods had been returned to and retained by the seller ; 
 and held that his action should have been for damages caused by the 
 vendee's breach of his contract to accept, and not for the purchase- 
 price. 
 
 2 Tufts V. Bennett, 163 Mass. 398 ; 40 K. E. 172 (1895). 
 
 3 Foss V. Sabin, 84 111. 564 (1877). 
 
 « McGrath v. Cannon, 55 Minn. 457, 461 ; 67 N. "W. 150 (1893). 
 
 5 Unexcelled Fireworks Co. u. Polites, 130 Pa. St. 536 ; 18 At. 
 1058 (1889); McGrath v. Gegner, 77 Md. 331, 340; 26 At. 502 
 (1893). 
 
 ° Kountz V. Eirkpatrick, 72 Pa. 376 (1872). 
 
 ' Grand Tower Co. u. Phillips, 23 Wall. (U. S.) 471 (1874). 
 
208 THE LAW OP SALES. 
 
 and naturally resulting, in the ordinarj' course of events, 
 from the bujer's breach of contract. " ^ The seller, in 
 disposing of the goods, which are wrongfullj- rejected by 
 the purchaser, must act in a reasonable manner, but is not 
 " under any obligation to do anything otherwise than in 
 the ordinary course of business." ^ Hence, if tliere is no 
 market for the goods at the place of delivery, he may ship 
 them to "• some other reasonablj- convenient place" and 
 " deduct the reasonable cost of transportation to that 
 place " from their market value there ; ' or he may show 
 their fair value at the place stipulated for delivery, by 
 proving the market-price of like goods at or about the 
 time for delivery in neighboring places.* But if there is a 
 market at the place for delivery, he will not be justified, 
 ordinarily', in sending and selling them elsewhere, for the 
 purpose of fixing his damages.'' 
 
 2. Premature Repudiation ly Purchaser. — In case 
 the bu3-er repudiates the contract before the time for de- 
 livery arrives, the seller may treat such repudiation as 
 inoperative,^ and, upon the buj'er's failure to discharge 
 his contract obligations at their maturit}', hold him respon- 
 sible for all the consequences of non-performance, or he 
 may treat such " repudiation as a wrongful putting an end 
 to the contract, and at once bring his action as on a breach 
 of it." If he elects the first course, " he keeps the contract 
 alive for the benefit of the other party as well as his 
 own," ' and when he sues upon the contract he "must. 
 
 1 Sale of Goods Act, § 50 (2). 
 
 2 Dunkirk Co. v. Lever, 9 Ch. D. 20, 25 (1878). 
 " Dwiggins v. Clark, 94 Ind. 49, 56 (1883). 
 
 4 McCormick v. Hamilton, 23 Gratt. (Va.) 561, 577 (1873) ; In- 
 gram V. Wackemagil, 83 la. 82, 86 ; 48 N. W. 998 (1891). 
 
 5 Chapman v. Ingram, 30 Wis. 290 (1872). 
 
 « Roper V. Johnson, L. R. 8 C. P. 167, 177 (1873). 
 ' Frost V. Knight, L. R. 7 Ex. Ill (1872). 
 
DUTIES OP BUYER. — EIGHTS OF SELLER. 209 
 
 allege and prove performance upon his part, or a legal 
 excuse for non-performance."^ 
 
 Moreover, " in assessing tlie damages the jurj' will take 
 into consideration whatever the plaintiff has done, or has 
 had the means of doing, and as a prudent man ought to 
 have done, whereby his loss has been, or would have been, 
 diminished." ^ Hence it is held, generally, that upon the 
 purchaser's repudiation of a contract for an article to be 
 manufactured, the seller is not justified in completing the 
 article for the purpose of charging the full contract-price 
 or of increasing the damages.' Whether he completes it 
 or not, his damages are the difference between the contract- 
 price and what it would cost him to manufacture and de- 
 liver it under the contract, or, in other words, the " profits 
 which the performance of the contract by the vendee 
 would have produced to him." * 
 
 3. Seller may sue as soon as Buyer repudiates. — 
 In case the seller elects to treat the repudiation by the 
 vendee as a ground for rescinding the contract, he may 
 bring his action for damages at once,^ but his damages 
 will be the difference between the contract-price and the 
 market-price at the time or times fixed for deliverj', and 
 not at the time of the buyer's repudiation, nor .at the com- 
 mencement of the action.^ If the trial takes place before 
 the time for performance has arrived, the assessment of 
 damages may be difficult, but the difficulty "is no reason 
 for refusing to fix them,"' nor is it insuperable. 
 
 1 Lake Shore By. .-. Richards, 152 111. 59, 80 ; 38 N. E. 773 (1894). 
 
 ^ Roper V. Johnson, supra, at p. 181. 
 
 » Tnfts V. Weinfeld, 88 Wis. 647 ; 60 N. W. 992 (1894). But see 
 Kadish v. Young, 108 111. 170 (1883). 
 
 * Todd V. Gamhle, 148 N. Y. 382, 390; 42 N. E. 982 (1896). 
 
 6 WindmuUer v. Pope, 107 N. Y. 674 ; 14 N. E. 436 (1887). But 
 see Daniels v. ISTewton, 114 Mass. 530 (1874) ; Dingley v. Oler, 117 
 U. S. 490; 6 Sup. Ct. 850 (1885). 
 
 6 Roper V. Johnson, L. R. 8 C. P. 167 (1873). 
 
 ' Mayue on Damages (5th ed.), 174. 
 14 
 
210 THE LAW OF SALES. 
 
 4. Interest on the Agreed Price. — This is not recover- 
 able in England, in the absence of a contract for its pay- 
 ment, unless the price " is paj'able by virtue of some 
 written instrument at a certain time." ^ In Scotland and 
 in this country interest on the price is recoverable from 
 the date when the price should have been paid.^ If the 
 action, however, is for damages for non-acceptance bj- the 
 buyer, and these are unliquidated, interest is not allowable.' 
 
 § 3. Buyer's Duty to take avsray the Goods. 
 
 Not only is the buyer bound to take title to the goods, 
 but he is also bound to take them awaj'. If he fails to 
 discharge this obligation within a reasonable time, " the 
 seller may charge him warehouse room ; or he maj' bring 
 an action for not removing them, should he be prejudiced 
 by the delay."* Such at least is the rule in England,^ 
 and it has been followed to some extent in this country," 
 although it was rejected in a recent Massachusetts case. 
 According to this decision, if the vendee refuses to take 
 the goods, at least if that refusal is based on the ground 
 that title has not vested in him, owing to the non-conform- 
 ity of the goods to the contract, he cannot be made liable 
 to the vendor for their care and custody. " If the vendor 
 wishes to avoid the expense of keeping, and at the same 
 time to avail himself of the value of the property, he may 
 sell under an implied agency for the vendee, and sue for 
 
 1 3 & 4 "Will. IV. u. 42, § 28; Chalmers' Sale of Goods Act (2d ed.), 
 91. 
 
 2 Brown's Sale of Goods Act, p. 237 ; "White v. Miller, 78 N. Y. 
 393, 399 (1879). 
 
 ^ Hewes y. German Fruit Co., 106 Cal. 441; 39 Pac. 853 (1893). 
 '< Greaves v. Ashlin, 3 Camp. 426 (1813). 
 
 6 Sale of Goods Act, § 37. 
 
 8 Dibhle v. Corbett, 5 Bos. (N". Y.) 202 (1859) ; Story on Sales, 
 § 404. 
 
DUTIES OF BUYER. — EIGHTS OF SELLEE. 211 
 
 the balance above what he obtains after paying the rea- 
 sonable expenses." ^ 
 
 § 4. The Seller's Lien. 
 
 This right of the seller does not exist until title has 
 passed to the buj'er ; until this event transpires, " the sel- 
 ler's right is that of an undivested owner ; " " it is a con- 
 tradiction in terms to say a man has a lien upon his own 
 goods." ^ " The very definition of a lien is a right to hold 
 goods, the property of another, in security for some debt, 
 dutj-, or other obligation. If the holder is the owner, the 
 right to retain is a right incident to the right of property ; 
 if he have had a lien, it is merged in the general prop- 
 erty." ' The seller's lien is not the creature of contract, 
 but is " conferred by the law," ^ although the parties may 
 limit or extend its application by agreement, or may waive 
 it altogether. 
 
 The conditions upon which this right is exercisable are 
 the following : First, The seller must be unpaid in whole 
 or in part. Second, He must be in possession of the 
 goods. Third, The goods must have been sold without 
 any stipulation as to credit, or if credit was given, it 
 
 1 Putnam v. Glidden, 159 Mass. 47 ; 34 K E. 81 (1893) ; cf. Bar- 
 tholomew V. Freeman, 3. C. P. D. 316 (1878). 
 
 2 Lickbarrow v. Mason, 6 East, 21, 25 (1793). This contradiction in 
 terms is found not infrequently in the decisions. In Higgins v. Mur- 
 ray, 73 N. Y. 252, 255, it is said that although the title had not passed 
 from the plaintiff to the defendant, " the plaintiff had a lien upon the 
 article for the value of his labor and materials." 
 
 8 Arnold v. Delano, 4 Cush. (58 Mass.) 33, 38 (1849). 
 
 * Blackburn on Sale (2d ed.), 447-454. After comparing the rights 
 of an unpaid vendor, as now established, with his rights if they de- 
 pended on the agreement of the parties merely, the author concludes, 
 "the vendor's rights in posse.ssion, like his analogous right of stop- 
 page in transitu, owe their origin neither to the common law nor to 
 equity, but to the custom of merchants." 
 
212 THE LAW OP SALES. 
 
 must have expired, or the buyer must have become 
 insolvent.-' 
 
 1. The Unpaid Seller. — His right "in respect of the 
 price is not a mere lien which he will forfeit if he parts 
 with the possession, but grows out of his original owner- 
 ship and dominion, and payment or a tender of the price 
 is a condition precedent on the buyer's part, and, until he 
 makes such payment or tender, he has no right to the pos- 
 session." ''■ As this right is accorded to the seller by law, 
 in order that he may obtain the purchase-price of his goods 
 before parting with them, it continues (unless voluntarily 
 relinquished) until the entire price is paid or tendered. If 
 a portion of the goods has been delivered, the lien for 
 whatever is unpaid attaches to whatever portion is still in 
 the vendor's possession.' 
 
 If negotiable paper has been taken as conditional pay- 
 ment, " and the condition on which it was received has 
 not been fulfilled," ^ the seller is deemed unpaid, and is • 
 entitled to assert his lien.= On the other hand, the 
 unpaid seller's lien is confined to the price of the goods, 
 and does not warrant him in holding them to secure any 
 other claim due to him from the buyer, ^ nor does it 
 
 1 Sale of Goods Act, § 41. 
 
 2 Bloxam v. Sanders, 4 B. & C. 941, 948 (1825). 
 
 " Ware River Co. v. Vibbard, 114 Mass. 447, 458 (1874). "It at- 
 taches to whatever part of the property may remain within the control 
 of the seller, for the whole amount of purchase-money of the same 
 sale remaining due, payable, and unpaid." Miles v. Gorton, 2 Cr. & M. 
 504, 512 (1834). 
 
 * Sale of Goods Act, § 38. 
 
 6 Gunn u. Bolekow, L. R. 10 Ch. App. 491, 501 (1875). "If the 
 bill is dishonored before delivery, then the vendor's lien revives ; or if 
 the purchaser becomes openly insolvent before delivei-y actually takes 
 place, then the law does not compel the vendor to deli%'er to an insol- 
 vent purchaser." 
 
 e Somes V. British Co., 8 H. L. C. 338, 345. "No person has by 
 law a right to add to his lien upon a chattel a charge for keeping it 
 
DUTIES OF BUYEK. — EIGHTS OP SELLER. 213 
 
 survive absolute pajment or a valid tender of the entire 
 price.''^ 
 
 (a) Lien accorded to Quasi Vendors. — With such 
 favor does the law look upon the rights of one whose 
 money has paid for goods, that it accords a seller's lien 
 to " any one whose position can be shown to be substan- 
 tially analogous to that of an ordinary seller." ^ Hence, 
 a factor who has paid, or become directly responsible for 
 goods ordered by his principal, has the rights against the 
 goods of an unpaid vendor,^ although in other respects his 
 rights and liabilities ma}' be those of an agent.' 
 
 The rights of an unpaid seller have been adjudged to 
 one who had bought and resold a part of a larger mass 
 (1,442J bags of beans out of 3,932 bags), although this 
 part had not been separated from the bulk so as to pass 
 title to specific goods ; ^ and to a banker who had pur- 
 chased drafts payable to the order of a customer who had 
 not paid for them, nor obtained possession.' A surety for 
 the buyer has not the rights of an unpaid vendor,' unless 
 they are conferred by statute.' 
 
 2. Seller in Possession. — The courts are disposed to 
 give a broad meaning to the term "possession" in connec- 
 
 tUl the debt is paid ; that is, in truth a charge for keeping it for his 
 own benefit, not for the benefit of the person whose chattel is in his 
 possession." 
 
 1 Martindale v. Smith, 1 Q. B. 389 (1841). 
 
 2 Chalmers' Sale of Goods Act (2d ed.), 71. 
 
 3 Ex parte Banner, 2 Ch. D. 278, 287 (1876). "The right of an 
 agent in such a case over the goods, as against his principal, is the 
 same as that of a vendor as against a purchaser." Gossler v. Schepler, 
 5 Daly (K. Y.), 476, 479 (1875). " He may retain the^'as dispmendi." 
 Moors V. Kidder, 106 H". Y. 32, 40 (1887). 
 
 4 Cassaboglou v. Gibb, 11 Q. B. D. 797 (1883). 
 6 Jenkyns v. U.sborne, 7 M. & G. 678 (1844). 
 
 6 Muller v. Pondir, 55 N. Y. 325, 339 (1873). 
 
 7 Skiffen v. Wray, 6 East, 371 (1805). 
 
 8 Imp. Bank v. London Co., 5 Ch. D. 195 (1877). 
 
214 THE LAW OP SALES. 
 
 tioii with the unpaid seller's lien. Although the purchaser 
 has received a part of the goods, and has taken samples 
 of the remainder, the vendor remains in possession of the 
 residue, unless the deliver}' of the part was made with in- 
 tent that it should operate as a delivery of the whole. ^ 
 Nor does it alter the case that the buyer is to pay the sel- 
 ler warehouse charges while the latter retains control of 
 the goods. ^ Indeed, it has been judicially declared that 
 " the vendor's lien is not divested bj' an}' species of con- 
 structive deliver}', so long as he retains actual custody 
 of the goods either by himself or b}' his own agent or 
 servant."^ 
 
 This view has secured legislative approval in Britain.* 
 If the seller actuall}' delivers the goods to the buyer under 
 the expectation of immediate payment, and payment is 
 not made, his lien is not affected : be may retake and hold 
 them until he receives full pa3-ment.^ But the lien is lost 
 in case the buj-er or his agent lawfully' obtains possession," 
 even though that possession is defeasible hj reason of 
 fraudulent representations as to his credit made b_v the 
 purchaser. The fraud maj' enable the seller to rescind the 
 contract and retake the goods as his own ; but if he does 
 not rescind the sale, both the title and the possession will 
 remain in the vendee, and "after sale and delivery of 
 personal propertj- the law implies no lien for purchase- 
 monc}-."' 
 
 3. Ziien waived : Sale on Credit. — While the law 
 recognizes and secures the rights of an unpaid vendor, it 
 
 1 Dixon V. Yates, 5 B. & Ad. 313, 341 (1833). 
 
 2 Bloxam v. Sanders, 4 B. & C. 941 (1S2.-). 
 
 3 Conrad v. Fisher, 37 Mo. App. 352, 386 (1889), and cases cited. 
 * Sale of Goods Act, § 41 (2). 
 
 6 Owens I). Weedman, 82 111. 409 (187C). 
 
 6 Bill of S,ile Act, § 43 (1) (b). 
 
 ' Johnson v. Farnum, 56 Ga. 144 (1876). 
 
DUTIES OP BUYEE. — EIGHTS OF SELLEE. 215 
 
 does not compel him to stand upon those rights. He is at 
 liberty to bargain them away or to waive them. If, instead 
 of insisting upon payment as a condition precedent to the 
 buyer's obtaining possession of the goods, he takes the 
 latter's promise to pay at a future time,^ or receives some 
 security in the place of cash,^ such as the guaranty of a 
 third person for the payment of the price,* he waives his 
 lien, unless by a trade usage * or by express stipulation * 
 it is retained. If he transfers possession of the goods to 
 the buyer, before payment, although they remain upon his 
 premises, his lien may be lost ; as where the vendor of 
 timber allowed the buyer to cut and prepare it for market." 
 
 (a) Revival of Lien upon Expiration of Credit. — 
 While a sale on credit operates as a waiver of the unpaid 
 seller's lien, during the term of credit, the lien revives upon 
 the expiration of that term, provided the goods have not 
 passed meantime from the seller's possession and control. 
 Thereafter, " the buyer cannot claim to take the goods 
 from the seller, without first paying the price." ' 
 
 (h) Hevival of Lien upon Buyer's Insolvency. — If the 
 buyer becomes insolvent during the term of credit, the lien 
 immediatelj' revives, for the seller's waiver of his lien is not 
 absolute when he gives the buyer credit, instead of de- 
 manding cash ; the law, still having regard for the superior 
 
 1 Arnold y. Delano, 4 Cash. (58 Mass.) 33, 39 (1849). 
 
 2 In re Leith's Estate, L. R. 1 P. C. 296, 305 (1866). 
 
 « Dummer v. Smedley, Mich. ; 68 N. "W. 260 (1896). 
 
 4 Field ;;. Lelean, 6 H. & N. 617 ; 30 L. J. Ex. 168 (1861). 
 
 6 Gregory v. Moms, 96 U. S. 619 (1877). 
 
 s Douglas V. Shumway, 13 Gray (79 Mas.s.), 498, 502 (1859). ""We 
 know of no case where such a right has heen recognized, after the vendee 
 has, at his own expense, in pursuance of the contract of sale, changed 
 the character of the property, and hy his own labor and money added to 
 its value. By these acts the vendor must be deemed to have parted 
 with his possession and control of the property. '' 
 
 ' White V. Welsh, 32 Pa. St. 396, 400 (1861). 
 
216 THE LAW OF SALES. 
 
 equities of an unpaid seller, treats the waiver as made upon 
 ail implied condition that the buyer shall keep his credit 
 good.^ Nor does it matter that the buyer was in fact in- 
 solvent when the agreement for credit was made, provided 
 that seller did not know of the insolvency.^ 
 
 If a part of the goods has been delivered, and the insol- 
 vent has not paid for them, the seller maj' withhold the 
 remainder until "he is paid the debt due for those already- 
 delivered, as well as the price of those still to be delivered ; " ^ 
 but "the insolvency of one party to a contract does not 
 release the other from its obligations, provided, always, the 
 consideration promised if monej' be paid, or if the con- 
 sideration be the note or other obligation of the insolvent, 
 money be tendered in its place." ^ 
 
 ■4. Effect on Hen of Transfer of Buyer's Interest. — 
 So long as the unpaid vendor's lien attaches to the goods 
 as against the vendee, it cannot be affected b3' any disposi- 
 tion of the latter's interest in them, without the vendor's 
 assent.^ This follows from the general principle of law, 
 which has been referred to so often, " that a man who has 
 not the propertj' and right of possession in goods cannot 
 transfer them to a vendee." Even a tona fide purchaser, 
 therefore, from a vendee must take the goods subject to 
 the unpaid vendor's lien,^ unless the latter has estopped 
 himself from asserting it as against such purchaser,' or has 
 
 1 Arnold I). Delano, 4 Gush. 33, 39. 
 
 2 Crummuy v. Raudenbush, 55 Minn. 426 ; 56 N. "\Y. 1113 (1893). 
 " Insolvency as applied to this branch of the law means a general in- 
 ability to pay one's debts or to meet one's financial engagements. It is 
 not necessary that the vendee should have been adjudged a bankrupt or 
 insolvent, or have made an assignment of his property.'' 
 
 8 Ex parte, Chalmers, L. E. 8 Ch. App. 289, 291 (1873). 
 < Florence Mining Co. v. Brown, 124 U. S. 385, 389 (1887). 
 " Dixon V. Yates, 5 B. & Ad. 313, 339 (1833). 
 6 Keeler v. Goodwin, 111 Mass. 490, 492 (1873) ; Palmer v. Hand, 
 13 Johns. (N. Y.) 434 (1816). 
 
 ' Farmeloe v. Bain, 1 C. P. D. 445 (1876). 
 
DUTIES OP BCTYEE. — EIGHTS OF SELLER. 217 
 
 clothed his immediate vendee with statutory reputed owner- 
 ship under the Factors Act or similar legislation.^ 
 
 -J* 
 § 5. The Seller's Right of Stoppage in Transitu. 
 
