¥^\ 1 ' CJnrupU IGatu ^rljnol Hibtary ,,"3"clbook of the law of sales. 3 1924 018 845 184 /k.^^<- ^. 4 y 0-fl>L-V r ^U^^^*^ ^^ , '? /' Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018845184 Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows ; 1. A succinct statement of leading principles in black- letter type. 2. A more extended commentary, elucidating the princi- ples. 3. Notes and authorities. Published in regular octavo form, and sold at the uniform price ot $3.75 per volimie, including delivery. Bound in American Law Buckram. 1. Norton on Bills and Notes. (3d Ed.) 2. Clark's Criminal Law. (2d Ed.) 3. Shipman's Common-Law Pleading. (2d Ed.) 4. Clark on Contracts. (2d Ed.) 5. Black's Constitutional Law. (2d Ed.) 6. Fetter on Equity. 7. Clai'k on Criminal Procedure, 8. Tiffany on Sales. (2d Ed.) 9. Glenn's International Law. 10. Jaggard on Torts. (2 vols.) 11. Black on Interpretation of Laws. 12. Hale on Bailments and Carriers. 13. Smith's Elementary Law. 14. Hale on Damages. 15. Hopkins on Real Property. 16. Hale on Torts. 17. Tiffany on Persons and Domestic Relations, 18. Croswell on Executors and .\dministratora. 19. Clark on Corporations. (2d Ed.) 20. George on Partnership. 21. Shipman on Equity Pleading. 22. McKelvey on Evidence. (2d Ed.) 23. Barrows on Negligence. 24. Hughes on Admiralty. 25. Eaton on Equity. 26. Tiffany on Principal and Agent 27. Gardner on Wills. 28. Vance on Insurance. 29. Ingersoll on Public Corporations. SO. Hufrhes on Federal Jurisdiction and Procedure. 31. Childs on Suretyship and Guaranty. 82. Oostigan on American Mining Law. In preparation ; Handbooks of the law on other subjects to be announced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C5855d HANDBOOK OF THE LAW OF SALES SECOND EDITION REVISED By FRANCIS B.^TIFFANY AUTHOR OF DEATH BY WRONGFUL ACT ST. PAUL, MINN. WEST PUBLISHING CO. 1908 l^^^'cU COPTEIGHT, 1895, BY WEST PUBLISHING COMPANY. COPTKIGHT, 1908, BY WEST PUBLISHING COMPANY. TirF.SAi.ES(2D Ed.) OCT 1937 PREFACE TO SECOND EDITION. In this edition a good deal of new matter has been added, many changes in arrangement have been made, and chapters 1, 3, 4, 7, and 10 have been partly rewritten. Many cases re- ported since the first edition, especially on mooted points, have been cited in the notes. It has been deemed advisable to print in an appendix the proposed Sales Act, recommended by the Commissioners on Uniform State Laws, which has already been enacted in sev- eral states, and which bids fair, like the Negotiable Instru- ments Law, to be adopted generally. The act, like the English Sale of Goods Act, on which it is based, is in the main declara- tory of the law, and is valuable as furnishing statements of rules which, for the most part, are of universal application. To a great extent, the statement of rules and principles in the black-letter text has been made to conform to the language of the Sales Act. References to the appropriate sections are made in the notes, care being taken to point out changes proposed, or effected in states which have adopted the act. For purposes of comparison, the English Sale of Goods Act also has been printed in the appendix, and frequent references to it are made in the notes. F. B. T. St. Paul, Oct. 1, 1907. (T) PREFACE TO FIRST EDFriON. The object of this handbook is to present concisely the gen- eral principles of the law of the sale of personal property. The arrangement is in the main that of Benjamin. The statement of rules and principles in the black-letter text has to a consid- erable extent, though with many modifications, necessitated by the differences between the American and English law, or by other reasons, been taken from the English Sale of Goods Bill, as drafted by his Honor, Judge Chalmers, and published together with his invaluable notes under the title of "The Sale of Goods." This bill, which was purely a codifying measure, has since been substantially enacted as "An act for codifying the law relating to the sale of goods" (56 & 67 Vict. c. 71 ; Feb- ruary 30, 1894). The writer has made frequent use both of the notes of Judge Chalmers and of the text of Benjamin on Sales. The references to Benjamin are to the sections as found in the sixth [now seventh] American edition, of Messrs. Ed- mund H. and Samuel C. Bennett. F. B. T. St. Paul, June 1, 1895. (vl) TABLE OF CONTENTS. tJL' CHAPTER I. FORMATION OF THE CONTRACT. Section Page . 1-^. In General 1-61 5. Sale Distinguished from Other Transactions 6-13 , 6-7. Capacity of Parties 13-14 8. Infants 14-21 9. Lunatics and Drunken Men. 21-24 ,10. Married Women 25-26 .lUW 11. Who can Sell 26-44' U%-13. Subject-Matter of Sale 44:-50 14^15. Mutual Assent and Form of Contract 50-59 16-17. The Price 59-61 CHAPTER H. FORMATION OF CONTRACT (Continued)— UNDER THE STAT- UTE OF FRAUDS. 18-20. What Contracts are Within the Statute 62-71 21-22. What are Goods, Wares, and Merchandise 72-80 23. What is a Contract for the Price or A'alue of £10 ($50) 80-82 24^26. Acceptance and Receipt 82-85 27-29. Acceptance 85-93 30-31. Actual Receipt 93-97 32-33. Earnest or Part Payment 98-100 34^36. The Note or Memorandum 100-110 37-38. Signature of the Party 110-112 39^0. Agents Authorized to Sign 112-117 41. Effect of Noncompliance with the Statute 117-118 Tiff.Sales(2d Ed.) (vii) VUl TABLE OF CONTENTS. CHAPTER in. EFFECT OF THE CONTRACT IN PASSING THE PKOPERTT— SALE OF SPECIFIC COODS. Section Page 42. In General 119-1121 43. Rules for Ascertaining Intention 121-130 4ri. Reservation of Right of Possession or Property. . .130-143 45. Sale on Approval or Trial 1-13 4G. Sale or Return 144-146 CHAPTER IV. EFFECT OF THE CONTRACT IN PASSING THE PROPERTY (Coulinued)— SALE OF GOODS NOT SPECIFIC. 47-^8. In General 147-151 49-50. Subsequent Appropriation 151-162 51-53. Reservation of Right of Possession or Property. . .162-173 CHAPTER V, FRAUD AND RETENTION OF POSSESSION. 54-55. Contract or Sale Induced by Fraud 174-187 56-57. Remedies of Defrauded Party 188-107 58-50. Fraud on Creditors — Retention of Possession 197-203 60. How Far Delivery is Essential to Transfer of Property against Creditors and Purchasers 204^207 CHAPTER VI. ILLEGALITY. 61-62. In General 208-209 63-Gl. Sales Prohibited by Common Law 200-212 65. Sales Prohibited by Statute 213-219 TABLE OF CONTENTS. IX Section Page 66-68. Effect of Illegality 219-224 69. Conflict of Laws 224r-225 CHAPTER VII. CONDITIONS AND WARRANTIES. 70-72. In General 226-236 73-75. Warranties 236-242 76. Implied Warranty of Title 242-247 77. Implied Warranty in Sale by Description 247-252 78. Implied Warranties of Quality 252-2G2 79. Implied Warranties in Sale by Sample 262-267 CHAPTER VHI. PERFORMANCE OP CONTRACT. 80-81. In General 268-269 82. Delivery 269 83-85. Place, Time, and Manner of Delivery 270-280 86-88. Delivery of Wrong Quantity 281-286 89. Delivery by Installments 2S7-290 90-91. Delivery to Carrier 290-293 92-93. Buyer's Right to Examine Goods 294-296 , 94. Acceptance 297-301, 95-96. Payment 302-304 97-99. Excuses for Nonperformance of Conditions 305-310 CHAPTER IX. RIGHTS OF UNPAID SELLER AGAINST THE GOODS. lOO. In General 311 101-105. Seller's Lien 312-322 106-1091/2. Stoppage In Transitu 322-338 110. Right of Resale 339-342 111. Right to Rescind 342-343 TABLE OF CONTENTS. CHAPTER X. ACTIONS FOR BREACH OP THE CONTRACT. Section Page 112. Remedies of Seller— Action for Price 344-348 113-114. Action for Damages for Nonacceptance 348-353 115. Remedies of the Buyer — Action for Failing to De- liver Goods 353-3G0 116. Specific Performance 300-361 117. Recovery upon Failure of Consideration 361-3i;4 118. Action for Converting or Detaining Goods. . .364-365 119. Breach of Warranty — Rights before Accept- ance 36.5-367 120-121. Rights after Acceptance 368-379 APPENDIX. SALES ACT. (Pages 381-412.) ENGLISH SALE OP GOODS ACT. (Pages 413-435.) HANDBOOK OP THE LAW OF SALES SECOND EDITION CHAPTER I. FORMATION OF THE CONTRACT. 1-4. In General. 5. Sale Distinguished from Other Transactions. 6-7. Capacity of Parties. 8. Infants. 9. Lunatics and Drunken Men. 10. Married Women. 11. Wlio can Sell. 11%-13. Subject-Matter of Sale. 14—15. Mutual Assent and Form of Contract 16-17. Tlie Price. IN GENEBAIi. 1. SALE OF GOODS. A sale of goods is an agreement trhere- by one party, called the seller, transfers the property in goods to the other party, called the buyer, for a price in money, which the bnyer pays or agrees to pay.^^ 1 Following, substantially, Sales Act, § 1 (2). Cf. Sale of Goods Act, Jl. The following are some of the definitions of "sale": "A transmuta- tion of property from one man to another in consideration of some price." 2 Bl. Comm. 446. "A contract for the transfer of property from one person to another for a valuable consideration." 2 Kent, Tiff.Sales(2d Ed.) — 1 2 FORMATION OF THE CONTRACT. (Ch. 1 2. CONTRACT TO SEIiL. A contract to sell goods is a con- tract wrhereby the seller agrees to transfer the prop- erty in goods to the buyer for a price, ivhich the buy- er pays or agrees to pay.^ 3. GOODS. Goods include all chattels personal other than things in action and money. 4. PROPERTY. Property means the general property in. goods, and not merely a special property. Sale. At common law the transfer of personal property, at least of all personal property that is included under the term "goods," " unlike the transfer of real property, is effected by the mere agreement, verbal or written, of the parties. If the present transfer of the property in specific goods for a price be agreed upon, the property in them passes from seller to buy- er, without delivery, by their mere mutual assent* The agree- ment by which the transfer is thus effected is called a "sale," or a "bargain and sale." The bargain struck, the transfer re- sults by operation of law. The term "sale" is often applied, indeed, to the transfer itself, and a sale is sometimes defined as the transfer of the property for a price in money." The proposed Sales Act defines a sale of goods as "an agreement whereby the seller transfers the property in goods to the buy- er for a consideration called the price," and this use of the term seems preferable." Contract to Sell — Distinguished from Sale. A contract whereby the seller agrees to transfer the prop- erty in goods to the buyer, for a price, at a future time or on Comm. (12th Ed.) 4GS. "A transfer of the absolute or general prop- erty in a thing for a price in money." Benj. Sales (7th Am. Ed.) § 1. "Sale is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer." In- dian Contract Act 1872, § 77. "A sale of personal property is the transfer, in pursuance of a valid agreement, from one partj', called the seller, to another, called the buyer, of the general or absolute title to a specific chattel, for a price, or a consideration estimated, in mon- ey." Mechem, Sales, § 1. See Blackb. Sales, Introduction; William- son V. Berry, 8 How. (U. S.) 511, 12 L. Ed. 1170. 2 See Sales Act, § 1 (1). s Post, p. 4. " See note 1, supra. * Post, p. 121. 9 Sales Act, § 1 (2). §§ 1-4) IN GENERAL. S the performance of a condition, is a contract to sell. The term "contract of sale" is often used to include both sales and con- tracts to sell ; ■' and a sale is sometimes described as an "ex- ecuted contract of sale," or an "executed sale," and a con- tract to sell as an "executory contract of sale," or an "executory- sale." The distinction between sales and contracts to sell is funda- mental. There cannot be a sale unless the goods are "specific" — that is, unless the goods are identified and agreed upon at the time the sale is made ; ° whereas, there can be a contract to sell, although the goods are not ascertained, and are not yet in existence or acquired by the seller.' Again, a contract to sell is a contract pure and simple, while a sale is in the nature of a conveyance. "By an agreement to sell," says Judge Chal- mers,^" "a jus in personam is created ; by a sale a jus in rem is transferred. Where goods have been sold, and the buyer makes default, the seller may sue for the contract price, but where an agreement to buy is broken, the seller's remedy is an action for unliquidated damages.'^ If an agreement to sell be broken by the seller, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes. They may be taken in execu- tion for his debts, and, if he becomes bankrupt, they pass to his trustee. * * * But if there has been a sale, and the seller breaks his engagement to deliver the goods, the buyer has not only a personal remedy against the seller, but also the usual proprietary remedies in respect of the goods themselves, such as the actions for conversion and detinue. ^^ In many cases, too, he can follo-w the goods into the hands of third par- ties. Again, if there be an agreement for sale, and the goods are destroyed, the loss, as a rule, falls on the seller; while, if there has been a sale, the loss, as a rule, falls on the buyer, though the goods have never come into his possession." ^' 7 Sale of Goods Art, § 1. = Post, p. 147. "Specific goods," see Sales Act, § 76 (1). 8 Post, p. 45 et seq. 10 Chalmers, Sale of Goods Act (6th Ed.) p. 7. 11 Post, p. 344. 12 Post, p. 364. is post, p. 141. 4 FOEMATION OF THE CONTRACT. (Ch. 1 Goods. Broadly speaking, an3'thing of value may be the subject of sale. "It is not necessary," said Story, "that the subject of sale should have a physical and corporeal existence and be sus- ceptible of manual delivery; for, provided it have actual value, however intangible it may be, it may nevertheless be sold." ^* Thus a copyright,^^ or the right to copyright a work,^" or an invention before issue of letters patent,^'' may be sold. And in a broad sense even a chose in action may be sold. Neverthe- less the subject-matter of sale, using the word in a narrower sense, is "goods," a term which does not include aJl kinds of personal property. The law of Sales relates peculiarly to the transfer of the property in goods, a term which applies to all tangible movable property except money,^' and does not include choses in action. It is true that in this country it is generally held that negotiable instruments, as well as shares of stock and other choses in ac- tion, "which are the subject of common sale and barter and which have a visible and palpable form," are comprehended within the term "goods, wares, and merchandises," as used in the statute of frauds, and that by some courts it is even held that other choses in action are comprehended in these words ; ^* but the assignment of things in action is governed by different rules than those that govern the transfer of the property in chat- tels personal which are susceptible of delivery. Negotiable in- struments, indeed, stand upon a somewhat different footing from other choses in action, for they are susceptible of de- livery ; but the legal title to such instruments is transferred, not by sale in its narrower sense, but by negotiation.-" Things attached to the land, again, as a rule, form part of the realty, and are not included in the term "goods," though, when sev- ered from the land, they become goods. Thus a contract to sell 14 Story Sales (4th Ed.) § 187. 15 Black V. Henry G. Allen Co. (C. C.) 42 Fed. 618, 9 L. E. A. AZ?.. 18 Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, .'32 L. Ed. 547. IT Somerby v. Buntin, 118 :\Iass. 270, 19 Am. Rep. 4.10 ; Dalzell v. Watda-Case Mfg. Co., l49 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749. 18 See Chalmers, Sale of Goods Act (6th Ed.) p. 124. As to money, see post, p. 72. 11 Post, p. 73. 20 Norton, Bills & Notes (3d Ed.) 200. g§ 1-4) IN GENERAL, 5 standing trees, or the materials in a building upon tlie land, if the contract contemplates a present sale before severance, is generally held to be a contract for the sale of an interest in land; although, if it contemplates a severance before sale, it is a contract to sell the goods. ^^ Certain products of the soil, indeed, termed "fructus industriales," or "emblements," which are the product of annual labor, such as wheat and potatoes, are chattels, and are, perhaps, to be included in goods. ^' The cases involving the determination of the character of things attached to the soil have usually arisen under the statute of frauds, where it becomes material to determine whether a contract is for the sale of "goods, wares, and merchandises," or an interest in land, and different views have been taken by different courts. These questions will be discussed later.^^ The proposed American Sales Act, following the Enghsh Sale of Goods Act, declares that "goods include all chattels personal other than things in action and money. The term in- cludes emblements, industrial growing crops, and things at- tached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." ^* This definition would settle some vexed questions, and make some changes in the law in some jurisdictions.^" Property. The essence of a sale is the transfer of the property in goods from seller to buyer for a price. ^' The transfer must be of the general property or ownership, as distinguished from a special property ; ^' for the general property may be in one person, and a special property in another. Thus, in the case of a pledge, the pledgee has only a special property, and the general prop- erty remains in the pledgor, who can transfer the general prop- erty to a third person, subject to the special property in the 21 Post, p. 74 et seq. 23 Post, p. 72 et seq. 2 2 Post, p. 77. ='J Section 76 (1). 2* Post, p. 76, note 55. 2« Chalmers, Sale of Goods Act (6tb Ed.) p. 125. 2 7 Sales Act, § 76 (1). As to the distinction between "the" property {that is, the general property) and "a" property (that is, a special property), see Burdick v. Sewell, 13 Q. B. Div. 159, at page 175, and 10 A 1 1]). Cas. 74, at page 93. 6 FOEMATION OF THE CONTEACT. (Ch. 1 pledgee.''* Again, the property must be distinguished from the riglit to possession, for the right of property may be in one person and the right to possession in another, as where upon a sale the property in the goods passes to the buyer, but the seller retains a lien for the price, entitling him to retain possession of the goods until the price is paid.^° SALE DISTINGUISHED FROM OTHEK TRANSACTIONS. &. The elements Trhich distingnisli u, sale from other trans- fers are (1) that the transfer Is of the general prop- erty, and (2) that it is for a price. If, in a transfer, either element is lacking, the transaction is not a sale. Where General Property is Not Transferred — Bailment. A bailment is "a delivery of some chattel by one party to another, to be held according to the special purpose of the de- livery, and to be returned or delivered over when the special purpose is accomplished." '" In a bailment, at most, only a special property passes to the bailee, who receives possession for a special purpose, and is bound to return the goods, ^^ or else, as in the case of a consignment of goods to a factor or com- mission merchant for sale, to dispose of the goods according to the instructions of the consignor and upon sale to account for the proceeds. ^^ In most cases the test of bailment is wheth- er or not it is the intention of the parties that the thing received shall be returned. If the identical thing is to be returned, al- though in altered form, as in the case of logs to be made into boards, leather into shoes, or wheat into flour, the property is not transferred, and the transaction is a bailment ; ^' but if the 2spost, p. 9. 29 Post, p. 122 et seq. 8 Sehouler, Bailm. (2cl Ed.) § 2. See Hale, Bailm. 1-9. 81 See cases cited notes 33, 34, infra. 8 2 Cf. Rutliraiife v. Hagenbuc, 58 Pa. 103. s3Arnott v. Railway Co., 19 Kan. 95 (material added by manu- facturer): Irons V. Kentner, 51 Iowa, 88, 50 N. W. 73, 33 Am. Rep. 110: Gleason v. Beers, 59 Vt. 5S1, 10 Atl. 86, 59 Am. Rep. 757; Union Stockyards & Transit Co. v. Cattle~T3a7"59" Fed. 49, 7 C. 0. A. Gl»; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848. Where A. delivered leather to B. to be made into boots, -which B. was to consign to A., who was to sell them on a commission of 5 per § 5) SALE DISTINGUISHED FROM OTHER TRANSACTIONS. 7 identical thing- is not to be returned, and the receiver may de- liver some other thing instead, the property is transferred, and the transaction is in effect a sale,^* or, more accurately, an ex- change.^'' Same — Grain in Elevator. A difficult case arises where grain is deposited in an elevator or warehouse upon an understanding, express or implied, that the warehouseman may mix it with other grain of his own or of third persons, and draw from tlie mass to meet the orders of the depositors.^" Some cases have taken the view that, because the identical grain was not to be returned, the property in it is transferred, and that the transaction is in effect a sale.^' Ac- cording to the prevailing view, however, the transaction is a bailment ; the different depositors owning the entire mass as tenants in common, and the interest of each in the mass, as it is increased or diminished by additions or withdrawals by the warehouseman and other depositors, being measured by the proportionate amount of his deposit.'* The deposit may, of course, be on such terms as to effect a transfer of the property, cent, It was a bailment of the leather. Schenck v. Saunders, 13 Gray (Mass.) 37. And see Hyde v. Cookson, 21 Barb. (N. Y.) 92. But see Jenkins v. Eichelberger, 4 Watts (Pa.) 121, 28 Am. Dec. G91 ; Prichett v. Cook, 62 Pa. 193; Butterfield v. Lathrop, 71 Pa. 225. 3i Singer Mfg. Co. v. Ellington, 103 111. App. 517; Scott Mining & Smelting Co. v. Shultz, 67 Kan. 605, 73 Pac. 903; Potter v. Mill Co., 101 JIo. App. 581, 73 S. W. 1005. Of. Turnbow v. Beckstead, 25 Utah, 468, 71 Pac. 1062. 3 5 Post, p. 12. 3 6 See 6 Am. Law Rev. 450. 3 7 Lawler v. Nichol, 12 Manitoba R. 224. See, also, South Australia Ins. Co. V. Randall, L. R. 3 P. C. App. 101; Rahilly v. Wilson, Fed. Cas. No. 11,532, 3 Dill. (U. S.) 420; Chase t. Washburn, 1 Ohio St. 244. 59 Am. Dec. 623 (cf. James v. Plank, 48 Ohio St. 255, 26 N. E. 1107). The latter cases are perhaps distinguishable on the ground that the warehouseman had the right to sell and to pay in money or grain. Post, p. 8. 3 8 Rice V. Nixon, 97 Ind. 97, 49 Am. Rep. 430; Drudge v. Leiter, 18 Ind. App. 694, 49 N. E. 84, 63 Am. St. Rep. 359; Ardinger v. Wright, 38 111. App. 98; Gushing v. Breed, 14 Allen (Mass.) 376, 92 Am. Dec. 777 ; Erwin v. Clark, 13 Mich. 10; Young v. Miles, 20 Wis. 615, 23 Wis. 643; Bretz v. Diehl, 117 Pa. 589, 11 Atl. 893, 2 Am. St. Rep. 706; 8 FORMATION OF THE CONTRACT. (Ch. 1 as where the agreement is simply that the warehouseman shall pay for the grain at the market price, on demand,^ ° or where he receives the option to dispose of the grain at his pleasure and to pay in money, instead of returning grain from the mass.*" On the other hand, the transaction may be a bailment, notwithstanding that the warehouseman has an option to buy when the receipt is presented, instead of returning grain, so long as it is contemplated that the option can be exercised only when the receipt is presented, and not that he may treat the grain as his own without first paying for it.*^ Same — Bailment with Option to Buy. A sale and a contract to sell are to be distinguished from a bailment with an option on the part of the bailee to buy the goods ; for, if the agreement be that the receiver of the goods is to keep or have the use of them for a certain time, and that he may become owner upon full payment of the rent or of an agreed sum, the transaction is not a sale, because it is not the intention that the property shall pass until the payment is made,*" nor is it a contract to sell because the receiver is not Nelson v. Brown, 53 Iowa, 555, 5 N. W. 719; Odell v. Leyda, 46 Ohio St. 244, 20 N. E. 472; McBee v. Oeasar, 15 Or. 62, 13 Pac. 652. In some states it is declared by statute that the transaction is a bailment. Hall v. Pillsbury, 43 Minn. a3, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St. Rep. 209; State v. Cowdery, 79 Jlinn. 94, 81 N. W. 7.50, 48 L. R. A. 92. And see Snydacker v. Stubblefleld, 177 111. 506, 52 N. B. 742. See proposed Warehouse Receipts Act, § 23 ; post, note 172. 3 9 Lyon V. Lenon, 106 Ind. 567, 7 N. B. 311; Woodward v. Boone, 126 Ind. 122, 25 N. B. 812; Hagey v. Schroeder, 30 Ind. App. 151, 65 N. E. 59S; .Tones v. Kemp, 49 Mich. 9, 12 N. W. 890; Lonergan v. Stewart, 55 111. 45; Richardson v. Olmstead, 74 111. 213; Weiland v. Sunwall, (13 Minn. 320, 65 N. W. 628; Reherd's Adm'r v. Clem, 86 Ya. 374, 10 S. E. 504; State v. Stockman, 30 Or. 36, 46 Pac. 851. io Lyon v. Lenon, 106 Ind. 567. 7 N. B. 311; Cloke v. Shafroth, 137 111. 303, 27 N. B. 702; Barnes v. McCrea, 75 Iowa, 267, 39 N. W. 392, 9 Am. St. Rep. 473. 41 Nelson v. Brown, 44 Iowa, 455; Ledyard v. Hibbard, 48 Mich. 421. 12 N. W. CS7, 42 Am. Rep. 474; State v. Rieger, 59 Minn. 151, GO N. W. 1087. 42 Rowe V. Sharp, 51 Pa. 20; Enlow v. Klein, 79 Pa. 4S.S; Brown v Billington, 163 Pa. 76, 29 Atl. 904, -13 Am. St. Rep. 780; Goss Printing- Press Co. v. Jordan, 171 Pa. 474, 32 Atl. 1031; Sargent v. Gile, 8 N. H. 325; Hart v. Carpenter, 24 Conn. 427; Frye v. Burdick, 67 Me. § 5) SALE DISTINGUISHED FROM OTHER TKANSA0TION3. 9 bound to buy.''^ Such transactions are to be distinguished from so-called "conditional sales," where there is a contract to sell, accompanied by delivery of the goods to the buyer, with a res- ervation of the property in the goods in the seller to secure the payment of the price, which the buyer is bound to pay.^* Same — Pledge. A pledge is a bailment to secure the payment of a debt or the performance of an engagement,*" and the general property re- mains in the pledgor, who can transfer the general property to a third person,*' subject to the special property of the pledgee.*'' If the goods are delivered by way of security, the transaction is a pledge, and not a sale.*' A debtor may, indeed, transfer the property in goods to his creditors in payment of a debt; *° but although the transaction is in the form of a sale, and is evi- denced by a written instrument or transfer, the debtor may show that the transaction was intended by the parties as a pledge.'^" Same — Chattel Mortgage. A chattel mortgage differs from a pledge in that by it the general property in the mortgaged goods is transferred to the 408; Braun v. Rendering Co., 92 Wis. 245, 66 N. W. 196; Wiggins v. Tumlin, 96 Ga. 753, 23 S. E. 75. And see Crosby v. Canal Co., 119 N. T. 334, 23 N. E. 736; ante, p. 2; post, p. 130. 43 Helby v. Matthews (1895) App. Cas. 471. Cf. Lee v. Butler (1893) 2 Q. B. 318. There may be a bailment with the obligation to buy if a condition happens; for example, in case the thing be damaged. Bianchi v. Nash, 1 Mees. & W. 545. i* Post, p. 134. 4 5 Hale, Bailm. 102. 48 Halliday v. Holgate, L. R. 3 Bxch. 299; Donald v. Suclding, L. R. 1 Q. B. 585; Harper v. Godsell, L. R. 5 Q. B. 424; Cortelyou v. Lansing, 2 Caines, Cas. (N. Y.) 200. 47 Franklin v. Neate, 13 Mees. & W. 481 ; Jenlsyns v. Brown, 14 Q. B. 490 ; Whitaker v. Sumner, 20 Pick. (Mass.) 399. 4 8 Kimball v. Hildreth, 8 Allen (Mass.) 167; Hojger v. E^emp, 3 Pa. 208; Beldler V. Crane (111.) 19 N. E. 714; Irwin v. McDowell (Cal.) 34 Pac. 708. 4 9 Reeves v. Sebern, 16 Iowa, 234, 85 Am. Dec. 513; Travers v. Leopold, 124 111. 431, 16 N. E. 902. 6 Walker v. Staples, 5 Allen (Mass.) 34; Newton v. Fay, 10 Allen 10 FORMATION OF THE CONTRACT. (Ch. 1 mortgagee." It differs from a sale in that the transfer is de- feasible upon performance by the mortgagor of the conditions of the mortgage. ^^ Same — Agency to Sell. A sale is, of course, to be distinguished from a consignment or dehvery of goods by the owner to a factor or other agent for sale. In such case the agent receives the goods as the goods of his principal, who retains the property in them, and in deal- ing with them must act according to his instructions, and is bound, not to pay a price, but simply to account for the pro- ceeds of such sale as he may make on his principal's behalf.^" Whether a contract is a contract of sale or a contract of agency is a question of substance, and not of form, and depends, not upon the name by which the parties choose to call it, but upon its real meaning, and often contracts which are clothed in the (Mass.) 505; Riley v. Bank, 164 Mass. 4S2, 41 N. E. 679; Jones v. Rahilly, 10 Minn. 320 (Gil. 283); Morgan v. Dod, 3 Colo. 5.51. 01 Jones, Cbat. Mortg. § 4. A mere lien, under whicli tlie property does not pass, is to be distinguished from a chattel mortgage. Scofield V. Elevator Co., 64 Minn. 527, 67 N. W. 045. 62 Jones, Chat. Mortg. § 8 ; Ex parte Hubbard, 17 Q. B. Div., at page 698; In re Morritt, IS Q. B. Div., at page 282; .Jones v. Baldwin, 12 Picl^. (Mass.) 316; Parshall v. Eggart, 52 Barb. (N. Y.) 3117. 63 Sturm V. Bolier, 150 U. S. 312, 14 Sup. Ct. 0:>, 37 L. Ed. KI93; Metropolitan Nat. Bank v. Benedict Co., 74 Fed. 1S2, 20 C. C. A. .•_177; In re Columbus Buggy Co., 143 Fed. 859, 74 C. G. A. 611; Walki-r v. Butterick, 105 JIass. 237; St. Paul Harvester Co. v. Nicolin. 3i; Minn. 232, 30 N. W. 763; Keystone Watch Case Co. v. Bank, 194 Pa. .'.35, 45 Atl. 328; Lenz v. Harrison, 148 111. 598, 36 N. E. 567; Fleet v. Hertz, 201 HI. 504, 66 N. B. 858, 94 Am. St. Rep. 192; Norton v. Me- lick, 97 Iowa, 564, 66 N. W. 780; Milburn Mfg. Co. v. Peak, 89 Tex. 200, 34 S. W. 102; Holleman v. Fertilizer Co., 106 Ga. 156, 32 S. E. 83; Commonwealth v. Parlin & Orendorff Co., 118 Ky. 168 80 S W 791. Where the owner of a cheese factory agreed with dairymen to man- ufacture their milk into butter and cheese at a certain rate per pound, he to sell the product and pay them the proceeds, less his compensa- tion, in proportion to the amount of milk furnished by each, the trans- action was not a sale of the milk to him, but he was simply their .ngpnt. First Nat. Bank v. Schween, 127 III. 573, 20 N. E. i;S1, 11 Am. St. Rep. 174. See, also, Sattler v. Hallock, 100 N. Y. 291, 54 N E. 667, 46 L. R. A. 679, 73 Am. St. Rep. 686. § 5) SALE DISTINGUISHED FROM OTHER TRANSACTIONS. 11 language of, or are described by the parties as, contracts of agency, are in legal effect contracts of sale," and, on the other hand, contracts which use the language of sale are often in legal effect contracts of agency."" Same — Agency to Buy. If a person is employed to buy goods on behalf of another, the relation is, of course, that of principal and agent."" But, if it is the intention that the one is to buy on his own behalf and to sell the goods to the other, the transaction is a contract to sell." 61 Henry Bill Pub. Co. v. Durgin, 101 Mich. 458, 59 N. W. 812; Mack V. Tobacco Co., 48 Neb. 397, 67 N. W. 174, 58 Am. St. Rep. 691; Chickei-ing v. Pastress, 130 111. 206, 22 N. E. 542, 17 Am. St. Rep. 309, Peoria Mfg. Co. v. Lyons, 153 111. 427, 38 N. E. 661; Norwegian Plow Co. V. Clark, 102 Iowa, 31, 70 N. W. 808; Alpha Check- Rower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Buttcrick Pub. Co. v. Bailey, 75 Iowa. 189, 75 N. W. 189 ; Weston v. Brown, 158 N. Y. 360, 53 N. E. 36 ; Roosevelt t. Nusbaum, 75 App. Div. 117, 77 N. Y. Supp. 457 ; Sutton V. Baker, 91 Minn. 12, 97 N. W. 420; Arbuckle v. Kirkpatrlck, 98 Tenn. 221. 39 S. W. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854; Ar- buckle V. Gates, 95 Va. 802, 30 S. E. 496; Howell v. Boudar, 95 Va. 815, 30 S. E. 1007. Where goods are consigned on such terms that the consignee is at liberty to sell on such terms as he sees fit, but must in such case pay the consignor at fixed prices, until a sale is made the property remains in the consignor, but when he sells the property passes to him, and he sells on his own account, and not as agent Ex parte White, L. R. 6 Ch. App. 397; In re Nevill, Id.; Nutter v. Wheeler, 2 Low. (U. S.) 346, Fed. Cas. No. 10,384; Gindre v. Kean, 28 N. Y. Supp. 4, 7 Misc. Rep. 582; JEtna Powder Co. v. Hildebrand, 137 Ind. 462, 37 N. E. 136, 45 Am. St. Rep. 194; Vermont Marble Co. v. Brow, 109 Oal. 236, 41 Pac. 1031; 50 Am. St. Rep. 37. Cf. Harris v. Coe, 71 Conn. 157, 41 Atl. 552. 55 Eldridge v. Benson, 7 Cush. (Mass.) 483; Atlas Glass Co. v. Manufacturing Co. (C. C.) 87 Fed. 418. B6 Whitney v. Beckforth, 105 Mass. 267; National School Furnish- ing Co. V. Cole, 30 111. App. 156; Hatch v. McBrien, 83 Mich. 159, 47 N. W. 214; Keswick v. Rafter, 35 App. Div. 508, 54 N. Y. Supp. 850, affirmed 165 N. Y. 653, 59 N. E. 1124. 67 Black V. Webb, 20 Ohio, 304, 55 Am. Dec. 456. See, also. Moors V. Kidder, 106 N. Y. 32, 12 N. E. 818; Baring v. Galpin, 57 Conn. 352, 18 Atl. 266, 5 L. R. A. 300. 12 FORMATION OF THE CONTRACT. (Ch. 1 Where Transfer is Not for a Price — Gift. If the transfer of the property in goods is without considera- tion, the transaction is a gift. A gift differs from a sale, also, in that delivery is essential to effect a gift.^' Same — Exchange. If the consideration for the transfer of the property in goods consists of other goods, no price being fixed for either, the transaction is an exchange or barter.^" The legal effect of a contract of exchange is, however, generally the same as that of a contract of sale.°° The principal difference is in respect to the form of pleading and the measure of damages, since in the case of an exchange the declaration must be for damages for the breach of the special contract, and not in assumpsit for goods sold, or goods sold and delivered.'^ And authority to sell does not confer authority to exchange."^ The distinction may also be material in interpreting a statute which refers in terms to sales. °^ A contract of exchange is held to be a con- 5 8 Noble V. Smith, 2 Johns. (N. Y.) 52, 3 Am. Dec. 399; Grover v. Grover, 24 Pick. (Mass.) 261, 35 Am. Dec. 319; Cochrane v. Moore, 25 Q. B. Div. 57. 69 Harrison v. Luke, 14 Mees. & W. 139; Read v. Hutchinson, 3 Camp. 352; Williamson v. Berry, 8 How. (TJ. S.) 495, 544, 12 L. Ed. 1170; Mitchell v. Gile, 12 N. H. 390; Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Dowling v. McKenney, 124 Mass. 480. Sales Act, § 9 (2), abolishes the distinction between sale and barter. Cf. section 9 (3). Where a note is taken in conditional payment, the transaction is a sale, and not an exchange. Sebastian May Co. v. Codd, 77 Md. 293, 26 Atl. 316. 60 Com. V. Clark, 14 Gray (Mass.) 367, per Bigelow, J., 372. See Emanuel v. Dane, 3 Camp. 299 (warranty); La Neuville y. Nourse, Id. 331 (caveat emptor) ; First Nat. Bank v. Reno, 73 Iowa, 145, 34 N. W. 796. 61 Harris v. Fowle, cited in Barbe v. Parker, 1 H. Bl. 287; Mitchell V. Gile, 12 N. H. 390 ; Vail v. Strong, 10 Vt. 457 ; Herrlck v. Carter, 56 Barb. (N. Y.) 41; Slayton v. McDonald, 73 Me. 50. Otherwise where the contract of exchange is for goods at a stipulated price, Forsyth v. Jervis, 1 Starkie, 437; Hands v. Burton, 9 East, 349; Har- rison V. Luke, 14 Mees. & W. 139; Way v. Wakefield, 7 Vt. 22S; Pic- ard V. McCormick, 11 Mich. 69 ; or where the exchange is only partly for goods, and the action is to recover the money balance after de- livery of the goods, Sheldon v. Cox, 3 Barn. & C. 420. 62 See TifCan.y, Ag. pp. 2iJT, 223. 63 Proof of barter dots not support an indictment charging sale of §§ 6-7 CAPACITY OF PARTIES. 13 tract of sale within the statute of frauds." And in cases where goods are delivered, and the receiver is to deliver other goods in return, so that the property passes, tlie courts generally de- scribe the transaction as a sale.*^ Contract for Work, Labor, and Materials. A distinction is sometimes drawn between a contract to sell goods and a contract for work, labor, and materials. The dis- tinction is chiefly important in determining whether the contract is one "for the sale of goods" within the statute of frauds, and for determining this question different rules prevail in different jurisdictions, which will be considered hereafter."" The ques- tion may be otherwise material,"^ however; for example, as affecting the form of pleading and the measure of damages,"" or the time when the property passes/" . 69 CAPACITY OF PARTIES. 6. IN GENERAIi, Capacity to buy and sell Is regulated by the general laiv concerning capacity to contract, and to transfer and acquire property. 7. NECESSARIES. 'Wliere necessaries are sold and delivered to an infant, or to ii person nrlio by reason of mental incapacity or drunkenness is incompetent to contract, be must pay a reasonable price tberefor. Necessaries mean goods suitable to the condition in life of such in- fant or other person, and to his actual requirements at the time of delivery. 7 liquor. Stevenson v. State, 65 Ind. 409 ; Massey v. State, 74 Ind. 368. A sale is not within the meaning of a statute declaring illegal the sale of a slave by a trader without a license. Gunter v. Lechey, 30 Ala. 596. But in Massachusetts an exchange has been held to be a sale within the meaning of a statute prohibiting the sale of liquor. Howard v. Harris, 8 Allen (Mass.) 297; Com. v. Clark, 14 Gray (Mass.) 367. 6 4 Post, p. 7L 6 5 Ante, p. 6. 6s Post, p. 62. 6 7 See Wyllie v. Palmer, 137 N. T. 248, 33 N. B. 381, 19 L. R. A. 285. 6 8 Garvin Mach. Go. v. Hutchinson, 1 App. Div. 380, 37 N. T. Supp. 394. 69 Central LIth. & Eng. Co. v. Moore, 75 Wis. 170, 43 N. W. 1124, 6 L. R. A. 788, 17 Am. St. Rep. 186; Fairbanks v. Drug Co., 42 Mo. App. ?';:"': post, p. 348. TO These two sections follow Sales Act, § 2. 14: FORMATION OF THE CONTRACT. (Ch. 1 The capacity of persons to buy and sell is generally de- termined by their capacity to contract, upon which subject the reader is referred to works upon contract. "Capacity to con- tract must be distinguished from authority to contract. Capac- ity means power to bind oneself; authority means power to bind another. * * * Capacity is usually a question of law ; authority is usually a question of fact. As regards authority to buy and sell on behalf of another, there appears to be noth- ing peculiar in the law of sales, except the provisions of the factors' acts." '"■ On the subject of authority, therefore, the reader is referred to works on the law of agency and partner- ship."' There are, however, certain classes of persons, in part incapable of contracting, who, under special circumstances, may become liable for goods sold and delivered to them. The per- sons embraced in this exception are infants, lunatics, and intox- icated persons. The obligation of such persons to pay for necessaries fur- nished to them is, however, quasi contractual, rather than contractual,' ' as is shown by the fact that it is generally held that they are liable to pay, not the price, but their reasonable value.'* ^ CAPACITY OF INFANTS. 8. Contracts of sale and purchase by an infant are voidable, at bis option, either before or after he has attained his majority. The contract ceases to be voidable if it be ratified upon the attainment of his majority. The general rule of the common law is that an infant's con- tract is voidable, at his option, either before or after he has at- tained his majority.'" Thus an infant may maintain an action 71 C'halm. Sale of Goods Act (6th Ed.) 11. '2 See Sales Act, § 73. '3 In re Rhodes, 44 Oh. Div. 94; Clark, Oont. (2d Ed.) 155, 547. 7 4 Post, p. 21. 7 5 Gibbs V. Merrill, 3 Taunt 307; Hunt v. Massey, 5 Bam. & Adol. 902 ; Holt V. Clarencieux, 2 Strange, 938 ; Zouch v. Parsons, 3 Bur- rows, 1794 ; King v. Inhabitants of Chillesford, 4 Barn. & C. at page 100; Tucker v. IMoreland, 10 Pet. (TJ. S.) 64, 9 L. Ed. 345. See Pol. Cont. 52 et seq. Emancipation b.v his father does not enlarge the in- § 8) CAPACITY OF INFANTS. 15 on the contract against the seller during infancy.^' He may buy and sell, but either sale " or purchase " may be avoided by him, and if he avoids either he may recover back the considera- tion.'" In case of avoidance he must, however, return the consideration which he received, if he still has it; though if he has consumed, lost, or sold it during minority, he may never- theless avoid the purchase or sale.^" Such at least is the law generally recognized in America," though in England his right fant's liability. Mason v. Wright, 13 Mete. (Mass.) 306. See Clark, Cont. (2d Ed.) 144. T« Warwick v. Bruce, 2 Maule & S. 205; Holt v. Clarencieux, 2 Strange, 937. T! Shipman v. Horton, 17 Conn. 481; Stafford v. Roof, 9 Cow. (N. Y.) 626; Oarr v. Clough, 26 N. H. 280, 59 Am. Dec. 345; Towle v. Dresser, 73 Me. 252; Bloomingdale v. Chittenden, 74 Mich. 698, 42 N. W. 166. '8 Riley v. Mallory, 33 Conn. 201; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Whitcomb v. Joslyn, 51 Vt 79, 31 Am. Rep. 678; Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; McCarthy v. Henderson, 133 Mass. 310; Robinson v. Weeks, 56 Me. 102; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476. 7 8 Cases cited supra, notes 77, 78. 80 Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194 ; Whitcomb v. Jos- lyn, 51 Vt. 79, 31 Am. Rep. 678; Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Walsh v. Young, 110 Mass. 396; Morse v. Ely, 154 Mass. 458, 28 N. E. 577, 26 Am. St. Rep. 263 ; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; Carpenter v. Carpenter, 45 Ind. 142; Shirk V. Shultz, 113 Ind. 571, 15 N. E. 12; Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Brantley v. Wolf, 60 Miss. 420; Lem- mon V. Beeman, 45 Ohio St. 505, 15 N. E. 476; MacGreal v. Taylor, 167 U. S. HS8. 17 Sup. Ct. 961, 42 L. Ed. 326; Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. Rep. 665; Ridge- way T. Herbert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St. Rep. 464; White V. Cotton-Waste Corp., 178 Mass. 20, 59 N. B. 642; Gillls v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St Rep. 265. Where an Infant bought of another infant and paid the price, and after the seller had spent the money the buyer disaffirmed the con- tract and brought an action to recover the money paid, both in con- tract and tort It was held that the defendant's plea of infancy was a defense to the count in contract, and there was no dealing with the money by the defendant which could constitute a conversion. Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. R. A. 755. 81 The decisions on this point, however, are not uniform. See Heath v. Stevens, 48 N. H. 251, where it is held that the Infant's IG FOEMATION OF THE CONTRACT. (Ch. 1 to avoid an executed sale and recover back the price is de- nied.*'' Ratification. The contract of an infant ceases to be voidable if it be rati- fied by him after attaining his majority.* ° By statute in some right to aroid the contract is conditional on his restoring what he received in specie, or, if not, on his accounting for the value of it See, also. Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Bart- lett V. Bailey, 59 N. H. 408; Riley v. Mallory, 33 Conn. 201; Adams V. Beall, OTJId. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Stacli v. Cav- enaugh, 67 N. H. 149, 30 Atl. 350. Where the personal contract of an Infant is fair and reasonable, and free from fraud or undue influence, and has been wholly or partly performed on both sides, so that the infant has enjoyed the benefits of it, but has parted with what he has received, or the benefits are of such a nature that he cannot restore them, he cannot recover back what he has paid. Johnson v. Insurance Co., 56 Minn. 365, 57 N. W. 934; Alt v. GrafC, 65 Minn. 191, 68 N. W. 9. Where an infant who had purchased a bicycle on installments, and paid part of the price, under an agreement that title should not pass from the seller until all installments were paid, afterwards disaffirmed the contract, she was not entitled to recover the install- ments paid, since as to them the contract was executed, though the contract in its entirety was executory. Rice v. Butler, 160 X. Y. 578, 55 N. B. 275, 47 L. R. A. 303, 73 Am. St. Rep. 686. Cf. Gillis V. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 Am. St. Rep. 2.G.j; Clark, Cont. (2d Ed.) 171. s2 "If an infant pays money under a contract, in consideration of which it is wholly or partly performed by the other party, he can ac- quire no right to recover the money back by rescinding when ha comes of age." Pol. Cont. 60; Leake, Cont. 553. The authorities principally relied on are Holmes v. Blogg, 8 Taunt. 508, which is generally repudiated by the American cases above cited, and Ex parte Taylor, 8 De Gex, M. & G. 258. See, also, vriUiams v. Pas- quali, Peake, Add. Cas. 197, per Kenyon, C. J.; Valentini v. Canali, 24 Q. B. Div. 166. In Ex parte Taylor, Lord Justice Turner said: "If an infant buys an article which is not a necessary, he cannot be compelled to pay for it; but if he does pay for It during hisi minority he cannot, on attaining his majority, recover the money back." By the infants' relief act of 1874 (St. 87 & 38 Vict c. 62) con- tracts entered into by infants supplied or to be supplied, other than for necessaries, are void. Benj. Sales (7th Am. Ed.) § 28. 8 8 Williams v. Moor, 11 Mees. & W. 256; Anson, Cont 105- Qark Cont. (2d Ed.) 160. § 8) CAPACITY OF INFANTS. 17 States the ratification is required to be in writing; '* but in most states no writing is necessary, and the ratification may be either by express language amounting to a new promise, as dis- tinguished from a mere acknowledgment of the debt,*" or by conduct, as by using or selling the thing sold.*" Mere silence or failure to disaffirm does not constitute ratification.'' Contract for Necessaries. An infant may procure necessaries, and be held liable for their reasonable value.** The necessaries of an infant are stated in Co. Litt. 172, to be "his necessary meat, drinke, appar- el, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards." But the term includes also articles pur- chased for real use, although ornamental, as distinguished from such as are merely ornamental ; *" and it has been said "that art- icles of mere luxury are always excluded, though articles of lux- 8 4 Clark, Cont. (2d Ed.) 166. Previous to the infants' relief act of 1874 (St. 37 & 38 Vict. c. 62), by whicli radical changes are made in the law governing contracts by infants, a vsrriting was required in England. See Benj. Sales (7th Am. Bd.) § 27 et seq. 8 5 Ford V. Phillips, 1 Pick. (Mass.) 202; Thompson v. Lay, 4 Pick. (Mass.) 48, 16 Am. Dec. 325; Proctor v. Sears, 4 Allen (Mass.) 95; Wilcox V. Roath, 12 Conn. 550; Catlin v. Haddox, 49 Conn. 492, 44 Am. Rep. 249; Clark, Cont. (2d Ed.) 167. 88 Boyden v. Boyden, 9 Mete. (Mass.) 519; Lawson v. Lovejoy, 8 Greenl. (Me.) 405, 23 Am. Dec. 526; Boody v. McKenney, 23 Me. 517; Deason v. Boyd, 1 Dana (Ky.) 45; Robinson v. Hoskins, 14 Bush. (Ky.) 393; Cheshire v. Barrett, 4 McCord (S. C.) 241, 17 Am. Dec. 735; Minock v. Shortridge, 21 Mich. 304; Philpot v. Manufacturing Co., 18 Neb. 54, 24 N. W. 428; Langdon v. Clayson, 75 Mich. 204, 42 N. W. 805; Hilton v. Shepherd, 92 Me. 160, 42 Atl. 387; Clark, Cont. (2d Bd.) 168. 8' Smith V. Kelley, 13 Mete. (Mass.) 309; New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345; Durfee v. Abbott, 61 Mich. 471, 28 N. W. 521; Tyler v. Gallop's Estate, 68 Mich. 185, 35 N. W. 902, 13 Am. St Rep. 336; Clark, Cont. (2d Ed.) 168. 8 8 It has sometimes been laid down, in general terms, that, if an agreement be for the benefit of the infant, it is binding. See Pol. Cont 66; Clark, Cont. (2d Ed.) 150. In America the exception is confined to necessaries. But see Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Bartlett v. Bailey, 59 N. H. 408. 8 8 Peters v. Fleming, 6 Mees. & W. 42; Ryder v. Wombwell, L. R. 3 Exch. 90. TiFF.SAr.Es(2D Ed.) — 2 18 FORMATION OF THE CONTRACT. (Ch. 1 urious utility are in some cases allowed." "" The word "necessa- ries" mtist, therefore, be regarded as a relative term, to be con- strued with reference to the infant's age, state, and condition."^ An infant, being considered in law as devoid of sufficient dis- 9 Chappie v. Cooper, 13 Mees. & W. 256, per Alderson, B. »i Peters v. Fleming, 6 Mees. & W. 46; Wharton v. Mackenzie, 5 Q. B. 606; Davis v. Caldwell, 12 Cush. (Mass.) 513; Tyler, Inf. (2d Ed.) § 69 et seq. An enumeration of the various things which have been decided to be necessary or not necessary would be of com- paratively little value, since the question, though to a great extent for the court, is one of judicial common sense in each particular case. The subjoined cases are cited for illustration. The follow- ing articles have been held not to be necessaries: A silver goblet for a gift. Ryder v. Wombwell, L. R. 3 Exch. 90, L. K. 4 Exch. 32. A collegiate education, in the absence of special circumstances. Mid- dlebury College v. Chandler, 16 Vt. 686, 42 Am. Dec. 537. Traveling expenses for pleasure. McKanna v. Merry, 61 111. 