 This, like the right of lien, is conferred bj- the law upon 
 the unpaid seller. Like the right of lien, too, it "is not 
 founded on any contract between the parties ; it is not 
 founded on any ethical principle ; but it is founded upon 
 the custom of merchants. The right to stop in transitu 
 was originally proved in evidence as part of the custom of 
 merchants ; but it has been afterwards adopted as a matter 
 of principle, both at law and in equity." ^ 
 
 (a) Sow this Right differs from that of Lien. — 
 While it is analogous to the right of lien, and like that has 
 its origin in the custom of merchants, the two are not to 
 be "regarded as the same right exercised under different 
 circumstances," although judicial dicta that they should be 
 so regarded are numerous. ° They differ in two important 
 respects. 
 
 The right of lien, as we have discovered, is not avail- 
 able, unless the seller is in possession of the goods, in the 
 character of an unpaid former owner or of bailee to the 
 buyer. It is determined as soon as the buyer or his agent 
 lawfully obtains possession. The right of stoppage in 
 transitu, on the other hand, does not come into existence 
 until the seller's lien has terminated ; that is, until the 
 goods have passed out of the vendor's possession into the 
 hands of a carrier for transmission to the vendee.^ 
 
 Again, we have seen that the seller's lien reattaches, 
 upon the expiration of the term of credit, whether the 
 buyer is insolvent or not. But the right of stoppage in 
 
 1 Voorhis v. Olmstead, 66 N. Y. 113 (1876). 
 
 ■'■ Kendall v. Marshall, 11 Q. B. D. 356, 364 (1883). 
 
 ' Conrad v. Fisher, 37 Mo. App. 362, 384, and cases cited (1889). 
 
 i Chalmers' Sale of Goods Act (2d ed.), 72. 
 
218 THE LAW OF SALES. 
 
 transitu can be exercised in case of insolvency only. " It is 
 a privilege allowed to the seller, for the particular purpose 
 of protecting him against the insolvency of the consignee." ' 
 
 (5) It differs from Vendor's Might to retake his own 
 Goods. — In some of the cases this right is confounded 
 with the right of the owner to retake goods, or to vary 
 their consignment, when he has reserved to himself the 
 jus disponendi, or when for some other reason title has 
 not passed.^ But the two are wholly distinct. A man can 
 no more have the right to the technical stoppage of his 
 own property in transit than he can have the right of lien 
 on it. If the vendor has appropriated the goods uncondi- 
 tionallj- to the contract, and title has vested in the vendee, 
 he cannot vary their consignment ; ' but he may exercise 
 the right of stoppage in transitu. 
 
 Let us now consider the conditions upon which this right 
 is exercisable. 
 
 1. The Unpaid Seller. — Upon this point it is not neces- 
 sary to add much to the statements made when discussing 
 the seller's hen.* "Any person who is in the position of 
 a seller," although for most purposes his relation to the 
 buyer may be that of agent to principal, maj' be entitled 
 to stop goods for which he has paid or has directly pledged 
 his credit.^ 
 
 Accordingly, a factor who has purchased goods and paid 
 or become personally liable therefor, although this is done 
 pursuant to an order from his principal, and although he 
 
 1 The Constantia, 6 Rob. 320, 326 (1807). 
 
 2 Hawes V. Watson, 2 B. & C. 540 (1824) ; Shanwiek v. Sothern, 
 9 Ad. & E. 895 (1839) ; Scholfield v. Bell, 14 Mass. 40 (1817). See 
 note to Stoveld v. Hughes, 12 Rev. Eep. at p. 525. 
 
 s Phil. Ry. V. Wireman, 88 Pa. St. 265 (1879) ; The Constantia, supra. 
 
 * Clark «. Mauran, 3 Paige (N. Y.), 373 (1832). One who ships 
 goods in payment of a debt due the consignee is not an unpaid seller, 
 and has no right to stop them in transitu. 
 
 5 Sale of Goods Act, § 33 (2). 
 
DUTIES OP BUYEE. — EIGHTS OF SELLEE. 219 
 
 has consigned them to the principal as the latter's goods, 
 and has received the principal's negotiable paper in condi- 
 tional payment for the price, occupies substantially the 
 position of a vendor, and may stop the goods while in 
 transit, upon the principal's insolvency.^ An agent of the 
 consignor, to whom the bill of lading has been indorsed 
 by his principal, and who has become vested thereby with 
 the mercantile title to the goods, may exercise the right of 
 stoppage in his own name.'' 
 
 (a) Right may be exercised by Agent. — Of course, 
 the unpaid vendor may exercise the right by an agent, as 
 well as in person. Nor does it matter that the agent has 
 not received special authority to stop the goods in question, 
 if his exercise of the right on behalf of his principal is 
 within the scope of his general authority.' Even a stranger 
 may stop the goods for the unpaid vendor, provided the 
 latter ratifies the act, before the buyer or his transferee 
 obtains possession or makes demand for them.* 
 
 (5) Factors who are not Unpaid Vendors. — While the 
 term " unpaid vendor" has in law a broad signification, it 
 does not include a person who has never occupied substan- 
 tially the position of owner or holder of the mercantile title. 
 A factor who has accepted bills drawn on him by the con- 
 signor, on the strength of the latter's promise to ship cer- 
 tain goods, cannot claim them in the character of owner ; ^ 
 nor can a factor maintain such a claim who has had the 
 goods in possession, even though they were subject to a 
 lien in his favor for advances during his possession, but 
 who has delivered them to a carrier for transportation to 
 his principal's vendee.' 
 
 1 Feize v. Wray, 3 East, 93 (1802) ; Newhall v. Vargas, 13 Me. 
 93 (1836). 
 
 2 Morison V. Gray, 2 Bing. 260 (1824). 
 
 » Reynolds v. Railroad, 43 N. H. 580 (1862). 
 
 * Durgy Cement Co. o. O'Brien, 123 Mass. 12 (1877). 
 
 6 Kinloch v. Craig, 3 D. & E. 783 (1790). 
 
 « Gwyn V. Eailway, 85 N. C. 429 (1881). 
 
220 THE LAW OF SALES. 
 
 2. The Buyer's Insolvency. — It is onlj- in cases of in- 
 solvency of the bu3-er that the unpaid vendor's right of 
 stoppage in transitu is available. Here, as in the case of 
 the vendor's lien, insolvenc}- is not used in a narrow and 
 technical sense ; it is not confined to a buyer who has 
 been adjudged a bankrupt or an insolvent in due legal 
 proceedings, nor to one who has made an assignment for 
 the benefit of his creditors. It includes every one who 
 cannot pay his debts as they come due in the ordinary 
 course of business. ^ 
 
 If the buyer has " by his conduct in business afltorded 
 the ordinar}' apparent evidence of insolvency ; " ^ if he has 
 permitted his commercial paper to be dishonored or his 
 property to be attached in an action which he allows to go 
 to judgment by default,^ or if he has admitted that he is 
 financially " embarrassed and not able to make full or 
 general payment of his debts/'* or, although he has not 
 actually failed nor has his paper gone to protest, j'et if it 
 is clear that he is hopelessly insolvent and will be unable 
 to paj- for the goods when the price falls due,^ he cannot 
 be heard to sa}', as against the unpaid vendor, that he is 
 not insolvent. Were the seller obliged in such cases to let 
 the goods go into the actual possession of the buyer, they 
 would be appropriated to the payment of debts due to 
 others, while he remained unpaid.' 
 
 1 Sale of Goods Act, § 62 (3) ; Jeffries v. Fitchburg Co., 93 Wis. 
 ; 67 N". W. iU, 426 (1896). 
 
 2 Diem v. Kobletz, 49 Ohio St. 41, 51 ; 29 N. E. 1124 (1892) ; cf. 
 Ex parte Ciirnforth, 4 Ch. D. 108, 122 (1876). "An inability to pay 
 avowed either in act or in word. " 
 
 3 Tnthill V. Skidmore, 124 N. Y. 148 ; 26 N. E. 348 (1891). The 
 mere levy of an attachment is not evidence of the defendant's insol- 
 vency. Gustine v. Phillips, 38 Mich. 674 (1878). 
 
 « Secomb v. Nult, 14 B. Mon. (Ky.) 324, 326 (1853). 
 
 5 Bloomingdale v. Memphis Ry., 6 Lea (Tenn.), 616 (1881). 
 
 ^ Rogers u. Thomas, 20 Conn. 53 (1849), holding that the term 
 
DUTIES OF BUYER. — EIGHTS OF SELLEK. 221 
 
 (a) Buyer Insolvent when Goods desx>atched. — That 
 the buyer was insolvent at the time of despatching the 
 goods, or even at the date of the sale contract, will not 
 affect the seller's right of stoppage, nor will the fact that 
 no radical change in the financial circumstances of the 
 buj-er has occurred intermediate the sale and the stoppage,^ 
 unless the seller knew of the insolvency when he de- 
 spatched the goods.'' In the latter case, he voluntarily 
 surrenders a right which the law confers upon him, but 
 does not force him to exercise. 
 
 3. The Transit: (a) its Inception. — Until the goods 
 have passed from the vendor's possession, the vendor's 
 right of lien continues and the right of stoppage cannot 
 arise. It comes into existence with their delivery to a 
 bailee as the buyer's property for the purpose of transmis- 
 sion to the buyer. As soon as the bailee obtains posses- 
 sion the right may be exercised, although he has not set 
 them in motion on their journey.' Their transit has begun, 
 and it continues, as we shall see, so long as they remain 
 " in the possession of a middleman, or of some person in- 
 tervening between the vendor who has parted with and the 
 purchaser who has not 3'et received them," * whether such 
 person " be a carrier, a warehouse-keeper, a wharfinger, 
 
 "insolvency," in this connection, does not mean a general inability of 
 the buyer to pay his debts, but that he has taken the benefit of an in- 
 solvent law, or has stopped payment, or has done some open, notorious 
 act making a visible change in his pecuniary situation, seems to be fol- 
 lowed in that State (Millard v. Webster, 54 Conn. 415, at p. 417), but 
 in no other jurisdiction. 
 
 1 Loebj j. Peters, 63 Ala. 243 (1879). 
 
 2 Garden Cultivator Co. v. Missouri Railway, 64 Mo. App. 305 
 (1895); H. & T. Ry. u. Poole, 63 Tex. 246 (1885). 
 
 8 Wisema n v. Vandeputt, 2 Vern. 203 (1690). The ship, on which 
 the goods had been loaded, had not left her dock. 
 
 * Schotsraan v. Lancashire Ry., L. R. 2 Ch. App. 332, 338 
 (1867). 
 
222 THE LAW OP SALES. 
 
 packer^ or other depositary, or an agent for the purpose of 
 forwarding." ^ 
 
 The carrier or custodian must be a middleman, however, 
 between the unpaid seller and his vendee. Hence, if the 
 seller voluntarily ships the goods to a purchaser from his 
 vendee, the carrier is not a middleman intervening be- 
 tween the original seller and buj-er ; the title and posses- 
 sion have been passed to the first purchaser, and the 
 transit is from him to the second vendee. The goods have 
 never been put in transit between the original seller and 
 buyer, and the former has no right of stoppage in transitu, 
 although the buyer becomes insolvent while the goods are 
 on their journey to the sub-purchaser.^ 
 
 Such middleman may be the buyer's agent for certain 
 purposes, and yet, if by the agreement of the parties or 
 by usage of trade, he is not a mere servant of the bu3-er, 
 but is a person interposed between the seller and buj-er,' 
 having a possession of his own and liable, in his capacitj' 
 as bailee, to an action bj' the buyer, in case the goods are 
 careless!}- lost or misdelivered,* the goods are still in tran- 
 sit. The middleman may have authority from the buyer 
 "to accept delivery so as to pass the propertj', " ^ or he 
 may have given a bill of lading for the goods to the buyer 
 subsequent to their delivery b\' the seller," and still the 
 goods be in transit and subject to stoppage. On the other 
 hand, if goods are delivered to a master of a ship owned 
 by the buyer, pursuant to the latter's directions, and the 
 
 1 Harris v. Pratt, 17 N. Y. 249, 252 (1S5S). 
 
 2 Treadwell v. Aydlett, 9 Heisk. (Tenn. ), 3S8 (1872). 
 
 8 Bolin V. Huffnagle, 1 Eawle (Pa.), 9, 22 (1828) ; Bemdtson v. 
 Strang L. R. 4 Eq. 481 (1867) ; cf. Newhall u. Vargas, 13 Me. 93 
 (1836). 
 
 < Bemdtson v. Strang, 3 Ch. App. 588, 591 (1868). 
 
 5 Bethell v. Clark, 20 Q. B. D. 615 (1888). 
 
 6 Lyons v. HofiFnung, 15 App. Cas. 391 (1890). 
 
DUTIES OF BUYEK. — EIGHTS OF SELLER. 223 
 
 circumstances show that this ship is their final destination 
 as between seller and buyer, such master is not a middle- 
 man and the right of stoppage has been surrendered. * 
 
 (S) Interception of Transit by Attornment. — If the 
 middleman attorns to the buyw before the goods reach 
 their final destination, as where a railwa}' company agrees 
 with the buyer to hold the goods as warehouseman for 
 him, the right of stoppage is lost.'' But this attornment 
 does not take place by a new agreement between the car- 
 rier and buyer " for the purpose of expediting them to the 
 place of original destination." It must be " a new agree- 
 ment ... to hold the goods for the consignee as his agent 
 ... in a new character, for the purpose of custod}', on his 
 account and subject to some new or further order to be 
 given to him." ° And when the court is asked to find that 
 such a contract has been made, the fact that the carrier 
 has not been paid his freight charges,* or that he has not 
 waived his lien therefor,^ indicates that no such contract 
 has been made.' 
 
 (c) Interception by Sole Act of Buyer. — While mutual 
 assent of the carrier and consignee is necessarj- to attorn- 
 ment,' it is not indispensable to such possession by the 
 
 1 Van Casteel v. Booker, 2 Ex. 691 (1848). 
 
 2 Kendall v. Marshall, 11 Q. B. D. 356 (1883). 
 
 3 Whitehead v. Anderson, 9 M. & "W. 518, 535 (1842) ; Lyons v. 
 Hoffnung, supra; LangstafiF v. Stlx, 64 Miss. 171 (1886). 
 
 * Kemp V. Falk, 7 App. Cas. 673, 584 (1882) ; Jeffris v. Fitchburg 
 Co., 93 Wis. ; 67 N. W. 424, 427 (1896). 
 
 6 Fan-ell v. Railroad, 102 N. C. 390, 403 ; 9 S. E. 302 (1889). 
 
 8 Sale of Goods Act, § 45 (3). This sub-section appears not to per- 
 mit attoi-nment until " after the arrival of the goods at the destination 
 appointed " by the contract of sale. From the cases in England and in 
 this country, it appears that attornment is rarely attempted before such 
 arrival. 
 
 7 James v. Griffin, 2 M, & W. 623 (1837) ; cf. Guilford v. Smith, 
 30 Vt. 49 (1858). 
 
224 THE LAW OF SALES. 
 
 consignee as will terminate the seller's right of stoppage. 
 If the consignee tenders performance of his obligations, 
 and rightfullj' demands the goods, the wrongful refusal of 
 the carrier to deliver them will not operate to keep them 
 in transit.' Indeed, it is settled in England that if the 
 consignee obtains actual possession of the goods, even by 
 a forcible or a fraudulent interception, and before they 
 have reached their final destination, the transit is at an 
 end.^ Such taking, it is said, if not assented to by the 
 carrier, " may be a wrong to him for which he would have 
 a right of action," but it ends the transit." In this countrj' 
 there is authoritj- for the view that the buyer cannot 
 destroy the seller's right of stoppage, by fraudulent!}' inter- 
 cepting them during their transit to their original destina- 
 tion ; and if the interception is resorted to for the sole 
 purpose of preventing the seller's exercise of this right.'' 
 
 (d) JntercejMon by Creditors of Buyer. — The unpaid 
 seller's right of stoppage in transitu is not affected bj- a 
 seizure of the goods during their transit, under legal pro- 
 cess on behalf of the buyer's creditors. They could have 
 no better right to the goods than the buyer had, and his 
 title, at the moment of seizure, was subject to the seller's 
 right to stop the goods. This right is not simply a lien,^ 
 but a property right in the goods, and it cannot be divested 
 by attachment or execution.^ Such " process does not 
 
 1 Bird V. Brown, 4 Ex. 786, 797 (1850). 
 
 2 Sale of Goods Act, § 45 (2). 
 
 8 "Whitehead v. Anderson, 9 M. & W. 518, 534 (1842). 
 
 * Poole V. The H. Ey., 58 Tex, 134 (1882). 
 
 6 Smith V. Goss, 1 Camp. 282 (1808). Lord Ellenborough is re- 
 ported as saying in his charge to the jury, "The vendor's power of 
 intercepting the goods was the elder and preferable lien," hut see the 
 authorities in the next three notes, and Inslee v. Lane, 57 N. H. 454, 
 458 (1876). " The essential ground of the right of lien is possession ; 
 that of stoppage in transitu is non-delivery to the vendee." 
 
 6 Wood V. Yeatman, 15 B. Mon. (Ky.) 270, 279 (1854). 
 
DUTIES OP BUYER. — EIGHTS OP SELLER. 225 
 
 proceed on the ground of defeating a prior right in a third 
 person, but on the ground of acquiring such interest in the 
 property attached as the debtor had himself. If the levy 
 of an execution, or the service of an attachment against 
 the vendee, were allowed to defeat the claim of the vendor, 
 the right of stoppage in transitu would be of little value ; 
 for judgments and attachments not infrequentlj' furnish 
 the first public evidence of the insolvency of a trader." ^ 
 Nor will the vendor's right be destroyed, though the officer 
 levying the process take the goods to the vendee's place 
 of business.^ 
 
 (e) Interception by Transferee of Buyer. — A sale of 
 the goods bj' the purchaser, during their transit, does not 
 divest the original seller's right of stoppage, although the 
 second purchaser may be ignorant of the first seller's right, 
 and may pay full value for the goods.' The original pur- 
 chaser can pass no better title than he had, and this is 
 subject to the seller's property interest known as the right 
 of stoppage in transitu^ But this right may be waived, 
 and if the original seller assents to the resale, the second 
 purchaser may obtain a perfect title. 
 
 The evidence of such assent, however, must be some- 
 thing more than a failure to express dissent upon receiving 
 information that a sub-sale has been made.^ It must show 
 a voluntary abandonment of the original seller's right,' or 
 
 1 Buckley v. Farniss, 15 Wend. 137, 144 (1836). 
 
 2 Sherman v. Ruger, 55 "Wis. 346 (1882). 
 
 8 Craven v. Ryder, 6 Taunt. 433 (1816); Pattison v. Culton, 33 
 Ind. 240 (1870). 
 
 * Holbrook v. Vo.se, 6 Bosworth (IS. Y.), 76, 107 (1860). 
 
 6 Robinson v. Morgan, 65 Vt. 37 ; 25 At. 899 (1893). 
 
 6 Stoveld V. Hughes, 14 East, 308, 317 (1811). Opinion of Bayley, 
 J. : " It is the law of England, and 1 think of Scotland also, that if a 
 seller has received intimation of a sub-sale, and has assented thereto, 
 that deprives him of all right to retain as against the original purchaser." 
 
 15 
 
226 THE LAW OF SALES. 
 
 it must disclose conduct on his part which fairly induced 
 the second buyer to change his position for the worse.-' 
 For example, an unpaid vendor who shows the goods to 
 one negotiating for their purchase from the first vendee, 
 as the property of the latter, without anj- intimation that 
 he has an}' claim upon them as vendor, is estopped from 
 setting up such claim against the bona fide second pur- 
 chaser.^ On the other hand, the failure of the vendor to 
 give notice of his claim to one negotiating with the first 
 vendee for a repurchase, or even the delivery of a por- 
 tion of the goods to the second purchaser upon an order 
 from the first buyer, will not afl'ect the original vendor's 
 right against the goods not delivered." It is undoubtedly 
 true, however, that in case of " a sub-sale, with the privity 
 of the original vendor, the abandonment hy the latter of 
 his lien in favor of the sub-vendee will be presumed more 
 easily thau it would have been in regard to the first 
 vendee." * 
 
 (/) Transferee of Bill of Lading. — If the seller de- 
 livers to the buyer a bill of lading of the goods, he enables 
 the latter to bestow upon a transferee a better title than 
 the buyer had.^ By this document he authorizes the 
 carrier to deliver the goods either to the buyer or his 
 assigns; and, as the document is by the law merchant 
 quasi negotiable, and as its delivery to a purchaser " is the 
 
 Lord Young in Fleming!). Smith, 8 Sess. Caa. (4tli series) at p. 552 
 (1881). 
 
 1 Merchant Banking Co. o. Phoenix Co., 5 Ch. D. 205 (1875). 
 
 2 Hnnn v. Bowne, 2 Gaines Cas. (N". Y.) 38 (1804). See dissenting 
 opinion of Kent, J., 44, 45. 
 
 8 Hamburger v. Rodman, 9 Daly (^^ Y.), 93 (1880). 
 
 4 Campbell on Sales (2d ed.J, 303. 
 
 6 Sale of Goods Act, § 47. 
 
 6 Patten b. Thompson, 5 M. & S. 850 (1816). Its delivery to the 
 first buyer, or by him to his factor, is not equivalent to a delivery of 
 possession of the goods. See Blackburn on Sales (2d ed.), 402, 403. 
 