177. A bicycle used in going home from the infant's place of work to dinner. Pyne v. Wood, 145 Mass. 558, 14 N. E. 775. It has been decided that the following thinss might be necessaries: A livery for a servant Hands v. Slaney, 8 Term R. 578. A regimental uniform for a mem- ber of a volunteer corps. Coates v. Wilson, 5 Esp. 152. A horse, when required by the infant's position or health, Hart v. Prater, 1 Jur. 623; but not generally, Smithpeters v. Griflln, 10 B. Mon. (Ky.) 259; Beeler v. Young, 1 Bibb. (Ky.) 519; Harrison v. Pane, 1 Man. & G. 550; House v. Alexander, 105 Ind. 109, i N. E. 891, 55 Am. Rep. 180; Miller v. Smith, 20 Minn. 248, 2 N. W. 942, 37 Am. Rep. 407. A watch and jewelry, relatively to the Infant's position. Pe- ters V. Fleming, 6 Mees. & \Y. 46. See Berolles v. Ramsay, Holt, N. P. 77. A wedding suit. Sams v. Stockton, 14 B. Mon. (Ky.) 232. A lawsuit. Thrall v. Wright, SS Vt. 494. Attorney's fees for de- fense in a bastardy process, Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160'; or in prosecuting an action for seduction, Munson v. Washband, 31 Conn. 303, 83 Am. Dec. 153 ; or in prosecuting or de- fending criminal prosecution, Askey v. Williams, 74 Tex. 294. 11 S. W. 1101, 5 L. R. A. 17G; Crafts v. Garr, 24 R. I. 397, 53 Atl. 275, 60 L. R. A. 128, 96 Am. St. Rep. 721; or in litigation relative to the infant's property, Epperson v. Xugent, 57 Miss. 45, 34 Am. Rep. 434 (Phelps V.Worcester, 11 N. H. 51, contra). It has been decided that the following things were not necessaries: Dinners supplied to an undergraduate at his rooms, in the absence of special circum- stances. Brooker v. Scott, 11 Jlees. & W. 67; Wharton v. JIackenzie, 5 Q. B. 600. Cigars and tobacco, prima facie. Bryant v. Richardson, L. R. 3 Exch. 03, note 3, 14 Law T. (N. S.) 24. Repairs on dwelling house needed to prevent serious injury. Phillips v. IJoyd, 18 R, I. 99, 25 Atl. 909. § 8) CAPAOITT OF INFANTS. 19 cretion to carry on a trade or business, is not liable for goods supplied to him for his trade or business, whether he is trading alone or in partnership. °= But, if married, his duties as hus- band and father are the same as if he were of full age, and things necessary for his wife and children are deemed neces- saries for himself." It is obvious that an article such as a diamond or a race horse may be intrinsically incapable of being a necessary, and that an- other article, though not intrinsically incapable of being a nec- essary, may fail of being such by reason of the circumstances of the case ; for example, the age or condition of the infant, the quantity in which it is supplied,'* or the fact that his wants are suitably supplied by his parent or guardian, or from any oth- er source. ^° The principal difficulty in respect to necessaries 92 Whywall v. Champion, 2 Strange, 108.3; Dilk v. Keighley, 2 Esp. 480; Merriam v. Cunningham, 11 Gush. (Mass.) 40; Mason v. Wright, 13 Mete. (Mass.) 30G; Rainwater v. Durham, 2 Nott & McC. (S. C.) 524, 10 Am. Dec. G37; Decell v. Lewenthal, 57 Miss. 331, 34 Am. Eep. 449; House v. Alexander, 105 Ind. 109, 4 N. E. 891, 85 Am. Rep, 189 ; Wood v. Losey, 50 Mich. 475, 15 N. W. 557 ; Ryan v. Smith, 165 Mass. 303, 43 N. E. 109. But in Mohney v. Evans, 51 Pa. 80, the question whether farming supplies were necessaries was left to the jury, and, if he uses for necessary household purposes goods supplied to him as a tradesman, he hecomes liable on what is so used. Turberville v. Whitehouse, 1 Car. & P. 94. 8 3 Turner v. Trisby, 1 Strange, 168; Rainsford v. Fenwick, Cart. 215; Tupper v. Cadwell, 12 Mete. (Mass.) 559, 562, 46 Am. Dec. 704; Davis V. Caldwell, 12 Cush. (Mass.) 512; Cantlne v. Phillips, 5 Har. (Del.) 428; Price v. Sanders, 60 Ind. 311. 9* Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542; Nicholson v. Wilborn, 13 Ga. 467. 9 5 Cook v. Deaton, 3 Car. & P. 114; Bainbridge v. Pickering, 2 W. Bl. 1.'325; Brooker v. Scott, 11 Mees. & W. 67; Swift v. Bennetr, 10 Cush. (M.ass.) 436, 4.37; Hoyt v. Casey, 114 Mass. 397, 19 Am. Rep. 371; Trainer v. Triimhull, 141 Mass. .527, 16 N. E. 761; Wailing v. Toll, 9 Johns. (N. Y.) 141; Guthrie v. Murphy, 4 Watts (Pa.) SO, 28 Am. Dec. 681; Hull's Assignees v. Connolly, 3 McCord (S. C.) 6, 15 Am. Dec. 612; Kline v. L'Amoureux, 2 Paige (N. Y.) 419, 22 Am. Dec. 655; Atchison v. BrufC, 50 Barb. (N. Y.) 381; Perrin v. Wilson, 10 Mo. 451; McKanna v. Merry, 61 111. 177; Englebert v. Troxell, 40 Neb. 195, 58 N. W. 852, 26 L. E. A. 177, 42 Am. St. Rep. 6G5. If the infant was already sufficiently supplied, it is immaterial that the seller was ignorant of the fact. Brayshaw v. Eaton, 7 Scott, 183; Barnes v. Toye, 13 Q. B. Div. 414; Johnstone v. Marks, 19 Q. B. 20 FOEMATION OF THE CONTRACT. (Ch. 1 consists in determining the province of the court and jury in ascertaining them. It is frequently stated in the American cases that the question whether articles come within the class of necessaries is for the court, and that the question whether they were necessaries in fact is for the jury.*" In England it has been settled that the question whether the articles were neces- saries is one of fact, and therefore for the jury; but that, like other questions of fact, it should not be left to the jury unless there is evidence on which they can reasonably find in the af- firmative.^'' Practically, there is little difference in the two rules, for the cases involving articles intrinsically incapable of being necessaries are rare, and the question in most cases de- pends on the particular circumstances. It is impossible, there- fore, in most cases, for the judge to say whether articles are within the class of necessaries, without taking into considera- tion the circumstances of the case; and if he determines that the articles do not, under the circumstances, come within the class, h-e in effect determines that there is not evidence on which the jury could reasonably find them to be necessaries. The Div. 509; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dec. 542. But having an income out of which the infant might keep himself supplied is not equivalent to being actually supplied. Burghart v. Hall, 4 Mees. & W. 727; Nicholson v. Wilborn, 13 Ga. 469; Eivers V. Gregg, 5 Rich. Eq. (S. C.) 274. The complaint, in an action against an infant to recover for board furnished her, is not demurrable because it does not allege that the father or other person standing in loco parentis had refused or was unable to pay for the board furnished, or that there were no persons who could and should support her. Goodman v. Alexander, 165 N. Y. 2Sa, 59 N. B. 145, 55 L. R. A. 781. See S.iles Act, § 2. »8 Tupper V. Cndwell, 12 Mete. (Mass.) 559, 563, 46 Am. Dec. 704 ; Merriam v. Cunningham, 11 Cush. (Mass.) 40, 44; Bent v. Manning, 10 Vt. 22.J ; Stanton v. Willson, 3 Day (Conn.) 37, 5C, 3 Am. Dec. 255 ; Glover v. Ott, 1 McCord (S. C.) r,72; Beeler v. Young, 1 Bibb (Ky.) 519; Grace v. Hale, 2 Humph. (Tenn.) 27, 36 Am. Dec. 296; McKan- na V. Merry, 63 111. 177. o'' Ryder v. Wombwell, L. R. 8 Exch. 93, L. R. 4 Exch. 32. See, also, Peters v. Fleming, 6 Mees. & W. 42; Wharton v. Mackenzie, 5 Q. B. 606; Davis v. Caldwell, 12 Cush. (Mass.) 512, per Shaw, a J.; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. Dee. 542; Moh- ney v. Evans, 51 Pa. 80. § 9) CAPACITY OF LUNATICS AND DKUNKEN MEN. 21 burden of proving that the articles were necessaries is on the plaintiff.^' The obligation of the infant to pay for necessaries being quasi contractual, he is liable without an express contract."* And, although he agrees to pay a stipulated price, the amount for which he can be held liable is not the agreed price, but the reasonable value of the goods. ^'"' Even if he gives his note in payment, the seller can recover thereon no more than what the goods were worth.^"^ In some states, where a father fails to support his infant child, the child has a right upon his father's credit to supply himself with necessaries ; but it is very generally held that a father is not liable for necessaries supplied to the child without his authority.^"* CAPACITY OF LUNATICS AND DBUNKEN MEN. 9. A contract of sale or of purchase by a lunatic or dmnhen man, or other person non compos mentis, is voidable at his option, if at the time of making the contract he ^vas incapable of understanding its effect. EXCEPTION — In most jurisdictions the sale or purchase is not voidable if the other party did not know, or have reasonable cause to knoxr, the condition of the lunatic or drunken man, and if the contract has been so far executed that the other party cannot be restored to his former position. • 8 Thrall v. Wright, 38 Vt. 494; Wood v. Losey, 50 Mich. 475, 15 N. W. 557; Nicholson v. Wilborn, 13 Ga. 467, 475. 89 Trainer v. Trumbull, 141 Mass. 530, 6 N. E. 761; Gregory v. Lee, 64 Conn. 407, 30 Atl. 53, 25 L. R. A. 618. 100 Stone V. Dennison, 13 Pick. (Mass.) 1, 23 Am. Dec. 654; Vent V. Osgood, 19 Pick. (Mass.) 572, 575; Locke v. Smith, 41 N. H. 346; Beeler v. Young, 1 Bibb (Ky.) 519; Bouchell v. Clary, 3 Brev. (S. C.) 194; Trainer v. Trumbull, supra; Gregory v. Lee, supra. 101 Earle v. Reed, 10 Mete. (Mass.) 387; Bradley v. Pratt, 23 Vt 378; Guthrie v. Morris, 22 Ark. 411. Some cases hold the note void. Swasey v. Vanderheyden's Adm'r, 10 Johns. (N. Y.) 33; McSIinn y. Richmonds, 6 Yerg. (Tenn.) 9; Ayers v. Burns, 87 Ind. 245, 44 Am- Rep. 759. See Byles, Bills (7th Am. Ed.) 61. 102 Tiffany, Ag. 41. 22 FORMATION OF THE OONTEACT. (Ch. 1 Lunatics. The general rule of the common law is that the contract of a lunatic or other person non compos mentis, like that of an in- fant, is not void, but is voidable at his option.^" Thus, it may be ratified or disaffirmed by the lunatic on recovery of his sanity,^"* or by his guardian or other representative,^"" but not by the other party. ^''"' The principal difference between the contract of a lunatic and that of an infant is that if the other party did not know, or have reasonable cause ^°'' to know, of the lunatic's condition of mind, and acted in good faith, and the contract has been so far executed that the parties cannot be placed in statu quo, it cannot be avoided. The leading case on this point is Molton v. Cam- roux,^"* the principle of which has generally, though not uni- 103 Molton V. Camroux, 2 Exch. 487, 4 Exch. 17; Matthews v. Bax- ter, L. R. 8 Exch. 132; Seaver v. PBielps, 11 Pick. (Mass.) 304, -23 Am. Dec. 372; Carrier v. Sears, 4 Allen (Mass.) 336, 81 Am. Dec. 707; Chew V. Banli of Baltimore, 14 Md. 299; Ingraham v. Baldwin, 9 N. Y. 45; Pol. Cont. 91; Bish. Cont. 618; Clarli, Cent. (2d Ed.) 178, 2 Kent, Comm. 451; Thorpe v. Hansoom, 64 Minn. 201, 66 N. W. 1; Creekmore v. Baxter, 121 N. C. 31, 27 S. E. 994; 3i.tna Life Ins. Co. V. Sellers, 154 Ind. 370, 56 N. E. 97, 77 Am. St. Rep. 4S1. But see Dexter v. Hall, 15 Wall. (U. S.) 9, 21 L. Ed. 73; Parker v. Mar- co (C. C.) 76 Fed. 510. 104 Allis V. Billings, 6 Mete. Olass.) 415, 30 Am. Dec. 744; Arnold V. Richmond Iron Works, 1 Gray, 434; Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Turner v. Rusk, 53 Md. G5. 106 McClain v. Davis, 77 Ind. 419; Halley v. Troester, 72 Mo. 73; Moore v. Hershey, 90 Pa. 196; Flint v. Valpey, 130 Mass. 385. 106 Allen V. Berryhill, 27 Iowa, 534, 1 Am. Rep. 309. 107 Beavan t. McDonnell, 10 Exch. 184; Lincoln y. Buckmaster, 32 Vt. G.>2; Matthiossen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536, 544. 108 2 Exch. 487, 4 Exch. 17, Ewell, Lead. Cas. 614. See, also, Bea- van V. McDonnell, 9 Exch. 309, 10 Exch. 184; Elliot v. Ince, 7 De Gex, jr. & G. 475, 487; Drew y. Nunn, 4 Q. B. Diy. 601; Nlell v. Mor- ley, 9 Ves. 478, Ewell, Lead. Cas. 028. In Molton v. Camroux it was said: "The modern cases show that when the state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defense can- not prevail, especially where the contract is not merely executory, hut executed in whole or in part, and the parties cannot be restored to their original position." The distinction between executory and executed contracts, however, appears to have been repudiated in § 9) CAPACITY OF LUNATICS AND DRUNKEN MEN. 23 versally, been followed in this country.^"" This has been called a decision of necessity, as a contrary doctrine would render all ordinary dealings between man and man unsafe.^^" If, how- ever, the lunatic restores, or offers to restore, the consideration which he has received, the necessity ceases, and he may avoid the contract.^^^ The contractual capacity of a lunatic or insane person under guardianship depends upon statute, and differs in different states.'-^* England, where the more recent rule appears to be that the contract of a lunatic is binding unless the other party knew of his condition. Imperial I.oan Co. v. Stone, (1892) 1 Q. B. 599. See Anson, Cent (Sth Ed.) 120. 109 Young V. Stevens, 48 N. H. 133, 2 Am. Kep. 202, 97 Am. Deo. 592; Beals v. See, 10 Pa. 56, 49 Am. Dec. 573; Lancaster County Nat. Bank v. Moore, 78 Pa. 407, 21 Am. Rep. 24; Mutual Life Ins. Co. V. Hunt, 14 Hun, 169, 79 N. Y. r,41; Ballard v. McKenna, 4 Rich. Eq. (S. C.) 358; Matthiessen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 536; Wilder v. Weakley, 34 Ind. 181; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Northwestern Mut. Fire Ins. Co. V. Blankenship, 94 Ind. 535, 48 Am. Rep. 185; Abbott v. Creal, 56 Iowa, 175, 9 N. W. 115; Alexander v. Haskins, 68 Iowa, 73, 25 N. W. 935; Rusk v. Fenton, 14 Bush (Ky.) 490, 29 Am. Rep. 413; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77; Burnham v. Kidwell, 113 111. 425; Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584, 55 Am. Rep. 233; Leavitt v. Files, 38 Kan. 26, 15 Pac. 891; Schaps v. Lehner, 54 Minn. 208, 55 N. W. 911; Youn v. Lamont, 59 Minn. 216, 57 N. W. 47S; Harrison v. Otley, 101 Iowa, 652, 70 N. W. 7^1; Flach v. Gotts- chalk Co., 88 Md. 368, 41 Atl. 908, 42 L. R. A. 745, 71 Am. St. Rep. 418; McKenzie v. Donnell, 151 Mo. 431, 52 S. W. 214. The leading case against thisj doctrine is Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. Dec. 372; Ewell, Lead. Cas. 610. See, also, Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Brigham v. Fayerweather, 144 Mass. 52, 10 N. B. 735; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Edwards v. Davenport (G. C.) 20 Fed. 75G; Wager v. Wagoner, 53 Neb. 511, 73 N. W. 937. In Crawford v. Scovell, 94 Pa. 48, 39 Am. Rep. 766, Trunkey, J., says: "In this country that rule is not universally extended to sales of personalty, and is not applied to conveyances of real estate." In several of the cases above cited, however, it is applied to conveyances. 110 Elliot V. Ince, 7 De Gex, M. & G. 475, per Lord Cranworth. iiiBoyer v. Berryman, 123 Ind. 451, 24 N. B. 249; Myers t. Knabe, 51 Kan. 720, 33 Pac. 602; Warfield v. Warfleld, 76 Iowa, 633, 41 N. W. 383; Eaton v. Eaton, 37 N. J. Law, lOS, 18 Am. Rep. 716. 112 Bish. Cont. § 977; Clark, Cont. (2d Ed.) 182. 24 FORMATION OF THE CONTEACT, (Ch. 1 Drunken Men. The rules in regard to the contracts of a man who is so in- toxicated as not to know what he is doing are the same.^^' His contracts are voidable, but not void, and hence may be ratified by him when sober.'^* Necessaries. A lunatic is liable for necessaries furnished him.^^° As in the case of an infant, "necessaries" embrace articles suitable to his condition and degree,^^* but in the case of a lunatic the term would probably be more liberally construed/^^ It seems that a drunken man also is liable for necessaries.^^* 113 Pol. Cont 87; Bish. Cont. § 979; Clark, Cont (2(1 Ed.) 186. 11* Matthews v. Baxter, L. R. 8 Exch. 132 (pointing out that "void," as used in Gore v. Gibson, 13 Mees. & W. 623, Ewell, Lead. Cas. 734, must be talien to mean "voidable") ; Molton v. Camroux, ■i Exch. 17; Carpenter v. Rodgers, 61 Mich. 3S1, 28 N. W. 156, 1 Am. St. Rep. 595; Broadwater v. Darue, 10 Mo. 277; Bish. Cont. § 985; Claris;, Cont. (2d Ed.) 186. In Hunter v. Tolbard, 47 W. Va. 258, 34 S. B. 737, it is held that the contract is void. 11= Baxter v. Earl of Portsmouth, 5 Barn. & C. 170; Bagster v. Same, 7 Dow. & R. 614; Manby v. Scott, 1 Sid. 112; Dane v. Kirk- wall, 8 Car. & P. 679; Wentworth v. Tubb. 1 Younge & C. Ch. 171; Williams v. Wentworth, 5 Beav. 325; Nelson v. Duncombe, 9 Beav. 211; Richardson v. Strong, 35 N. C. IOC, 55 Am. Dec. 430; La Rue V. Gilkyson, 4 Pa. 375, 45 Am. Dec. 700; Sawyer v. Lufkin, 56 Me. 308; Hallett v. Oakes, 1 Gush. (JIass.) 290; Kendall v. May, 10 Al- len (Mass.) 59; Skidmore v. Romaine, 2 Bradf. Sur. (N. Y.) 122; Barnes v. Hathaway, 66 Barb. (N. Y.) 453; Blaisdell v. Holmes, 4S Vt. 492; McCormick v. Littler, 85 111. 02, 28 Am. Rep. 610; In re Renz, 79 Mich. 216, 44 N. W. 598; Stannard v. Burns, 63 Vt. 244, 22 Atl. 460. See In re Rhodes, 44 Ch. Div. 94 ^showing that the obliga- tion is quasi contractual). And see Sales Act, § 2. 116 Baxter v. Earl of Portsmouth, 5 Barn. & C. 170; Bagster v. Same, 7 Dow. & R. 614; La Rue v. Gilkyson, 4 Pa. 375, '45 Am. Dec. 700; Richardson v. Strong, 35 N. C. 106, 55 Am. Dec. 430. 11' Kendall v. May, 10 Allen (Mass.) 59. See in re Persse, 3 MaJ- loy, 94. 118 Gore V. Gibson, 13 Mees. & W. 623, per Pollock, C. B., and Al- derson, B. See, also, Brockway v. Jewell, 52 Ohio St 187, 39 N. E 470. § 10) CAPACITY OF MARRIED WOMEN. 25 CAPACITY OF MARRIED ■WOMEN. 10. At common law contracts of sale and purchase Tiy mart- ried women are in general void; bnt tlie capacity of married women to contract has generally been extend- ed by statute. Altliough the common-law capacity, or rather incapacity, of a married woman to buy and sell is coextensive with her general capacity or incapacity to contract, and the subject therefore falls rather within the law of contract and of married women than of sale, a few words on the subject may not be out of place. At common law a married woman is incompetent to contract.^^" A contract with her is not, as in the case of an in- fant or lunatic, merely voidable, but is void,'^" and hence is incapable of ratification upon termination of coverture.^^^ She cannot, even while Hving apart from her husband and en- joying a separate maintenance secured by deed, make a valid purchase, on her own account, even of necessaries.^'^ To the general rule of her incapacity to contract, however, there are several exceptions: (1) When the husband is civiUter mortuus (that is, dead in law, as when he is under sentence of penal servitude, transportation, or banishment), her disability is suspended, ^^' and, according to some authorities, it is sus- pended when he is an alien and resident abroad.'-'* (3) By the custom of the city of London, a married woman might 119 Co. Litt. 112d. 120 Anson, Cont. (4th Ed.) 117; Bish. Cont § 949; Clark, Cont. (2d Ed.) 188; Schouler, Husb. & Wife, §§ 97, 98. 121 Zouch V. Parsons, 3 Burrows, 1794; Clark, Cont. (2a Ed.) 141; Schouler, Husb. & Wife, § 99. There are, however, some authorities which hold that the moral consideration Is sufficient to support a promise after termination of coverture. I-ee v. Mucrc;eridge, 5 Taunt. 36. Ewell, Lead. Cas. C22, 331; Stew. Husb. & Wife, § 366. 122 Marshall v. Button, 8 Term R. 545. 123 Benj. Sales, § 32; Stew. Husb. & Wife, § 358; Clark, Cont. (2d Ed.) 1S9. 124 BenJ. Sales, §§ 33, 34; Stew. Husb. & Wife, § 358; Gregory v. Paul, 15 Mass. 31; McArthur v. Bloom, 2 Duer (N. Y.) 151. So where the husband was a citizen and resident in another state. Abbot v, Bayley, 6 Pick. (Mass.) 89. 26 FORMATION OP THE CONTKACT. (Ch. 1 trade, and for that purpose might make valid contracts.^ ^° (3) In equity, when a married woman has separate property, she may, under certain circumstances, contract so as to render it liable. ^^° It is to be noticed that the exceptions to the incapacity of married women to contract are not confined, as is the excep- tion in the case of infants and lunatics, simply to purchases of necessaries, but that it extends to their general contractual capacity. A husband is bound to maintain his wife and to supply her with necessaries, and if he fails in this duty she has the power to pledge his credit for the purpose of supplying herself. The foundation of his liability is the duty of support, and his obliga- tion is one of quasi contract, and is distinct from that which arises when he has conferred authority upon his wife to pledge his credit.^-' The common law in regard to the contractual capacity of married women has been radically changed by legislation in England ^-* and in most of the states of this country,^^" and in many states her disability to contract has been wholly re- moved. These statutory provisions differ greatly among them- selves, and a consideration of the statutory capacity of married women to buy and sell cannot be here attempted. ■WHO CAN SEIil.. 11. As a mle, mo person can sell personal property, so as to convey a valid title tliereto, unless lie be the oivner. EXCEPTIONS— (1) In England, bnt not in the United States, Tvhere goods are sold in market overt, accord- ing to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith, and nrithout notice of defect of title on the part of the seller. 130 125 Beard v. Webb, 2 Bos. & P. 93; Benj. Sales, § 35. 1 = Anson, Cont (4th Ed.) 118; Clark, Cent (2d Ed.) 190; Schouler, Husb. & Wife, § 1S9 et seq. 127 Tiffany, Ag. 40. 128 Benj. Sales, § 37 et seq. 129 Stim. Am. St. Law, § 6482. 130 The Case of Market-Overt, 5 Coke, 83b; Tud. Merc. Cas. (3d § 11) WHO CAN SELL. 27 (3) Where a promissory note, bill of ezcliange, or other negotiable instrument payable to bearer or indorsed in blank is negotiated by the holder before maturity to a bona fide purchaser for value nrithout notice, the purchaser acquires a good title to the instrument. (3) A person xrho is not the onmer of goods may sell them, so as to pass the title of the owner, if he acts under the authority or urith the consent of the owner, or under any special common-law or statutory poiver of sale, or under the order of a, court of competent juris- diction.131 (4) A sale made by a person not thereto authorized may be good as against the owmer by estoppel, sphere the onrn- er by his virords or conduct is precluded from denying the seller's oumership or authority to sell. (5) In some jurisdictions a person w^ho has sold goods, but ^ho continues in the possession thereof, can transfer the property therein to a bona fide purchaser, ■wTio ob- tains possession of the goods, notwithstanding the prior sale. \ (6) By statute in England and in many states, purchasers \ from factors and other agents intrusted nrith and in possession of goods, or of the documents of title to goods, may under certain circumstances acquire good title to the goods, although the factor or agent is not authorized to sell. (7) When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of sale, the buyer, in general, acquires a good title, provided he buys them in good faith, for value, and ^vithout notice of the seller's defect of title.i^^ In General. Not only must the parties to a sale be capable of contracting, but the seller must (subject to the exceptions mentioned) be the owner of the thing sold; for, as a rule, no one can pass to the buyer a better title than he himself possesses. "Nemo dat quod non habet." ^^^ A person, therefore, however innocent, Ed.) p. 274; Crane v. Dock Co., 5 Best & S. 313, 33 Law J. Q. B. 22i, 229; Benj. Sales, § 8 et seq.; Sale of Goods Act, § 22. 131 See Sales Act, § 23 (1), (2) (b); Sale of Goods Act, § 21 (1), (2) (b). 132 Sales Act, § 24; Sale of Goods Act, § 23. 133 Peer v. Humphrey, 2 Adol. & Ei 495; Whistler v. Porster, 32 Law J. C. P. 161; Cooper v. Willomatt, 1 C. B. 672, 14 Law J. C. P. 28 FOKMATION OF THE CONTEACT. (Ch. 1 why buys goods from one not the owner, obtains, in general, no property in them whatever; and even if, in ignorance that the goods were lost or stolen, he resells them in good faith to a third person, he remains Hable in trover to the original own- er."* It is to be observed that, in the cases covered by the first and second exceptions, the buyer, like one who in good faith receives money in payment,^' ^ obtains a good title as against all the world — that is, even against one who has lost the thing sold, or from whom it has been stolen — while in the cases covered by the other exceptions the buyer simply obtains the title (if any) of a particular person, who may or may not be the true owner, without prejudice to the rights of any person who may in fact have a superior title. Market Overt. The rules of market overt apply only to a limited class of retail transactions. ^^^ All shops in the city of London are market overt, for the purpose of their own trade; '■^^ but a sale by sample is not within the custom, because the whole transaction, and not merely the formation of the contract, must 219; Cundy v. Lindsay, 3 App. Cas. 459; Stanley v. Gaylord, 1 Cush. (Mass.) 5.3G, 48 Am. Dec. G43; Chapman v. Cole, 12 Gray (Mass.) 141, 71 Am. Dec. 739; Parsons v. Webb, 8 Greenl. (Me.) 38; Galvin v. Bacon, 11 Me. 28, 25 Am. Dec. 258; Prime v. Cobb, 63 Me. 200; Ki- ford V. Montgomery, 7 Vt. 418; Bryant v. Whitcber, 52 N. H. 158; Barrett v. Warren, 3 Hill (N. Y.) 348; Williams v. Merle, 11 Wend. (N. Y.) 80, 25 Am. Dec. 604; Saltus v. Everett, 20 Wend. (N. Y.) 207, 32 Am. Dec 541; Scollans v. Rollins, 173 Mass. 275, 53 N. E. 863, 73 Am. St. Rep. 284 (full citation of cases). The cases cited under the exceptions may also generally be cited under the rule. Benj. Sales, § 6. 134 Stone V. Marsh, 6 Barn. & C. 551; Marsh v. Keating, 1 Bing. N. 0. 198, 2 Clark & F. 250; White v. Spettigue, 13 Jlees. & W. 603; Lee V. Bayes, 18 C. B. 599; Hoffman v. Carow, 20 Wend. (N. Y.) 21; Courtis V. Cane, 32 Vt. 2.32, 76 Am. Dec. 174; Gilmore v. Newton, 9 Allen (Mass.) 171, 85 Am. Dec. 749; Elley v. Water-Power Co., 11 Cush. (Mass.) 11. 135 Miller v. Race, 1 Burrows, 452; Saltus v. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541; Chapman v. Cole, 12 Gray (Mass.) 141, 71 Am. Dec. 739. 136 Benj. Sales, § 8. 187 See Wilkinson v. Rex, 2 Camp. 335. § 11) WHO CAN SELL. 29 take place within the open market.^'* Outside the city of Lon- don, markets overt may exist by grant or prescription.^'" The exception in favor of sales in market overt has never existed in the United States.^" Negotiable Intsruments. Where a negotiable instrument is payable to bearer or in- dorsed in blank, so as to be transferable by delivery, a bona fide purchaser under the circumstances mentioned in the black-let- ter text acquires a good title to the instrument, although the seller had not himself a good title. ^*^ Moreover, if a negotia- ble instrument is duly negotiated to a bona fide purchaser under the same circumstances, he holds the instrument free from most of the defenses available to prior parties be- tween themselves.^ *^ As has been stated, the transfer of tlie title to negotiable instruments stands upon a different footing from the transfer of title to goods. ^*' Sale under Power. The owner may, of course, make a sale by an agent thereto authorized ; and he may, as in the case of a mortgage, expressly confer on another the power of making a sale upon a certain contingency. But, besides these cases of sale with the consent of the owner, there are many cases where the authority is im- plied by law from the relation of the parties, or is conferred by law. Thus a pawnee of goods has authority, in case of default, to sell the goods pledged; "* and the master of a ship has im- pHed authority, in case of necessity, to sell the goods of the 138 Crane v. London Dock Co., 5 Best & S. 313, 33 Law J. Q. B. 224. 130 Chalm. Sale of Goods Act (6tli Ed.) 60. 140 Dame v. Baldwin, 8 Mass. 518; Towne t. Col'ins, 14 Mass. 500; Wheelwright v. Depeyster, 1 Johns. (N. Y.) 471, 3 Am. Dec. 345; Hoff- man V. Carow, 22 Wend. (N. Y.) 285; Hosack v. Weaver, 1 Yeates (Tenn.) 478; Baston v. Worthington, 5 Serg. & R. (Pa.) 130; Browning V Magill, 2 Har. & J. (Md.) 308; Roland v. Gundy, 5 Ohio, 202 ; Vent- ress V. Smith, 10 Pet. (U. S.) 161, 9 L. Ed. 382; 2 Kent, Oomm. 324. 1*1 Norton, Bills & Notes (3d Ed.) 11, 204. 14 2 See Norton, Bills & Notes (3d Ed.) 216 et seq. 143 Ante, p. 4. 144 2 Kent, Comm. 582; Schouler, Bailm. § 227 et seq.; Tiffany, Ag. 41; Guinzburg v. H. W. Downs Co., 165 Mass. 467, 43 N. E. 195, 52 Am. St. Rep. 525. 30 FOiniATION OF THE CONTRACT. (Ch. 1 shippers of the cargo."' So a landlord distraining for rent ma)f sell the goods of his tenant/*' And a sheriff, as an officer on whom the law confers a power, may sell the goods of the defendant in execution ; nor will the title to them be affected if the execution was voidable, ^*^ though, if the defendant had no title, the sheriff can, of course, give none.^*^ It would be use- less to multiply illustrations of the cases in which property may be sold, without the consent of the owner, under process of law. Estoppel. The English Sale of Goods Act provides: "Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the own- er of the goods is by his conduct precluded from denying the seller's authority to sell." "^^^ In other words, where the owner by his words or conduct causes another to believe that the goods belong to a third person and to buy them from such third person in that belief, he is estopped to assert his title against such buy- gj-ioo Mere carelessness, however, on the part of the owner in 1*6 3 Kent, Comm. 17.3. 146 Woodf. Landl. & Ten. (13th Ed.) 479-481; Tayl. Landl. & Ten. (8th Ed.) § 57 et seq. 147 Turner v. Felgate, 1 Lev. 95; Manning's Case, 8 Coke, 94b; Emmett v. Thorn, 1 :Maule & S. 42.5 ; Bank of TJ. S. v. Bank, 6 Pet. (U. S.) 9, 8 L. Ed. 209; Park v. Darling, 4 Oush. (Mass.) 107; Jack- son V. Cadwell, 1 Cow. (N. T.) 623; Woodcock v. Bennet, Id. 711, 13 Am. Dec. 5C8; Stinson v. Ross, 51 Me. 55G. 81 Am. Dec. 591. Oth- erwise where the judgment or execution is void. Lock v. Sellwood, 1 Q. B. 736; Camp v. Wood, 10 Watts (Pa.) US; Caldwell v. Walters, 18 Pa. 79, 55 Am. Dec. 592; Kennedy v. Duncklee, 1 Gray (Mass.) 65. See Jetton v. Tobey, <;2 Ark. 84, 34 S. W. 531. 148 Farrant v. Thompson, 5 Barn. & Aid. 826; Shearick v. Huber, 6 Bin. (Pa.) 2 ; Grifhth v. Fowler, 18 Vt. 390; Buffum v. Deane, 8 Cush. (Mass.) 41; Champney v. Smith, 15 Gray (Mass.) 512; Wil- liams V. Miller, 16 Conn. 146; Symonds v. Hall, 37 Me. 354, 59 Am. Dec. 53; Coombs v. Gorden, 59 Me. Ill; Bryant v. Whitcher, 52 N. H. 158. iiD Section 21 (1), followed in Sales Act, § 23 (1). 150 Pickard v. Sears, 6 Adol. & B. 469; Gregg v. Wells, 10 Adol. & E. 90; Freeman v. Cooke, 2 Exch. 654; Knights v. Tv'iffen, L. R. 5 Q. B. 660. See, also, Henderson & Co. v. Williams (1805) 1 Q. B. 521. Of. Anderson v. Read, 106 N. Y. 333, 13 N. E. 292 ; post, p. 31. § 11) WHO CAN SELL. 31 guarding his property, is not enough to create an estoppel. ^'^ To create an estoppel, he must by his words or acts, on which the buyer has relied, have misled the buyer.^'*^ Same — Sale by Person in Possession of Goods. At common law a person in possession of goods, although with the consent of the owner, cannot, as a rule, confer on another, either by sale or pledge, any better title to the goods than he himself has.^" Authority to sell is not to be inferred from the mere possession of goods. ^°* A mere bailee can give no title.^''^ Nor, where the question is unaffected by statute, can a buyer in possession under a so-called conditional sale pass title to a bona fide purchaser.^°° Intrusting another with the possession, indeed, if accompanied by other circumstances in- vesting the possession with the appearance of ownership, may estop the owner from denying the ownership of the person whom he has so trusted, as against a buyer from him who has 161 Knox V. American Co., 148 N. Y. 441, 42 N. E. 988, 31 L. R. A. 779, 51 Am. St. Rep. 700; Bangor Electric Light & Power Co. v. Rob- inson (C. C.) 52 Fed. 520; O'Herron v. Gray, 168 Mass. 573, 47 N. B. 429, 40 L. R. A. 498, 60 Am. St. Rep. 411. Cf. Scollans v. Rollins, 173 Mass. 275, 53 N. E. 863, 73 Am. St. Rep. 284. 152 Farquarson v. King (1902) App. Cas. 325. 103 "At common law a person in possession of goods could not con- fer on another, either by sale or by pledge, any better title to the goods than he himself had. * * * The general rule was that to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shown that the seller or pledger had au- thority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledger with apparent authority to sell or pledge, he was at common law pre- cluded as against those who were induced bona fide to act on the faith of that apparent authority, from denying that he had given such an authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited." Cole v. Bank, L. R. 10 C. P. 354, at page 362, per Blackburn, J. 164 Cole V. Bank, supra; Johnson v. Credit Lyonnais, 2 C. P. Div. 224, affirmed 3 C. P. Div. 32; Saltus v. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541; Covill v. Hill, 4 Denio (N. Y.) 323. 155 Wilkinson v. King, 2 Camp. 335; Covill v. Hill, supra; Leigh V. Railroad Co., 58 Ala. 178; Baker v. Taylor, 54 Minn. 71, 55 N. W. 823 ; Rumpf v. Barto, 10 Wash. 882, 38 Pac. 1129. 166 Post, p. 135. 32 FORMATION OF THE CONTRACT. (Ch. 1 relied upon the apparent ownership — as where the owner has invested the person intrusted with possession with the indicia of title.^°^ But it is not enough to raise an estoppel that the person to whom the goods are intrusted is a dealer in that class of goods. '^'" Same — Sale by Vendor in Possession. In some jurisdictions, contrary to the general principle that delivery of possession is not essential to the transfer of the property, the rule prevails that delivery is essential to transfer the property as against bona fide purchasers, and that a person who has sold goods, but who continues in possession of them, can transfer the property in the goods to a bona fide purchaser, who obtains possession of the goods, and that the title of such purchaser will prevail against that of the first buyer.^^" In England this rule has been enacted by the Sale of Goods Act.'-"" This doctrine is to be distinguished from the doctrine that re- tention of possession by the seller is fraudulent as against the seller's creditors, and that in such case the sale can be avoided by them.^°^ Both doctrines will be discussed later. 157 Pickering v. Busk, 15 East, 38 (permitting transfer in books of wharfinger from name of seller to ttiat of brolver); Dyer v. Pearson. 3 Barn. & C. 38; Cole v. Bank, L. R. 10 C. P. Z'A: Calais Steamboat Co. V. Van Pelt, 2 Black (U. S.) 372, 17 L. Ed. 2S2 (permitting vessel to be enrolled in name of agent); Nixon v. Brown, 57 N. H. 34 (per- mitting agent to retain bill of sale taken In his own name); McNeil V. Bank, 46 N. Y. 325, 7 Am. Rep. 341 (delivering to broker certificate of stock indorsed with blank assignment and power of attorney pur- porting to be executed for consideration). Cf. Knox v. American Co., 148 N. T. 441, 42 N. E. 9SS. 31 L. R. A. 779. 51 Am. St. Rep. 700; Walker v. Railway Co., 47 Mich. 338, 11 N. W. 187; O'Connor's Adm'x V. Clark, 170 Pa. 318, 32 At). 1029, 29 L. R. A. 607. 168 Biggs V. Evans (1894) 1 Q. B. 88; Levi v. Booth, 58 Md. 305, 42 Am. Rep. 332 ; Oilman Linseed Oil Co. v. Norton, 89 Iowa, 434, 56 N. W. 6C3, 48 Am. St. Rep. 400. rhe fact may have weight in connection with other clrcmnstances mdicating that the owner conferred actual authority on the person to whom the goods are intrusted. Smith v. Clews, 105 N. Y. 283, 11 N. E. 632, 59 Am. Rep. 502. 109 Post, p. 204. 100 Section 25 (1), followed In Sales Act, § 25. Post, p. 206. 161 Post, p. 200. § 11) WHO CAN SELL. 33 Same — Bill of Lading — Nature of Instrument. A bill of lading is a writing signed on behalf of the carrier to whom goods are delivered for transportation, acknowledging the receipt of the goods and undertaking to deliver them at the place of destination, subject to such conditions as may be men- tioned in the bill of lading."^ During the transit the bill of lading is the symbol of the property, and the indorsement and delivery of the bill of lading operates as a symbolical delivery of the goods, and by such indorsement and delivery the prop- erty in the goods passes, at least if such is the intention of the parties.^^^ A bill of lading is not, however, a negotiable instrument, like a bill of exchange.^** At common law, although the property in the goods can be transferred by the indorsement of the bill of lading, the contract created thereby cannot, and hence the in- dorsee cannot sue in the contract in his own name,^"" although this right of the indorsee to sue has in many jurisdictions been conferred by statute. "-"^ As a rule the transferee of the bill of lading obtains no greater rights under the instrument than his transferror possessed. When the property in the goods has been transferred by an indorsement of the bill of lading while the goods are in transit, no one is entitled to receive the goods from the carrier except the holder of the bill of lading, and if the carrier wrongfully delivers the goods he is liable to the holder for their conversion.^*' Some courts hold, however, 162 See Blackb. Sales, 275. 163 See Sanders v. McLean, 11 Q. B. Div. 327, per Bowen, L. J. 164 See Shaw v. Railroad Co., 101 U. S. 557, 25 L. Ed. 892. 165 Thompson v. Doming, 14 Mees. & W. 403. 166 See St. 18 & 19 Vict. c. Ill; ghaw v. Railroad Co., 101 U. S. ,557, 25 L. Ed. 892. 167 Forbes v. Railroad Co., 133 Mass. 154; First Nat Bank v. Railroad Co., 58 N. H. 203; tinion Pac. Ry. Co. v. Johnson, 45 Neb. 57, 63 N. W. 144, 50 Am. St. Rep. 540. See, also. North Pennsylvania R. Co. V. Bank, 123 U. S. 727, 8 Sup. Ct. 266, 31 L. Ed. 287; Walters V. Railroad, Co (C. C.) 63 Fed. 391; Furman v. Railway Co., 106 N. Y. 579, 13 N. E. 587; Wright & Colton Wire-Cloth Co. v. Warren, 177 Mass. 283, 58 N. E. 1082. Bills of lading in this country commonly provide that, unless de- livery is to be made to the consignee "or order," delivery may be made without presentation of the bill. When a bill of lading is drawn in a set of three, and two or more Tiff.Sales(2d Ed.) — 3 3-1 FORMATION OF THE CONTEACT. (Ch. 1 that the liabihty of the carrier ceases upon deHvery of the goods on the order of the consignee, if he is then the rightful owner, notwithstanding that the bill of lading is not surrendered, and, consequently, that one to whom the bill of lading is afterwards transferred for value cannot recover from the carrier for a con- version of the goods. ^°* On the other hand, it is held by some courts, with good reason, that it is immaterial that the bills of lading are negotiated after such delivery, at least if the delivery was at an intermediate point, but that the carrier, by permitting the bills to remain outstanding with the appearance of live bills, is estopped as against an innocent purchaser from showing that he delivered the goods to the shipper, and is liable for failure to parts of the bill are transferred to two or more different bona fide holders for value, the property in the goods passes to the transferee who is first in time. Barber v. Meyerstein, L. R. 4 H. L. 317. But the carrier may safely deliver them to him who first presents one of the parts, provided the carrier acts in good faith and with- out notice of any prior claim. Glynn, Mills & Co. v. East & West India Docks, 7 App. Oas. 591. A shipper drew against his consignment for sale upon the con- signees, with whom his account was already overdrawn, and trans- ferred the property, by assignment of the duplicate bills of lading, to a bank, which discounted the drafts. The consignees refused to ac- cept or to pay the drafts, but afterwards received the property from the carrier upon the original bills of lading. Held, that the consignees had no right to apply the property, or its proceeds, in dischai-ge of the shipper's liability to themselves arising from other transactions, and that the bank had acquired title to each consignment to the ex- tent of the draft discounted on security thereof. First Nat. Bauk V. Ege, 109 N. y. I2i>, 16 N. E. 31T, 4 Am. St Kep. 431. A holder of a bill of lading who allows another to get possession of it, properly indorsed, upon a delivery by the carrier thereunder to such person is estopped as against the cari-ier to deny the legality of the delivery. Douglas v. Bank, 8S Ky. 17G. 5 S. W. 420, 9 Am. St. Rep. 27G. 188 National Commercial Bank v. Transportation Co., 59 App. Div. 270, G9 N. Y. Supp. 300. affirmed 172 N. Y. 596, 64 N, E. 1123; Mairs v. Railroad Co., 73 App. Div. 265, 76 N. Y. Supp. 838. Delivery of goods by a carrier on order of the consignee, without presentation of the bill of lading, to one who has paid the consignee thcref(jr, vests title in him as against one to whom after such deliveiy the consignee transfers the bill. Anchor Mill Co. v. Railroad Co., 102 Iowa, 202, 71 N. W. 2D5. § 11) WHO CAN SELL. 35 deliver to the holder of the bilLi"" A thief, or a finder of a bill of lading running to bearer or indorsed in blank, cannot confer title upon an innocent purchaser.^'" In some states statutes have been enacted declaring bills of lading to be negotiable, by indorsement and delivery in the same manner as bills of exchange; but they have generally been strictly construed, and have had Httle effect in putting bills of lading on the footing of bills of exchange.^''^ Similar statutes have been passed in many states in respect to ware- house receipts, and they have generally been construed with 16 9 Union Pac. R. Co. v. Johnson, 45 Neb. 57, 63 N. W. 144, 50 Am. St. Rep. 540 ; Ratzer v. Railway Co., 64 Minn. 245, 66 N. W. 988, 58 Am. St. Rep. 530. See, also, Ryan v. Railway Co., 90 Minn. 12, 95 N. W. 758. 17 Gurney v. Behrend, 3 El. & Bl. 622; Brower v. Peabody, 13 N. Y. 126. Where the issue of a bill of lading is procured by fraud upon the owner, such that the property in the goods does not pass, a bona fide transferee acquires no title. Dows v. Perrin, 16 N. Y. 325. "1 Shaw V. Railroad Co., 101 U. S. 557, 25 L. JM. 892; National Bank of Commerce v. Railroad Co., 44 Minn. 224, 46 N. W. 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. See Greenbaum v. Megibben, 73 Ky. 419; First Nat. Bank v. Boyce, 78 Ky. 42, 39 Am. Rep. 198; Wall v. Schneider, 59 Wis. 352, 18 N. W. 443, 48 Am. Rep. 520; Commercial Bank v. Hurt, 99 Ala. 130, 12 South. 5GS. 19 L. R. A. 701, 42 Am. St. Rep. 38; DollifE v. Robbins, 83 Minn. 498, 86 N. W. 772, 85 Am. St Rep. 466. "They are, in commerce, a very different thing from bills of ex- change and promissory notes, answering a different purpose and per- forming different functions. It cannot be, therefore, that the statute which made them negotiable by indorsement and delivery, or negotia- ble in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the conse- quences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not im- possible. Such as the liability of indorsers, the duty of demand ad diem, notice of nondelivery by the carrier, etc., or the loss of the own- er's property by the fraudulent assignment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by indorsement. No statute is to be construed as altering the common law, farther than its words im- port." Shaw V. Railroad Co., supra. But see Tiedeman v. Knox, 53 Md. 612. 30 rOKilATION OP THE CONTRACT. (Ch. 1 like effect.*'^ A radical change in the law governing negotiable documents of title is made by the proposed Sales Act, which largely adopts the mercantile view of these instruments and fol- lows the analogy of bills and notes. ^'' Same — Sale by Person in Possession of Bill of Lading. Whether a person to whom the possession or custody of a negotiable bill of lading has been intrusted by the owner, where the bill has been indorsed to such person, or, if running to bearer or indorsed in blank, has been delivered to him, can confer upon a bona fide purchaser a better title than such person possessed, is a question on which the decisions in this country are not in accord. In England, it seems that, except for the purposes of the Factors' Act "* and of defeating the right of stoppage in transitu, '^'^ he cannot, but that the bill of lading can only be negotiated subject to all the equities attaching to it.^'^ There the effect of the indorsement depends upon the particular cir- cumstances of the indorsement, which does not necessarily pass the legal property in the goods. ^^^ "The possession of bills of lading or other documents of title to goods did not at com- mon law confer on the holder of them any greater power than the possession of the goods themselves. The transfer of a bill 172 Shaw V. Railroad Co., 101 U. S. 557, 25 L. Ed. 892; Ins. Oo. v. Kiger, ] 03 U. S. 3.32, 2G L. Ed. 433 ; Security Bank v. Storage Co., 55 Jlinn. 107, 56 N. W. 582; Commercial Bank v. Hurt, 99 Ala. 140, 12 South. 568, 19 L. R. A. 701, 42 Am. St. Rep. 38 ; Commercial Bank V. Lee, 99 Ala. 496, 12 South. 572, 19 L. R. A. 705. Many states have statutes declaring warehouse receipts to be nego- tiable. See Price v. Insurance Co., 43 Wis. 267, 281 ; Greenbaum V. Megibben, 10 Bush (Ky.) 419 ; Farmer v. Etheridge, 24 Ky. Law Rep. G49, 69 S. W. 761 ; Dolliff v. Robbins, 83 Minn. 498, 86 N. W. 772, 85 Am. St. Rep. 466 ; Lewis v. Bank, 46 Or. 182, 78 Pac. 990. Important changes are introduced by the proposed Warehouse Re- ceipts Act, recommended by the Commissioners on Uniform State Laws, and in 1907 enacted in Connecticut, Illinois (with some modi- fications), Iowa, Massachusetts, New Jersey, and New York; poat, p. 273. 178 Sections 27^0. I" Po.-^t, p. 38. 17 6 Post, p. .333. 17 8 Chalmers, Sale of Goods Act (6th Ed.) 166. 177 Sewell V. Burdick, 10 App, Cas. 74. § 11) WHO CAN SELL. 37 of lading of goods in transitu had the same effect in defeat- ing the unpaid vendor's right to stop in transitu that an actual delivery of the goods themselves under the same circumstances would have had. But the transfer of the documents of title by means of which the actual possession of the goods could be obtained had no greater effect at common law than the trans- fer of the actual possession." "^ It is to be observed, however, that if the holder of the bill of lading has the property in the goods, although he has obtained it by fraud, he has a voidable title, and can give good title by indorsement of the bill of lad- ing to an innocent purchaser before the defrauded owner has disaffirmed. ^'° . In this country, also, the rule appears to be that the title does not necessa rily, pass by the indorsement or transfer of a nego- tiable'bill of lading,^'" and in some jurisdictions it is held that evidence is admissible to show that it was the intention to re- tain title even as against bona fide purchasers. ^^^ On the other hand, decisions are not wanting which adopt the mercantile view, and which hold that a person to whom a bill of lading, negotiable in form, has been indorsed and delivered, or, if run- ning to bearer or indorsed in blank, has been delivered, by or with the consent of the owner of the goods, is so far invested with the appearance of ownership that the owner will be es- topped from asserting title as against a bona fide purchaser of the bill of lading to whom such person has duly negotiated it.^«^ ITS Cole V. Northwestern Bank, L. R. 10 C. P. 354, per Black- burn, J. • 17 9 The Argentina, 1 Aam. 370. 180 Post, p. 172. 181 See The Carlos F. Roses, 177 TJ. S. 655, 20 Sup. Ct. 803, 44 L. Ed. 929; Neimeyer Lumber Co. v. Railroad Co., 54 Neb. 321, 74 N. W. 670, 40 L. R. A." 534; Washburn-Crosby Co. v. Railroad Co., 180 Mass. 252! 62 N. B. 590. Cf. Moors v. Drury, 186 Mass. 424, 71 N. E. 810; post, p. 172. 182 Pollard V. Reardon, 65 Fed. 848, 13 C. C. A. 171; Munroe v. Warehouse Co. (0. C.) 75 Fed. 545; Commercial Bank v. Armsby Co., 120 Ga. 74, 47 S. E. 589, 65 L. R. A. 443; Third Nat. Bank v. Smith, 107 Mo. App. 178, 81 S. W. 215; National Bank v. Railroad Co., 99 Md. 661, 59 Atl. 134, 105 Am. St. Rep. 321. See Sales Act, § 33. 