DUTIES OP BUYER. — EIGHTS OF SELLER. 227 
 
 legal equivalent of the actual delivery of the goods, a sub- 
 purchaser of an interest in the goods, who receives from 
 the original buyer a transfer of the bill of lading, is in a 
 position to say that the original seller has assented in ad- 
 vance to such sub-sale, and to the transfer of the legal 
 possession of the goods. Accordingly, " it has always 
 since Lickbarrow v. Mason '■ been considered as settled 
 law that a bona fide purchaser of an interest in goods by 
 taliing an assignment of a bill of lading in furtherance of 
 that purchase renders his interest indefeasible by the con- 
 signor's stoppage in transitu." ^ In jurisdictions where 
 delivery orders, warehouse receipts, or like instruments 
 are treated as documents of title, the right of stoppage in 
 transitu may be cut off by their transfer in furtherance of 
 a purchase from the original buj'er.' 
 
 (g) Bill of Lading must he transferred for Value. — 
 It will be observed that not everj' transfer of a bill of 
 lading defeats the right of stoppage in transitu. In order 
 to have that effect, it must be made for value to a bona 
 fide purchaser. An assignee of the buyer for the benefit 
 of creditors pays no value for the transfer of a bill of 
 lading from his assignor, and consequently cannot take 
 the goods freed from the original seller's right of stop- 
 page, even though both assignor and assignee believed 
 that the original seller had been fullj' paid.* In Eng- 
 land and in many American jurisdictions an antece- 
 dent debt is considered to constitute value ; ^ but many 
 courts have held that one who has received a bill 
 of lading as collateral security only for an old debt 
 
 1 5 D. & E. 683, and 6 East, 21 n. 
 
 2 Blackburn on Sales (2d ed.), 398. 
 8 Sale of Goods Act, § 47. 
 
 ^ Stanton v. Eager, 16 Pick. 467 (1835). 
 
 * Leask v. Scott, 2 Q. B. D. 376 ; Lee v. Kiraball, 45 Me. 172 
 (1858). 
 
228 THE LAW OP SALES. 
 
 is not a purchaser for value within the rule now under 
 consideration.^ 
 
 (h) Bill of Lading must he transferred in Good Faith. 
 — The transferee of a bill of lading must not onlj- be a 
 purchaser for value, in order to hold the goods freed from 
 the seller's right of stoppage, but his purchase must have 
 been made in good faith. If he bujs with knowledge that 
 the first purchaser is insolvent, and that the transfer will 
 result in diverting the goods or their proceeds from the 
 unpaid seller to other creditors of the purchaser, and es- 
 peciall}' if he interpose, " in order to assist the buyer to dis- 
 appoint the just rights and expectations of the seller," he 
 will not be treated as a bona fide purchaser. On the other 
 hand, his knowledge that the goods have not been paid for 
 will not prevent his taking a transfer of the bill of lading 
 in good faith. Such a circumstance does not indicate that 
 the bill is not fairl}- and honestly assignable.^ Nor does 
 the simple fact that the bill of lading, which the original 
 vendee ofiers for sale, is marked " duplicate," render the 
 assignee thereof a transferee in bad faith.' 
 
 If, however, the "original" bill has been sent to the pur- 
 chaser, attached to a draft for the purchase-price, so that 
 title has been reserved in the seller, the transmission to 
 the purchaser of the " duplicate " bill will not operate to 
 pass title to him. A transferee of the "duplicate" bill 
 from such a purchaser, it has been held, is bound to inquire 
 " what disposition has been made of the original bill of 
 lading ; " and if he takes it without inquiry, he takes it 
 
 1 Lesassier v. The Southwestern, 2 Woods (U. S. Cir. Ct), 35 
 (1874); Loeht', Peters, 63 Ala. 243 (1879). 
 
 2 Cumming v. Brown, 9 East, 506, 514, 516 (1808) ; Loeb v. Peters, 
 su'pra ; Chandler v. Fulton, 10 Tex. 2 (1853) ; Rosenthal v. Dessau, 11 
 Hun (N. Y.), 49 (1877). 
 
 " Missouri By. v. Heideuheimer, 82 Tex. 195 ; 17 S. W. 608 
 (1891). 
 
DUTIES OF BUYER. — EIGHTS OE SELLBE. 229 
 
 subject to all the defects which that inquiry would have 
 disclosed.^ 
 
 («■) When Bill of Lading is transferred as Security. — 
 But a bill of lading may be transferred by the first pur- 
 chaser, not pursuant to an absolute sale of the goods to a 
 second purchaser, but to a third person by way of a mort- 
 gage or pledge. In such a case, if the transferee is a 
 holder of the bill for value and in good faith, the original 
 seller will not be able to take the goods out of his hands. 
 By the transfer of the bill of lading the legal property in 
 the goods, as well as the right to their possession, has 
 been vested in the third person. It does not follow from 
 this, however, that the seller's right of stoppage has been 
 totally defeated. The transfer having been made as a 
 mortgage or as a pledge, and not as a sale, to the third 
 person, whatever interest in the goods remains in the first 
 purchaser is still available to the unpaid vendor. Upon 
 due notice of stoppage, he will " be considered as having 
 resumed his former interest in the goods, subject to that 
 pledge or mortgage." '^ 
 
 In order to enforce his right, however, he must proceed 
 in equity,' or he must discharge the debt secured by the 
 transfer.* If he pursues the former method, the court 
 will be able to compel the transferee to have recourse to 
 other property of the transferor, which' he majr hold as 
 security for the debt, before resorting to the goods covered 
 by the bill of lading.* 
 
 {j) Absolute Transfer of Bill of Lading, with Sub- 
 purchase JPrice unpaid. — Even though the transfer be 
 
 1 CastanoUe v. Missouri By., 24 Fed. 267 (1885), and note by Adel- 
 bert Hamilton. 
 
 2 Matter of Westzinthus, 5 B. & Ad. 817 (1833). 
 8 Spalding t>. Euding, 6 Bear. 376 (1843). 
 
 * Missouri Pac Ry. v. Heidenheimer, 82- Tex. 196 ; 17 S. W. 608 
 (1891). 
 
 5 Matter of Westzinthus, supra. 
 
230 THE LAW OF SALES. 
 
 absolute, if the transferee has not paid the purchase-price 
 to the first buj-er, such unpaid price may be subjected in 
 equity to the original seller's right of stoppage,' A like 
 result has been reached where the goods have been sold 
 by judicial order during their transit, and the proceeds 
 paid into court. ^ On the other hand, if the original buyer 
 takes out a policy of insurance on the goods, this will not 
 enure to the benefit of the seller. The insurance company' 
 is not a sub-purchaser of the goods which are lost or dam- 
 aged during transit. ' ' There is no contract or agreement 
 which entitles the vendor to go beyond the goods in the 
 state in which they arrive, and to claim some moneys, 
 which have been paid by the underwriters to the pur- 
 chasers of the goods in respect of their loss by the non- 
 arrival of their property." ^ 
 
 (/i) The Termination of the Transit. — If the transit 
 has not been intercepted in one of the ways which we 
 have been considering, the next important question is. 
 Has the transit terminated? "That," as a distinguished 
 judge has said, " is always an exceedingly difficult ques- 
 tion, and before we can apply the law we must see what 
 are the facts, and what is the business view of the 
 transaction." * 
 
 We ought not to be surprised, therefore, to find dif- 
 ferent courts reaching opposite conclusions in cases which 
 appear strikingly similar. A careful comparison of such 
 
 1 Ex parte Golding, Davis & Co., 13 Ch. D. 628 (1880). The 
 doctrine of this case has been criticised (Chalmers' Sale of Goods (2d 
 ed.), 87), hut the critics have not answered Lord Bramwell's question, 
 ' ' What difference is there in principle between the case of a man sell- 
 ing goods on credit for £500, and these being then resold for £600, 
 and the case of the purchaser pledging the goods for £600, with a right 
 of sale by the pledgee ? " Ex parte Falk, 14 Ch. D. 446, 457 (1880). 
 
 2 Hause v. Judson, 4 Dana (Ky.), 7, 13 (1836). 
 
 8 Berndtson v. Strang, L. R. 3 Ch. App. 588, 591 (1868). 
 * Ex parte Miles, 15 Q, B. D, 39, 43 (1884). 
 
DUTIES OF BUYEK. — EIGHTS OP SELLER. 231 
 
 decisions will show that the disagreement is due, not to 
 conflicting views of the law, but to divergent inferences 
 from the facts. In truth, the legal principles involved 
 are simple and well established. They have never been 
 stated more clearly and concisely than by Lord Esher, in 
 the following passage from a recent decision : ^ "The 
 doctrine of stoppage in transitu has always been con- 
 strued favorably to the unpaid vendor. The rule as to 
 its application has been often stated. When the goods 
 have not been delivered to the purchaser or to anj' agent 
 of his to hold for him otherwise than as a carrier, but 
 are still in the hands of the carrier as such and for the 
 purposes of the transit, then, although such carrier was 
 the purchaser's agent to accept delivery so as to pass the 
 propert3-, nevertheless the goods are in transitu, and may 
 be stopped. There has been a diflEicult3' in some cases 
 where the question was whether the original transit was 
 at an end, and a fresh transit had begun. The wa^- in 
 which that question has been dealt with is this : when 
 the transit is a transit which has been caused either by 
 the terms of the contract or by the directions of the pur- 
 chaser to the vendor, the right of stoppage in transitu 
 exists ; but if the goods are not in the hands of a carrier 
 by reason either of the terms of the contract or of the 
 directions of the purchaser to the vendor, but are in 
 transitu afterwards, in consequence of fresh directions 
 given by the purchaser for a new transit, then such tran- 
 sit is no part of the original transit, and the right to stop 
 is gone. So, also, if the purchaser gives orders that the 
 goods shall be sent to a particular place, there to be kept 
 till he gives fresh orders as to their destination to a new 
 carrier, the original transit is at an end when they have 
 reached that place, and any further transit is a fresh and 
 independent transit." 
 
 1 BetheU K. Clark, 20 Q. B. D. 616 (1888). 
 
232 THE LAW OF SALES. 
 
 Applying the foregoing principles to the case then be- 
 fore the court, it was decided that, although the contract 
 of sale did not designate the transit, the subsequent direc- 
 tions given by the vendees to the vendors, to consign the 
 goods " to the Darling Downs, to Melbourne, loading in the 
 East India docks,'' defined the original transit as extending 
 from the seller's place of business to Melbourne. 
 
 On the other hand, if merchants in New York order 
 goods from merchants in Berlin, Germany, but direct 
 that the}' shall be sent to the vendees' agents at Bremen 
 " at our" (the vendees') "disposition," the original transit 
 ends with their dehvery to the Bremen agents.' 
 
 (l) Transit continues until the Goods come to Jiui/er's 
 Possession. — It is to be borne in mind that the goods 
 are in transit, so long as they are in the hands of a mid- 
 dleman on their way^ from the vendor to the vendee. 
 Thej' may have reached the port or the station to which 
 they were consigned, but unless they have been delivered 
 to the purchaser, they are still in transitu.''' Even " the 
 unloading of the goods and the placing of them in the 
 warehouse of the railroad company does not necessarily 
 terminate the transitus, nor put an end to the right of 
 stoppage ; so long as they remain in the hands of the 
 carrier or middleman as such, the right does not cease." ^ 
 "This right continues not only while the goods are in 
 actual transit, but until they have reached their destina- 
 tion and are delivered into the actual or constructive 
 possession of the consignee." * 
 
 Undoubted!}', by a previous course of dealing or by ex- 
 
 1 Becke r u. Hall^rteiL^SS N. Y. 167 (1881) ; Brooke Iron Co. v. 
 O'Brien, 135 Mass. 442 (1883). 
 
 2 Kemp V. Falk, 7 App. Gas. 573, 688 (1882) ; MoFetridge v. Piper, 
 40 la. 627 (1875). 
 
 8 Synims v. Schotten, 35 Kans. 310, 313, 314 ; 10 Pac. 828 (1886). 
 4 Harris v. Tenney, 85 Tex. 254, 268; 20 S. W. 68 (1892). 
 
DUTIES OF BUYER. — EIGHTS OP SELLBK. 233 
 
 press agreement, the carrier and purchaser maj- treat a 
 deposit of the goods at a particular place as a delivery to 
 the purchaser and an end of the transit.^ On the other 
 hand, if the purchaser refuses to take delivery of the 
 goods, when they reach their original destination,^ although 
 without just excuse, the ti-ansit continues.' If his refusal 
 is due to his unwillingness to defeat the vendor's right of 
 stoppage, the courts will not only treat it as preventing a 
 delivery, but will applaud the actor.* 
 
 (m) Deposit of Goods in Bonded Warehouse. — 
 Goods, upon their arrival at a particular port or station, 
 are often deposited in a government warehouse, subject to 
 revenue dues, instead of being delivered at the buyer's 
 place of business. Whether such a deposit determines 
 the right of stoppage in transitu depends upon whether it 
 marks the completion of the vendor's obligation of deliv- 
 ery. If they are deposited in the name of the seller, and 
 are awaiting further transportation to be directed by him, 
 the right of stoppage continues.^ The same result fol- 
 lows if thej' are deposited bj' government officers, and 
 the buyer cannot show authority from the seller to have 
 them deposited as his property.' But if they are right- 
 fully deposited by or on behalf of the buyer, after a 
 
 1 Sawyer v. Joslin, 20 Vt. 172 (1848) ; HaU v. Dimond, 63 N". H. 
 565 ; 3 At. i23 (1885). 
 
 s In Ex parte Miles, 15 Q. B. D. 39, 43, the Master of Rolls 
 declared, ' ' destination means sending the goods to a particular person 
 who is to receive them, and not sending them to a particular place 
 without saying to whom." 
 
 8 Bolton V. Railway, L. R. 1 C. P. 430, 440 (1866) ; Greve v. 
 Dunham, 60 la. 108 ; 14 N. W. 130 (1882). 
 
 4 Mason v. Wilson, 43 Ark. 172, 177 (1884); Tufts «. Sv^vestgr, 79 
 Me. 213 ; 9 At. 357 (1887) ; Kjagman v. DenisonriTMich. 608 ; 48 
 N. W. 26 (1891). See Millard v. Webster, 54 Conn. 415 (1887), crnitra. 
 
 ^ Mohr V. Boston Railway, 106 Mass. 67 (1870). 
 
 8 Donath v. Broomhead, 7 Pa. St. 301 (1847). 
 
234 THE LAW OF SALES. 
 
 deliveiy to him, although the delivery is subject to the 
 government restraint that he shall not take them away 
 until the revenue dues are paid, the transit is at end and 
 the right of stoppage is determined.^ 
 
 4. Exercising the Bight of Stojypage. — As the right is 
 greatly favored by the courts, they have never required 
 the vendor to adopt any particular form of procedure in 
 exercising it. He may accomplish his purpose by taking 
 actual possession of the goods,^ or by changing their con- 
 signment,^ or by giving notice of his claim to the carrier 
 or other bailee in possession.* His notice of claim need 
 not state his reason for stopping the goods, nor refer to 
 the facts on which the claim rests.* Nor is it necessary 
 that it contain " an express demand to redeliver the 
 goods. ... If the carrier is clearly informed that it is 
 the intention and desire of the vendor to exercise his right 
 of stoppage ill transitu, the notice is sufficient." * 
 
 (a) Notice to Others than Carrier. — Tlie notice may 
 be effectively given to an officer who has talien the goods 
 from the carrier under process against the buyer,' or to 
 the principal of the person who is conveying them. " In 
 the latter case, the notice, to be effectual, must be given 
 at such time and under such circumstances that the prin- 
 cipal, by the exercise of reasonable diligence, maj' com- 
 municate it to his servant or agent in time to prevent a 
 delivery- to the buyer." ' 
 
 1 Cartwright v. Wilmerding, 24 N. Y. 521, 536 {18(i2) ; Lewis u. 
 Mason, 36 Up. Can. Q. B. 590 (1875) ; Wiley v. Smith, 2 Duval (Can.), 
 1 (1S77). 
 
 2 Sale of Goods Act, § 46(1). 
 
 ^ Wiseman v. Vandeputt, 2 Vern. 203 (1690). 
 
 4 Litt V. Cowley, 7 Taunt. 169 (1816). 
 
 5 Allen V. Railroad, 79 Me. 327; 9 At. 895 (1887). 
 
 6 Joj5es_D. Earl, 37 Cal. 630, 632 (1869). 
 
 ' ilucker v. Donovan, 13 Kans. 251 (1874). 
 8 Exfarte Falk, 7 App. Cas. 573 (1882). 
 
DUTIES OF BUYER. — EIGHTS OF SELLER. 235 
 
 (b) Invalid JSfotice. — A notice to the buj-er not to take 
 possession of the goods,-' or to hold the proceeds for the 
 seller,^ is ineffectual as an attempted exercise of the right 
 of stoppage in transitu. 
 
 (c) Expenses which Seller must defray. — In case the 
 right is exercised by giving notice to the carrier, or to a 
 third person who has received delivery from the carrier, it 
 becomes the duty of the vendor to defray the transporta- 
 tion charges which have accrued against the goods ; ^ but 
 he is under no obligation to pay charges due from the 
 buyer to the carrier on account of other goods.* If the 
 vendor, instead of taking the goods where they are at the 
 time of stoppage, requires their redeliver}", he must bear 
 the expenses thereof.^ 
 
 5. Effect of exercising the Right. — By stopping the 
 goods, the vendor does not rescind the sale, but regains 
 possession. As soon as the right is duly exercised, the 
 middleman holds the goods for the vendor, and is bound 
 to surrender them to him upon demand and tender of 
 legal charges.^ His liabilitj- to deliver to the vendee 
 ceases, although the latter may hold a bill of lading call- 
 ing for the delivery of the goods to himJ Indeed, com- 
 pliance with such a bill, after due notice of stoppage has 
 been given, would subject the carrier to an action by the 
 vendor for conversion.^ If the carrier improperly refuses 
 to recognize the seller's right to the possession of the 
 
 1 Mottrara v. Heyer, 5 Den. (N. Y.) 629, 635 (1846). 
 
 2 Phelps V. Comber, 29 Ch. D. 813 (1885). 
 
 s Perm. Co. v. Am. Oil Works, 126 Pa. St. 485 ; 17 At. 671 (1889). 
 * Potts V. N. Y. & N. E. Ey., 131 Mass. 455, 457 (1881). 
 6 Sale of Goods Act, §46(2). 
 
 6 Babeock v. Bonnell, 80 N. Y. 244 (1880) ; Diem v. Koblitz, 49 
 Ohio St. 41 ; 29 N. E. 1124 (1892). 
 
 7 The Vidette, 34 Fed. R. 396 (1888). 
 
 8 Litt 0. Cowley, 7 Taunt. 169 (1816) ; Jones v. Earl, 37 Cal. 630 
 (1869). 
 
236 THE LAW OF SALES. 
 
 goods, the latter may be compelled to ask for an in- 
 junction,^ or for some other extraordinary- remedj-.^ 
 On the other hand, the carrier tna,y find it necessary 
 to interplead the seller and some other claimant of the 
 property.^ 
 
 (a) Doctrine of Newhall v. Central Railwaij. — It has 
 been held by one court that the due exercise of the right 
 of stoppage in transitu by the seller will not affect the 
 title of a subsequent bona fide assignee of the bill of 
 lading." This decision is based on the doctrine that the 
 vendor's lien, after the right of stoppage has been duly 
 exercised, " is only a secret trust as to a person who takes 
 an assignment of a bill of lading ' without notice of such 
 circumstances as render the bill of lading not fairly and 
 honestly assignable.' " 
 
 But the vendor's lien is something more than a secret 
 trust. It is a legal interest in the property. The contest 
 between an unpaid vendor, who has stopped the goods, 
 and a subsequent assignee of the bill of lading depends 
 upon the question " which party can establish the better 
 legal title." ^ The right of stoppage in transitu, as Lord 
 Blackburn has established beyond controvers}*, is not, as 
 Mr. Justice BuUer supposed, and as many judges still 
 appear to think, "an equitable right adopted into the 
 law." If it were, "it would follow" (as the California 
 court declared) that the right " could prevail only against 
 those who had an inferior equity." But the right has its 
 origin in "the custom of merchants," and by "the lex 
 mercatoriK, as practised in England, ... it may be de- 
 feated before the goods have come to the end of the 
 transitus, by the assignment of the bill of lading to one 
 
 1 Schotsmans v. Lancashire Ry., L. E. 2 Ch. App. 332, 340 (1867). 
 
 2 The Tigress, 32 L. J. Adm. 97, 102 (1863). 
 
 3 iSTewhall v. Central Railway, .51 Cal. 345 (1876). 
 
 ^ Stanton v. Eagar, 16 Pick. (33 Mass.) 467, 473 (1835). 
 
DUTIES OF BUYER. — RIGHTS OF SELLER. 237 
 
 who bona fide gives value for a property in the goods, 
 and in no other way." ^ 
 
 (5) Bill of Lading must be transferred before Stop- 
 page.— It this doctrine had been applied in Newhall «. 
 Central Railway, a different conclusion would have been 
 reached. As soon as the right of stoppage was exercised, 
 the vendor's lien was restored. A subsequent transfer of 
 the bill of lading to a bona fide purchaser would have the 
 same effect, so far as the vendor's rights were concerned, 
 that any actual delivery of the goods themselves would 
 have had. It would confer no greater rights upon the 
 purchaser. " The transfer of the document of title, by 
 means of which actual possession of the goods could be 
 obtained, had no greater effect at common law than the 
 transfer of the actual possession." ^ And the California 
 court does not rest its decision on any Factors Act, or 
 similar legislation, which had changed the common law. 
 The second purchaser, therefore, should have been treated 
 as taking only such title as his vendor had ; and that was 
 a title subject to the original vendor's lien. 
 
 § 6 Seller's Right of Resale. 
 
 Having re-established his lien, by the exercise of his 
 right of stoppage in transitu, the next question which 
 confronts the vendor is, What can he lawfully do with the 
 goods ? 
 
 1 . Nature of Vetidor's Lien. — If his claim against 
 them were a mere lien, he would be entitled to hold them 
 as security for the price, but, in the absence of authority 
 from the vendee, he could not sell without resort to fore- 
 closure proceedings. Such, however, is not the nature of 
 
 1 Blackburn on Sales (2d ed.), 319, 320. 
 
 2 Cole V. N. "W. Bank, L. E. K) C. P. 354, 363 (187E). 
 
238 THE LA"W OP SALES. 
 
 his claim. " His right is ver}' nearl3' that of a pledgee, with 
 power to sell at private sale in case of default." ^ 
 
 Whea the sale is upon credit, and the bu^er becomes 
 insolvent before the term of credit expires, the seller, if 
 remaining in possession, or upon regaining possession, has 
 the right to demand cash for the goods. There is an im- 
 plied engagement on the part of a buj-er who asks and 
 receives credit to keep that credit good. This is broken 
 by his insolvency', and the breach puts " him in the same 
 situation as if there had been no bargain for credit." ^- 
 
 The seller ma}- refuse to deliver the goods unless the 
 price is paid. But the insolvency of the buyer does not 
 ipso facto annul the sale contract.^ Hence, if the pur- 
 chaser, or one lawfullj- claiming under him, pays or tenders 
 the price within a reasonable time, the seller must deliver 
 the goods.* In case no such paj-ment or tender is made, 
 or in case the purchaser is already in default, when the seller 
 regains his lien, the latter may resell the goods, and if the 
 resale does not result in satisfying his claim, the loss may 
 be recovered from the buyer, as damages. 
 
 2. IToiD should Resale be made? — In England, this 
 question has been answered b}' statute. If the goods are 
 perishable, the unpaid vendor may sell at once and without 
 notice. In other cases, he should give notice to the buyer 
 of his intention to resell, and the latter has a reasonable 
 time thereafter within which to paj' or tender the price. ^ 
 
 1 Tuthill V. Skidmore, 124 N. Y. 148, 1.54 ; 26 K. E. 348 (1891). 
 
 ^Bloxam u. Sanders, 4 B. & C. 941 (1825) ; Grice v. Richardson, 
 3 App. Cas. 319 ; 47 L. J. N. S. P. C. C. 48 (1877) ; Diem v. Koblitz, 
 49 Ohio St. 41 ; 29 N. E. 1124 (1892). 
 
 8 McElroy V. Seery, 61 Md. 389; 48 Am. R. 110 (1883). 
 
 * Newhall v. Vargas, 15 Me. 314 (1839); Patten's Appeal, 45 Pa. 
 St. 151, 159 (1863) ; Ex parte Stapleton, 10 Ch. D. 586, 590 (1879). 
 
 5 Sale of Goods Act, § 48 (3); Page v. Cowasjee, L. R. 1 P. C. 127, 
 145 (1866), qualifying the doctrine in Martindale v. Smith, 1 Q. B. 389 
 (1841). 
 
DUTIES OF BUYEK. — EIGHTS OF SELLEE. 239 
 
 In this countrj', upon default by the purchaser, whether 
 that default consist in his failure to take and pa}' for the 
 goods at the stipulated time and place, or in his failure to 
 pay cash within a reasonable time after his insolvencj-,^ the 
 vendor may resell the property, acting as the purchaser's 
 agent in the matter, and entitle himself to damages to the 
 extent of anj- ensuing loss.^ 
 
 (a) Notice of Intention to resell. — In most of the 
 reported cases, the seller has taken the precaution of giving 
 notice to the defaulted buyer of his intention to resell ; 
 and many courts have assumed that such a notice is neces- 
 sary.' Other courts have ignored, doubted, or even dis- 
 puted the necessity of such notice.* Clearly if the default 
 consists in the buyer's refusal to take or pay for the goods, 
 any notice by the vendor of his intention to resell is super- 
 fluous. It " could only operate in the waj' of a threat to 
 induce compliance. If having once refused to comply with 
 the contract, there be locus pcenitentioB for the buyer, he 
 must avail himself of it without further notice from the 
 seller." ^ 
 
 (6) Notice of Time and Place of Resale. — That this 
 is unnecessary is now well settled. In reselling the goods 
 for the purpose of enforcing his lien, the vendor acts as 
 the vendee's agent. " But it is no part of such an agency, 
 or of the duties involved in it, to notify the principal of 
 the time and place at which the goods are to be sold, or 
 exposed for sale. Indeed, in a majority of cases such 
 
 1 Diem v. Koblitz, 49 Ohio St. 41, 59 (1892). 
 
 2 Sands v. Taylor, 5 Johns. (N. Y.) 395 (18in), 
 
 8 Saladin v. Mitchell, 45 III. 79, 85 (1867); Rosenhams v. "Weeden, 
 18 Grattan (Va.), 785, 793 (1868). 
 
 * Ga-ikell ... Morris, 7 W. & S. (Pa.) 32, 38 (1844) ; Jones w. Marsh, 
 22 yt. 144 (1850); Dustan v. McAndrew, 44 N. Y. 72 (1870); Ullman v. 
 Kent, 60 111. 271, 274 (1871). 
 
 = Waples V. Overaker, 77 Tex. 7, 13 ; 13 S. W. 527 (1890) ; Plumb v. 
 Campbell, 129 111. 101, 110, 111 ; 18 N. E. 790 (1889). 
 
240 THE LAW OP SALES. 
 
 a notice would be entirelj' impracticable. . . . The only 
 requisite to sucli a sale as a measure of the rights and the 
 injury of the party, is good faith, including the proper ob- 
 servance .of the usages of the particular trade." ^ Undoubt- 
 edly, if notice of the time and place of sale is practicable, 
 the safe course for the seller to pursue is to give a fair 
 notice. ■' When the vendor resells as the buyer's agent, 
 their relations subject him to the dutj' of obeying proper 
 instructions from the buyer, which can be followed " with- 
 out sacrificing his lien for the contract- price. In tlie ab- 
 sence of any such instructions he has the right to exercise 
 his discretion within reasonable bounds." ^ 
 
 3. I'itle of -Bui/er 07i a Resale. — This depends upon 
 the legalitj- of the transaction. If the vendor resells after 
 rightfulh- exercising the right of stoppage in transitu, or 
 after default by the purchaser while the goods remain in 
 the vendor's possession, the buyer's title under such resale 
 cannot be shaken by the first purchaser.'' A tortious re- 
 sale by the vendor, however, has no such result. He can 
 give no better title than he has ; and unless the second 
 purchaser can bring himself under the sheltering provisions 
 of some legislative enactment, he must surrender the goods 
 to the true owner, the first purchaser, or respond in damages 
 for their conversion.^ 
 
 § 7. Rescission of the Contract. 
 
 Although the insolvency of the buyer does not of itself 
 annul the sale contract, it may be accompanied by such 
 
 1 Pollen V. Le Roy, 30 N. Y. 549, 556, 557 (1863). Cf. Hollands. 
 Bea, 48 Mich. 218 ; 12 N. W. 167 (1882). 
 
 2 Van Brocklin v. Smpallie, 140 N. Y. 70, 75 (1893). 
 
 3 Smith 1). Pettee, 70 N, Y. 13, 18 (1877). 
 
 4 Milgate v. Kebhle, 3 M. & Gr. 100 (1841) ; Sale of Goods Act, 
 § 48 (2). 
 
 6 Langton v. Higgins, 4 H. & N. 402 ; 28 L. J. Ex. 252 (1859); 
 Cohen V. Foster, 61 L. .T. Q. B. 643 (1892) ; Bowser v. Birdsell, 49 
 Mich. 5 ; 12 N. W. 888 (1882). 
 
DUTIES OP BUYER. — EIGHTS OP SELLER. 241 
 
 conduct on his part as to show his repudiation of the con- 
 tract, and to justify the vendor in rescinding it. Indeed, 
 his repudiation will be inferred easil}-. For example, the 
 buyer's failure to offer performance, or to demand it, for 
 two months after giving notice of his insolvency, and his 
 omission of the contract from the statement of his affairs 
 presented to his assembled creditors as a basis of compo- 
 sition with them, have been deemed ample evidence of a 
 repudiation ; while the seller's failure to tender perform- 
 ance or to call for it was considered sufficient evidence of 
 rescission by him.^ 
 
 The principles applicable to such a case are stated very 
 clearly in Lord Esher's opinion. The defendants (the sel- 
 lers) " would have a right to rescind if the plaintiffs (the 
 buj-ers) had rescinded, or if the plaintiffs having so be- 
 haved themselves as to give them reasonable grounds to 
 conclude that the plaintiffs had abandoned the contract, 
 they did so conclude. I think the declaration of insol- 
 vency, unaccompanied by any subsequent intimation of 
 any intention to enforce the contract, did give the defend- 
 ants such reasonable grounds ; and if thej- acted upon 
 them, and themselves came to the conclusion to rescind the 
 contract, it would be rescinded. As I before said, I think 
 the smallest evidence would be sufficient of their having 
 done so, and I think it is supplied by the fact they did 
 nothing to show that they wished to go on with the con- 
 tract, and broke from what is stated to have been their 
 ordinary course of trade, viz., by not delivering as usual 
 without any demand for deliver}'.'' 
 
 (a) Rejection of Goods which conform to the Con- 
 tract. — Even though the sale transaction has gone so far 
 that the buyer cannot reject the goods without breaking 
 his contract, j-et if an absolute title has not vested in him 
 he may, upon finding himself insolvent, reject them and 
 
 1 Morgan v. Bain, L. R. 10 C. P. 15, 28 (1874). 
 16 
 
242 THE LAW OF SALES. 
 
 thus prevent their passing to his assignee or bis general 
 creditors. His rejection, for the sole purpose of enabling 
 the seller to rescind the contract and retain the goods, is 
 deemed not onlj- legal but commendable ; ' it prevents the 
 property of the unpaid seller going to pay the debts of the 
 insolvent buj-er. 
 
 (b) Refusal to receive Goods after Title has passed. — 
 The courts will strive to give effect to the buyer's refusal 
 to receive goods, although the title has vested in him ab- 
 solutely. Accordingly, if he declines to take possession of 
 them from a carrier or custodian, their transit may be pro- 
 longed thereby, and thus the seller may be afforded an op- 
 portunity of regaining his lien.^ 
 
 But, suppose the insolvent buyer has acquired both title 
 and possession, can he assent to a rescission of the sale, 
 and thus prevent the goods from passing to his assignee 
 or from being available to his general creditors? The 
 answer depends upon the statutory provisions in the par- 
 ticular jurisdiction. It may fall under the ban of bank- 
 ruptcy legislation and be void as a fraudulent performance 
 given by the failing buyer to one of his creditors. In a 
 leading English case on this subject Lord Ken^-on declared, 
 " the rules of bankruptcy law are framed with a view to 
 benefit the bankrupt's creditors in general, and not to give 
 a preference to any in particular. It is said, however, 
 that the vendor may in all cases rescind his contract with 
 the consent of the vendee at an}' time before the bank- 
 ruptcy of the latter ; but if that were so, all the creditors 
 of a bankrupt, whose goods remained in specie, might, 
 
 1 Nicholson v. Bowen, 1 E. & E. 172 (1858) ; Grout v. Hill, 4 Gray 
 (70 Mass.), 361 (1855); cf. Lord Mansfield's explanation of Atkyns ti. 
 Barwick (1 Str. 165) in Harman v. Fisher, Cow. 117, at p. 125 
 (1774). 
 
 2 Bartram v. Farebrother, 4 Biiig. 579 ; 6 L. J. C. P. 125 (1828) ; 
 Bolton V. Lancashire Ky., L. R. 1 C. P. 431. 
 
DUTIES OF BUYEB. — RIGHTS OF SELLEE. 243 
 
 when they found that he was in insolvent circumstances, 
 go to the bankrupt's property and bring away what each 
 had contributed to the fund, leaving nothing to satisfy the 
 rest of the creditors." ^ 
 
 In a jurisdiction, however, where no such statutory 
 policy obtains, and where an insolvent debtor may law- 
 fully prefer one creditor to another, such a rescission will 
 be upheld.^ The buyer, finding himself unable to pay for 
 the goods, may, according to some authorities, deliver 
 them to a third person in trust for the unpaid vendor, and, 
 unless the latter disaffirms the trust in his favor, title will 
 be held to have revested in him at the time of such delivery. 
 Such a buyer is declared to have " parted with all claim in 
 or title to the propertj'. He did all in his power to restore 
 "the property to the vendor. He acted with an honesty 
 which ought to be encouraged and commended, not over- 
 reached and nullified by any manner of technical rules at 
 variance with equity and common justice." " 
 
 (c) Mescission pursuant to a Term of the Contract. — 
 When the sale contract provides that the seller may resell 
 the goods in case the buyer should make default, the 
 English courts have declared that the seller's exercise of 
 this right rescinds the contract.* Notwithstanding the 
 rescission, however, he maj' maintain an action for such 
 damages as he has suffered by the purchaser's default.^ 
 
 {d) Vendor's Right to regain Title in America. — 
 The general rule in this country is that the seller, upon 
 the buyer's default, whether the latter is insolvent or not, 
 and whether his conduct is such as to show a settled deter- 
 mination to repudiate the contract or not, may, although 
 
 1 Barnes v. Freeland, 6 D. & E. 80, 85 (1794). 
 
 2 Seed V. Lord, 66 Me. 580, 582 (1876). 
 
 8 Sturtevant v. Orser, 24 N. Y. 538 (1862). 
 
 1 Lainondv. Duvall, 9 Q. B. 1030 ; 16 L. J. Q. B. 136 (1847). 
 
 6 Sale of Goods Act, §48 (4). 
 
244 THE LAW OF SALES. 
 
 title has passed to the buyer, elect to keep the property as 
 his own and recover damages for the buyer's breach.^ 
 These damages will ordinarilj' be the difference between 
 the contract-price and the fair value of the property when 
 the contract is broken. If the seller elects to revest title 
 in himself, anj' profit which accrues, from keeping the 
 property' and selling it at a later period, is his.^ And in 
 cases of this kind, though the buyer ma\' have made a 
 partial payment before his refusal to take the goods and to 
 pay the balance, he will not be entitled to any of the pro- 
 ceeds of a subsequent sale of the goods bj- the vendor.' 
 The buyer's refusal to go on with the contract precludes 
 him from recovering the monej' he had paid. In a leading 
 case upon this point, the court said: "It would be an 
 alarming doctrine to hold that the plaintifis might violate 
 the contract and, because they chose to do so, make their 
 own infraction of the agreement the basis of an action for 
 money had and received. Every man who makes a bad 
 bargain, and has advanced money upon it, would have the 
 same right to recover it back that the plaintiffs have." * 
 The buyer's breach of the contract gives the seller the 
 right to treat the property as his own, according to the 
 prevailing view in this countr}-. If he so treats it, he is 
 under no duty to account to the defaulted buyer for its 
 proceeds. 
 
 1 Hayden v. Demets, 53 N. Y. 426, 431 (1873). 
 
 2 Briilg|brd v. Crocker, 60 N. Y. 627 (1875); cf. Campbell on Sales 
 (2d ed.), p. 451. 
 
 " Ntis V. 0'_Brien, 12 Wash. 358; 41 Pac. 59 (1895). 
 
 4 Ketchum d. Evertson, 12 Johns. (N. Y.) 358, 364 (1816). 
 
APPENDIX I. 
 
 CONTINENTAL LEGISLATION : CODE NAPOLEON. 
 
 Art. 2279. In the case of moveables, possession is equivalent 
 to a title. Nevertheless, the party who has lost anything, or 
 from whom it has been stolen, may reclaim it within three 
 years from the day of the loss or robbery, against the party in 
 whose hands he finds it; saving to the latter his remedy against 
 the person from whom he obtained it. 
 
 Art. 2280. If the actual possessor of the thing stolen or lost 
 has purchased it in a fair or market, or at a public sale, or from 
 a shopkeeper dealing in similar articles, the original owner can 
 only have it restored to him on repaying the possessor the price 
 which it cost him. 
 
 GENERAL COMMERCIAL CODE OF GERMANY. 
 
 Art. 306. Sale. — If goods or other moveables are disposed 
 of and transferred by a trader, in the course of his business, a bona 
 Jide transferee acquires the ownership thereof, even where the 
 transferor was not owner. Ownership based on a prior title is 
 extinguished. Every prior right of pledge or other right in rem 
 is extinguished if it was unknown to the transferee at the time 
 of transfer. 
 
 Pledge. — If goods or other moveables are pledged and trans- 
 feri-ed by a trader in the course of his business, all rights of 
 ownership, rights of pledge, or other rights in rem founded on 
 prior title cannot be enforced to the disadvantage of the bona 
 Jide pledgee or his successor in title. 
 
 Lien. — The right of lien by law given to commission agents, 
 forwarding agents, and carriers, is of equal force to a right of 
 pledge acquired by contract. 
 
 This article does not apply if the goods were stolen or lost. 
 
246 APPENDIX. 
 
 APPENDIX II. 
 
 THE FACTORS ACT, 1889. 
 
 (52 & 53 Vict. c. 45.) 
 
 An Act to amend and consolidate the Factors Acts. 
 
 [26th August, 1889.] 
 Be it enacted by the Queen's most Excellent Majesty, by and 
 ■with the advice and consent of the Lords Spiritual and Tem- 
 poral, and Commons, in this present Parliament assembled, and 
 by the authority of the same, as follows : — 
 
 Preliminary. 
 
 1. Definitions. — For the purposes of this Act — 
 
 (1) The expression "mercantile agent" shall mean a mer- 
 cantile agent having in the customary course of his business as 
 such agent authority either to sell goods, or to consign goods 
 for the purpose of sale, or to buy goods, or to raise money on 
 the security of goods : 
 
 (2) A person shall be deemed to be in possession of goods or 
 of the documents of title to goods, where the goods or documents 
 are in his actual custody or are held by any other person subject 
 to his control or for him or on his behalf : 
 
 (.3) The expression " goods " shall include wares and mer- 
 chandise : 
 
 (1) The expression "document of title" shall include any 
 bill of lading, dock warrant, warehouse-keeper's certificate, and 
 ■warrant or order for the delivery of goods, and any other docu- 
 ment used in the ordinary course of business as proof of the 
 possession or control of goods, or authorising or purporting to 
 authorise, either by endorsement or by delivery, the possessor 
 of the document to transfer or receive goods thereby repre- 
 sented : 
 
APPENDIX. 247 
 
 (5) The expression "pledge" shall include any contract 
 pledging, or giving a lien or security on, goods, whether in con- 
 sideration of an original advance or of any further or continu- 
 ing advance or of any pecuniary liability. 
 
 (6) The expression " person " shall include any body of per- 
 sons corporate or unincorporate. 
 
 Dispositions by Mercantile Agents. 
 
 2. Powers of mercantile agent with respect to disposition of 
 goods. — (1) Where a mercantile agent is, with the consent of 
 the owner, in possession of goods or of the documents of title to 
 goods, any sale, pledge, or other disposition of the goods, made 
 by him when acting in the ordinary course of business of a mer- 
 cantile agent, shall, subject to the provisions of this Act, be as 
 valid as if he were expressly authorised by the owner of the goods 
 to make the same ; provided that the person taking under the 
 disposition acts in good faith, and has not at the time of the 
 disposition notice that the person making the disposition has not 
 authority to make the same. 
 
 (2) Where a mercantile agent has, with the consent of the 
 owner, been in possession of goods or of the documents of title 
 to goods, any sale, pledge, or other disposition, which would 
 have been valid if the consent had continued, shall be valid not- 
 withstanding the determination of the consent : provided that 
 the person taking under the disposition has not at the time 
 thereof notice that the consent has been determined. 
 
 (3) Where a mercantile agent has obtained possession of any 
 documents of title to goods by reason of his being or having been, 
 with the consent of the owner, in possession of the goods repre- 
 sented thereby, or of any other documents of title to the goods, 
 his possession of the first-mentioned documents shall, for the 
 purposes of this Act, be deemed to be with the consent of the 
 owner. 
 
 (4) For the purposes of this Act the consent of the owner 
 shall be presumed in the absence of evidence to the contrary. 
 
 3. Effect of pledges of documents of title. — A pledge of the 
 documents of title to goods shall be deemed to be a pledge of the 
 goods. 
 