38 FORMATION OF THE CONTRACT. (Cll. 1 Factors' Acts. At common law, when the principal intrusts goods to a factor for sale, the factor may sell in his own name, and, unless the buyer has notice of some limitation upon the au- thority, the agent has, as against him, the customary powers of a factor, such as fixing the price and selling on credit.^*^ On the other hand, although the goods are intrusted to the posses- sion of a factor, unless they are intrusted for sale, the factor has no power to sell them, and one who buys in reliance upon his apparent ownership is not protected.^** Moreover, at com- mon law a factor intrusted with possession has no power to pledge as security for his own delDt.^*' To afford protection to persons dealing with factors and other agents intrusted with the possession of goods, or of the documents of title to goods, factors' acts have been enacted in many jurisdictions. Speaking of the latest English Factors' Act (1889), Judge Chalmers says : It "is a partial application to English law of the French maxim, 'En fait de meubles possession vaut titre.' The pres- ent act is the result of a long struggle between the mercantile community on the one hand and the principles of common law on the other. The general rule of the common law was, 'Xemo dat quod non habet,' and it was held that the mere possession of goods or documents of title to the goods did not enable him to dispose of those goods in contravention of his instructions with respect to them. The merchants and bankers contended that, in the interest of commerce, if a person was put or left in the possession of goods or documents of title, he ought, as regards innocent third parties, to be treated as the owner of the goods." "« Same — In England. The early English Factors' Act of 1825 (St. 6 Geo. IV, c. 94) ^^' has been to a great extent the model of the various 183 See Titfany, Ag. 222. 184 Ante, p. 31. isspaterson v. Tast, Strange, 1178: Warner v. Martin, 11 How. (U. S.) 209, 13 L. Ed. 667; Allen v. Bank, 120 U. S. 20, 7 Sup. Ot 460, 30 L. Ed. 573. Or to barter. TifCany, Ag. 223. 188 Chalmers, Sale of Goods Act (6th Ed.) 132. 187 An earlier act was passed in 1S2.3 (St. 6 Geo. IV, c. 83). § 11) WHO CAN SELL. 39' enactments on the same subject in the United States. The sec- ond section provided that any person "intrusted with and in possession of any bill of lading, India warrant, dock warrant, warehouse keeper's certificate, wharfinger's certificate, warrant or order for the delivery of goods, shall be deemed and taken to be the true owner * * * of the goods * * * men- tioned in said several documents * * * so far as to give validity to any contract" made by him with any other person for the sale or disposition of the goods, or for the deposit or pledge thereof as security for advances made upon the faith of such several documents, or either of them; provided, such person had not notice that the person so intrusted was not the actual and bona fide owner of the goods. This made an im- |^ portant alteration in the law, by giving to the possessor of bills j of lading or other documents of title power of selling or pledg- I ing the goods beyond any which, either by the common law or | by any other section of the act, the possession of the goods 1 themselves conferred.'-^* It is to be observed that it was only \ persons who dealt with the person in possession upon the faith of the documents, in the belief that he was owner, who were protected. ^'° The fourth section provided that purchasers from any agent "intrusted with any goods, wares and merchandise," or to whom the same might be consigned, should be protected in their purchases, notwithstanding notice that the seller was agent, provided that the purchase and pa3rment were made in the usual course of business, and the buyer had not notice of the absence of authority of the agent. By St. 5 & 6 Vict. c. 39 (1842), the act was so amended as to give the same effect to the possession of the goods as to that of documents of title, and it was provided that any agent intrusted with the possession of either was to be deemed the true owner, so as to give validity to any bona fide contract by way of pledge, with the im- portant change that such contract should be binding upon the owner, notwithstanding that the pledgee had notice that the person with whom the agreement was made was only an agent. These acts applied solely to persons intrusted as factors or com- 18S Evans, Ag. 416. 189 Phillips v. Huth, 6 Mees. & W. 572; Hatfield v. PWIlips, 9 Mees. & W. 647. 40 FORMATION OF THE COXXKACT. (Cll. 1 mission merchants, and not to persons to whose employment authority to sell is not ordinarily incident; for example, a wharfinger.^*" They were limited in their scope to mercantile transactions, and did not embrace sales of furniture or of goods in possession of a tenant or bailee for hire.^"^ It might be supposed that the effect of these enactments would be such that, if the owner of goods intrusted their pos- session or the documents of title to a person who from the nature of his employment might be taken prima facie to have the right to sell, a pledge by such a person to one who was without notice of the absence of authority would bind the true owner. Nevertheless, under St. 5 & 6 Vict. c. 39, it was held that the agent must be actually intrusted at the time of the pledge, and that if the authority had been withdrawn, although the pledgee was ignorant thereof and acted in good faith, and the agent remained in possession, the pledgee was not protect- g^_i82 fQ constitute a person "an agent intrusted with the pos- session," he must have been intrusted in the character of such agent; that is, for the purpose of sale.^"^ The acts did not cover the case of a seller left in possession,^"* or of a buyer left in possession, ^"^ so as to defeat the rights of an unpaid seller. In 1877 by St. 40 & 41 Vict. c. 39, the law was amended by providing that a secret revocation of agency should not be op- erative, and the scope of the earlier acts was extended, so as to provide in effect that a seller left in possession of the docu- ments of title, or a buyer obtaining possession of such docu- ments without title, could make a valid sale or pledge to one taking without notice of the prior sale, or of the original 100 Monk V. Wliittenbury, 2 Barn. & Adol. 484; Wood v. Eowcliffe, 6 Hare, 1S3; Lamb t. Attenborougb, 1 Best & S. 831; Jaullery v. Britten, 4 Bing. N. C. 242: Hellings v. Kussell, .3". L. T. (N. S.) 380. i!)i Loeschman v. Macbin, 2 Starkie, 311; Cooper v. Willomatt, 1 C. B. 072. i»2 Fuentes v. Montis, L. E. 4 C. P'. 93. See, also, Sbeppard y. Union Bank, 7 Hurl. & N. 601. 10 3 Cole V. Xorthwestern Bank, L. R. 9 G. P. 470, affirmed L. R. 10 C. P. 354: Jobnson v. Credit Lyonnais Co., 2 C. P. Div. 224, af- firmed 3 C. P. Div. 32; Biggs v. Evans (1804) 1 Q. B. S8. loi Jobnson v. Credit Lyonnais Co., 2 C. P. Div. 224. 190 Jenkyns v. Usborne, 7 Man. & G. 678; McEwan v. Smith, 2 H. L. Cas. 309. § 11) WHO CAN SELL. 41 seller's rights, as the case might be. In 1889 was passed an act to amend and consolidate the factors' acts (St. 52 & 53 Vict. c. 45), which embodied the changes made by the act of 1877, and made valid sales and pledges by sellers and buyers in pos- session, as well of the goods, as of the documents of title. ^^^ It is to be observed that the latter changes, by extending the operation of the acts to sellers and buyers in possession, in- cludes a new class of persons, not embraced in the earlier acts ; the earlier acts being confined to factors. ^"^ Same — In the United States. Factors' acts have been passed in many states. '^°' Owing to their varying provisions, only that of New York, which has been followed in some other states, will be considered. This act was passed in 1830, and was, with some modifications, based on St. 6 Geo. IV, c. 94.^^* It provides in section 3 that "every factor or other agent, intrusted with the possession of any bill of lading, custom-house permit, or warehouse keeper's receipt for the delivery of any such merchandise,'^"'' and every such 196 Reproduced, with modification, in Sale of Goods Act, § 25. See Lee v. Butler (189.3), 2 Q. B. 318 (cf. Helby v. IMnttliews [1895] App. Gas. 471); Gahn v. Poekett's, etc., Co. (1809) 1 Q. P.. r,A■^. lOT Sale of Goods Act, § 25 (1), is followed by the proposed Ameri- can Sales Act, § 25. Post, p. 206. But section 25 (2) of the English Act, providing that the buyer in possession can transfer title, is omitted. 18 8 Kentucky, Act May 5, 1880, Laws 1880, p. 200, c. 1541. Maine Rev. St. c. 31. Maryland, Code Pub. Gen. Laws 1888, art. 2. Massa- chusetts, Rev. Laws 1902. c. 68 (construing the JIassachusetts act), Nickerson v. Darrow, 5 Allen (Mass.) 419; Stollenwerck v. Thaeher, 115 Mass. 224; Thaeher v. Moors, 134 Mass. 156; Goodwin v. Trust Co., 152 Mass. 189, 26 N. E. 100; Ptentice Co. v. Page, 164 JlasB. 276, 41 N. E. 279 ; Cairns v. Page, 165 Mass. 552, 43 N. E. 503. New York, Rev. St. (9th Ed.) p. 2006. Ohio. Rev. St. 1890, §§ 3214-3220. Pennsylvania, P. & L. Dig. pp. 2027-2029. Rhode Island, Gen. Laws 1896, c. 158. Wisconsin, St. 1898, §§ 3345, 3346. 19 3 See Stevens v. Wilson, 6 Hill (N. Y.) 512; Id., 3 Denio (N. Y.) 472; Allen v. Bank, 120 U. S. 20', 7 Sup. Ot. 400, 30 L. Ed. 573. 200 Referring to section 1: "EJvery person in whose name any mer- chandise shall be shipped"; 1. e., any merchandise shipped in the name of the factor or agent. Cartwright v. Wilmerding, 24 N. Y. 521, 527; Zachrisson v. Ahman, 2 Sandf. (N. Y.) 68; Bonito v. Mosquera, 2 Bosw. (N. Y.) 401; First Nat Bank v. Shaw, 61 N. Y. 283. 42 FomiATioN or the contract. (Ch. 1 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 contract 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 ad- vanced, or negotiable instrument or other obligation in writing, given by such other person upon the faith thereof." The words "upon the faith thereof" are to be referred to the words "shall be deemed to be the true owner thereof." In other words, the statute does qot afford protection to one who knows that he is not dealing with the true owner.^"^ "The object of the statute was to protect innocent persons who deal in reliance upon ap- parent ownership, resting upon possession either of the mer- chandise itself or documentary evidence of ownership.'' ^"^ The act thus differs materially from the later English acts, in which the protection extends to those dealing with the agent, notwithstanding knowledge that he is such, provided they are without notice that he is exceeding his authority.^"" The protection of the act is extended to persons dealing with (1) a factor or other agent intrusted with the bill of lading or other document, or (2) a factor or other agent who is intrusted with the possession of the merchandise "for the purpose of sale or as security for any advances to be made or obtained there- on." Under the first branch the agent must have the docu- mentary evidence of title in his name.^"* This must be a bill of 201 Stevens v. Wilson, 6 Hill (N. Y.) 512; Covell v. Hill, 6 N. Y. 374; Howland v. Woodruff, 60 N. Y. 73. Tliis construction was disapproved under a similar act in Wis- consin, Price V. Insurance Co., 43 Wis. 207. Cf. Allen v. Banlj, 120 TJ. S. 20, 7 Sup. Ct. 460, 30 L. Ed. .573. 202 Per Vann, J., in New York Security & Trust Co. v. Lipman, 1.:.7 X. Y. r,.-,l, 52 N. E. 595. 203 Navulshaw v. Brownrigg, 1 Sim. (N. S.) 573; Tickers v. Hertz, L. R. 2 H. L. Sc. 113. See Factors' Act 1SS9 (St. 52 & 03 Vict. c. 45) § 2. 204 First Nat. Bank v. Shaw, 61 N. Y. 2-83. Tt seems tliat the document must be intrusted "for the ptirpose of sale," etc. Cartwright v. Wilmerding, 24 N. Y. 521, 528. Cf. Price V. Insurance Co., 43 Wis. 267. § 11) WHO CAN SELL. 43 lading, custom-house permit, or warehouse keeper's receipt; ""* the act thus differing from the later English acts, which have included any document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize the possessor to transfer or receive goods thereby represented.^"" Under the second branch the in- trusting must be for the purpose of sale or obtaining advanc- es,^"' here again differing from the present English act.^"' The possession must be actual, and not merely constructive.^"' In either case, the possession must be "intrusted." The agent must be consciously and voluntarily intrusted, and the act has no ap- plication to a case where the documents or the goods are taken by trespass or theft, and thus the possession is from the begin- ning wrongful. ^'^" Sale under Void-able Title. "Where goods have been obtained by means amounting to larceny, the thief has no title, and can give none; * * * but, where goods have been obtained by fraud, the person 205 Soltau V. Gerdau, 119 N. T. 380, 23 N. E. 864, 16 Am. St. Rep. 843. Cf. Cartwriglit v. Wilmerding, 24 N. Y. 521. 206Vickers v. Hertz, L. R. 2 H. L. Sc. 113. See Factors' Act 1889 (St. 52-53 Vict. c. 45) § 1. 207 Moors V. Kidder, 106 N. Y. 32, 12 N. E. 818. 20 8 See Factors' Act 1889, § 2. One employed on a salary to go about and sell goods put into his manual possession is a person "intrusted with merchandise and having authority to sell or consign the same," within Pub. St. Mass. 1882, c. 71, § 3, protecting one who receives merchandise from such person, and advances money thereon in good faith, believing him to be the owner; the statute not being confined to mercantile agents. Cairns v. Page, 165 Mass. 552, 43 N. E. 503. Cf. Hastings v. Pearson (1S92) 1 Q. B. C2. 2 9 Bonito V. Mosquera, 2 Bosw. (N. Y.) 401; Howland v. Woodruff, 60 N. Y. 73. 210 Kinsey v. Leggett, 71 N. Y. 387; Soltau v. Gerdau, 119 N. Y. 380, 23 N. E. 864, 16 Am. St. Rep. 843; Sage v. Lumber Co., 4 App. Div. 290, 39 N. Y. Supp. 449, affirmed 158 N. Y. 672, 52 N. E. 112G. See, also. First Nat. Bank v. Shaw, 61 N. Y. 283; Collins v. Ralli, 20 Hun (N. Y.) 246, affirmed 85 N. Y. 637. See, also. Commer- cial Banl;: y. Hurt,' 99 Ala. 130, 12 South. .568, 19 L. R. A. 701, 42 Am. St. Rep. 38; Commercial Bank v. Lee, 99 Ala. 493, 12 South. 572, 19 L. R. A. 705. 44 FORMATION OF THE CONTRACT. (Ch. 1 who SO obtains them may have no title at all, or a voidable title, according to the nature of the transaction. If the nature of the fraud be such that there was never a contract between the parties, as, for instance, if A. obtains goods from B. by falsely pretending to be X., then the person who so obtains the goods has no title at all and can give none.^^^ But if the person defrauded really intended to part with the property in, and possession of, the goods, though induced to do so by fraud, there is a contract which he may affirm or disaffirm at his elec- tion." ^'■^ Hence the person who obtains the goods has a void- able title, and can give a good title to an innocent purchaser before the other party has disafifirmed.^^^ And the same rule prevails where the sale is voidable in favor of creditors.^^* SUBJECT-MATTER OF SALE. 11%. EXISTENCE AND OW^NERSHIP. The goods which foiin the subject-matter of a sale must be in existence and oinrned by the seller. 12. SALE OF FUTURE GOODS. W^here the parties purport to effect a present sale of future goods — that is, of goods to be manufactured or acquired by the seller after the making of the contract of sale— the agree- ment operates only as a, contract to sell the goods. EXCEPTIONS— (a) According to the rule generally prevail- ing in this country a contract to sell goods which have a potential existence — that is, which are the expected product or increase of something onmed by the seller — operates to pass the property in the goods upon their coming into existence, (b) A contract to sell goods not yet acquired by the seller operates, according to some authorities, to give the 211 Higgons V. Burton, 26 Law J. Exch. 8i2; Hardman v. Booth, 32 Law J. Exch. 105; Cundy v. Lindsay, 3 App. Cas. 459; post, p. 196. 212 Chalm. Sale of Goods Act (6th Ed.) 61. See Clough v. London & N. W. Ry. Co. L. R. 7 Exch. 20; post, p. 183. = 13 White V. (harden, 10' C. B. 910, 20 Law J. C. P. 166; Kingsford V. Merry. 25 Law J. Exch. 166; Zoeller v._ Riley, 100 N. Y. 102, 2 N. E. 3SS, 53 Am. Rep. 157; post, p. 193. See Sales Act, § 24; Sale of §§ lli-13) SUBJECT-MATTER OF SALE. 49 and will not prevail against a purchaser for value without notice.^^^ For the same reasons it is generally assumed that in equity a contract for the sale of personal property afterwards to be acquired, if sufficiently identified, operates to give to the buyer an equitable lien or interest in it as soon as it is ac- quired."" The cases cited generally relate to chattel mort- gages, and their applicability to contracts of sale is doubtful.^^* Wagering Contract — Sale of Chance. It was once held that a contract for the sale of goods to be delivered at a future day, when the seller had not the goods, but intended to go into the market and buy them, was a mere wager on the price of the commodity, and was hence invalid.^*" But this doctrine has been exploded.^ *^ "The goods which 458, Fed. Cas. No. 1,844; Barnard v. Railroad Co., 4 Cliff. (XJ. S.) 351, Fed. Cas. No. 1,007; McCaffrey v. Woodin, 65 N. Y. 459, 22 Am. Rep. 644; Benjamin v. Railroad Co., 49 Barb. (N. Y.) 441; Phila- delphia, W. & B. R. Co. V. Woelpper, 64 Pa. 366, 3 Am. Rep. 596; Smithurst v. Edmunds, 14 N. J. Eq. 408; Williams v. Winsor, 12 R. I. 9; Apperson v. Moore, 30 Ark. 56, 21 Am. Rep. 170; Sillers v. Lester, 48 Miss. 513; Ludlum v. Rothschild, 41 Minn. 218, 43 N. W. 137 ; Central Trust Co. v. Improvement Co., 169 N. T. 314, 62 N. E. 387. In Massachusetts the rule appears to be the same in equity as at law. Moody v. Wright, 13 Mete. (Mass.) 17, 30, 46 Am. Dec. 706; Blanchard v. Cooke, 144 Mass. 225, 11 N. B. 83; Tatman v. Hum- phrey, 184 Mass. 301, 68 N. B. 844, 63 L. R. A. 738, 100 Am. St. Rep. 562. So, also. In Wisconsin, Hunter v. Bosworth, 43 Wis. 583; Merchants' & Mechanics' Sav. Bank v. Holdredge, 84 Wis. 601, 55 N. W. 108. Cf. Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577; Humphrey v. Tatman, 198 V. S. 91, 25 Sup. Ct. 567, 49 L. Ed. 956. See "Transfers of After-Acquired Property," by Samuel Williston, 19 Harv. Law Rep. 557; Williston, Cas. Sales, p. 23, note 1. 237 Joseph V. Lyons, 15 Q. B. Div. 280, 54 Law J. Q. B. 3; Hallag V. Robinson, 15 Q. B. Div. 288; Morrill v. Noyes, 56 Me. 458, 466, 96 Am. Dec. 486. 238 Benj. Sales, § 81. See Scammon v. Bowers, 1 Hask. (U. S.) 496, Fed. Cas. No. 12,431; Hamilton v. Bank, 3 Dill. (V. S.) 2.30, Fed. Cas. No. 5,987; Post v. Corbin, 5 Nat. Bankr. Rep. (U. S.) 11, Fed. Cas. No. 11,299. 230 19 Harv. Law Rep. 584-585. 2*0 Brj'an v. Lewis, Ryan & M. 386. **i Hibblewhite v. McMorine, 5 Mees. & W. 462; Mortimer v. Mc- Callan, 6 Mees. & W. 58; Ajello v. Worsley (1898) 1 Ch. 274; Apple- man V. Fisher, 34 Md. 551 ; Stanton v. Small, 3 Sandf. (N. T.) 230 ; TiFr.SALEs(2D Ed.) — 4 50 FORMATION OF THE CONTRACT. (Cb. 1 form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manu- factured or acquired by the seller after the making of the con- tract to sell." ^*^ Nor is a contract to sell goods invalid be- cause the acquisition of the goods by the seller depends upon a contingency which may or may not happen, ^''^ as in the case of goods to arrive by a certain ship.'** It is only in this sense that there can be the sale of a chance, known to the civil law as "venditio spei." '*" Thus it has been held that a sale of fish to be caught had no effect to pass the property in the fish when caught,^^* but there seems no reason why a contract by a fish- erman to sell all the fish he might catch on a particular voyage should not be good as an executory agreement. MUTTIAI. ASSENT AND FORM OF CONTRACT. 14. The transfer of the property is effected by the mutual as- sent of the parties to the contract of sale. 15. At common laxr a contract of sale may be made in vtrrit- ing (either Tirith or Tirithoat seal), or by Ttrord of month, or partly in Txrriting and partly by ■word of month, or may be inferred from the conduct of the parties.^^^ Clarke v. Foss, 7 Biss. (U. S.) 541, Fed. Gas. No. 2,852 ; Wamsley v. H. L. Horton & Co., 77 Hun (N. T.) 317, 28 N. T. Supp. 423 ; Fletchei- V. Packing Co., 41 App. Div. 30, 58 N. Y. Supp. 612; Forsyth Mfg. Co. V. Castlen, 112 Ga. 199, 37 S. E. 485, 81 Am. St. Rep. 28; North- ington-Munger-Pratt Co. v. Warehouse Co., 119 Ga. S51, 47 S. E. 200, 100 Am. St. Eep. 210; post, p. 218. 242 Sales Act, § 5 (1). 243 Taft V. Church, 162 Mass. 527, 39 N. E. 283. See Sales Act, § 5 (2). 2-44 Hale V. Rawson, 27 Law J. O. P. 189; Whitehead v. Root, 2 Mete. (Ivy.) 584; post, p. 235. 24 8Poth. Cont. de Vente, No. 61. See Buddie v. Green. 27 Law J. Elxch. 33, 34, per Martin, B.; Hitchcock v. Giddings, 4 Price, 1.3.:), 140, per Richards, C. B.; Hanks v. Palling, 6 El. & Bl. 659, 669, 25 Law J. Q. B. 375, per Lord Campbell, C. J. Cf. Losecco v. Gregory, 106 La. 648, 32 South. 985. 246 Low V. Pew, 108 Mass. 347, 11 Am. Rep. 357. 2 47 Sales Act, § 3. §§ 14-15) MUTUAL ASSENT AND FORM OF COKTRACT. 51 Mutual Assent. If there be parties capable of contracting, and a thing in ex- istence and owned by one of them, the property in the thing may be transferred whenever the parties mutually assent to the transfer. Neither delivery of the thing nor payment of the price is necessary to perfect the transfer.^*' The parties may make whatever bargain they please. They may agree that the trans- fer shall take effect at once, or they may agree that it shall not take effect until after delivery or payment, or the happening of some other condition; and if they express their intentions clearly, the law will give effect to them. The contract of sale, like other contracts, is founded on mu- tual assent. The principles of law which govern the formation of the contract are the same as those which govern the forma- tion of contracts generally, and little need be said in regard to them. Thus an offer to buy or to sell, in order to ripen into a binding agreement, must be accepted, and the acceptance must be unconditional;^*^ and until acceptance, but not after, the offer may be withdrawn.^ ^° 248 Benj. Sales, § 3; post, p. 121. 249 Hutchison v. Bowker, 5 Mees. & W. 535; Hyde v. Wrench, 3 Beav. 334; Jordan v. Norton, 4 Mees. & W. 155; Pelthouse v. Bind- ley, 11 C. B. (N. S.) 869, 31 Law J. C. P. 204; Minneapolis & St D. Fty. Co. V. Mill Co., 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376; Carr V. Duvall, 14 Pet. (U. S.) 77, 10 L. Ed. 361; Myers v. Smith, 48 Barb. (N. Y.) 614; Potts V. Whitehead, 23 N. J. Eq. 512; Hutcheson y. Blakeman, 3 Mete. (Ky.) 80; Smith v. Go^-dy, 8 Allen (Mass.) 566; Eggleston v. Wagner, 46 Mich. 610, 10 N. W. 37; Maclay r. Harvey, 90 111. 525, 32 Am. Rep. 35; Robinson v. Weller, 81 Ga. 704, 8 S. E. 447; llaynard v. Tahor, 53 Me. 511; Mcintosh v. Brill, 20 V. C. C. P. 426. See Clark, Cont. (2.d Ed.) 21-31. 2 50 Cooke V. Oxley, 3 Term R. 653; Routledge v. Grant, 4 Bing. 653; Paine v. Cave, 3 Term R. 148; Head v. Diggon, 3 Man. & R. 97; Smith v. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 145; Dick- inson v. Dodds, 2 Ch. Div. 463; Byrne v. Van Tienhoven, 5 C. P. Div. 344; Stevenson v. ^McLean, 5 Q. B. Div. 346; Craig v. Harper, 3 Cush. (Mass.) 158; Boston & M. B. Co. v. Bartlett, Id. 224; Fisher V. Seltzer, 23 Pa. 308, 62 Am. Dec. 335; .Tohnston v. Fessler, 7 Watts (Pa.) 48, 32 Am. Dec. 738; Grotenkemper v. Achtermeyer, 11 Bush (Ky.) 222; Tucker v. Woods, 12 Johns (N. Y.) 190, 7 Am. Dec. 305; Faulkner v. Hebard, 26 Vt. 452; Falls v. Gaither, 9 Port. (Ala.) 605; Eskridge v. Glover, 5 Stew. & P. (Ala.) 264, 26 Am. Dec. 344; Larmon v. Jordan, 56 III. 204; Johnson v. Filkington, 39 Wiis. 02; 52 FORMATION OF THE CONTRACT. (Ch. 1 Mistake Affecting Mutual Assent. From the principle that contracts can be effected only by mutual assent, it follows that where, through some mistake of fact, each was assenting to a different contract, there is no valid agreement, notwithstanding the apparent mutual assent.''^ Same — Mistake as to Parties. Such a mistake may arise as to the identity of the person with whom the contract is made. Where A. intends to contract with B., and addresses an offer to him, C. cannot substitute himself as a party by accepting the offer ; and in such case, if A. thinks the acceptance is by B., there is no contract. For ex- ample, if a buyer sends an order for goods to a firm, and the Order is filled by a different firm, which has succeeded the firm to which the order was sent, and the buyer supposes it to have been filled by the firm to whom he gave the order, there is no contract.^ ^^ In such a case the seller could recover the goods from the supposed buyer, if he refused to pay for them, provid- ed they were unconsumed, but he could not recover the price. So, if a person obtains goods from another by falsely represent- ing that he is the agent of a third person, to whom the owner supposes he is selling, there is no sale.^"* Clark, Cont. (2d. Ed.) 31. As to contracts by letter, see Benj. Sales, I 44 et seq; Pol. Cont. (4th Ed.) 31 et seq; Clark, Cont. (2d Ed.) 25; Langd. Cas. Cont. 993; "Contract by Letter," by Prof. Langdell, 7 Am. Law Rev. 432. 261 Benj. Sales, § 50; Utley v. Donaldson, 94 U. S. 29, 47, 24 L. Ed. 54. See Clark, Ck)nt. (2d Ed.) 206. 2 62 Boulton V. Jones, 2 Hurl. & N. 564, 27 Law J. Exch. 117. And see Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Randolph Iron Co. V. Elliott, 34 N. J. Law, 184; Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 367; Consumers' Ice Co. v. Webster, Son & Co., 32 App. Div. 502, 53 N. T. Supp. 56 ; Barcus v. Dorries, 71 N. Y. Supp. ea."! ; Clark, Cont. (2d Ed.) 199. Where goods were ordered by Arthur B. Alexander in the name of "A. Alexander," and the seller shipped them to "A. Alexander," supposing they were ordered by Alfred Alexander, who was a man of means, where.as Arthur was notorious- ly insolvent, no title passed to the latter. Newberry v. Norfolk & S. R. Co.. 1.33 N. C. 4.5, 45 S. E. 356. Cf. Preston v. Foellinger (O. C.> 24 Fed. 680. As to fraudulent Impersonation, post, p. 196. 888 Hi.sgins V. Burton, 26 L. J. Ex. 342 ; Hardman v. Booth, 1 Hurl. & C. 803; Moody v. Blake, 117 Mass. 23, 19 Am. Rep. 394; Edmunds V. Merchants' Dispatch Transportation Co., 135 Mass. 283; McCrllUs §§ 14-15) MUTUAL ASSENT AND FORM OF CONTRACT. 53 Same — Mistake as to Thing Sold. Mistake may arise as to the identity or existence of the tiling sold. When a person has entered into a contract, the nature of which he understands, he will not generally he heard to say that his meaning was not expressed in his words, and that he intended to contract for something different from that which his words naturally indicate. ^^* But an agreement may be void for mistake when two things have the same names, and the parties, owing to the identity of names, mean different things ; ^^° for example, where the buyer agreed to buy a cargo "to arrive ex Peerless from Bombay," and there were two ships of that name, and the buyer meant one, and the seller the other. ^"^ Or the seller, having goods of two sorts, may under- take to sell goods of one sort which he mistakenly supposes are contained in a particular package ; and if, under this common mistake, the parties agree to buy and sell the goods in that pack- age, there is no contract. ^^^ Or the mistake may arise by the fault of a broker who makes the sale, and describes a different article to each party."" ^ As we have seen, if, unknown to the seller, the subject of sale is not in existence there is no contract.""" V. Allen, 57 Vt. 505; Barker v. Dinsmore, 72 Pa. 427, 13 Am. Rep. 697; Hentz v. Miller, 94 N. Y. 67; Hamet v. Letcher, 37 Ohio St. srjii, 41 Am. Rep. 519; Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367. Where the plaintiffs consigned wool to a broker to whom they would not sell, on. the understanding that it was sold to an undisclosed principal in good credit with the plain- tiffs, there was no sale to the broker, and he had no power to con- vey a good title to a bona fide purchaser. RodlifC v. Dallinger, 141 Mass. 1, 4 N. B. 805, 55 Am. Rep. 439; post, p. 19S. 264BenJ. Sales, § 417; Clark, Cont. (2d Ed.) 196, 200. 265 Raffles V. Wichelhaus, 2 Hm-1. & C. 906, 33 Law J. Exch. 160; Kyle V. Kavanagh, 103 Mass. 356, 4 Am. Rep. 560. 266 Raffles V. "Wichelhaus, cited in preceding note. 2 67 Harvey v. Harris, 112 Mass. 32. See, also, Sheldon t. Oapron, 3 R. I. 171 ; post, p. 58. 26 8 Thornton v. Kempster, 5 Taunt 786. 269 Ante, p. 45. Mistake as to the situation of the goods may avoid the contract. Ketehum v. Catlin, 21 Vt. 191. 54 FORMATION OF THE CONTRACT. (Ch. 1 Sanne — Mistake as to Price. If the parties are not agreed as to the price, there is, of course, no contract. Consequently, if the seller states the price, and the buyer understands him to name a different price, and accepts the offer upon such misunderstanding, there is no contract.^*" So, where the price named by the seller for shingles was $3.25, which the seller meant to be the price per bunch, and the buyer understood to be the price per thousand, there was no agreement. ^"^ A mistake in fixing the terms, not induced by the conduct of the other party, has, as a rule, no effect upon the contract. ^"^ But if the mistake is known to the other, or if he has reason to know it, the contract is void- able.^"^ Same — Mistake must Go to the Root of the Contract. Mistake, however, to have the effect of invalidating the con- tract, must go to the root of the contract, and must be such as to negative the idea that the parties were ever ad idem; ^'* for, if the buyer purchases the very article at the very price and on the very terms intended by him and by the seller, the sale is completed by mutual assent, even if it may be liable to be avoided for fraud, illegality, or some other cause,"*° or even though the buyer or the seller may be totally mistaken in the motive which induces the assent,^"" or even though the thing 260 Phillips V. Bistolli, 2 Bam. & C. 511; Rupley v. Daggett, 74 III. 351; Rovegno v. Defferarl, 40 Gal. 459; Hogue v. Mackey, 44 Kan. 277, 24 Puc. 477 (terms of payment). And see Peerless Glass Co. V. Tinware Co., 121 Cal. 641, 54 Pac. 101. 261 Greene v. Bateman, 2 ^Yoodb. & M. (U. S.) 359, Fed. Cas. No. 5,7(:2. See, also, Siiiser v. Match Co., 117 Ga. 86, 43 S. E. "."^o. 202 Griffin v. O'Xeil, 48 Kan. 117, 20 Pac. 143; Clark, Cent. (2d Eil.) 205. 263 Where the seller, intending to offer cattle for $261.50, by a lap- sus linguse offered them for $161.50, and the buyer, having ,cood rea- son to suppose tliat the offer was a mistake, accepted it, and paid $20 on account, and the seller tendered back the $20 and repudiated the sale, the buyer was not entitled to maintain replevin. Harran V. Foley, G2 Wis. 584, 22 N. W. 837. See, also, Evevson v. Granite Co., 65 Vt. 658, 27 Atl. 320. Cf. Mummenford v. Randall, 19 Ind- App. 44, 49 N. B. 40; post, p. 55. 264 Pol. Cont. (4th Ed.) 411. 26 5 Post, cc. 5, 6. 260 Benj. Sales, § 54. Jlistaken belief that thing would answer a §§ 14-15) JIUTUAL ABSENT AND FORM OF CONTRACT. 55 sold failed to possess, or possessed, qualities which the parties believed, or did not believe, it to possess.- ^^ Thus, where a woman sold an uncut stone to a jeweler for $1, both being ignorant of the character of the stone and of its intrinsic value, and it turned out to be a diamond worth $700, it was held that there was no such mistake as would avoid the contract.^" The parties may, indeed, make the possession of some quality a condition of the contract, as if they should contract for the sale of "this uncut diamond," in which case, if the contract were construed as making it a condition that the stone should be a diamond and it was in fact not such, there would be no con- tract, because the subject-matter of the contract was not in ex- istence. ''°° Alistake as Nature of Promise Known to the Other Party. Although a mistake on the part of one party in respect to the nature or qualities of the subject-matter of the sale, not induced by the conduct of the other party, has, as a rule, no effect upon the contract, the law will not allow one party to accept a prom- certain purpose: Chanter v. Hopkins, 4 Mees. & W. 399; Ollivant v. Bayley, 5 Q. B. 288; Prideaux v. Bunnett, 1 C. B. (N. S.) 613. Mis- take as to condition of horse: Wheat v. Cross, 31 Md. 99, 1 Am. Rep. 28. Mistake as to solvency of maker of note bought through broker: Hecht V. Batcheller, 147 Mass. 335, 17 N. E. 651, 9 Am. St. Rep. 708; Taylor v. Fleet, 4 Barb. (N. Y.) 95. See, also. Sample v. Bridgforth, 72 Miss. 293, 16 South. 876. The fact that the buyer by mistake ordered a larger quantity than he desired is immaterial. J. A. Coates & Sons v. Buck, 93 Wis. 128, 67 N. W. 23; Alfred Shrimpton & Son v. Brice, 102 Ala. 655, 15 South. 452; J. A. Coates & Sons v. Early, 46 S. 0. 220, 24 S. B. 305. 267 Taylor v. Ford, 131 Cal. 440, 63 Pac. 770. 268 Wood V. Boynton, 64 Wis. 265, 25 N. W. 42, 54 Am. Rep. 610. It is difficult to reconcile with the current of authority the case of Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 Am. St. Rep. 531. Here the subject of sale was' a blooded cow, believed by the parties to be barren, and for this reason a bargain was made to sell her at a price per pound equivalent to about .?80, but before delivery it was discovered that she was with calf, and hence worth $750 to $1,- 000, and it was held that the seller could rescind on the ground that the' mistake affected the substance of the whole consideration. 2 6 Clark, Cont. (2d Ed.) 203; Pol. Cont. (3d Ed.) 450. See Irwin v. Wilson, 45 Ohio St. 426, 15 N. B. 209; Watson v. Brown, 113 Iowa, 308, 85 N. W. 28. Cf. Hood v. Todd, 22 Ky. Law Rep. 837, 58 S. W. 56 FORMATION OF THE CONTKACT. (Cll. 1 ise which he knows that the other party understands in a differ- ent sense from that in which he understands it."" And, if the mistake of the one party as to the nature of the promise is known to the other, he is not entitled to insist that the promise shall be fulfilled in a sense to which the mind of the promisor did not assent.^'^ Thus, where the defendant was .sued for the price of some oats, which he refused to accept on the ground that he had agreed and intended to buy old oats, and that those supplied were new, the jury were told that, if the plaintiff be- lieved the defendant to believe that he was buying old oats, then he could not recover. The court of review, however, held that this was not enough to avoid the sale, but that in order to do so the plaintiff must have believed the defendant to believe that he, the plaintiff, was contracting to sell old oats.*" Form of Contract. Aside from the provisions of the statute of frauds, which will be considered later, no writing or other formality is necessary to effect a sale or contract to sell. If the contract is in writing, the ordinary rules of evidence apply. If the assent of the par- ties is not clearly expressed, it may be implied from their lan- guage^'' or conduct,^'* as if a customer takes goods from a 270 Anson, Cont. (8tti Ed.) 138. 271 Smith V. Hughes, L. R. 6 Q. B. 597; Gill v. McDowell (1903) 2 J. Rep. 4(>J; Clark, Oont (2d Ed.) 2ao. 272 Smith V. Hughes, supra. 273 A "grumbling" assent. Joyce v. Swann, 17 C. B. (N. S.) 84, 101. 274 Stoadenmire v. Harper, 81 Ala. 242, 1 South. 857; Kinney v. Railroad Co., 82 Ala. 368, 3 South. 113; W. W. Kendall Boot & S. Co. V. Bain, 4() Mo. App. 581; Bicking v. Stevens, 69 Mo. App. 108; In re Cope's Estate. 191 Pa. .">S9, 43 Atl. 473; Excelsior Coal Min, Co. v. Coal Co., 23 Ivy. Law Rep. 18.34. 06 S. W. 373. Shipment and delivery of goods is an acceptance of an offer to buy. Ober v. Smith, 78 N. C. 313; Whitman Agricultural Co. v. Strand, 8 Wash. 647, 30 Pac. CS2: Aultnian, Miller & Co. v. Nilson, 112 Iowa, 6.34, 84 N. W. 692; Burwell & Dunn Co. v. Cb.ipman, 50 S. C. 581, 38 S. B. 222; National Cash Register Co. v. Debn, 139 Mich. 4<>6, 102 N. W. 965. Using goods sent without order, with knowledge that the sender ex- pects payment, constitutes an implied sale. Wellauer v. Fellows. 48 Wis. 105, 4 N. W. 114; Indiana Mfg. Co. v. Hayes, 155 Pa. 160, 20 Atl. 6; Louis Cook Mfg. Co. v. Randall, 62 Iowa, 244, 17 N. W. 507; Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 307; Doerr v. Wool- §§ 14-15) MUTUAL ASSENT AND FOEM OF CONTRACT. 57 counter, and nothing is said as to price, a contract to pay their reasonable value is inferred."" In the same way, where there is an express contract, and goods are sent which are not in ac- cordance with it, but which nevertheless the buyer keeps, a contract to pay for them is implied. This doctrine is most fre- quently applied where the contract is for a certain quantity of goods, only a part of which are delivered.^" Sale by Suit. There is one case where a sale takes place by implication of law rather than by the mutual assent of the parties, either ex- press or implied. Where in an action for trespass to goods, or the detention or wrongful conversion thereof, the plaintiff recovers the value of the goods, as damages, and the defend- ant satisfies the judgment, the transaction operates as a sale of sey, 7 N. Y. Supp. 662, 15 Daly, 284; Indiana Mfg. Co. v. Hayes, 155 Pa. 160, 28 Atl. 6; Thompson v. Douglas, 35 W. Va. 337, 13 S. E. 1015. But no sale can be implied from acts of ownership by one ignorant that he is using goods of one who seeks to charge him as buyer. Schutz V. Jordan, 141 U. S. 213, 11 Sup. Ct. 906, 35 L. Ed. 705; Grant V. Cole, 8 Ala. 519; Deysher v. Friebel, 64 Pa. 383. A person cannot, by sending goods to another, gain the right to treat him as buyer because he fails to notify the sender that he will not buy, unless the relation of the parties or other circumstances im- pose a duty to speak. Hobbs v. Whip Co., 158 Mass. 194, 33 N. E. 495. But see Thompson v. Douglas, 35 W. Va. 337, 13 S. E. 1015. 276 Bl. Comm. bk. 2, c. 30; Hoadly v. McLaine, 10 Bing. 482, 487, per Tindal, C. J.; Thompson v. Douglas, 35 W. Va. 337, 13 S. B. 1015. Where goods ordered of one person are supplied by another, by the acceptance and use of the goods, with notice that they have been so supplied, a contract of sale is implied. Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 367. 276 Oxendale t. Wetherell, 9 Barn. & C. 386; Colonial Ins. Co. of New Zealand v. Insurance Co.. 12 App. Cas. 128, 138; Richardson v. Dunn, 2 Q. B. 218; Hart v. Mills, 15 Mees. & W. 85; Bowker v. Hoyt, 18 Pick. (Mass.) 555; Sentell v. Mitchell, 28 Ga. 196; Richards v. Shaw, 67 111. 222; Flanders v. Putney, 58 N. H. 358; Booth v. Tyson, 15 Vt. 515, 518. Oxendale v. Wetherell, supra, has sometiroes been disapproved. Champlin v. Rowley, 13 Wend. (N. T.) 258; Id., 18 Wend. 187 ; Kein v. Tupper, 52 N. Y. 555 ; Witherow v. Witherow, 16 Ohio, 238. See post, p. 283. 58 FORMATION OF THE CONTRACT. (Ch. 1 the goods by the plaintiff to the defendant.^'' An unsatisfied judgment does not pass the property.^'* Whether the Contract be of Sale a Question of Intention. Whether a contract be a contract of sale, or some other kind of a contract, is a question of substance, not of form, and de- pends on the intention of the parties. Thus, as has been seen, it is a question of the real meaning of the parties, whether a contract is to be construed as a contract of sale or of bail- ment; -'^ and the law will look to the substance of the trans- action, and not to the name by which the parties designate it.^^" And if the mutual intention to buy and sell be wanting there is no sale.-*^ Thus the sale of an article containing a hidden treasure is no sale of the treasure ;^*^ and if, by mis- 2" jenk. 4 Cent 88 : Cooper v. Shepherd, 3 C. B. 2(10, ir, Law J. C. P. 237. On principle, the recovery would only have this effect where the value of the thing converted is included in the judgment. Benj. Sales, § 49. 2'8 Brinsmead v. Harrison, L. R, 6 C. P. 584, affirmed in L. R. 7 C. P. .547; Ex parte Drake, 5 Ch. Div. 860; Hepburn v. Sewcll. 5 Har. & .7. (Md.) 211, 9 Am. Dec. .jl2; Lovejoy v. Murray, 3 Wall. (tJ. S.) 1, 16, IS L. Ed. 129; Osterhout v. Roberts, 8 Cow. (N. Y.) 43; Marsden v. Cornell, 62 N. Y. 21.5; Brady v. Whitney, 24 Mich. 1-54; Jiiller V. Hyde, 161 Mass. 472, 37 N. B. 760, 25 L. R. A. 42. 42 Am. St. Rep. 424. Contra: Floyd v. Browne, 1 Rawle (Pa.) 121, 18 Am. Dec. 602: Marsh v. Pier, 4 Rawle (Pa.) 273, 20 Am. Dec. 131; In re Merrick's Estate, 5 Watts & S. (Pa.) 17. 2'i> Ante, p. 10. 280 Sale or lease. Hervey v. Locomotive Works, 93 U. S. 604, 23 L. Ed. 10O3. 2S1 Concord Coal Co. v. Ferrin, 71 N. H. 331, 51 Atl. 2S3, 93 Am. St. Rep. 496. Defendnnts' general agent, after being instructed not to add to de- fendants' stock by purchasing more goods, agreed with plaintiffs, who had knowledge of such instructions, to purchase a quantity of goods from them for defendants, and surreptitiously put them among the stock and sell them, and procure payment from defendants, as he might be able to do, without their knowledge. The goods were so furnished and sold, the proceeds going to defendants. Held, that plaintiffs could not sue for goods sold and delivered, as there was no valid sale. Schutz v. Jordan, 141 U. S. 213, 11 Sup. Ct. 906, 35 L. Ed. 705. 282 jierry v. Green, 7 Mees. & W. 623; Huthmacher v. Harris' Adm'rs, 38 Pa. 491, 80 Am. Dec. 502; Durfee v. Jones, 11 R. I. 58S 23 Am. Rep. 52S: Bowen v. Sullivan, 02 Ind. 2S1, 30 Am. Rep. 172, §§ 16-17) THE PEICE. 59 take, other goods than those agreed upon be delivered, the property in the goods is not transferred.""' THE PRICE. 16. ASCERTAINMENT. The price may lie fixed by the con- tract, or may be left to be fixed in such, manner as may be agreed, or may be determined by the conrse of deal- ing betn-een the parties. 17. REASONABLE PRICE. ■Where the price is not so deter- mined, the bnyer mnst pay a reasonable price. What is a reasonable price is a question of fact, dependent on the circnmstances of each particular case.^^i As has been stated, the consideration for a sale must be a price in money, paid or promised.^'" Where the price has been expressly agreed on, no question can arise. There can be no sale if the parties have not agreed, expressly or by implication, upon the price or upon the manner in which it is to be deter- mined.^*^ But the price need not be specified, if it can be ascertained in accordance with the contract."'^ "Id certum est quod certum reddi potest." ^^^ For example, Ray V. Light, 34 Ark. 421. C(. Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779. Ante, p. 53. 2S3 Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779. 284 Sales Act, § 9 (1), (4). 28 6 Ante, p. 12. The discharge of an existing indebtedness of the seller to the buyer is sufficient. Patton v. Gardiner, 72 Vt. 47, 47 Atl. 110; Hendrie & Bolthoff Mfg. Co. V. Collins, 29 Colo. 102, 67 Pac. 164; Lewter v. Lindley (Tex. Oiv. App.) 81 S. W. 776. Or the payment or a promise to pay a debt of the seller. Meade v. Smith, 16 Conn. 346; Bell v. Greenwood, 21 Ark. 249; Hackley v. Cooksey, 35 Mo. 39S. 286 Bigley v. Risher, 63 Pa. 152; Foster v. Mining Co., 68 Mich. 188, 36 N. W. 171; Borland v. Bank, 99 Cal. 89, 33 Pac. 737, 37 Am. St Rep. 32; Reynolds v. Miller, 79 Hun (N. Y.) 113, 29 N. Y. Supp. 405; Greer v. Bank, 128 Mo. 559, 30 S. W. 319; Still v. Cannon, 13 Okl. 491, 75 Pac. 284. 287 Valpy V. Gibson, 4 C. B. 837, at page 864, per Wilde, C. J. ; Joyce Y. Swann, 17 C. B. (N. S.) 84, 100; Holbrook v. Setchel, 114 Mass. 435; Phifer v. Erwin, 100 N. 0. 59, 6 S. B. 672; Clement v. Drybread, 108 Iowa, 701, 78 N. W. 235. 288 Brown v. Bellows, 4 Pick. (Mass.) 179, 189. 60 FORMATION OF THE CONTRACT. (Ch. 1 the price may be left to be fixed by the market price of the com- modity,''" or by the price another article shall fetch at auc- tion,^°" or by the price the thing sold may afterwards fetch, ^"^ or by future arrangement,^"^ or by the valuation of a third person.^"' Where there is a contract to sell at a price to be fixed by a third person, and such third person cannot or does not fix the price, the contract is avoided, -°* even if the failure to fix the price is caused by one of the parties ; but, if the goods have been delivered and appropriated by the buyer, he is liable for their reasonable value.'"" But as the assent to the 2 89 Price 10 cents less than Milwaukee price on any day seller miRht name. _JIcConnell_y. Hnglies, 29 Wis. 537. Thirty-five cents less than St. Louis market price on day of delivery. Shaw v. Smith, io Kan. 334, 25 Pac. 886, 11 L. R. A. G81. Market price when buyer should demand payment. McBride v. Silverthorne, 11 U. C. Q. B. 545 ; Phifer v. Envin, 100 N. C. 59, 6 S. E. 672. And see Lund v. Mc- Cutchen, S3 Iowa, 755, 49 N. W. 998 ; Beardsley v. Smith, 61 111. App. 340; Daniel v. Hannah, 106 Ga. 91, 31 S. E. 734. Price to be regulat- ed by the price of gold. Ames v. Quimby, 96 U. S. 324, 24 L. Ed. 635. Cf. Acebal v. Levy, 10 Bing. 376, 382. 280 Cunningham v. Brown, 44 Wis. 72. 281 Phifer v. Erwin, 100 N. C. 59, 6 S. B. 672. And see Hagins v. Combs, 302 Ky. 165, 43 S. W. 222. 282 Where the sale is for a reasonable price, to be afterwards agreed upon, the title passes, if such Is the mutual intention, though no price is afterwardsi agreed upon. Greene v. Lewis, 85 Ala. 221, 4 South. 740, 7 Am. St. Rep. 42. Of. Witteowsky v. Wasson, 71 N. C. 451. Where there is actual delivery, but no agreement as to the price or means of making it certain, the title does not pass ; but, if the buyer consume the goods, he must pay a reasonable price. Alber- marle Lumber Co. v. Wilcox, 105 N. C. 34, 10 S. B. 871. 283 Brown v. Bellows, 4 Pick. (Mass.) 170, 189; Willingham v. Veal, 74 Ga. 7.55; Leonard v. Cox, 64 Mo. 32; New England Trust Co. V. Abbott. 1G2 Mass. 148, 38 N. E. 432, 27 L. R. A. 271. 284Thurnell v. Balbimie, 2 Mees. & W. 786; Cooper v. Shuttle- worth, 25 Law J. Exch. 114; Tickers v. Vickers, L. R, 4 Bq. 529; Milnes v. Gery, 14 Ves. 400; Wilks v. Davis, 3 Mer. 507; Fuller v. Bean, 30 N. H. 181 ; Elberton Hardware Co. v. Hawes, 122 Ga. S-'S, 50 S. E. 9f;4. See, also, Hutton v. Monre, 26 Ark. 3S2; Preston v. Smith, 07 HI. App. 613; Don.1. Sales, § 87. 285 Clarke v. Westrope, 2."; Law .7. C. P. 287 : Humaston v. Telegraph Co., 20 Wall. (U. S.) 20, 22 L. Ed. 279 ; Jveniiiston v. Ham, 9 FosJ. (X. H.) 501. The same rule was applied where the goods had been con- structively, but not actually, delivered, on the ground that preven- tion was equivalent to performance. Smyth v. Craig, 3 Watts & S. §§ 16-17) THE PRICE. 61 sale may be implied, as well as express, so the assent to the payment of a reasonable price may be imphed from the circum- stances.^^' This implication arises naturally when the sale has been executed, but an agreement to pay a reasonable price may also be implied in an executory contract.^"'' Such cases are, of course, to be distinguished from cases in which the contract of sale has never been completed, by reason of failure to agree upon a price. ^^^ What is a reasonable price is a question of fact, dependent on the circumstances of each particular case; for, while a reasonable price is ordinarily the market price, the market price may be unreasonable, from accidental circum- stances, as on account of the commodity having been kept back by the seller himself.^ °° (Pa.) 14. See Sales Act, § 10. Cf. Sale of Goods Act, § 9; post, p. 233. 29» Acebal v. Levy, 10 Bing. 376; Bennett v. Adams, 2 Cranch, C. C. 551 (XJ. S.) Fed. Cas. No. 1,316; Taft v. Travis, 136 Mass. 95; James v. Muir, 33 Midi. 223; Lovejoy v. Micliels, 88 Mich. 15, 49 N. W. 901, 13 L,. R. A. 770; McEwen v. Moray, 60 111. 32; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Livingston v. Wagner, 23 Nev. 53, 42 Pac. 290; Lefurgy v. Stevcart, 69 Hun (N. Y.) 614, 23 N. Y. Supp. 537. 287 Hoadly v. McLaine, 10 Bing. 482; Valpy y. Gibson, 4 O. B. 837. 298 Bigley v. Risher, 63 Pa. 152; Foster v. Mining Co., 68 Mich. 1S8, 36 N. W. 171; Whiteford v. Hitcheocli, 74 Mich. 208, 41 N. W. 898! 299 Acebal V. Levy, 10 Bing. 376, per Tindal, C. J., 383; James v. Muir, 33 Mich. 223; Lovejoy v. Michels, 88 Mich. 15, 49 N. W. 901, 13 L. R, A. 770. 