 4. Pledge for antecedent debt. — Where a mercantile agent 
 
248 APPENDIX. 
 
 pledges goods as security for a debt or liability dae from the 
 pledgor to the pledgee before the time of the pledge, the pledgee 
 shall acquire no further right to the goods than could have been 
 enforced by the pledgor at the time of the pledge. 
 
 5. Rights acquired by exchange of goods or documents. — The 
 consideration necessary for the validity of a sale, pledge, or other 
 disposition, of goods, in pursuance of this Act, may be either a 
 payment in cash, or the delivery or transfer of other goods, or of 
 a document of title to goods, or of a negotiable security, or any 
 other valuable consideration ; but where goods are pledged by a 
 mercantile agent in consideration of the delivery or transfer of 
 other goods, or of a document of title to goods, or of a negotiable 
 security, the pledgee shall acquire no right or interest in the 
 goods so pledged in excess of the value of the goods, documents, 
 or security when so delivered or transferred in exchange. 
 
 6. Agreements through clerks, Ifc. — For the purposes of this 
 Act an agreement made with a mercantile agent through a clerk 
 or other person authorised in the ordinary course of business to 
 make contracts of sale or pledge on his behalf shall be deemed 
 to be an agreement with the agent. 
 
 7. Provisions as to consignors and consignees. — (1) AVhere the 
 owner of goods has given possession of the gonds to another 
 person for the purpose of consignment or sale, or has shipped the 
 goods in the name of another person, and the consignee of the 
 goods has not had notice that such person is not the owner of 
 the goods, the consignee shall, in respect of advances made to or 
 for the use of siich person, have the same lien on the goods as 
 if such person were the owner of the goods, and may transfer 
 any such lien to another person. 
 
 (2) Nothing in this section shall limit or affect the validity 
 of any sale, pledge, or disposition, by a mercantile agent. 
 
 Dispositions hy Sellers and Buyers of Goods. 
 
 8. Disposition by seller remaining in possession. — Where a person, 
 having sold goods, continues, or is, in possession of the goods or 
 of the documents of title to the goods, the delivery or transfer 
 by that person, or by a mercantile agent acting for him, of the 
 goods or documents of title under any sale, pledge, or other dis- 
 position thereof, or under any agreement for sale, pledge, or 
 
APPENDIX. 249 
 
 other disposition thereof, to any person receiving the same in 
 good faith and without notice of the previous sale, shall have the 
 same effect as if the person making the delivery or transfer were 
 expressly authorised by the owner of the goods to make the same. 
 
 9. Disposition hy buyer obtaining possession. — Where a person, 
 having bought or agreed to buy goods, obtains with the consent 
 of the seller possession of the goods or the documents of title to 
 the goods, the delivery or transfer, by that person or by a mer- 
 cantile agent acting for him, of the goods or documents of title, 
 under any sale, pledge, or other disposition thereof, or under 
 any agreement for sale, pledge, or other disposition thereof, to 
 any person receiving the same in good faith and without notice 
 of any lien or other right of the original seller in respect of the 
 goods, shall have the same effect as if the person making the 
 delivery or transfer were a mercantile agent in possession of 
 the goods or documents of title with the consent of the owner. 
 
 10. Effect of transfer of documents on vendor's lien or right nf 
 stoppage in transitu. — Where a document of title to goods has 
 been lawfully transferred to a person as a buyer or owner of the 
 goods, and that person transfers the document to a person who 
 takes the document in good faith and for valuable consideration, 
 the last- mentioned transfer shall have the same effect for defeat- 
 ing any vendor's lien or right of stoppage in transitu as the 
 transfer of a bill of lading has for defeating the right of stoppage 
 in transitu. 
 
 11. Mode of transferring documents. — For the purposes of this 
 Act, the transfer of a document may be by endorsement, or, 
 where the document is by custom or by its express terms trans- 
 ferable by delivery, or makes the goods deliverable to the bearer, 
 then by delivery. 
 
 12. Saving for rights of true owner. — (1) Nothing in this 
 Act shall authorise an agent to exceed or depart from his 
 
 authority as between himself and his principal, or exempt him 
 from any liability, civil or criminal, for so doing. 
 
 (2) Nothing in this Act shall prevent the owner of goods 
 from recovering the goods from an agent or his trustee in bank- 
 ruptcy at any time before the sale or pledge thereof, or shall 
 prevent the owner of goods pledged by an agent from having the 
 right to redeem the goods at any time before the sale thereof, on 
 
250 APPENDIX. 
 
 satisfying the claim for which the goods were pledged, and pay- 
 ing to the agent, if by him required, any money in respect of 
 which the agent would by law be entitled to retain the goods or 
 the documents of title thereto, or any of them, by way of lien as 
 against the owner, or from recovering from any person with 
 whom the goods have been pledged any balance of money re- 
 maining in his hands as the produce of the sale of the goods 
 after deducting the amount of his lien. 
 
 (3) Nothing in this Act shall prevent the owner of goods 
 sold by an agent from recovering from the buyer the price agreed 
 to be paid for the same, or any part of that price, subject to any 
 right of set off on the part of the buyer against the agent. 
 
 13. Saving for common-law powers of agent. — The provisions 
 of this Act shall be construed in amplification and not in dero- 
 gation of the powers exerciseable by an agent independently of 
 this Act. 
 
 14. Repeal. — The enactments mentioned in the schedule to 
 this Act are hereby repealed as from the commencement of this 
 Act, but this repeal shall not affect any right acquired or liability 
 incurred before the commencement of this Act under any enact- 
 ment hereby repealed. 
 
 15. Commencement. — This Act shall commence and come into 
 operation on the first day of January one thousand eight hun- 
 dred and ninety. 
 
 16. Extent of Act. — This Act shall not extend to Scotland. 
 
 17. Short Title. — This Act may be cited as the Factors Act, 
 18S9. 
 
 THE FACTORS (SCOTLAND) ACT, 1890. 
 (53 & 54 Vict. u. 40.) 
 
 An Act to extend the Provisions of the Factors Act, 1889, to Scotland. 
 
 [14th August, 1890.] 
 Be it enacted by the Queen's most Excellent Majesty, by and 
 
 with the advice and consent of the Lords Spiritual and Temporal, 
 
 and Commons, in this present Parliament assembled, and by the 
 
 authority of the same, as follows : 
 1. — Subject to the following provisions, the Factors Act, 1889, 
 
 shall apply to Scotland : — 
 
APPENDIX. 251 
 
 (1) The expression " lien " shall mean and include right of 
 retention ; the expression " vendor's lien " shall mean and include 
 any right of retention competent to the original owner or vendor; 
 and tlie expression " set off " shall mean and include compensa- 
 tion. 
 
 (2) In the application of section five of the recited Act, a sale, 
 pledge, or other disposition of goods shall not be valid unless 
 made for valuable consideration. 
 
 2. — This Act may be cited as the Factors (Scotland) Act, 1890. 
 
 THE EARLIER FACTORS ACTS IN ENGLAND.i 
 
 The following sketch of the earlier Factors Acts, which Mr. 
 Justice Chalmers has happily described as models " of the art 
 of saying a few things in many words," is taken from a recent 
 English treatise.^ " The Legislature, in determining to alter 
 the law, had two courses open to it; either to recognize the 
 doctrine ' that possession constitutes title ' to the full extent to 
 which it was recognized on the Continent, by conferring a good 
 title in every case upon innocent persons dealing with persons 
 in the apparent ownership of goods as if they were the real 
 owners, or by an extension of the doctrine of estoppel, to limit 
 the protection to the particular case of innocent persons dealing 
 with mercantile agents under similar circumstances. The Leg- 
 islature adopted the latter course, but in a very tentative and 
 cautious spirit, owing, we may presume, to the legal opposition 
 raised in the House, and the immediate result was the Factors 
 Act, 4 Geo. IV. c. 83. 
 
 " This Act- went a very little way. It altered the law as to 
 pledging only in the particular case of consignments by sea. 
 . . . The Act fell far short of the protection required, and was 
 speedily followed by the Factors Act, 6 Geo. IV. c. 94. . . . 
 After confirming the protection given by the earlier Act to con- 
 signees, it proceeded to extend the doctrine of estoppel, so as to 
 
 1 Various arguments for and against the first two Factors Acts -will be 
 found in a note to Blandy v. Allen (1828), Dawson and Lloyd's Merc. Cas. 
 pp. 22-32. 
 
 2 Pearson-Gee's New Factors Act, London, 1890, p. 8 and on. 
 
252 APPENDIX. 
 
 give validity to a pledge made by a factor who was clothed with 
 ostensible ownership of goods, by being ' intrusted with and in 
 possession of ' a ' document of title ' to goods, as specified by 
 the Act. ... So far, the Act required that the pledgee should 
 be ignorant of the factor's real character. . . . But then it 
 went a step forward, and provided that even when the pledgee 
 knew the person he was dealing with was a factor, the pledge 
 
 . . should transfer the factor's lien to the pledgee, and to this 
 extent only trenched upon the rule laid down in Paterson i'. 
 Tash.i The Act dealt also with the sale of goods by a factor, 
 but on this point only confirmed the common law, as laid down 
 in several then recent decisions, to the effect that for a sale to 
 be valid by the application of the principle of estoppel, the agent, 
 who was clothed with the ostensible ownership of the goods, must 
 be one who has an implied authority to sell, either in fact or 
 from the nature and scope of his employment, and the pur- 
 chaser must have no notice of the agent's want of authority to 
 sell.^ ... It provided for the right of the true owner to re- 
 deem his goods from the factor or his trustee in banliruptoy, or 
 the goods or their proceeds from a purchaser or pledgee from 
 the factor, subject to certain conditions. It also contained penal 
 clauses dealing with the case of a factor fraudulently pledging 
 the goods of his principal. 
 
 " The law remained on this footing until the year 1842. It 
 proved to be altogether insufficient as a protection for mer- 
 chants, who also found, in the stringency with which its pro- 
 visions were construed by the courts, the greatest difficulty in 
 availing themselves of the benefits which it was intended to 
 confer. The Legislature again interfered, and the Factors Act 
 of 1842 (5 & 6 Vict. c. 30) was passed. . . The Act extended 
 the principle of estoppel to the case of a pledge made by a 
 known agent (;. e., a factor), who is 'intrusted with the pos- 
 session of goods, or of the documents of title relating to them ; ' 
 thus, by the way, extending to the possession of goods the same 
 protection which the Factors Act of 1S2.'5 confined to the pos- 
 session of a dooiment of title." In construing the words, 
 
 1 2 Strange, 1178 (1743). 
 
 2 Wilkinson v. King, 2 Camp. 335 (1809); Pickering v. Eusk, 15 East, 
 38 (1812); Dyer v. Pearson, 3 B. & C. 38 (1824). 
 
APPENDIX. 253 
 
 " agent intrusted " in these acts, the courts " decided that the 
 ' agent ' must be one to whose employment a power of sale was 
 ordinarily incident, i. e., a factor, or an agent whose employ- 
 ment corresponded to that of a factor ; but they further decided 
 that the agent must have received possession of the goods in 
 his capacity as agent for sale, and either for the specific purpose 
 of sale, or for some object connected with the sale. Possession 
 j)er se was only presumptive evidence of intrustment, and it was 
 open to the owner of the goods to repel the presumption, and 
 prove that there was no intrustment in fact. . . . Hence it re- 
 sulted that a pledgee, and, apparently, a purchaser from an 
 agent so in possession, ran the risk of the owner being able to 
 prove that the goods had been sent to the factor, not for sale, 
 but to be warehoused ^ or forwarded, or that they were in the 
 factor's possession by way of pledge or of loan. A striking 
 illustration of the hardship and risk entailed upon merchants 
 by this interpretation was given in the case of a person making 
 advances to a factor whose authority had been secretly revoked, 
 it being decided that the revocation of authority put an end to 
 the factor's power to pledge, on the ground that, although in 
 possession, he was no longer intrusted with the goods.^ . . . 
 "We need not pause to further consider the provisions of the 
 Factors Act of 1842; it relaxed the stringency of judicial in- 
 terpretation in certain cases which had been ruled outside the 
 operation and benefit of the earlier acts.' . . . 
 
 " The statutory law remained in this condition for thirty- 
 five years. In 1877 the Legislature again interfered by an en- 
 actment, 40 & 41 Vict. c. 39. . . . After amending the law with 
 respect to the secret revocation of a factor's authority, the Act 
 proceeds to extend the operation of the earlier acts, and the 
 principle of estoppel upon which they were based, by in effect 
 enacting that a seller or a buyer in possession of a document of 
 title to goods sold should be able to make as valid a sale or 
 
 1 Cole V. Northwestern Bank, L. E. 10 C. P. 354 (1875). 
 
 2 Fuentes v. Montis, L. R. 3 C. P. 268 (1868). 
 
 8 The effect of this act upon the decisions in those cases is stated with 
 great clearness by Lord Blackburn in Cole v. Northwestern Bank, supra^ at 
 pp. 364-371. The development of the law in England on this subject is dis- 
 cussed in Blackwell's Law of Factors, Appendix 1, London, 1897. 
 
254 APPENDIX. 
 
 pledge as if he were an ' agent ' or ' person intrusted ' by the 
 other within the meaning of the Factors Acts; provided that 
 the purchaser or pledgee had no notice of the previous sale, and 
 the first purchaser's rights thereunder, or of the original vend- 
 or's rights, as the case might be. . . . 
 
 " The Factors Act of 1877 marked a fresh stage in the his- 
 tory of legislation for the protection of persons dealing with 
 those who are clothed with the ostensible ownership of property. 
 Strictly speaking, it lay altogether outside the scope of the 
 earlier Factors Acts, because it went beyond the class of com- 
 mercial agents from which those acts received their name, and 
 to which their operation was, by the strictness of judicial inter- 
 pretation, practically confined ; but it must not be overlooked 
 that its application reached only to a particular class of per- 
 sons indicated ; i. e., sellers and buyers in possession of a docu- 
 ment of title to goods. ... To this limited extent only had the 
 Legislature thought fit to recognize the doctrine that possession 
 gives title, — a doctrine which prevails among the commercial 
 nations of Europe, and which the Committee of the House of 
 Commons appointed in 1823 so strongly urged upon Parliament 
 to adopt in this country." 
 
APPENDIX. 255 
 
 APPENDIX III. 
 
 FACTORS ACT OF NEW YORK. 
 
 (L. 1830, c. 179.) 
 
 An Act for the Amendment of the Law relative to Principals 
 and Factors or Agents. 
 
 Section 1. After this Act shall take effect, every person in 
 whose name any merchandise shall be shipped, shall be deemed 
 the true owner thereof, so far as to entitle the consignee of such 
 merchandise to a lien thereon, (1) for any money advanced, or 
 negotiable security given by such consignee, to or for the use 
 of the person in whose name such shipment shall have been 
 made ; and (2) for any money or negotiable security received 
 by the person in whose name such shipment shall have been 
 made, to or for the use of such consignee. 
 
 Sect.' 2. The lien provided for in the preceding section 
 shall not exist where such consignee shall have notice by the 
 bill of lading or otherwise, at or before the advancing of any 
 money or security by the person in whose name the shipment 
 shall have been made, that such person is not the actual and 
 bona fide owner thereof. 
 
 Sect. 3. Every factor or other^ agent, intrusted with the 
 possession of any bill of lading, custom-house permit, or ware- 
 house-keeper's receipt for the delivery of any such merchandise, 
 and every such factor or agent not having the documentary 
 evidence of title, who shall be intrusted with the possession of 
 any merchandise for the purpose of sale, or as a security for any 
 advances to be made or obtained thereon, shall be deemed to 
 be the true owner thereof, so far as to give validity to any con- 
 tract made by such agent with any other person, for the sale or 
 disposition of the whole or any part of such merchandise, for 
 any money advanced, or negotiable instrument or other obliga- 
 
256 APPENDEX. 
 
 tion in ■writing given by such other person upon the faith 
 thereof. 
 
 Sect. 4. Every person who shall hereafter accept or take 
 any such merchandise in deposit from any such agent, as a 
 security for any antecedent debt or demand, shall not acquire 
 thereby, or enforce any right or interest in or to such merchan- 
 dise or document, other than was possessed or might have been 
 enforced by such agent at the time of such deposit. 
 
 Sect. 5. Nothing contained in the two last preceding 
 sections of this Act shall be construed to prevent the true owner 
 of any merchandise so deposited from demanding or receiving 
 the same, upon repayment of the money advanced, or on resto- 
 ration of the security given, on the deposit of such merchandise, 
 and upon satisfying such lien as may exist thereon in favor of 
 the agent who may have deposited the same ; nor from recover- 
 ing any balance which may remain in the hands of the person 
 with whom such merchandise shall have been deposited, as the 
 produce of the sale thereof, after satisfying the amount justly 
 due to such person by reason of such deposit. 
 
 Sect. 6. Kothing contained in this Act shall authorize a 
 common carrier, warehouse-keeper, or other person to whom 
 merchandise or other property may- be committed for transpor- 
 tation or storage only, to sell or hypothecate the same. 
 
 Sect. 7. (Repealed L. 1886, c. 593.) 
 
 Sect. 8. Nothing contained in the last preceding section 
 shall be construed to prevent the Court of Chancery from com- 
 pelling discovery, or granting relief upon any bill to be filed in 
 that court by the owner of any merchandise so intrusted or con- 
 signed, against the factor or agent by whom such merchandise 
 shall have been applied or sold contrary to the provisions of the 
 said section, or against any person who shall have been know- 
 ingly a party to such fraudulent application or sale thereof ; 
 but no answer to any such bill shall be read in evidence against 
 the defendant making the same, on the trial of any indictment 
 for the fraud charged in the bill. 
 
APPENDIX, 257 
 
 FACTORS ACT OF MASSACHUSETTS. 
 (Public Statdtes, c. 71.) 
 
 Section 1. Every factor or other agent intrusted with the 
 possession of merchandise or of a bill of lading, consigning 
 merchandise to him for the purpose of sale, shall be deemed to 
 be the true owner of such merchandise, so far as to give validity 
 to any hona fide contract made by him with any other person 
 for the sale of the whole or a part thereof. 
 
 Sect. 2. Every person in whose name merchandise is shipped 
 for sale by a person in the lawful possession thereof at the 
 time of the shipment shall be deemed to be the true owner 
 thereof so far as to entitle the consignee to a lien thereon for 
 money advanced or securities given to the shipper for or on 
 account of such consignment, unless the consignee, at or before 
 the time when he made the advances or gave the securities, had 
 notice by the bill of lading or otherwise that the shipper was 
 not the actual and bona fide owner. 
 
 Sect. 3. When a person intrusted with merchandise, and 
 having authority to sell or consign the same, ships or otherwise 
 transmits or delivers it to any other person, such other person 
 shall have a lien thereon for any money or merchandise advanced 
 or for any negotiable security given by him, on the faith of 
 such consignment, to or for the use of the person in whose 
 name the consignment or delivery was made, and for any 
 money, negotiable security, or merchandise received for the use 
 of such consignee by the person in whose name the consign- 
 ment or delivery was made, if such consignee had, at the time 
 of such advance or receipt, probable cause to believe that the 
 person in whose name the merchandise was shipped, trans- 
 mitted, or delivered was the actual owner thereof, or had a 
 legal interest therein to the amount of said lien. 
 
 Sect. 4. When a consignee or factor, having possession of 
 merchandise with authority to sell the same, or having with 
 such authority possession of a bill of lading, permit, certificate, 
 or order for the delivery of merchandise, deposits or pledges 
 such merchandise or a part thereof or such document with any 
 other person as a security for money or merchandise advanced 
 
 17 
 
258 APPENDIX. 
 
 or for a negotiable instrument given by him upon the credit 
 thereof, such other person (if he makes such loan, advance, or 
 exchange in good faith and with probable cause to believe that 
 the agent making the deposit or pledge had authority so to 
 do and was not acting fraudulently against the owner of 
 such merchandise) shall, notwithstanding he has notice of such 
 agency, acquire the same interest in and authority over such 
 merchandise and documents as he would have acquired if the 
 agent had been the actual owner thereof. 
 
 Sect. 5. When such merchandise or document is accepted 
 in deposit or pledge for an antecedent debt due from such con- 
 signee or factor, the person receiving the same shall thereby 
 acquire no other or further right or interest in or authority over 
 or lien upon the same than the consignee or factor might have 
 enforced against the actual owner. 
 
 Sect. 6. The provisions of the three preceding sections 
 shall not affect the lien of a consignee or factor for the expenses 
 and charges attending the shipment, transportation, and care 
 of merchandise intrusted to him ; nor prevent the actual 
 owner of merchandise from recovering it, previous to any 
 pledge thereof, from the consignee or factor or from his assignee 
 in case of his insolvency, nor prevent such owner from recover- 
 ing any merchandise or document so deposited or pledged, upon 
 tender of the money and restoration of the negotiable security 
 or property so advanced to such consignee or factor, and upon 
 tender of such further sum of money and restoration of such 
 negotiable instrument or property as may have been advanced 
 or given by the consignee or factor to the owner, or upon tender 
 of a sum of money equal to the amount or value of such mer- 
 chandise ; nor prevent him from recovering from a person with 
 whom such merchandise has been so deposited or pledged any 
 balance of money remaining in his hands as the proceeds of the 
 sales thereof, after deducting the amount or value of the money 
 or negotiable security so advanced thereon. 
 