62 FORMATION OF THE CONTRACT. (Ch. 2 CHAPTER n. FORMATION OF CONTRACT (Continued)— UNDER THE STAT- UTE OF FRAUDS. 18-20. What Contracts are Within the Statute. 21-22. What are Goods, Wares, and Merchandise. 23. What is a Contract for the Price or Value of £10 ($50). 24-26. Acceptance and Receipt 27-29. Acceptance. 30-31. Actual Receipt 32-33. Earnest or Part Payment 34-36. The Note or Memorandum. 37-38. Signatuoe of the Party. 39-^0. Agents Authorized to Si^n- 41. Effect of Noncompliance with the Statute. ■WHAT CONTRACTS AKE WITHIN THE STATUTE. 18. The seventeenth section of the English statute of frands, \phich has been substantially folloTved in most of the states and territories of the United States, enacts that "no contract for the sale of any goods, wares, or mer- chandises, for the price of ten pounds sterling, or np- TPards, shall be allonred to be good, except (a) The buyer shall accept part of the goods so sold, and actually receive the same, (b) Or give something in earnest to bind the bargain, or in part payment, (c) Or that some note or memorandum in ^rriting of th^ said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto laivfully authorized." 19. The statute of frauds applies to executory as well as ex- ecuted contracts of saJe, 20. The statute does not apply to contracts for work, labor and materials. The rule for determining whether the contract is for worh, labor and materials, or a contract of sale, varies in difEerent jurisdictions. (a) ENGLISH RULE. The English rule, which is followed in some states, is that a contract wrhereby the property in a chattel is to be transferred for a price from one person to another is a contract of sale, and is vrithin the statute, although the chattel is to be the product §§ 18-20) WHAT CONTRACTS AEB WITHIN THE STATUTE. 63 of the ivork, labor, and materials of tlie person who is to transfer the property. (b) MASSACHUSETTS RULE. The Massachusetts rnle, which is followed in some states, is the sa.me, except that if the chattel is to be mannfactared especially for the buyer, upon his special order, and is not such as the seller in his ordinary business manufactures for the general marhet, the contract is for vrorh, labor, and materials, and is not iirithin the statute. (o) NETV YORK RULE. The New York rule, which is follow- ed in some states, is that a contract for the sale of a chattel not in existence, which the seller is to manu- facture, is a, contract for xrork, labor, and materials, and is not within the statute; but, if the chattel is in existence, the contract is one of sale, and is irithin the statute, although the seller is to adapt it to the use of the buyer. The common law, which recognized the validity of verbal contracts of sale of personal property for any amount, and however proved, was greatly modified by the seventeenth sec- tion of the statute of 29 Car. II. c. 3, known as the "statute of frauds," which has been quoted above. To reproduce here the language of the various similar enactments in the United States would be impossible,^ nor is it necessary to do so, as their provisions are in the main substantially the same as those of the English original. The latter will therefore serve as the basis of discussion. Executed and Executory Contracts. A question arose at an early day, on which in England the cases were conflicting, whether the words "contract of sale," as used in the statute, appHed to executory contracts, or merely to executed contracts, of sale.^ The question was settled in 1 This section seems not to be in force in Alabama, Delaware, Illinois, Kentucky, Louisiana, New Mexico, Nortti Carolina, Oliio, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, and West Virginia. Some changes have been made by the English Sale of Goods Act, § 4, and still others by the Sales Act, § 4. 2 That executory contracts were not within the statute, see Tow- ers V. Osborne, 1 Strange, .50G; Clayton v. Andrews, 4 Bm-rows, 2101; Groves v. Buck, 3 Maule & S. 178. Contra, Rondeau v. Wyatt. 64 FORMATION OP THE CONTRACT. (Ch. 2 England by "Lord Tenterden"s Act," ^ so called, which enacted that the provisions of the seventeenth section "shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be in- tended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for de- hvery." The two enactments must be construed together,' and Lord Tenterden's act appears to be merely declaratory of the true construction of the statute of frauds." In the United States, it has been universally held, without the intervention of the Legislature, and in conformity with the apparent policy and natural construction of the statute, that it applies as well to executory as to executed sales.' Contract of Sale or Contract for Work, Labor, and Materials — • English Rule. Another question has arisen as to the meaning of "contract of sale," on which there was long a conflict of opinion in En- gland and on which different conclusions have been reached in the United States, namely, whether a contract for the sale of goods to be afterwards manufactured is a "contract of sale," or a mere contract for work and labor done and materials fur- nished, to which the statute does not apply.'' The conclusion 2 H. Bl. 63; Cooper v. Elston, 7 Term R. 14; Garbutt v. Watson. 5 Barn. & Aid. 613. s 9 Geo. IV. c. 14, § 7. 4 Chalm. Sale, 8; Scott v. Railway Co., 12 Jlees. & W. 33; Har- man v. Reeve, 18 0. B. 5ST. 25 Law J. C. P. 257. 5 Langd. Cas. Sales, 1025. 6 Newman v. Morris, 4 Har. & McH. (Xld.) 421; Bennett v. Hull, 10 Johns. (N. Y.) 3S4; Crookshank v. Burrell. 18 Johns. (N. Y.) 58, 9 Am. Dec. 187; Jackson v. Covert's Adm'r, 5 Wend. (N. Y.) 139; Ide v. Stan- ton, 15 Tt. 6S5, 40 Am. Dec. 698; Waterman v. Jleigs, 4 Cush. (Mass.) 497; Hight v. Ripley, 19 Me. 137; Edwards v. Railway Co., 48 Me. 379; Atwuter v. Hough, 29 Conn. 508, 79 Am. Dec. 229; Carman v. Smiek, 15 N. J. Law, 252; Finney v. Apgar, 31 N. J. Law, 266; Cason v. Cheely, 6 Ga. 554; Mechanical Boiler-Cleaner Co. v. Kell- ner, 62 N. J. Law, 544, 43 Atl. 599. Sales Act, § 4, makes changes to express more accurately the construction given by Lord Tenterden's act and by the courta. ^ BenJ. Sales, §§ 94^107. §§ 18-20) WHAT CONTRACTS ARE WITHIN THE STATUTE. 65 which has finally been reached in England, and in several states in America, is that if the contract is intended to result in transferring for a price a chattel it is a contract for the sale of a chattel, notwithstanding that the chattel is not in existence at the time of the contract, and is to be the product of the labor and materials of the seller, and that unless the contract is in- tended to result in the transfer of a chattel the contract is not one of sale. This test was first clearly stated and applied in the leading case ofj^e V:_Griffin^ decided in the Queen's Bench in 1861. That action was brought by a dentist to recover for two sets of artificial teeth ordered by a deceased lady of whom the defendant was executor, and it was held that the contract was one of sale, and not for work, labor, and materials. Black- burn, J., said : "If the contract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the article when made, would be for not ac- cepting. But if the work and labor be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labor is the proper remedy." Before the case of Lee v. Griffin, three other principles had been suggested in England as affording a test in such cases, and as the earlier English views have been influential in shaping the decisions in this country, and throw light upon the question involved, they may be briefly stated : First. It was suggested that, if the subject-matter of the contract is not in existence, the contract is not for the sale of goods.' Thus in Groves v. Buck ^° it was held on this ground that a contract for the sale of oak pins to be cut by the plaintiff out of slabs owned by him was not within the statute. Second. It was suggested that, if the materials be furnished by the employer, the contract is for work and labor, and not of sale ; but that if the materials be furnished by the workman, who makes the chattel, he can- not maintain work and labor, because his labor is bestowed 8 1 Best & S. 272, 30 Law J. Q. B. 252. '» GroTes v. Buck, 3 Maule & S. 178; Garbutt v. Watson, 5 Barn. & Aid. 613, per Abbott, C. J.; Rondeau v. Wyatt, 2 H. Bl. 63, per Tjord Loughborougli; Cooper v. Elston, 7 Term E-. 14, per Lord Ken- .von, C. J. 10 3 Maule & S. 178. TirF.SALEs(2D Ed.) — 5 66 FORMATION OF THE CONTRACT. (Ch. 2 on his own materials and for himself.^^ The first branch of this rule falls within Lee v. Griffin, because, if the materials are furnished b)' the employer, there can be no sale of them to him. But the second branch of the rule is inaccurate, since a man may be employed to do work on his own materials without an intention on the part of himself and his employer to transfer the property in the completed article ; for example, to expend work and materials in perfecting an invention.^* Third. It was sug-gested that the true test was "whether the work and labor is the essence of the contract, or whether it is the materials that are found." ^' But the fatal objection to this test, as pointed out by Benjamin,^* and indeed to any test except that applied in Lee v. Griffin, is that, however small the relative value of the materials to the labor, as in the case of a painting, the em- ployer cannot get title to the thing except through the transfer of the property in it from the maker. And it is the acquisition of the thing by the employer which the contract really contem- plates. It is true that extreme cases may be put, such as that of an attorney employed to draw a deed and using his own paper and ink, or that of a man sending a button to be used by his tailor in making a coat. But such trifling matters cannot be considered as having entered into the contemplation of the parties, nor as forming part of the real consideration, and are to be disposed of by the rule, "De minimis non curat lex." ^^ Same — Massachusetts Rule. In the English case of Garbutt v. Watson,^" where a con- tract for the sale of flour to be manufactured was held to be within the statute, Abbott, C. J., remarked : "In Towers v. Os- borne [1 Strange, 506], the chariot which was ordered to be made would never, but for that order, have had any existence. But here the plaintiffs were proceeding to grind the flour for 11 Staith V. Surman, 9 Barn. & C. 568, per Bayley, J.; Atkinson V. Bell. 8 Barn. & C. 277, per Bayley, J. 12 Grafton v. Armitage, 2 C. B. 336, 15 Law J. 0. P. 20. Or if a farrier be employed professionally, using liis own medicines, there is no sale of the medicine, but the contract is for work, labor, and materials. Clark v. ilumford, 3 Camp. 37; Langd. Cas. Sales, 103t». 13 Clay V. Yates, 1 Hurl. & N. 73, 25 Law J. Bxch. 237. i*Benj. Sales, § 106. 16 Benj. Sales, § 107. i» 5 Bam. & Aid. 613. §§ 18-20) WHAT CONTRACTS ARE WITHIN THE STATUTE. 67 the purpose of general sale, and sold this flour to the defend- ant as part of their general stock." In accordance with this dictum, though not expressly upon its authority, it was held in Mixer v. Howarth ^'' that a contract to build a buggy for the defendant out of materials partly wrought, but not put to- gether, was not a contract of sale within the statute, and Shaw, C. J., said that "when the contract is a contract of sale, either of an article then existing, or of articles which the vendor usually has for sale in the course of his business, the statute applies." In Gardner v. Joy,^° on the other hand, where the defendant ordered 100 boxes of candles, at 21 cents a box, which the plaintiff was to manufacture, the same judge held that the case was not distinguishable from Garbutt v. Watson. And in a later case ^' he laid down the distinction that "when a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made and finished, it is essentially a contract of sale, and not a contract for labor ; otherwise, when the article is made pursuant to the agreement." In Goddard v. Binney,^^" in which the facts are similar to those in Mixer v. ffowafiih, the court refers to Lee v. Griffin, but adheres to the Massachusetts rule, the correctness and justice of which it approves. Same — New York Rule. The principle acted on in the earlier English cases, that a contract for the sale of an article not in existence is not within the statute,-^ is the foundation of the so-called New York 17 21 Pick. (Mass.) 205, 32 Am. Dec. 256. 18 9 Mete. (Mass.) 177. 19 Lamb v. Crafts, 12 Mete. (Mass.) 356. 15j;J5_iIass._450, 15 Am. Rep. 112. See, also, Spencer y. Cone, 1 Mete. (Mass.) 283; Waterman v. Meigs, 4 Cush. (Mass.) 497; Clarli V. Nichols, 107 Mass. 547; Dowling v. McKenney, 124 Mass. 480; May V. Ward, 134 Mass. 127. An oral contract whereby a dealer agreed to furnish, at a price exceeding $50, bottles of specified sizes, and made of a kind of glass used only by a certain manufacturer, and according to his models, is a contract for the sale of goods, within the meaning of the statute of frauds, and not one to furnish labor and materials. Smalley v. Hamblin, 170 Mass. 380, 49 IJ. E. G26. 21 Ante, p. 65. 68 FORMATION OF THE CONTRACT. (Ch. 2 rule. Thus in Crookshank v. Burrell ''^ it was held that a con- tract to manufacture the woodwork of a wagon was not within the statute, and in Sewall v. Fitch '^^ the same decision was reached in regard to a contract to sell rails which were to be made by the seller; and the rule was enunciated that a con- tract for the sale of goods existing in solido is within the stat- ute, but that a contract for the sale of goods not yet made, and to be delivered at a future day, is a contract for work and labor, and is not within the statute. In Downs v. Ross,^* however, a limitation of this rule was introduced, and it was held that a contract to sell wheat, part of which was to be cleaned and part threshed, was within the statute, Bronson, J., observing that, "if the thing exist at the time in solido, the mere fact that something remains to be done to put it in a marketable con- dition will not take the contract out of the operation of the statute." The rule ^° and the limitation ^^ have been followed in the later New York cases. The cases are discussed and reconciled in Cooke v. Millard,^' in which it was held that a contract for the sale of lumber which the seller was to dress and put in condition to fill the order of the buyer was within the statute. The rule is there stated that an agreement for the sale of a commodity not in existence, but which the seller is to manufacture or put in condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron be- longing to the manufacturer, is not a contract of sale; but that, when the chattel is in existence, the contract should be deemed to be one of sale, even though it may have been order- ed from a seller who is to do some work upon it to adapt it to the use of the purchaser. Dwight, C, who delivered the opin- 2 2 18 Johns. (N. Y.^SS, 9 Am. Dec. 187. 23 8 Cow. (N.^Y.) 215. 2.4 23 Wend. (N. Y.) 270. 2 5 Robertson v. Vaughn, .5 Sandf. (N. Y.) 1; Bronson v. Wiman, 10 Bart). (N. Y.) 406; Parker v. Schenck, 28 Barh. (N. Y.) 38; Parsons V. Loucks, 48 N. Y. 17, 8 Am. Rep. 517; Warren Chemical & Mfg. Co. V. Holbrook, 118 N. Y. 5SG, 23 N. E. 908, 16 Am. St. Rep. 788. See Hinds V. Kellogg (Com. PI. N. Y.) 13 N. Y. Supp. 022. 26 Smith v. Railroad Co., *43 N. Y. ISO; Cooke v. Millard, 65 N. Y. 352, 22 Am. Rep. 619; Alfred Shrimptoa & Sons v. Dworsky, 2 Misc. Rep. 123, 21 N. Y. Supp. 461. 27 65 N. Y. 3.12, 22 Am. ReP. 619. §g 18-20) WHAT CONTRACTS ARE WITHIN THE STATUTE. 69 ion, observed in regard to Lee v. Griffin that, if the subject were open, no more convenient rule than that of Lee v. Griffin, which is at once so philosophical and comprehensible, could be adopted, but that it was too late to adopt it in full. Sa)iie — Rule Elsewhere in United States. It would be difficult, if not impossible, to classify the Ameri- can cases as falHng within the English, the New York, or the Massachusetts rule.^* The latter rule has, however, met with most general approval,^" and has in a recent case been express- as See Cason v. Cheely, 6 Ga. 554 ; Bird v. Jluhlinbrink, 1 Rich. Law (S. C.) 199 ; Allen v. Jarvis, 20 Conn. 38 ; Atwater v. Hough, 29 Conn. 50S, 79 Am. Dec. 229; Ellis v. Railroad Co., 7 Colo. App. 350, 43 Pac. 457; Heintz v. Burkhard, 29 Or. 55, 43 Pac. 866, 31 L. R. A. 508, 54 Am. St. Rep. 777; Puget Sound Mach. Depot v. Rigby, 13 Wash. 204, 43 Pac. 39. In Prescott v. Locke, 51 N. H. 94, 12 Am. Rep. 55, it was held that a contract to buy what spokes plaintiff should saw at his mill was within the statute, and the opinion cites Lee V. Griffin, 1 Best. & S. 272, 30 Law J. Q. B. 252 ; but the court draws a distinction like that at one time suggested in England (supra) be- tween contracts of sale and those in which the labor and skill of the workman are the essence of the contract. See, also, Pitkin v. Noyes, 48 N. H. 2M, 97 Am. Dec. 615, 2 Am. Rep. 218. Cf. Gilman v. Hill. 36 N. H. 311. See, also, Hight v. Ripley, 19 Me. 137; Abbott v. Gil- christ, 38 Me. 260; Edwards v. Railway, 48 Me. 379, 54 Me. 105; Crockett v. Scribner, 64 Me. 447. A contract to paint a portrait is not within the statute. Turner v. Mason, 65 ilich. 662, 32 N. W. &46. "From a very early period it has been the settled law of Mary- land * * * that, when work and labor are to be bestowed by the vendor upon the article sold before it is to be delivered, the contract is not within the statute; and the reason is that when work and labor are necessary to prepare an article for delivery, the work and labor to be done by the vendor form part of the con- sideration of the contract, and, as these are not within the statute, the sale is not a sale of goods, wares, and merchandise." Bagby v. Walker, 78 Md. 239, 27 Atl. 1033. See, also, Bichelberger v. Mc- Cauley, 5 Har. & J. (Md.) 213, 9 Am. Dec. 514; Rentch v. Long, 27 Md. 188. 2 9 Finney v. Apgar, 31 N. J. Law, 271 (cf. Pawelski v. Hargreaves, 47 N. J. Daw, 334, 54 Am. Rep. 102); Meincke v. Falk, 55 Wis. 427, 13 N. W. 545, 42 Am. Rep. 722, distinguishing Hardell v. McGlure, 1 Chand. (Wis.) 271, 2 Pin. 289, in which the modern English rule was approved; O'Neil v. Jlining Co., 3 Nev. 141; Orman v. Hager, 3 N. M. 331, 9 Pac. 363; Flynn v. Dougherty, 91 Cal. 6G9, 27 Pac. 1080, 14 L. R. A. 230: Brown & Haywood Co. v. Wunder, 64 Minn. 450, I'^f /l--^ ,. -^^''^' 70 PQBMATION OP THE CONTRACT. (Ch. 2 ■T ly adopted in Missouri.'" In some states an attempt has been made to settle the question by statute, as in Iowa, where it is provided that where the property sold is not, at the time of the contract, owned by the vendor and ready for dehvery, but labor, skill, or money are necessary to be expended in producing or procuring the same, the statute shall not apply.' ^ Chattel Intended for a Fixture. Contracts for furnishing an article, and fixing it to the free- hold, are to be distinguished from contracts of sale.'^ In such cases the intention is not to make a sale of movables, but to make improvements on the real property of which the article furnished, upon being affixed, becomes a part ; and the consid- eration to be paid is, not for a transfer of chattels, but for work 67 N. W. 357, 32 L. R. A. 593 (cf. PWpps v. McFarlane, 3 Minn. 109 [Gill. Gl] 74 Am. Dec. 743; Brown v. Sanborn, 21 Minn. 402; Russell V. Railway Co., 39 Minn. 145, 39 N. AY. 302) ; Mechanical Boiler-Cleaner Co. v. Kellner, 62 N. J. Law, 544, 43 Atl. 599; Wil- liams-Haywood Shoe Co. V. Brooks, 9 Wyo. 424, 64 Pac. 342; Gross V. Heckert, 120 Wis. 314, 97 N. W. 952. A contract hy which defendants agree to furnish a monument for a certain amount, to be erected by a state on a battlefield, is not a contract for sale of goods, within the statute of frauds, though defendants are not bound to bestow their personal skill and labor thereon, but may get others to make it for them. Forsyth v. Mann, 68 Vt 116, 34 Atl. 481, 32 L. R. A. 788. The court says that the ease comes clearly within the Massachu- setts rule, which it regards as preferable, and that it makes no dif- ference that the defendants were not bound to bestow their personal skill and labor on the monument, but were at liberty to get others to make it for them, making the special order the test. Cf. Ellison v. Brigham, 38 Vt. 64. The Massachusetts rule is adopted by Sales Act, § 4 (2). 30 Pratt V. Miller, 109 Mo. 78, 18 S. W. 9(35, 32 Am. St. Rep. 656; Burrell v. Highleyman, 33 Mo. App. 183; Pike Electric Co. v. Drug Co., 42 Mo. App. 272. Also in Wolfenden v. Wilson, 33 U. C. Q. B. 442. 31 Where defendant contracted orally to sell and deliver to plain- tiff, in a marketable condition, certain growing oats, the sale was not within the exception. Mighell v. Dougherty, 86 Iowa, 480, 53 N. W. 402, 17 L. R. A. 755, 41 Am. St. Rep. 511. See, also, Lewis v. Evans, 108 Iowa, 206, 79 N. W. 81; Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389; Flynn v. Dougherty, 91 Cal. 669, 27 Pac. 1060, 14 L. R. A. 230. 32 Benj. Sales, § 108. §§ 18-20) WHAT CONTRACTS ARE WITHIN THE STATUTE. 71 and labor done and materials furnished in adding something to the land.'*'' Similarly, a contract to make improvements upon a chattel belonging to the employer is a contract for work, labor, and materials.''* Auction Sales. Although it was questioned by L,ord Mansfield whether the statute applied to sales of goods at auction,'" it is universally held that it applies to them as well as to private sales.' ° Contract for Exchange. A contract of exchange or barter is regarded as a contract of sale within this section.'' Contract for Resale. A stipulation in a contract of sale that the seller may repur- chase or that the buyer may resell is not to be regarded as an independent contract of sale, and, if the original contract has been taken out of the statute, by delivery of the goods or other- wise, is not within the statute.'* S3 Tripp V. Armltage, 4 Mees. & W. 687; Olark v. Bulmer, 11 Mees. & W. 243; Scales v. Wiley, 68 Vt 39, 33 Atl. 771. 3* Anglo-Egyptian Nav. Co. v. Rennie, L. R. 10 C. P. 271- 35 Simon v. Motives, 3 Burrows, 1921, 1 Wm. Bl. 509. 3 6 Hinde v. Whitehouse, 7 East, 558, per Lord Ellenlxirongh; Ken- worthy V. Schofield, 2 Barn. & C. 945; Davis v. Rowell, 2 Pick. (Mass.) 64, 33 Am. Dec. 398; Morton v. Dean, 13 Mete. (Mass.) 385; Pike V. Balch, 38 Me. 302, 61 Am. Dec. 248; Johnson v. Buck, 35 N. J. Law, 338, 10 Am. Rep. 243; Davis v. Robertson, 1 Mill, Const. (S. C.) 71, 12 Am. Dec. 611 ; SanderTIn v. Trustees, R. M. Charlt. (Ga,) .'.51. 3 7 Ash v. Aldrich, 67 N. H. 581, 39 Atl. 442; Gorman v. Brossard, 120 Mich. 611, 79 N. W. 903. And see Dowling v. McKenney, 124 Mass. 478; Browne, St. Frauds, § 293. A contract to deliver goods in payment of a debt Is within the statute. Sawyer v. Ware, 36 Ala. 675; Gorman v. Brossard, supra. Contra: Woodford v. Patterson, 32 Barb. (N. Y.) 630. 38 Williams v. Burgess, 10 Adol. & B. 499; Fay v. Wheeler, 44 Vt. 292; Johnston v.Trask, 116 N. T. 136, 22 N. B. 377, 5 I* R. A. 030, 15 AmTstlEep: 39£~ 72 FOnilATION OF THE CONTRACT. (Ch. 2 WHAT ARE GOODS, TVAKES, AND MERCHANDISE. 21. "Goods, ivares, and merchandise" compreliend: (a) All corporeal movable property. Cb) In the United States, generally, (bnt not in England), in- corporeal property, such as shares, promissory notes, bank bills, etc. (c) Fructus naturales and fmctus indnstriales, the onrner- ship whereof is to pass to the buyer after severance thereof from the soil. (d) Frnctus indnstriales (perhaps) also ■when snch oivner- ship is to pass before severance. 22. "Goods, wares, and merchandise" do not comprehend: (a) Fructus naturales, the ow^nership wrhereof is to pass before severance [and from the further growth where- of the buyer is to derive benefit]. 