APPENDIX. 259 
 
 HISTORICAL SKETCH OF THE FACTORS ACTS IN 
 THE UNITED STATES. 
 
 Maryland was the first of our States to extend by legisla- 
 tion the powers of factors. Its original statute on this subject i was 
 an almost literal copy of the English Act of 1825; and the two 
 statutes were to affect factors "from and after the first day of 
 October, 1826." The act has since been remodelled,^ and its 
 language and provisions bear a striking similarity at present to 
 the Factors Act of New York. It has given rise to but little 
 litigation. 
 
 New York. — Early in the year 18.30, a memorial ^ was pre- 
 sented to the Legislature of this State by " sundry merchants 
 and others of New York City," together with a draft of a statute 
 which had been suggested by the English Factors Acts of 
 1823 and 1825. The memorialists declared that the rule of the 
 common law which invalidated all pledges by factors of the 
 property of their principals was, in their opinion, " unjust and 
 impolitic, and required legislative revisioQ." They believed that 
 the rule was harmful to the principals as well as harsh towards the 
 factors and those loaning money to them. As the factor could 
 sell his principal's goods, and convey a valid title, although he 
 received a lower price than that named by the principal, but 
 could not pledge them, he was subjected to great temptation to 
 resort to a forced sale in order to repay his advances. It was 
 thought that this temptation would be removed by giving to the 
 factor power to pledge, and that such power would enable him to 
 carry the goods until the market was favorable to his principal. 
 
 The memorialists further declared that a vast amount of 
 property was shipped to New York, from sister States and from 
 foreign countries, in the names of factors selected by the own- 
 ers, that no degree of caution or sagacity could guard the New 
 York consignee, merchant, or banker against the claim of the 
 original owner, who, the memorialists believed, should be the 
 
 1 Chap. 182, L. 1825-26, passed Feb. 25, 1826. 
 
 2 P. G. L. of 1888, Art. 2. 
 
 8 Senate Document, No. 46, of Jan. 19, 1830. Signed by eighty-five 
 firms and individual traders. 
 
260 APPENDIX. 
 
 only sufferer by any mismanagement on the part of an agent to 
 whom he had intrusted his property, and of whose integrity 
 and responsibility he alone possessed the means of judging. 
 
 In conclusion, they said ; " The rule of law from which your 
 memorialists ask to be relieved had its origin in England, and 
 is understood to have been first adopted there in 1743, in the 
 case of Paterson v. Tash, 2 Strange, 1178. It was constantly en- 
 forced by the courts of that country, though justly censured by 
 some of its ablest jurists, until 1825, when the evils resulting 
 from it were found so great that Parliament, after mature de- 
 liberation and inquiry, passed a statute abrogating the old rule 
 and instituting a new one, more consonant to justice and the 
 peculiar exigencies of trade in that country." 
 
 The Senate committee to which the memorial and draft of a 
 bill were referred examined a number of merchants upon the 
 subject, and reached the conclusion that the representations in 
 the memorial, as to the nature and extent of shipments to the 
 port of Kew York, the risks which the common-law rule imposed 
 upon consignees, merchants, and bankers, and the temptation 
 to which it subjected the factor to sacrifice the interests of his 
 principal were fully sustained. After referring to the English 
 Factors Acts of 1823 and 1825, the report declared; " This con- 
 sequence then results from these enactments. The owner in 
 England may pursue the property to this country and take it, 
 wherever he can find it; while our own citizens, under the like 
 circumstances, are compelled to submit to their losses upon 
 goods and produce shipped to that country, whatever they may 
 be." The bill, which had been presented by the memorialists, 
 was therefore approved by the committee, and its adoption 
 recommended as " a countervailing statute," in order " to place 
 our citizens on an equal footing in this respect with the British 
 subject." ^ 
 
 Soon after the publication of this report, a formidable remon- 
 strance was presented by "sundry merchants of Albany."^ In 
 their opinion a statute of this nature was " unnecessary, im- 
 politic, and unjust." They asserted that the authority of 
 factors, agents, and consignees over the property of their prin- 
 
 1 Senate Document, No. 55, of Jan. 27, 1830. 
 
 2 Senate Document, No. 105, of Feb. 8, 1830. 
 
APPENDIX. 261 
 
 cipals, as settled by judicial decisions, was well understood ; 
 that no serious evils were experienced under the existing law, 
 and that " innovations on the common law are always hazard- 
 ous, and generally prove inlets to fraud and imposition." They 
 objected to the bill as holding out temptations to factors to de- 
 fraud their principals, and as aifording facilities to factors of 
 obtaining credit upon other people's property. The third sec- 
 tion of the bill they considered to be especially dangerous. In 
 their opinion, it would " make the naked possession of a bill of 
 lading, custom-house permit, or warehouseman keeper's receipt 
 for goods evidence of actual ownership in the possessor, so as to 
 authorize him to dispose thereof to his own use, even in case 
 he obtains such possession feloniously or by fraudulent means, 
 without knowledge or consent of the person to whom they be- 
 long." This fear, we shall see, has not been realized. 
 
 The remonstrance was ineffective, and the bill was passed 
 April 16, 1830. It has remained unchanged, save for the repeal 
 of § 7,1 after its provisions had been incorporated into the 
 Penal Code. It has also served as a model for similar legisla- 
 tion in other States. 
 
 Maine. — In 1834, the New York Factors Act, with the 
 omission of sections two, seven, and eight, and with a few ver- 
 bal changes, became a part of the statute law of Maine. That 
 enactment has been changed by subsequent legislation, and its 
 remnants are found in eh. 31 of the Revised Statutes of 1883. It 
 does not appear to have been a source of trouble to the courts. 
 
 Massachusetts. — The first Factors Act in this State was 
 passed in 1845. While it was suggested by statutes in England, 
 and in New York, it did not copy their provisions. It did not 
 authorize a pledge by a factor.^ It was amended in 1849. The 
 present statutory provisions on this subject form ch. 71 of the 
 Public Statutes, and are reprinted on a preceding page. 
 
 Ohio and Pennsylvania have made the New York Fac- 
 tors Act the basis of their legislation on this subject. In fact, 
 the former State ' has copied not only the substance, but for the 
 most part the language of the New York statute. Pennsylvania, 
 
 1 Chap. 593, L. 1886. 
 
 2 Mich. State Bank v. Gardner, 15 Gray, 362, 374 (1860). 
 s Revised Statutes, §§ 3214-3220. 
 
262 APPENDIX. 
 
 however, modified the New York act to some extent.^ The re- 
 port -which accompanied the bill stated that " the evil com- 
 plained of by the Board of Trade of Philadelphia, and by the 
 mercantile community in general, is, that consignees and factors 
 authorized to sell the goods of their principals, and who are held 
 out to the world as the owners thereof, have not power to pledge 
 the goods in their possession for advances made by persons who 
 have every reason to believe that they are the actual owners; " 
 that the bill was intended to remedy this particular evil, but not 
 to go further "lest evils should be produced on the other side." 
 The report declared that the bill had been framed with a view 
 " to limit the power of factors more than " it was limited " in 
 the statutes of England and New York." ^ 
 
 Kentucky 8 and WisconsiiV* also copied the New York Act, 
 but neither State appears to have found it very useful; for the 
 former soon repealed the statute,^ and the latter retains but a 
 fragment of its provisions.^ 
 
 Rhode Island's Factoks Act' is not a servile copy of any 
 other statute, although its purpose and provisions are similar to 
 those of the New York Act. 
 
 The Common Law but slightly Modified by Factors Acts. — It is 
 apparent from the foregoing sketch that the Factors Acts in 
 this country have wrought but a slight modification in the com- 
 mon law. Nor have our mercantile classes made any such de- 
 mands upon the legislature for the adoption of the rule that 
 " possession of chattels is equivalent to title," as have been 
 pressed upon the British Parliament. 
 
 Warehouse Receipts Legislation. — Even the statutes ' which 
 declare warehouse receipts and other documents of title nego- 
 
 ' Pepper and Lewis' Digest, pp. 2027-2030. 
 
 2 See Macky r. Dillinger, 73 Pa. St. 8.5. 90 (1873). 
 
 8 Ch. 1541, L. 1879-18S0, passed May 5, 1880. 
 
 * Ch. 91, L. 1863. 
 
 6 Ch. 761, L. 1885-1886, passed April 22, 1886. 
 Kevised Statutes, §§ 3345, 3346. 
 ' Pub. St., ch. 136. 
 
 * Statutes of this kind have been passed in California, Connecticut, 
 Delaware, Georgia, Kentucky, Illinois, Indiana, Iowa, Kansas, Maine, South 
 Carolina, Tennessee, and other States. The New York statute on this 
 subject has been repealed. 
 
APPENDIX. 263 
 
 tiable by delivery, fall far short of the latest Factors Act in Eng- 
 land, in their modiflcatiou of the common law. As a fair sample 
 of this legislation, section 4425 of the Wisconsin Revised Statutes 
 may be referred to. Its language is as follows: — 
 
 " Any such receipt, bill of lading, voucher, or other document as is 
 mentioned in the preceding section (by warehouseman, wharfinger, 
 master of vessel, or agent of any transportation company) shall be 
 transferable by delivery thereof, without indorsement or assignment, 
 and any person to whom the same is so transferred, shall be deemed 
 and taken to be the owner of the property tlierein specified, so far as to 
 give validity to any pledge, lien, or transfer, made or created by such 
 person, unless such receipt, bill of lading, voucher, or other document 
 shall have the words ' not negotiable ' plainly written or stamped on 
 the face thereof." i 
 
 Whether a particular document is a warehouseman's receipt 
 depends not upon its language, but upon the facts attending its 
 issue. The owner of a mill in which shingles were manufactured 
 gave the following writing: "Received from J. B. Chown, 
 l.'50,000 shingles, . . . subject to the order of F. G. Steaubli, 
 now in dry house at mill. C. H. MoKnight, warehouseman; " 
 but the court held that as the mill-owner was not a warehouse- 
 man, the writing was not a warehouseman's receipt.^ 
 
 An instrument purporting to be a warehouseman's receipt, 
 but which is invalid as such between the immediate parties, may 
 be available as a document of title to a bona fide transferee on 
 the ground of estoppel.^ 
 
 JUDICIAL INTERPRETATION OF FACTORS ACTS. 
 
 1. Rules of Construction. — The courts have generally con- 
 strued these statutes strictly, treating them as in derogation of 
 the common-law rights of owners and as giving " effect to fraud- 
 ulent transfers as against the owners." ^ Occasionally a court 
 
 1 See Price v. Wis. Co., 43 Wis. 267, 285 (1877). 
 
 2 Steaubli v. Blaine Nat. Bank, 11 Wash. 426 ; 39 Pac. 814 (1895). 
 » Yenni v. McNamee, 45 N. Y. 614 (1871). 
 
 4 Stevens v. Cunningham, 3 Allen (85 Mass.), 491 (1862): Warner v. 
 Martin, 11 How. (U. S.) 209, 228 (1850), and cases cited under subsequent 
 headings. 
 
264 APPENDIX. 
 
 has announced a different doctrine. In one case it was said; 
 " Tiie English statute and our own were manifestly passed for 
 the purpose of increasing the facilities of trade, by legalizing 
 and explaining cases in which a party could sell or pledge prop- 
 erty at sea, in the ship at dock, or lying in the warehouse subject 
 to the payment of duties. Historically, the necessities of trade 
 and the custom of merchants had, in both countries, anticipated 
 the statutes. And the benefits of the statutes and the custom 
 are too evident and too great to allow us to narrow the construc- 
 tion of the law. And there is no sound principle which would 
 oppose a liberal view, tending to enlarge the facilities of trans- 
 fer; since these acts but follow out the general rule that every 
 man is bound to take care not to select an agent who will do 
 acts to injure other persons.'' ^ 
 
 2. Limited to Domestic Factors. — The statute of each State 
 was framed for the regulation of the conduct of factors within 
 its jurisdiction, and for the protection of those dealing \i\ih. 
 them in such jurisdiction. It does not apply to sales or pledges 
 made in a foreign country, unless it is shown that such country 
 has substantially the same statutory provisions on this subject.'^ 
 
 3. The Acts do not include all Agents. — In England it was 
 held under the earlier acts, "that the term 'agent' does not 
 include a mere servant or care-taker, or one who has possession 
 of goods for carriage, safe custody, or otherwise, as an inde- 
 pendent contracting party; but only persons whose employment 
 corresponds to that of some known kind of commercial agent, 
 like that class (factors) from which the Act has taken its name." ' 
 
 The same view prevails in this country. Accordingly, a mer- 
 chant's clerk who negotiates purchases and charter parties to 
 be ratified by his principal, and prepares and presents bills of 
 lading for his principal's signature, is not an agent or factor 
 intrusted with his principal's' property or documents of title 
 withiu the Factors Act.* Xor is an employee who has charge 
 
 1 Cartwri'ght v. "^Vilmerding, 24 N. T. 521, 529 (1802): Blyderstein v. 
 N. Y. Secy, and Trust Co., 67 Fed. 4S9 (1895) ; cf. Price c. 'Wis. Ins. Co., 43 
 Wis. 267 "(1877). 
 
 ' Walther v. Wetmore, 1 E. D. Smith, 7, 20 (1850). 
 
 « Heyman )'. Flewker, 13 C. B. (n. s.) 519 (1863). 
 
 4 Zachrisson v. Ohman, 1 Sandf. (N. Y. Super. Ct.) 67 (1848). 
 
APPENDIX. 265 
 
 of his principal's store, and is authorized only to sell in the 
 name and for the account of his principal specific goods manu- 
 factured by the latter, an agent or factor so intrusted. ^ Nor is 
 a jeweller, who receives a diamond ring from the owner " for the 
 purpose of obtaining a watch for it, or, failing in that, to get an 
 offer for it;" ^ nor is an agent for forwarding the goods in the 
 owner's name to a third party for sale, although the agent is to 
 have a share of the proceeds of sale as his compensation ; * nor is 
 an agent who receives from the owner a picture to deliver to a 
 third party for exhibition and sale.^ In the case last cited, the 
 agent obtained a receipt in his own name from the third party, 
 by falsely representing that " the object of the receipt was that 
 the insurance might be transferred to the third party's store." 
 Upon this receipt he obtained an advance from the defendant 
 of $50. But it was held that neither his agency nor his receipt 
 was within the provisions of the statute. 
 
 4. Goods must be in Transferor's Name with Owners Consent. 
 — Hence, although goods may be in the possession of a factor, 
 or may be shipped in the name of one who is not the owner, a 
 Jona ^de purchaser from such factor or consignee may not be 
 protected by the statute. If the owner contracts to sell for cash, 
 and the purchaser obtains possession of the goods and secures 
 a bill of lading to the order of a third person, by fraudulent 
 representations made to the seller and to the carrier, neither 
 the purchaser nor the consignee can give a valid title to the 
 goods. " It is the consent of the owner in intrusting his goods 
 to, and allowing a bill of lading in the name of, another, thus 
 conferring ostensible ownership and a, right of control in the 
 person named, which shields parties entirely innocent, who, on 
 the faith of the evidence furnished to which the owner has con- 
 sented, and of which he has knowledge, have made advances 
 on the property shipped." * 
 
 1 The Florence Sewing Mach. Co. o. Warford, 1 Sweeny (N. Y. Super. 
 Ct.) 433 (1869). 
 
 2 Levi V. Booth, 58 Md. 305 (1882). 
 
 8 Covin V. Hill, 4 Den. 323 ; 6 N. Y. 374 (1852) ; cf. Davis v. Bigler, 62 
 Pa. St. 242, 251 (1869). 
 
 4 Frankinstein v. Thomas, 4 Daly (N. Y. Com. PI.), 256 (1872). 
 6 Kinsey ». Leggett, 71 N. Y. 387, 395 (1877). 
 
266 APPENDIX. 
 
 A grain broker who obtains possession of goods by fraudu- 
 lently representing that he is purchasing for a third person who 
 is to pay cash, and who thereupon has a bill of lading made out 
 to himself and indorses it to the third person for advances made 
 by the latter innocently to the broker, does not convey any title 
 to such third person, although the advances are made on the 
 faith of the broker's possession of the bill of lading. ^ 
 
 Nor does the innocent purchaser from a rubber broker, relying 
 on a warehouse receipt in the broker's name, acquire title to the 
 goods named in such receipt, where the broker, by fraudulently 
 representing to the owner that he had effected a sale of the 
 goods, obtained a delivery order for them for the purpose of 
 delivering them to the alleged purchaser, and thereupon stored 
 them and took out the warehouse receipt in his own name. To 
 bring a case within the New York Factors Act, " the factor or 
 other agent must be consciously and voluntarily intrusted with 
 the possession of the documents or merchandise, and the section 
 can have no application whatever to a case where the documents 
 or goods are taken by trespass or theft, and thus the possession 
 of the factor or agent is, from the beginning, tortious, wrongful, 
 and unlawful." ^ 
 
 5. The Acts are conjined to Agents intrusted for Sale. — A 
 purchaser of goods even from a factor who has possession thereof 
 or of the proper documents of title thereto with the owner's 
 consent may not be protected by the Factors Acts. They will 
 not shield him unless his transferor was intrusted "for the 
 purpose of sale or as a security for any advances to be made 
 thereon." ^ 
 
 (a) The Factor must have Possession. — Unless the owner has 
 given to the factor actual possession of the goods or of a docu- 
 ment of title thereto, he has not clothed such agent with apparent 
 
 1 Decan r. Shippen, 35 Pa. St. 2.39 (1860). 
 
 " Soltau V. Gerdau, 119 X. Y. 380, 390 (1890) ; H. A. Prentice Co. v. 
 Page, 164 Mass. 276; 41 N. E. 280 (1895), accord. 
 
 8 The Jlassachusetts statute relates "to consignees and factors, but not 
 to lessees; and to deposits and pledges, but not mortgages." Stevens v. 
 Cunningham, 3 Allen (85 Mass.), 491 (1862). The Pennsylvania statute 
 " only provides for the passage of title if the agent or factor had ' authority 
 to sell the same ' or to deposit or pledge it." Decan v. Shippen, 35 Pa. St. 
 239, 244 (1860). 
 
APPENDIX. 267 
 
 ownership. " It is the act of the owner in intrusting the factor 
 with the possession of the goods, or of a documentary evidence 
 of ownership, the apparent ownership and right of disposal, in 
 connection with the fact that innocent third persons deal with 
 him upon the faith of such apparent ownership that estops the 
 owner from following his property into the hands of bona fide 
 vendees or pledgees, and gives the latter a better title than their 
 vendor or pledgor had." ^ 
 
 (6) He must have been intrusted mth that Possession for Sale. 
 — If the factor obtains possession of the goods or of the document 
 of title, as a mere bailee, his transferee is not protected by the 
 statute. 2 Accordingly if goods are delivered to another for 
 storage, with authority to receive and communicate offers to the 
 owner, but without authority to sell," a sale by such a bailee and 
 agent will not affect the owner's title, even though the agent is 
 also a factor for the sale of similar goods. ^ 
 
 If, however, the goods have been intrusted to the factor for 
 sale, he may validly pledge them to secure a loan to himself, 
 provided the pledgee loans the money " upon the faith that the 
 factor is the true owner of the merchandise." ^ 
 
 6. The Transferee must have Reason to believe that the Factor is 
 the True Owner. — " The statute was not made to legalize fraud ; 
 but to protect those who honestly trusted to appearances, and 
 supposed they were dealing with the true owner." ^ Hence one 
 who makes advances to a factor upon goods in the latter's pos- 
 session, with the owner's consent, acquires no lien on them as 
 against the owner, if he has notice that they are not the property 
 of the factor.' 
 
 1 Howland v. Woodruff, 60 N. Y. 73, 79 (1875), approving Bonifo v. 
 Mosquera, 2 Bos. 401 (1858), and distinguishing Pegram v. Corson, 10 Bos. 
 505 (1863), and Gartwriglit v. Wilmerding, 24 N. Y. 521 (1862). 
 
 2 First Nat. Bk. v. Shaw, 61 N. Y. 283, 301 (1874); Davis v. Bigler, 62 
 Pa. St. 242, 251 (1869). 
 
 s Coolc V. Adams, 1 Bos. (N. Y. Super. Ct.) 497 (1857) ; Wilson v. Nason, 
 4 Bos. 155(1859). 
 
 4 Niclierson v. Darrow, 5 Allen (Mass.), 419 (1862); Stollenwerclc i>. 
 Thacher, 115 Mass. 224 (1874); Thacher v. Moors, .134 Mass. 156 (1883). 
 
 6 Cleveland «. Shoeman, 40 Ohio St. 176, 184 (1883). 
 
 6 Bronsou, J., in Stevens v. Wilson, 6 Hill (N. Y.), 532, 513 (1844). 
 
 ' Stevens v. Wilson, 3 Den. (N. Y.) 472 (1846); Dorrance v. Dean, 106 
 N. Y. 203 (1887). 
 
268 APPENDIX. 
 
 A difierent view is held in Wisoonsia. Although the statute 
 of that State was a copy of the New York Act, the Supreme 
 Court refused to follow the New York decisions. Referring to 
 the opinions delivered in the New York Supreme Court and in 
 the Court of Errors, in Stevens u. Wilson, Ryan, Ch. J., said,i 
 "In both courts it was held that the words, ' on faith thereof ,' in 
 section three, mean on faith of the title of the factor, and not on 
 faith of the thing pledged. This is admitted to do violence to the 
 language used. To us it seems to nullify the provision that the 
 factor shall be deemed the true owner, to give validity to 
 the pledge; substituting the faith of the party for the title of 
 the statute, and appearing to involve the absurdity that a pledgee 
 makes his advances, not at all on the faith of the thing bodily 
 pledged, but altogether on the faith of the title to it. . . The 
 section authorizes the pledgee to presume the factor's title and 
 authority, without inquiry, just as the common law authorizes 
 the pledgee to presume the factor's title and authority to pledge 
 other negotiable paper. Of course if the factor violate the trust 
 of his principal to the knowledge of the pledgee, the fraud ■nill 
 avoid a pledge as it would a sale. But to rest the validity of the 
 pledge upon the pledgee's faith in the factor's title is simply to 
 abandon the statute for the common law." 
 
 The Pennsylvania statute provides that the pledgee of a factor, 
 with notice that the pledgor is only a factor, shall acquire the 
 same right and interest in the property as was possessed by the 
 factor against his principal. Accordingly, such a pledgee has a 
 right to demand of the owner the payment of any sum due from 
 him to the factor on account of the property as a condition of 
 surrendering it.^ 
 
 1 Price 1). Wis. Marine Ins. Co., 43 Wis. 267, 291 (1877). 
 
 2 Macky v. DjUinger, 73 Pa. St. 85 (1873). 
 
INDEX. 
 
 ABOUT, effect of, in sale contracts, 109. 
 ACCEPTANCE, 
 
 to pass title at common law, 69. 
 
 to satisfy statute of frauds, 69-74. 
 
 of goods which do not conform to the contract, 127, 
 
 APPRAISAL OF GOODS, 
 as a condition, 82. 
 
 APPROVAL OF GOODS, 
 
 by a third person, 83, 84. 
 by the purchaser, 84-86. 
 
 ATTORNMENT, delivery by, 154, 223. 
 
 BARGAIN AND SALE, 
 
 of goods having a potential existence, 8. 
 nature of, 43. 
 goods must be specific, 43. 
 when the goods are a part of a mass, 44-46. 
 is unconditional, 47. 
 
 contract for specific goods is presumptively a, 47. 
 BILL OF LADING, 
 
 as security for purchase-price, 66. 
 authority of holder of, to sell, 170. 
 not a negotiable instrument, 173. 
 transfer of, and stoppage in transitu, 226. 
 
 " " for value and bona fide, 227, 228. 
 
 " " as collateral security, 229. 
 
 " " with sub-purchase price unpaid, 230. 
 
 BREEDER OF ANIMALS, engagement of, 102. 
 
270 INDEX, 
 
 BUYER, 
 
 the rights of, 77-203. 
 
 his right to rely on seller's skill, 98. 
 
 must rely on his own judgment when, 100, 101. 
 
 his rights against a dealer, 103, 104. 
 
 his right to have merchantable goods, 105. 
 
 his right to have the stipulated quantity, 108. 
 
 his right to have the goods separate from others, 112. 
 
 his right to inspect the goods, 113. 
 
 his rights against seller for breach of condition, 126-130. 
 
 eilect of his acceptance of the goods, 127-129. 
 
 his rights against third parties, 130. 
 
 his rights upon breach of warranty, 131-136. 
 
 if he rescinds, he must return the goods, 136, 
 
 may have the option to rescind or to claim damages, 136. 
 
 right to be put into possession, 136-161. 
 
 rights and duties under instalment contracts, 143. 
 
 rights against third parties, 161-190. 
 
 effect of fraud by, 164-166. 
 
 right to damages, 192-202. 
 
 duties of, 204-244. 
 
 bound to take title and possession, 204-210. 
 
 effect of his premature repudiation, 208. 
 CARGO, meaning of in sale contracts, 110. 
 CASH SALE, 
 
 is it conditional, 48, 49. 
 CHATTEL MORTGAGES ON AFTER ACQUIRED 
 
 GOODS, 9. 
 CODE NAPOLEON, 
 
 provisions of, as to possession and title, 245. 
 COMMON CARRIER, 
 
 authority to receive, but not to accept, 74. 
 
 delivery to, 157-159. 
 
 notice to, in stoppage in transitu, 234. 
 CONDITION, 
 
 payment by cash or note may be a condition, 48, 49, 66. 
 
 subsequent, 50. 
 
 when weighing, measuring, and testing are, 53-57. 
 
INDEX. 271 
 
 CONDITION — Continued. 
 classification of, 77-81. 
 
 a promissory condition is not a collateral agreement, 79. 
 provisions which are mere conditions, 81-86. 
 seller's engagement to confer title is a condition, 86. 
 so is his engagement to furnish the agreed article, 92-118. 
 breach of may give buyer right to damages, 126-130, 
 confounded with warranties by some courts, 134. 
 seller's duty to give possession as a, 136-142. 
 instalment delivery as a, 143-147. 
 time of payment as a, 148. 
 
 CONDITIONAL SALE, 
 
 can vendee under, give title, 176, 177. 
 rights of creditors of vendee, 179. 
 
 CONTRACT OF SALE ; ITS NATURE AND FORMALI- 
 TIES, 1-42. 
 executed and executory, characteristics of, 2, 43, 46. 
 contract for sale under statute of frauds, 11. 
 various tests in England and in the U. S., 12-19. 
 no form required at common law, 35. 
 memorandum of under statute of frauds, 35-42. 
 
 CONTRACT TO SELL, 51-68. 
 
 may become a bargain and sale, 46. 
 
 existing goods to be made deliverable, 51-57. 
 
 future goods, 58. 
 
 mutual assent to passing of title is subsidiary to, 61. 
 
 implies the engagement to furnish the agreed article, 93. 
 
 specific performance of, when decreed, 191-192. 
 
 DAMAGES, 
 
 for breach of a promissory condition, 79. 
 
 for breach of seller's engagement to confer title, 90. 
 
 for breach as to quiet possession and encumbrances, 91. 
 
 only are allowed for breach of warranty, 132. 
 
 for breach of an essential term of contract, 192-199. 
 
 for breach of warranty, 200-202. 
 
 when no available market, 194. 
 
 special, when recoverable, 195-198. 
 
 profits as, 198. 
 
272 INDEX. 
 
 DAMA&ES — Continued. 
 
 injured party bound to minimize, 199. 
 
 interest as, 202. 
 
 for buyer's breach of contract, 204. 
 
 DEALER, engagements of, 103, 107. 
 
 DELIVERY, 
 
 seller engages to make, 136. 
 
 does not require a formal tender, 137. 
 
 place of, 138-140. 
 
 time of, 141. 
 
 by instalments, 143. 
 
 manner of making, 150-160. 
 
 symbolical, 152. 
 
 by attornment to third party, 154. 
 
 by notice to third party, 156. 
 
 to a carrier, 1.57-159. 
 
 to a warehouseman, 160. 
 
 partial, under entire contract, 161. 
 
 to pass title in Massachusetts, 185-188. 
 
 legal or constructive, 190. 
 
 ENCUMBRANCES, engagement against, 90. 
 
 EQUITY, 
 
 how it treats an attempted sale of future goods, 10. 
 
 ESTOPPEL, title by, 46. 
 
 FACTORS ACTS, 
 
 give a reputed ownership to possession, 180. 
 
 English Act of 1889, 246. 
 
 for Scotland, 250. 
 
 sketch of earlier English, 251. 
 
 New York Act, 255. 
 
 Massachusetts Act, 257. 
 
 Historical sketch of, in U. S., 259. 
 
 judicial interpretation of, 263. 
 
 FAULTS, sale with all, 94. 
 
 FITNESS FOR A PARTICULAR PURPOSE, 96, 104. 
 
 FOOD, engagement of seller of, 107. 
 
INDEX. 273 
 
 FEAUD, N 
 
 effect of, by purchaser, 164-166. 
 vendor's retention of possession as a, 184-189. 
 
 GERMAN COMMERCIAL CODE, 
 
 provisions of, as to possession and title, 245. 
 
 GOODS, 
 
 limited in England, 5, 6. 
 
 meaning of in Scotland, 6. 
 
 in United States include money and choses in action, 5, 6, 7. 
 
 what are existing goods, 8. 
 
 how goods diifer from an interest in land, 20-20. 
 
 are to be merchantable, 105. 
 
 must not be mingled with others, 108. 
 
 what are portable, 139. 
 
 must be prepared for transportation, 158. 
 
 INSOLVENCY, 
 
 meaning of, 216, 220. 
 effect of buyer's on seller's lien, 216, 238. 
 effect of buyer's on the sale contract, 216, 238. 
 effect of buyer's on stoppage in transitu, 220. 
 
 INSPECTION, 
 
 buyer's right of, 113. 
 
 place of, 114. 
 
 may necessitate use of goods, 115. 
 
 transfer of title may precede, 116. 
 
 INSURE, opportunity to, 159. 
 INTEREST, as damages, 202, 210. 
 
 JUS DISPONENDI, 
 
 when and how reserved, 63-65. 
 
 formerly confounded with stoppage in transitu, 218. 
 
 LIEN, 
 
 rights under, compared with those of vendee, 27. 
 of seller, 211-216. 
 conditions of seller's, 211. 
 nature of seller's, 212, 238. 
 18 
 
274 INDEX. 
 
 LIEN — Continued. 
 
 of person not strictly a seller, 213. 
 meaning of possession here, 214. 
 waiver of, 215. 
 
 eflect of expiration of credit on, 215. 
 efiect of insolvency on, 215. 
 effect of sale by buyer on, 216. 
 
 MANUFACTURER, 
 
 engagements of as seller, 98. 
 when also a dealer, 104. 
 
 MARKET OVERT, 161. 
 
 MARKET-PRICE, as damages, 193, 194, 207. 
 
 MONEY, may be sold, 5. 
 
 NEGOTIABLE PAPER, 
 
 sale of under statute of frauds, 6. 
 
 rights of buyer to, 162. 
 
 bill of Icding is not, 173. 
 
 PAYMENT, time of, in instalment contracts, 148. 
 
 PLEDGEE, as a purchaser for value, 169, 229. 
 
 POSSESSION, 
 
 under statute of frauds, 69-76. 
 seller's duty to give, 136. 
 transfer of, how effected, 150-160. 
 does not give authority to sell, 174. 
 vendor's retention of, 181-1 S4. 
 delivery of, in order to pass title, 182. 
 in case of seller's lien, 213. 
 
 PRICE, 
 
 necessary to a sale, 29. 
 but need not be stipulated, 30. 
 what is a reasonable price, 31. 
 under statute of frauds, 32-34. 
 statement of in memorandum, 38. 
 market-price as damages, 193, 207. 
 when recoverable, 206. 
 
 PROFITS, as damages, 198. 
 
INDEX. 275 
 
 PURCHASER, for value, 166. 
 
 QUANTITY, as an essential term, 108-113. 
 
 QUIET POSSESSION, engagement for, 89. 
 
 RECEIPT, under statute of frauds, 72-75. 
 
 REPUDIATION OP CONTRACT, by buyer, 145, 208. 
 
 RESALE, by seller, 237-240. 
 
 RESCISSION, 
 
 for breach of wan-anty, 132. 
 
 because of buyer's repudiation, 209-241, 242. 
 
 insolvency of buyer and, 216, 240. 
 
 RISK OF LOSS, 
 
 generally attends ownership, 66. 
 
 may be separated from, 67. 
 
 when delivery improperly delayed, 67. 
 
 SALE OF GOODS, 
 
 differs from contract for labor and materials, 11-19, 
 
 differs from sale of an interest in lands, 20-26. 
 
 differs from a mortgage, from a pledge, from a lien, 27. 
 
 differs from barter and from gift, 29. 
 
 on approval; and sale or return, 56, 57. 
 
 with all faults, 94. 
 
 by description and by sample, 95. 
 
 by trade name, 100. 
 
 by inspection, 105. 
 
 or return, 116. 
 
 SALE OR RETURN, 116. 
 
 SAMPLE, sale by, 95. 
 
 SELLER, 
 
 may hold the goods as bailee, 66. 
 
 duties of, 77-203. 
 
 engages to confer title on buyer, 86. 
 
 different views of this engagement, 87-89. 
 
 engages for quiet possession, 89. 
 
 engages that goods are not encumbered, 90. 
 
276 INDEX. 
 
 SELLER — Continued. 
 
 foregoing engagements not implied, when, 91. 
 
 engages to furnish the agreed article, 92-118. 
 
 his engagement, when a manufacturer, 98. 
 
 when a quarryman or seedgrower, 100. 
 
 when a breeder of animals, 102. 
 
 must supply merchantable goods, 105. 
 
 of food, 107. 
 
 must supply the agreed quantity, 108. 
 
 must not mingle the goods with others, 112. 
 
 must afford buyer opportunity to inspect, 113. 
 
 must pay damages for breach of promissory condition, 126- 
 
 130. 
 his duty to give possession, 136-111. 
 his duty under instalment contracts, 143. 
 his liability in damages, 192-202. 
 his right to damages, 204. 
 measure of his damages, 207. 
 
 his right upon buyer's repudiation of contract, 208. 
 his lien, 211-216. 
 
 his right of stoppage in transitu, 217-237. 
 his right of resale, 237-239. 
 his right to regain title, 243. 
 
 SPECIFIC PERFORMANCE OF SALE CONTRACT, 191- 
 192. 
 
 STATUTE OF FRAUDS, 
 
 contract for sale, or for labor and materials, 11. 
 
 various tests in England and in the U. S., 12-19. 
 
 goods or an interest in land, 20-26. 
 
 minerals, 20. 
 
 ice, 21. 
 
 soil products, 21-24. 
 
 fixtures in England and in the U. S., 24-26. 
 
 contract for sale of lands and goods, 26. 
 
 part payment of price and earnest, 32, 33. 
 
 memorandum of contract, 35-42. 
 
 acceptance and receipt under, 00-76. 
 
 STATUTORY REPUTED OWNERSHIP, 17.S-190. 
 
INDEX. 277 
 
 STOPPAGE in transitu, 
 
 seller's right of, 217-237. 
 
 how difEers from lien, 217. 
 
 formerly confounded with jus disponendi, 218. 
 
 who may exercise right of, 218. 
 
 insolvency in this connection, 220. 
 
 inception of transit, 221. 
 
 interception of transit, 223-229. 
 
 how defeated, 223-233. 
 
 effect of transfer of bill of lading on, 226, 236. 
 
 termination of transit, 230-233. 
 
 effect of depositing goods in bonded warehouse. 233. 
 
 how right of is exercised, 233-237. 
 
 effect of exercising right of, 235. 
 
 SUBJECT-MATTER OF A SALE, 5-7. 
 sale of a chance, 10. 
 goods which have perished, 11. 
 the general property in goods, 26-29. 
 
 TENDER OF GOODS, 137. 
 
 TIME, 
 
 of delivery, 141. 
 
 of payment in instalment contracts, 148. 
 
 TITLE, TRANSFER OF, 2. 
 without a contract, 3. 
 may relate back to time of conversion, 4. 
 in case of bargain and sale, 43. 
 by estoppel, 46. 
 
 when existing goods are to be made deliverable, 51-55. 
 effect of destruction of goods, before weighing, on, 56. 
 when sale on approval, 56. 
 when sale or return, 57. 
 in case of future goods, 58-63, 204-205. 
 before inspection, 117, 118. 
 by one not the owner, 161-190. 
 by holder of voidable title, 164. 
 by one having possession only, 174. 
 by conditional vendee, 176, 177. 
 
278 INDEX. 
 
 TITLE, TRANSFER OY — Continued. 
 by reputed owner, 178-190. 
 delivery of possession and, 181-184. 
 upon tender by seller, 205. 
 upon resale by seller, 240. 
 by seller back to himself, 244. 
 
 TRADE NAME, article sold by, 100. 
 
 TRANSIT, its inception, interception, and termination, 221-233. 
 
 VALUABLE CONSIDERATION, 166-169, 227. 
 
 WAIVER, 
 
 of provision as to despatch or delivery, 63. 
 of conditions, effect of, 127-131. 
 of right to rescind, 149. 
 of seller's lien, 215. 
 
 WAREHOUSEMAN, 
 
 delivery to, for buyer, 160. 
 
 receipts of, 173. 
 
 bonded and government, 223. 
 
 WARRANTY, 118-126. 
 
 proper signification of, 80, 118. 
 
 express, different views of, 121-123, 
 
 may include patent and future defects, 123, 124. 
 
 oral, when may not be proved, 125. 
 
 implied, 126. 
 
 breach of, gives right to damages only, 132. 
 
 anomalous doctrine in some States, 133-136. 
 
 damages, for breach of, 200-202. 
 
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 M. Bigelow. Crown 8vo. Cloth, $3.00 net. 
 
 BIGELOW ON EaUITY. 
 
 Elements of Equity for the Use of Students. By Melville M. 
 Bigelow, Ph.D., lecturer in the School of Law, Boston University, 
 author of "Elements of the Law of Torts," etc. 12mo. Cloth, 
 $2.50 net; law sheep, $3.00 net. 
 3 
 
THE STUDENTS' SERIES. 
 
 BIGELOW ON TOETS. 
 
 Elements of tlie Law of Torts for the TIse of Students. By Melville 
 M. BiGELOw, Ph.D., author of " A Treatise on the Law of Estop- 
 pel/' " A Treatise on the Law of Fraud," and editor of " Leading 
 Cases in the Law of Torts," etc. Sixth edition, revised and en- 
 larged. 12nio. Cloth, $^2.50 net ; law sheep, $3.00 net. 
 In the sixth edition of this well-known text-book the author has devoted 
 much time and care to the development of the general doctrine of " Torts '* 
 as an introduction to the study of " Specific Torts." This work, done with 
 his usual thoroughness and clearness, does away with the one criticism made 
 on the work, that it plunged the student into the study of specific torts 
 without instructing him in the general law of the subject. The whole book 
 has been carefully revised, and many passages rewritten. The book is now 
 theoretically and practlcall}'^ complete and logical. 
 
 It eeems to me admirably adapted to the purpose for which it is written. Mr. 
 Bigelow is very happy m his 8tatem.ent of legal principles, and nowhere so much so, 
 I think, as in this book. — Hon. Thomas M. Coolet. 
 
 Mr. Bigelow, in his clear and succinct statement of the duties of individuals 
 toward each other as members of society, has made a valuable contribution to your 
 Law Students' Series. — Hon. Morrison R. "Watte, late Chief Justice of the United 
 States. 
 
 It IB the product of real thought and diligent labor ; and the thought and labor 
 have been too skilfully applied not to result in a substantial addition to legal litera- 
 ture. — Boston Diiily Advertiser. 
 
 I have examined Bigelow on Torts, and find it to be an excellent text-book for 
 students. The author is plainly a master of his subject, and not merely a good 
 cumpiler. . . . The work is, in my judgment, a model "Institute." — R. McP. 
 Smith, VanderhiU University. 
 
 A clear and compact treatise, well fitted to be a manual of a student of law. — 
 Hon. John Basoom, University of Wisconsin. 
 
 To accovipany " Bigelow'' s Elements of the Law of Torts'''': — 
 
 Cases on the Law of Torts. Edited by Melville M. Bigelow. 
 Crown 8vo. Cloth, .?3.00 net. 
 
 BRYANT'S CODE PLEADING. 
 
 The Principles of Code Pleading for the Use of Students. By Edwin 
 
 E. Bryant, Dean of the Law Department of the State University 
 
 of "Wisconsin, and late Assistant Attorney-General of the United 
 
 States. 12mo. Cloth, S2.50 net ; law sheep, -^'lOO net. 
 
 The science of code pleading being a development of the last fifty yeais, 
 
 and getting its shape and form gradually from the decisions of the courts as 
 
 well as from the enactments of the law-making bodies, lias only within a few 
 
 years been treated in any satisfactory way by text writers. 
 
 Many instructors feel, however, that too much time is needed for the 
 student to get the elementary principles from the larger books; and "The 
 
 4 
 
THE STUDENTS' SERIES. 
 
 Principles of Code Pleading" is written to bring within easy reach, in 
 condensed and clear form, the true elements of the subject; to give the 
 student sufficient knowledge of the old common law pleading for a founda- 
 tion for the less formal, but not necessarily less exact, pleading under the 
 code, and to put in orderly array the principles of this branch of the law, 
 which have too frequently been considered, by students, at least, as of little 
 importance; to cite and indicate for more careful and particular reading 
 those cases deciding the important points, and give a comparative table of 
 the different State codes on the more important subjects. 
 
 As the author has elected to stand or fall with Stephen's method of treating 
 pleading at common law, he must face the criticism to which the work of that 
 distinguished writer is beUeved to be open. . . . This is, perhaps, the only adverse 
 criticism of the book that can with fairness be made. All else is imqualified praise, 
 both as to arrangement, analysis, and exposition. — G. W. Pepper m ^'^ American 
 Law Register and Review." 
 
 The principles are presented in a clear, satisfactory manner, and the Code 
 References are a valuable addition. In short, it exactly supplies a want as a 
 text-book for students, whether in offices or law schools, wherever the reformed 
 procedure prevails or is largest. — Charles M. Campbell, Law Department, 
 Colorado State University. 
 
 This is an excellent book. It gives in a very concise and convenient form all 
 the general principles of pleading. Mr. Bryant shows all through his book that he 
 has the subject in his grasp ; and he so presents it that the reader can hardly 
 fail to take it within his grasp. — American Law Review. 
 
 COOLEY ON CONSTITUTIONAL LAW. 
 
 The General Principles of Constitutional Law in the United States 
 of America. By Thomas M. Coolet, author of "A Treatise on 
 Constitutional Limitations." Second edition, by Alexis C. Angell, 
 of the Detroit Bar. 12mo. Cloth, $2.50 ne( ; law sheep, S3.00 nc(. 
 The design has been to present succinctly the general principles of con- 
 stitutional law, whether they pertain to the federal system, or to the State 
 system, or to both. Formerly, the structure of the federal constitutional 
 government was so distinct from that of the States that each might useftilly 
 be examined and discussed apart from the other; but the points of contact 
 and dependence have been so largely increased by the recent amendments to 
 the federal constitution that a different course is now deemed advisable. 
 
 The new edition contains large additions. In its preparation, the 
 editor, while aiming to keep the book a manual, and not to make it a digest, 
 has treated briefly all important points covered bj' the cases decided up to 
 a very recent date. He made such clianges in the text and notes as had 
 been required by the many important decisions upon constitutional law 
 rendered in the last ten years. 
 
 No lawyer can afford to be without it, and every voter ought to have it. — 
 From Hon. J. H. Carpenter, Law Department, Unwersity of Wisconsin. 
 
 This book of moderate dimensions should be placed in every student's hands. — 
 Hon. P. Bliss, late Dean oj Law Depnrtment, State Unwersity of Missouri. 
 
 It is worthy of the reputation of the distinguished author. It is the beat book 
 on the subject to be placed in the hands of a student, and is a convenient book of 
 reference for any one. — Prof. Mahninq F. Foeoe, LL.D., Cincinnati Law School, 
 
 5 
 
THE STUDENTS' SERIES. 
 
 It ought unquestionably to be made the basis of a course of instruction in all 
 our higher schools and colleges. — Hon. John F. Dillon, Professor of Columbia 
 Law Schoolj New York. 
 
 It ia a work of great value, not only for students in institutions of learning, 
 but as well for the lawyer, to whom it supplies at once a treatise and a digest of 
 constitutional law. — Henry Hitchcock, late Dean of St. Louis Law School. 
 
 Clearly and compactly written, and the [general arrangement well adapted for 
 students' use. — Hon. Simeon E. Baldwin, Law Department of Yale College. 
 
 I have examined it with great care, comparing it carefully with the old edition, 
 and testing it in various points. As a result, it gives me pleasure to state that we 
 shall use the book both in the courses in constitutional history and law in the col- 
 legiate department, and in one of the classes in the law school. The work of the 
 editor of the new edition, Mr. Angell, has been done with the exactness and care 
 which an intimate acquaintance with him, as a claasmate at the University of Michi- 
 gan led me to expect in whatever he undertook. Judge Cooley is fortunate in hav- 
 ing so excellent an editor for the revision. — Letter from George "W. Knight, 
 Professor of International and Constitutional Law, Ohio State University. 
 
 Tour name alone as its author is a suflBcient guarantee of its high character 
 and general usefulness, not only for the use of the students of law schools and other 
 institutions of learning, for wliich it was originally prepared, but also for members 
 of the bar. The matters discussed are stated so concisely and clearly as to be of 
 great benefit for ready reference. The edition sent me seems to have all the late 
 cases cited and referred to ; and Mr. Angell seems to have been very careful and 
 successful in making the changes from the first edition and adding additional 
 notes. — Hon. Albert H. Horton, Chief Justice of the Supreme Court of Kansas, 
 to Judge C'loley. 
 
 CURTIS ON UNITED STATES COURTS. 
 
 Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the 
 United States. Bv Benjamin R. Curtis, LL.D., late Associate 
 Justice of the Supreme Court of the United States. Edited hy 
 George Ticknor Crirns and Benjamin R. Curtis. Second 
 edition, by H. C. Merwin, Law Department of Boston University. 
 12mo. Cloth, §2.50 net: law sheep, -^3.00 net. 
 
 These lectures were delivered by the late Judge Curtis to a class of stu- 
 dents in the Harvard Law School, in the academic year 1872-73, and were 
 edited and prepared for the press by his son and brother, both lawyers 
 of prominence. Mr. Merwin has devoted much time to the consideration of 
 the recent changes and developments in the practice of the Federal Courts; 
 and his additions, in the second edition, are thought by those who have 
 examined them to deserve the words of commendation bestowed upon 
 Judge ('urtis's original text. 
 
 A work of the highest standard on the subject treated. — Boston Post. 
 
 Cannnt fail to be of great service to the student in the prosecution of his 
 legal studies. — Chicago Legal Xews. 
 
 It 13 by far the best epitome of that extensive subject ; and the clearness of the 
 style and orderly arrangement of the learned axithor will especially recommend 
 it to students. — Hon. Edmund H. Bennett, Dean of School of Law, Boston 
 Vniversit]/. 
 
 There is not to-day in existence so admirable a treatise on United States courts 
 and their iurisdiction as this little book, — Milwaukee Republican. 
 
THE STUDENTS' SERIES. 
 
 SWELL'S MEDICAL JURISPRUDENCE. 
 
 A. Manual of Medical Jixrisprudence for tlie Use of Students at Law 
 and of Medicine. By Marshall D. Ewell, M.D., LL.D., of the 
 
 Union College of Law, Chicago. 12nio. Cloth, $2.50 net; law 
 sheep, $3.00 net. 
 
 Mr. Ewell has endeavored to produce a work which, within a moderate 
 compass, states all the leading facts and principles of the science concisely 
 and yet clearly. In it will be found the substance of all the principles stated 
 in the more voluminous and expensive works. 
 
 It is excellently done. I wish it might be read by every student of law as well 
 as by every student of medicine. —Prof. Hemhy Wade Rogees, when at University 
 of Michigan. 
 
 I can safely say that for use as a text-book, either in a medical college or law 
 school, it is preferable to any book of my acquaintance. In his chapter on Mal- 
 practice, Professor Ewell has succeeded, within the compass of eighteen pages, in 
 setting forth the general doctrine of the law so comprehensively as to make it 
 highly useful for the practitioner as well as the student. — Henet H. Ingeesoll, 
 Dean Law Department^ University of Tennessee. 
 
 HARRIMAN ON CONTRACTS. 
 
 Elements of the Law of Contracts. By Edward Avert Harriman, 
 
 Professor of Law in the Northwestern University Law School. 
 
 12mo. Cloth, $2.50 net; law sheep, $.3.00 net. 
 
 The justification of this boolc is . . that it is an attempt to explain 
 the rules of positive contract law in accordance with the actual historical 
 development of those rules, ajid to classify and arrange those rulps as far as 
 possible in a scientific manner. ... As regards legal theory, the most dis 
 tinctive features of this book may be briefly stated : — 
 
 First. The recognition of the fact that contractual obligation may be 
 due to the act of one party or of two. 
 
 Second. The careful separation of the facts which are essential to the 
 formation of contracts from those which merely affect the validity of con- 
 tracts when formed. 
 
 Third. Voidable contracts are treated under the one head of 
 " Rescission." 
 
 Fourth. Eules of offer and acceptance have been reduced to rules of 
 consideration as far as possible. 
 
 Fifth. Under the head of "Construction of Contracts" certain sub- 
 jects like Impossibility have been treated, which are usually considered 
 under other heads. 
 
 Sixth. The difficult subject of Conditions has been especially carefully 
 considered. 
 
 Seventh. An account of the nature and results of the judicial legisla- 
 tion by which, in many States, a stranger to a contract is permitted to sue 
 upon it. 
 
 The cases cited and referred to have been selected with the greatest care, 
 as best illustrating and explaining the rules and doctrines of the law of con- 
 tracts. References are made to the oflScial Reports ; and where the cases 
 
 7 
 
THE STUDENTS' SERIES. 
 
 have been reprinted in the collections of cases on contracts, those volumes 
 are indicated. 
 
 A most admirable summary of the subject. — B. J. Ramagb, Dean Law Depart- 
 ■ment, University of the Smith. 
 
 A superior and original work. — William Teickett, Dean Dickinson School 
 of Law. 
 
 It is certainly a departure from the usual method of dealing with the subject, 
 and I am inclined to think a departure in the direction of a clearer and better 
 understanding of the law. — C. P. Norton, Buffalo Law School. 
 
 Such examination as I have been able to make of the book leads me to think that 
 it is a logical and accurate statement of the leading principles of the subject, such 
 as a law student might profitably use. — Emlin McClain, Chancellor Law Depart- 
 ment, State University of Iowa. 
 
 HEARD ON CIVIL PLEADING. 
 
 The Principles of Pleading in Civil Actions. By Franklin Fiske 
 Heard. 12mo. Cloth, §2.50 net; law sheep, $3.00 net. 
 
 Under whatever system of statutory procedure a law student may design to 
 practise, he will find it equally necessary to become famUiar with the principles of 
 common law pleading. Mr. Heard's work is a plain and clear guide to these. — 
 Hon. Simeon E. Baldwin, Law Department of Yale College. 
 
 HEARD ON CRIMINAL PLEADING. 
 
 The Principles of Criminal Pleading. By Franklin Fiske Heard. 
 12rao. Cloth, ^2.50 net; law sheep, $3.00 net. 
 
 It deserves an important position among the text-books in every law school in 
 the country. — William C. Robinson, Dean Law Department , Catholic University 
 of America. 
 
 HUFECUT ON AGENCY, 
 
 Elements of the Law of Agency as relating to Contract. By Ernest 
 
 W. HrFFCUT, Professor of Law in Cornell University School of 
 
 Law. 12mo. Cloth, S:2.50 net; law sheep, S3.00 net. 
 
 Law schools and law offices obtain in this book what has long been 
 needed, — a boolt on Agency written clearly and concisely by a man 
 whose own experience with his classes has taught him what were the funda- 
 mental principles of the law, and how best to arrange and present those 
 principles. 
 
 The citanon of authorities for the purpose of ilhistrating the rules of law 
 is very full and from varied sources. It is not intended as a special digest 
 of the subject, but all the points of law are amply supported by the best 
 autJiorities. 
 
 We commend the book to the careful consideration of our law teachers, and 
 advise its use by all students. — Green Bng. 
 
 I am p.-xrticularly impressed by the cle^ir and scientific arrangement. — Geoeob 
 E. Beers, Law Department, Yale Univers-itij. 
 
 Perhaps the most striking characteristic of the book is the painstaking and accu- 
 rate analysis which the subject has received. ... It is logical in its arrangement, 
 
 8 
 
THE STUDENTS' SERIES. 
 
 accurate in its statement of the law, and discriminating in its citations of authori- 
 ties. — American Law Register and Review. 
 
 The work is a very good one indeed. — Chaelks M. Slack, Dean Hastings Col- 
 lege of Law, 
 
 I have examined with some care Professor Huffcut's treatise on Agency, and 
 am much pleased with it as a text-book for the ose of students. — Prof. R. S. Gould, 
 Law Department, Univerdty of Texas. 
 
 To accompany " Huffcut on Agency " : — 
 
 Cases on the law of Agency. By Eknest W. Huffcut. Crown 8vo. 
 Cloth, $3.00 net. 
 
 MAY ON CRIMINAL LAW, 
 
 The law of Crimes. By J. Wilder Mat, Chief Justice of the Muni- 
 cipal Court of the City of Boston. Second edition, edited by Joseph 
 Henkt Beale, Jr., Assistant Professor of Law in Harvard Univer- 
 sity. 12mo. Cloth, $2.50 ne«; law sheep, $3.00 neJ. 
 This new edition of Judge May's deservedly popular work contains large 
 additions. The editor states in the preface that the original plan included 
 no discussion of the subjects of Criminal Pleading and Practice ; but it was 
 found that it would be better adapted to the use of students if these subjects 
 were briefly considered, and this has accordingl}' been done. Much has also 
 been added to the first chapter, which contains the general principles under- 
 lying the criminal Jaw. 
 
 It is to be especially commended for its clear and concise definitions, as also for 
 its citations of leading cases directly upon the matter under discussion. — From 
 J. H. Cahpentee, Law Faculty^ University of Wisconsin. 
 
 It is not a mere synopsis, but an interesting discussion, quite full enough to give 
 the student a true view of the subject, and minute enough to be a useful handbook 
 to the practitioner. — New York Law Journal. 
 
 To accompany " May's Criminal Law " : — 
 
 Cases on Criminal law. By H. W. Chaplin. New edition, enlarged. 
 Crown 8vo. Cloth, $3.00 net. 
 
 ROBINSON'S ELEMENTARY LAW. 
 
 Elementary Law. By William C. Robinson, LL.D., Professor of 
 
 Elementary Law in Yale College. 12mo. Cloth, $2.50 net; law 
 
 sheep, $3.00 net. 
 
 Contains a statement of the principles, rules, and definitions of American 
 Common Law, both civil and criminal, arranged in logical order, with refer- 
 ences to treatises in which such definitions, rules, and principles are more 
 extensively discussed. 
 
 This work is Intended to serve three purposes: First, to form a text-book 
 for the use of students in law schools, and of others who are under com- 
 petent instruction ; second, to guide private students in their investigation 
 
THE STUDENTS' SERIES. 
 
 of the rules and definitions of law; third, to render students familiar with 
 some of the leadinj^ treatises upon the principal topics of the law. 
 
 The book is convenient to the instructor who will use it as a text to be amplified 
 in his lectures, and valuable to the student who will consult the references. — Prof. 
 M= F. FoKCE, LL.D., Cincinnati Law School. 
 
 ROBINSON'S FORENSIC ORATORY. 
 
 Forensic Oratory : A Manual for Advocates. By William C 
 Robinson, LL.D., author of "The Law of Patents for Useful 
 Inventions," "Elementary Law," etc. 12ino. Cloth, $2.50 net; 
 law sheep, $3.00 net. 
 
 A new and suggestive work on the duties and functions of the advocate. 
 The chapters on the Presentation of Ideas by the Production of Evidence in 
 Court, the Qualification and Training of Witnesses, and on Direct, Cross, 
 and Re-Direct Examination, commend the book especially to the bar as well 
 as to students. 
 
 The trained lawyer as well as the student will find much that is helpful 
 and suggestive in the pages of this volume, especially on the subject of 
 cross examination. It is the result of a long experience and a constant 
 study of the trial of causes. 
 
 This is a book which no student of law can afford to pass by without a thorough 
 study of it. It is also a work which no practising lawyer who undertakes the trial 
 of causes, and is not already an acknowledged leader in the courts, can afford not 
 to read and read again. — American Law Review. 
 
 It touches upon vital points, just such as students of oratory, especially those 
 who are entering upon the practice of law, need to have urged upon them in this 
 forcible way. — Thomas C. Trueblood, Professor oj Elocution and Oratory, Depart- 
 ment of Law, Michigan University. 
 
 SEDGWICK'S ELEMENTS OF DAMAGES. 
 
 Elements of Damages : A Handbook for the Use of Students and 
 
 Practitioners. By Arthur G. Sedgwick. 12mo. Cloth, $2.50 
 net ; law sheep, $.3.00 net. 
 
 This book is not an abridgment of the work embodied bj- the author in 
 his edition of the well-known three-volume treatise on the Measure of Dam- 
 ages, by Theodore Sedgwick. The entire feld has been re-examined, and 
 the johote law uf Dnmacjes reviewed. Its principles are stated in tlie form 
 of rules or propositions of law such as a court might lay doiun to a jury, 
 and these propositions are illustrated by the cases from which they have 
 been drawn, fl'herever local variations from these rules exist, such local 
 differences are stated, and their causes, so tar as possible, explained. 
 
 As a students' book it is very admirable. Probably no one but the author can 
 see how it could be miide better than it is. —American Law Senew. 
 
 I can cheerfully recommend the book as an excellent presentation of the 
 elements of the subject. — Bmlik McClaih, Chancellor Law Department, State 
 University of Iowa. 
 
 10 
 
THE STUDENTS' SERIES. 
 
 Throughout the volume the references to, as well as the illustrations of, under- 
 lying principles are judicious. It is decidedly a meritorious work. — Prof. Chakles 
 M. Campbell, Law Departvient, University of Colorado. 
 
 To accompany the foregoing work ■• — 
 
 Cases on the Law of Damages. By Joseph H. Beale, Jr., of the 
 Harvard Law School. Crown 8vo. Cloth, $3.00 net. 
 
 STEPHEN'S DIGEST OF EVIDENCE. 
 
 A Digest of the Law of Evidence. By Sir James Fitz-James 
 Stephen. Prom the fourth English edition. With Notes and 
 Additional Illustrations to the present time, chiefly from American 
 Cases, including those of John Wilder Mat, late Chief Justice 
 of the Municipal Court of the City of Boston, author of " The Law 
 of Insurance," etc. 12mo. Cloth, $2.50 nc( ; law sheep, $3.00 ne(. 
 A full reprint of the fourth English edition, revised by the author, with 
 
 references to American cases. 
 
 Short as it is, we believe it will be found to contain practically the whole 
 
 law of the subject. 
 
 STIMSON'S LAW GLOSSARY. 
 
 Glossary of Technical Terms, Phrases, and Maxims of the Common 
 Law. By Frederick Jesnp Stimson. 12mo. Cloth, $2.50 net; 
 law sheep, $3.00 net. 
 
 This book is a concise Law Dictionary, giving in common English an 
 explanation of the words and phrases, English as well as Saxon, Latin, or 
 French, which are of common technical use in the law. The popular and 
 usual acceptation of each phrase is given in much the same general shape as 
 it stands in the mind of the trained lawyer. 
 
 A very convenient little work, especially useful to students of the law. 
 '- Chicago Legal News. 
 
 WAMBAUGH'S STUDY OF CASES. 
 
 The Study of Cases : A Course of Instruction in Reading and Stating 
 Beported Cases, Composing Head-Notes and Briefs, Criticising and 
 Comparing Authorities, and Compiling Digests. By Eugene 
 Wameaugh, Professor iu the Law Department of Harvard Univer- 
 sity. Second edition. 12mo. Cloth, $2.50 net ; law sheep, $3.00 net. 
 
 The purpose of the work as expressed by its author is " to teach the 
 methods bj' which lawyers detect dicta, and determine tlie weight of reported 
 cases." The full discussion of this introduces many important and interest- 
 ing topics, such as the following : How to write a Head-Note, How to criti- 
 cise Cases, Combining and Preparing Cases, The Growth of Legal Doctrine, 
 
 U 
 
THE STUDENTS' SERIES. 
 
 The Importance of the Unwritten Law, The Respect for Authority, The 
 freparatioR of Briefs, How to compose a Digest, etc. 
 
 A subject of the greatest importance to legal practitioners, and one which, 
 strange to say, has never before engaged the attention of any of out legal writers. 
 We l£now of no work of greater importance to the student. It should be adopted 
 as a text-book by every law school in the country. — The Green Bag. 
 
 We commend this book, not merely to students of the law, but to practising 
 lawyers, and even to judges on the bench. It incidentally teaches how to write a 
 decision, as well as how to find out the doctrine of a decision after it is written. — 
 The American Latv Review. 
 
 Will be found to be of great value to the student or young lawyer when studying 
 by himself, and if carefully studied, cannot fail to give him ideas which he could 
 get elsewhere only by long experience, and from hints found scattered through 
 many volumes. — Prof. O. W. Aldrich, of the Ohio State University. 
 
 Altogether unique in the way of legal literature. There are very many lawyers 
 old in the practice who will regret that tliey were not afforded in their student 
 days such discipline as is suggested by this book ; and there is no lawyer who 
 cannot read with profit its first eight chapters. — The Chicago Law Journal. 
 
 Among the most valuable publications for the use of students which have 
 appeared in recent years. The work abounds in fertile suggestions. — T?ie Ameri- 
 can Law Register and Review. m 
 
 It is a valuable addition to the Law Students' Series. — E. H. Bennett, Dean 
 School of Law^ Boston University. 
 
 By the same author, to accompany " The Study of Cases" : — 
 
 Cases for Analysis. By Eugene Wambaugh, Professor in the Law 
 Department of Harvard University. Crown 8vo. Cloth, $3.00 net. 
 
 HOWE ON THE CIVIL LAW. 
 
 studies in the Civil Law and its Relations to the Law of England 
 and America. By William Wirt Howe, late Justice of the Su- 
 preme Court of Louisiana. 12mo. Cloth, %2.50 net; law sheep, 
 $3.00 net. 
 
 LITTLE, BROWN, AND COMPANY, 
 
 PUBLISHERS, 
 
 254 Washington Street, 
 BOSTON. 
 
 12 
 
KF 915 B95 c.l 
 
 Author Vol. 
 
 Burdick, Francis Marion 
 
 Title Copy 
 
 The law of sales of personal prop 
 
 Borrower's Name