3 9 (b) Tenants' fixtures sold wrhile unsevered. Incorporeal Property — Choses in Action. In England the term "goods, wares, and merchandise" has been limited to corporeal movable property, and is held not to include shares, stock, documents of title, choses in action, and other incorporeal rights and property.'"' In the United States, however, the term is as a rule held to include incorporeal prop- erty, such as stock, ^^ bills and notes,** and bank bills.*' "The »» If Marshall v. Green, 1 C. P. Div. 35, and the similar decisions in this country, be good law, the words within the brackets must stand. See post, p. 75. 40 Humble v. Mitchell, 11 Adol. & E. 205; Knight v. Barber, 16 JViees. & W. 66, 16 L. J. Exch. 18; Bradley v. Holdsworth, 3 Mees. & W. 422; Dimcuft v. Albrecht, 12 Sim. 1S9; Colonial Bank v. Whin- ney, 30 Ch. Div. 261, 286; Benj. Sales, § 111. See Evans v. Duvies [1803] 2 Ch. Div. 216. 4iTisdale v. Harris, 20 Pick. (Jlass.) 9; Boardman v. Cutter, 128 i2 Baldwin v. Williams, 3 Mete, (ilass.) 3Cp7; <}ooch v. Holmes, 41 Mo. 023; Pray v. Mitchell, 00 Me. 430, 435; Hudson v. Weir, 20 Ala. 204; Greenwood v. Law, 55 N. J. Law, ICS. 26 Atl. 134, 19 L. R. A. 688 (bond and mortgage). Contra, Whittemore v. Gibbs, 24 N. II. 484; Beers v. Crowell, Dud. (Ga.) 28 (United States treasury checks on Bank of United States); Vawter v. Griffin, 40 Ind. 600. 13 Uiggs V. Magruder, 2 Cranch, C. C. (U. S.) 143, Fed. Cas. No. 11.828; Gooch v. Holmes, 41 Me. 523. Gold coin, when the subject of a contract of sale, is within the statute. Peabody v. Speyers, 56 N. Y. 230. §§ 21-22) WHAT ARE GOODS, WAKES, AND MERCHANDISE. 73 words of the statute," it has been said, "have never been ex- tended by any court beyond securities which are subjects of common sale and barter, and which have a visible and palpable form" ; ** but some courts have held a simple contract debt to be within the statute.*" In some states a broader rule is re- quired by the language of the statute, as in New York, Califor- nia, Wisconsin, and Minnesota, where the provision expressly includes choses in action,*" and in Florida, where it uses the term "personal property." *' Interest in Land — Fourth Section of the Statute. The fourth section of the statute of frauds, which has been substantially enacted in most states of this country, provides that "no action shall be brought * * * upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him law- fully authorized." When a contract of sale is made, the sub- Mass. 388; North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430; Fine v. Hornsby, 2 Mo. App. 61; Bernhardt v. Walls, 29 Mo. App. 206. See Meehan v. Sharp, 151 Mass. 564, 24 N. E. 907; Green V. Brookins, 23 Mich. 48, 54, 9 Am. Rep. 74; Gadsden v. Lance, Mc- Mul. Eq. (S. C.) 87, 37 Am. Dec. 548; Rogers v. Burr, 105 Ga. 432, 31 S. E. 43S, 70 Am. St. Rep. 50. And see Banta v. City of Chicago, 172 111. 204, 50 N. E. 233, 40 L. R. A. ,611. Contra: Webb v. Rail- road Co., 77 Md. 92, 26 Atl. 113, 39 Am. St. Rep. 396, which follows the English rule, notwithstanding a dictum to the contrary in Col- vin y. Williams, 3 Har. & J. (Md.) 38, 5 -Am. Dec. 417. 4 4 Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459, per Gray, C. J. See, also, Meehan v. Sharp, snpra. An invention, before letters patent are obtained, is not within the statute. Somerby v. Buntin, supra ; Blakeney v. Goode, 30 Ohio St. 350; Dalzell v. Manufactm-ing Co., 149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749. Cf. Jones v. Reynolds, 120 N. Y. 213, 24 N. B. 279. 4 5 Walker y. Supple, 54 Ga. 179 (accounts); French v. Schoon- maker, 69 N. J. Law, 6, 54 Atl. 225. 48Artcher v. Zeh, 5 Hill (N. T.) 200; Peabody v. Speyers, 56 N. Y. 230; Allen v. Aguirre, 7 N. Y. 543; Mayer v. Child, 47 Cal. 142; Spear v. Bach. 82 Wis. 192, 52 N. W. 97. See Sales Act, § 4 (1). 4 7 Southern Life Ins. & Trust Co. v. Cole. 4 Fla. 359. 74 FORMATION OP THE CONTRACT. (Ch. 2 ject-matter of which is something attached to the soil, the ques- tion frequently arises whether such sale is of an interest in land, and hence whether it is within the fourth section, or whether it is a sale of goods, wares, and merchandise, and hence within the seventeenth section, or whether it is neither. The question which section governs may be of vital importance, because the fourth section requires a written memorandum or note under all circumstances and whatever the amount, while under the seventeenth section the necessity of a writing does not exist if the amount is under £10, or if the provisions in respect of performance or payment have been satisfied. Pructus Naturales and Fructus Industrialcs. Inasmuch as ''goods, wares, and merchandise" comprehends all movable corporeal property, an executory contract for the sale of a thing attached to the soil, for example, trees, if the thing is to be severed from the soil before the sale, is within the seventeenth section, and is not within the fourth section, of the statute; for, though the subject of sale be an interest in land when the contract is made, it will, by severance from the soil, become "goods, wares and merchandise" when the sale is executed. *° "The agreement is that the thing shall be ren- dered into goods, and then in that state sold. It is an executory agreement for the sale of goods not existing in that capacity at the time of the contract." *' But, if the contract contem- plates a present sale, a different question arises, which is to be determined in the case of growing crops upon a somewhat arti- ficial distinction. •48 Smith V. Surman, 9 Barn. & C. .561 (potatoes) ; Washbourn v. Burrows, 1 Exch. 107, per curiam; Watts v. Friend, 10 Barn. & C. 446 ; Parker v. Staniland, 11 East, 3(:'.2 ; Sainsbury v. Jlatthews, 4 Mees. & AV. 343; Whitmarsli v. Wallier, 1 Mete. (Mass.) 313; Cla- flin V. Carpenter, 4 Mete, (ilass.) 580; 3S Am. Dec. 381; Nettleton v. Sik-es, 8 Mete. (Mass.) 34; Drake v. Wells, 11 Allen (Mass.) 141; Fletcher v. Livingston, 153 Mass. 388, 390, 26 N. B. 1001; Banton v. Shorey, 77 Me. 48, 51; Killmore v. Hewlett, 48 N. Y. 569; Boyce v. "Washburn, 4 Hun (N. Y.) 792; Upson v. Holmes, 51 Conn. 500. See, also, Slocum v. Seymour, 36 N. J. Law, 138, 13 Am. Kep. 432, per P.edle, .7.; Green v. Railroad Co., 73 N. C. 524; Owens v. Lewis, 4(5 Ind. 488, 15 Am. Rep. 205; Cool v. Lumber Co., 87 Ind. 531; Benj. Sales, §§ 118, nO; Blackb. Sales, p. 5. 4 9 Blaekb. Sale, p. 9. §§ 21-22) WHAT ARE GOODS, WAKES, AND MERCHANDISE. 75 A distinction exists between what are known as "fructus naturales," which are the natural product of the soil, as trees and natural grass, and "fructus industriales," or emblements, which are the product of annual labor, as wheat or potatoes, and which the tenant of an estate of uncertain duration had the right to take, if growing at the determination of his estate. Fructus naturales are an interest in land, but fructus indus- triales are chattels, and not an interest in land. From the char- acter of fructus naturales as an interest in land, it follows that an agreement vesting a present interest in them although in contemplation of immediate severance, is within the fourth sec- tion. Such, at least, is the prevailing rule in this country,"" and was supposed to be the law under all circumstances in England ^^ until the case of Marshall v. Green,^^ in 1875, in which it was held that a sale of standing timber, to be cut by the purchaser as soon as possible, was within the seventeenth, and not within the fourth, section. It is said by the English editors of Benjamin "^ that this decision is open to criticism, and must be supported either on the ground that title was not to pass until severance, which would bring it within the prin- ciple governing executory contracts of sale above stated, or that 60 White v. Foster, 102 Mass. 375; Putney v. Day, 6 N. H. 430, 25 Am. Dec. 470; Olmstead v. Niles, 7 N. H. 522; Kingsley v. Hol- brook, 45 N. H. 313, 86 Am. Dec. 173; Howe v. Batchelder, 49 N. H. 204; Green v. Armstrong, 1 Denio (N. Y.) 550; Thomson v. Poor, 57 Hun (N. Y.) 288, 10 N. Y. Supp. 597; Id., 67 Hun (N. Y.) 653, 22 N. Y. Supp. 570; Sloeum v. Seymour, 36 N. J. Law, 138, 13 Am. Rep. 432; Owens v. Lewis, 46 Ind. 489, 15 Am. Pep. 295; Lillie v. Dunbar, 62 Wis. 198, 22 N. W. 467; Hirth v. Graham, 50 Ohio St. 57, 33 N. E. 90, 19 L. R. A. 721, 40 Am. St. Rep. 641 ; Stuart v. Pen- nis, 91 Va. 688, 22 S. E. 509; Claris v. Guest, 54 Ohio St 298, 43 N. B. 862; Walton v. Lowrey, 74 Miss. 484, 21 South. 243: Seymour V. Cushway, lOO Wis. 580, 76 N. W. 769, 69 Am. St. Rep. 957 ; Kirke- hy V. Eriekson. 90 Minn. 299, 96 N. W. 705, 101 Am. St. Rep. 411; Kileen t. Kennedy, 90 Minn. 414, 97 N. W. 126; Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521; Drake v. Howell, 133 N. C. 162, 45 S. E. 539. 61 Rodwell V. Phillips, 9 Mees. & W. 501; Crosby v. Wadsworth, 6 East, 602; Teal v. Auty, 2 Brod. & B. 99 (trees); Scorell v. Box- all, 1 Younge & J. 396. Contra: Anonymous, 1 Ld. Raym. 182. 52 1 C. P. Div. 35. 63 Benj. Sales, § 126. See, also, Kerr. Dig. Law Sales, p. 5 (s). 76 FORMATION OF THE CONTRACT. (Ch. 2 it must be taken to have introduced the limitation that, even when the property in fructus naturales passes before severance, if the intention is that the buyer is to derive no benefit from their further growth, the sale is within the seventeenth, and not within the fourth, section. Apparently the judges who de- cided Marshall v. Green took the latter view of the case, and the same has been taken by some courts in the United States."* In a later English case,* Chitty, J., refused to apply the limita- tion to a contract to sell building materials in a building, to be removed within two months by the buyer, and his criticisms apply equally to Marshall v. Green and to the American cases referred to. "It is sold," he says, "as building materials, and, if the intention of the parties prevailed, it might mean that it is sold as a chattel, but the point still is that it is not a chattel at the time of the sale, and the statute of frauds, so far as I can see, does not enable parties to say : 'We will agree to treat this thing as a chattel, when in point of law it is a hereditament' " "° In some states, where the above limitation of the rule is not 54 Sterling v. Baldwin, 42 Vt. 306; McCllntock's Appeal, 71 Pa. .■;Gr.; Cain v. McGuire, 13 B. Mon. (Ky.) 340; Byassee v. Reese, 4 Mete. (Ky.) 872, 83 Am. Dec. 481. See, also, Bostwick v. Leach, 3 Day (Conn.) 476; Purner v. Piercy, 40 Md. 2] 2, 17 Am. Rep. 591; Smith V. Bryan, 5 Md. 141, .59 Am. Dec. 104; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Scoggln v. Slater, 22 Ala. 687; Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449 ; Tilford v. Dotson, 106 Ky. 755, 51 S. W. 583; Prater v. Campbell, 110 Ky. 23, 60 S. W. 918. If the timber is to be taken off by the purchaser without speci- fication as to time, the contract is within the fourth section. Huff V. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Pattison's Appeal, 61 Pa. 294, 100 Am. Dec. 637; Miller v. Stevens, 100 Jlass. 518, 1 Am. Rep. 139. 97 Am. Dec. 123. *Lavery v. Pursell, 39 Ch. Div. 508. 55 Sales Act, § 76 (1), following the English act, declares that "sonds" includes "things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." So far as concerns fructus naturales, buildings sold as materials, and fixtures, which are agreed to be severed before sale, this declares what has been the general rule. The provision that these things are goods when agreed to be severed "under the contract of sale" seems equivalent, as has been pointed out, to declaring that under a con- tract of sale they are to be deemed' goods, whether the property is to pass before or after severance, and changes the law with regard to biiildii]i;s sold as materials and fructus naturales. Benj. Sales (5th Eng. Ed.) 100. §§ 21-22) WHAT ABE GOODS, WAKES, AND MERCHANDISE. 77 recognized, the courts construe contracts for the sale of trees and other fructus naturales, even if the trees are to be cut by the purchaser, as executory contracts in which the title is not to pass "until severance and conversion into personalty and by which the purchaser has until severance only a revocable license to enter and remove the trees."" From the character of fructus industrials as chattels, on the other hand, it follows that a sale of them is not within the fourth section." But, though they are chattels,^^ it has been said to be an open question whether they are "goods, wares, and merchandises," and consequently within the seventeenth 6 6 White V. Foster, 102 JNIass. 375, 379, and Massachusetts cases cited in note 48, supra. Usher, Sales, 5 96. The Massachusetts cases construe In this way contracts which in most jurisdictions would be construed as intended to pass title before severance, and as hence within the fourth section, but the peculiarity of the Massachusetts cases concerns rather the construction of the contract, and not the application of the statute. If the contract grants an estate in the trees while growing, the fourth section applies. White v. Foster, supra. Where the contract limits the time within which the purchaser may remove the trees to a certain time, or by implication to a rea- sonable time, it is generally held that, if the time expires without removal, the rights of the purchaser in the timber, supposing there was an enforceable contract, are terminated. Macomber v. Railroad Oo., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713; Bunch V. Lumber Co., 134 N. C. 116, 46 S. E. 24. Contra: Halstead v. Jessup, 150 Ind. 85, 49 N. E. 821 (where there is no forfeiture clause In the contract). Cf. Irons v. Webb, 41 N. J. Law, 203, 32 Am. Rep. 193; King v. Merriman, 38 Minn. 47, 52, 35 N. W. 570. 57 Evans v. Roberts, 5 Bam. & C. 836; Jones v. Flint, 10 Adol. & E. 753; Warwick v. Bruce, 2 Maule & S. 205; Dunne v. Ferguson, Hayes, 540; Backenstoss v. Stabler, 33 Pa. 251, 255, 75 Am. Dec. 592; Marshall v. Ferguson, 23 Cal. 66; Davis v. Mctarlane, .37 Cal. 634, 99 Am. Dec. 340; Vulicevich v. Skinner, 77 Cal. 239, 19 Pac. ^24: Graff v. Fitch, 58 111. 373, 11 Am. Rep. 85; Swafford v. Spratt. 93 JIo. App. 631, 6i7 S. W. 701; Wimp v. Early, 104 Mo. App. 85, 78 S. W. 343. B8 Whipple v. Foot, 2 Johns. (N. T.) 418, 3 Am. Dec. 442; New- comb V. Ramer, 2 Johns. (N. Y.) 421, note a; Brittain v. McKay, 23 N. C. 265, 35 Am. Dec. 738; Penhallow v. Dwight, 7 Mass. 34, 5 Am. Dec. 21; Westbrook v. Eager, 16 N. J. Law, 81; Bricker v. ITuirhf-. 4 Ind. 146; Bull v. Griswold, 19 111. 631. 78 FORMATION OF THE CONTRACT. (Ch. 2 section," but probably they are such.'" Whether fructus in- dustriales include a crop which is neither annual nor perma- nent, but which affords a crop either the second or third year, or a succession of crops for several years, is a question on which there is little authority; but it would seem that the crop of the first year would be fructus industriales, and that the crops of subsequent years would be fructus naturales, unless, like hops, they require cultivation for each successive crop, in which case they would be fructus industriales till exhaust- ed." Fixtures. Where chattels are attached to the freehold, as a rule, they become a part of the land, and are treated as such. Accord- ingly buildings upon the land pass with a conveyance of it, and an oral reservation of title to the building is inoperative. ^'^ And a contract to sell building material in a house to be re- moved by the buyer is a contract for the sale of an interest 69 For dicta in the affirmative: Evans v. Roberts, 5 Barn. & C. S.3G, per Bayley, J., and Littledale, J. ; Marshall v. Green, 1 C. P. Div. 35, 42, per Brett, J.; Dunne v. Ferguson, Hayes, 540, per Joy, C. B.; Marshall v. Ferguson, 23 Cal. 66, per Crocker, J.; Sherry v. Picken, 10 Ind. 375, per Perkins, J. See, also, Ross v. Welch, 11 Gray (]\rass.) 235. Lord Blackburn says that the proposition is "exceedingly questionable." Blackb. Sales (2d Ed.) p. 13; Benj. Sales, § 127; Langd. Cas. Sales, 1031. 00 Under Sales Act, § 76 (1), emblements are goods, thus settling the doubt on this point. 01 Benj. Sales, §§ 128, 129, citing Graves v. Weld, 5 Barn. & Adol. 105. "A growing crop of peaches or other fruit, requiring periodical expense, industry, and attention, » * » may be well classed as fructus industriales." Burner v. Piercy, 40 Md. 212, 223, 17 Am. liep. .591. per Stewart, J. By Sales Act, § 76 (1), following the English Sale of Goods Act, "emblements" and "industrial growing crops" are declared to be goods. The latter term "would seem to include the first crop at any rate of vegetables sown or planted, although not maturing within 12 months — such as clover and teasels — and of artificial grass." Benj. Sales (5th Ed.) 189. It is Siiid to be a Scotch term. Chalmers, Sale of Goods Act (6th Ed.) 124; Benj. Sales (5th Bng. Ed.) 173. 02 Noble V. Bosworth, 19 Pick. (JIass.) 314; Leonard v. Clough, 183 N. y. 292, 31 N. B. 93, 16 L. R. A. 305. §§ 21-22) WHAT AKE GOODS, WARES, AND MEECHANDISE. 79 in land ; °' but it seems that a contract to sell such materials, when they are to be removed from the land before the sale, is a contract to sell goods."* Where, however, chattels have been affixed to the freehold by a tenant and are subject to his right to remove them during the term, it has been held in England that a sale of them by the tenant to the landlord is not a sale of an interest in land within the fourth section, or of goods within the seventeenth ; the real nature of the transaction being an abandonment of his right to sever them.''° Whether a sale of fixtures by a tenant under such circumstances to a stranger would be a mere trans- fer of the tenant's right to sever them, or would be deemed, like a sale of emblements, to be a sale of chattels, and, if the latter whether it would be a sale of goods, seems to be an open question. "^ In this country a sale of removable fixtures by a tenant has been held not to be, within the fourth section," and it seems that a contract by the tenant to sell such fixtures, to be removed before the sale, would be a contract to sell goods with- in the seventeenth section."' 63 Lavery v. Pursell, 39 Oil. Div. 508. And see Brown v. Roland, 92 Tex. 54, 45 S. W. 79.5. 61 Bostwick V. Leach, 3 Day (Conn.) 476; Long v. White, 42 Ohio St. 59; Michael v. Curtis, 00 Conn. 363, 22 Atl. 949; Scales v. Wiley, 68 Vt 39, 33 Atl. -771 ; ante, p. 74. But see Meyers v. Schemp, 67 111. 469. In Scales v. Wiley, supra, it was held that a contract wherehy plaintiff was to talie down a barn on her premises, and, after the lumber had been drawn to defendant's premises, re-erect it there, was not a contract for the sale of an interest in land; but that it was not a contract to sell goods, but to malje improvements on real estate. 6 5Hallen v. Runder, 1 Oromp., M. & R. 266; Lee v. Gasliell, 1 Q. B. Div. 700, 45 Law J. Q. B. 540. And see South Baltimore Co. V. Muhlbach, 69 Md. 395, 10 Atl. 117, 1 L. R. A. 507. 66 Benj. Sales (5 Eng. Ed.) 187. 67 Heysham v. Dettre, 89 Pa. 506; Powell v. McAshan, 28 Mo. 70. "In the case of fixtures which are not incorporated with, but mere- ly annexed to, the freehold, the rule is well settled that the statute does not apply." Strong v. Doyle, 110 Mass. 92, per Colt, J. 6 8 Ante, p. 74. 80 FORMATION OF THE CONTRACT. (Ch. 2 Minerals — Ice. Minerals, while in the earth, form part of the realty; but, when mined and severed therefrom, they become personalty. '° Hence a contract for the sale of minerals which have been sev- ered is a contract for the sale of chattels, and not of an interest in land.'" By virtue of his ownership of the soil, ice which forms upon water overlying the land belongs to the owner of the land.'^ It has been held, however, that ice should be dealt with in law according to its uses in fact, and that any sale of ice ready formed, as a distinct commodity, should be held a sale of personalty, whether in the water or out of the water.' ^ AVHAT IS A CONTRACT FOR THE PRICE OR VALUE OF £10 ($50). 23. Tlie statute of frauds includes: (a) An entire contract for the sale of goods and for other objects not nrithin the statute, where the value of the goods exceeds the statutory amount. (b) An entire contract for the sale of different goods, the joint valne \Fhereof exceeds the statutory amount. (c) A contract for the sale of goods of unascertained value at the date of the contract, the value wrhereof is aft- erwards ascertained to exceed the statutory amount. ^3 The rule that an entire contract for the sale of goods, and for other matters not within the statute, is invalid, if the value of the goods exceeds the statutory amount, was established by Harman v. Reeve,'* in which the plaintiff agreed to sell to the 6» Green v. Iron Co., G2 Pa. 97; Kelley v. Oil Co., 57 Ohio St. 317, 49 N. E. 399, 39 L. R. A. 7(15, 63 Am. St. Rep. 721. 70 A contract between A. and B. to work a stone quarry and divide the profits, if A. can purchase the land and secure a deed to himself, is not for an interest in land. Treat v. Hiles, 68 Wis. 344, 32 N. W. 517, GO Am. Rep. 858. 71 .Stevens v. Kelley, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813; Peo- ple's Ice Co. V. The Eixcelsior, 44 Jlich. 229, 6 N. W. 636, 38 Am. Rep. 24(j; Hoag v. Place, 93 Mich. 450, 53 N. W. 617, 18 L. R. A. 39. 7 2 Higgins V. Kusterer, 41 Mich. 318, 2 N. W. 13. 32 Am. Rep. 160. 73 See Kerr, Dig. Sales, § 7. 7 4 IS C. B. 587, 25 Law J. 0. P. 257. See, also, Astey v. Emery, 4 Maule & S. 202; Cobbold v. Caston, 1 Bing. 399, 8 Moore, 456. § 23) CONTRACT FOE THE PKICB OK VALUE OF £10 (850). 81 defendant a mare and foal, which were above the value of £10, and also to agist them and another mare and foal for i30. The statute was held to apply, but the court said that the plain- tiff might recover the value of the agistment. In the Massa- chusetts case of Irvine v. Stone,'''' however, in which a contract for the purchase of a cargo of coal at Philadelphia at an agreed price per ton, and for the payment of the freight, was held with- in the statute, the contract was held also to be unenforceable as to the freight. The leading case upon the rule that an entire contract for the sale of various articles, neither of which is of the statutory value, but whose value in gross exceeds it, is within the statute, is Baldey v. Parker.'® In this case the defendant bought at the plaintiff's shop a number of articles, each at a separate price less than £10, the whole amount being £70, and the case was decided upon the ground that the transaction constituted one entire contract. The cases in this country are in harmony with Baldey v. Parker,'' and they even extend the rule to an auction, where the articles are struck off separately at distinct prices," though in England in such a case a distinct contract arises for each lot." The rule that the statute applies, although it be not ascer- tained till after the date of the contract that the value exceeds the statutory amount, was involved in Watts v. Friend,'" where the sale was of a future crop of turnip seed at a guinea a bushel, and the value of the crop when produced exceeded £10. The 'B6 Oush. 508. See, also, McMullen v. Kiley, 6 Gray (Mass.) 500. 7 6 2 Barn. & C. 37. ■n Gilman v. Hill, 36 N. H. 318; Gault v. Brown, 48 N. H. 183, 2 Am. Rep. 210; Allard v. Greasert, 61 N. Y. 1. 7 8 Mills V. Hunt, 17 Wend. (N. Y.) 333; Id., 20 Wend. (N. Y.) 431; Coffman v. Hampton, 2 Watts & S. (Pa.) 377, 37 Am. Dec. 511; Tompkins v. Haas, 2 Pa. 74; Kerr v. Shrader, 1 Wkly. Notes Cas. (Pa.) 33; Jenness v. Wendell, 51 N. H. 63, 12 Am. Kep. 48. But separate sales of real estate are distinct contracts. Van Eps v. Schenectady, 12 Johns. (N. Y.) 436, 7 Am. Dec. 330; Eotiinson y. Green, 3 M'etc. (Mass.) 159; Wells v. Day, 124 Mass. 38. 7 9 Emmerson v. Heelis, 2 Taunt. 38. See, also, Rugg v. Minett, 11 East, 218, per I^ Blanc, J.; Roots v. Dormer, 4 Barn. & Adol. 77; Couston V. Chapman, L. R. 2 H. L. Sc. 250. 8 10 Barn. &-C. 446. Tiff.Sai,es(2d Ed.) — 6 82 FORMATION OF THE CONTRACT. (Ch. 2 point was not argued or mentioned by the court, but the de- cision has been followed in the United States.*^ ACCEPTANCE AND RECEIPT. 24. In order to satisfy the exception, in case "the buyer shall accept part of the goods so sold, and actually receive the same," there must be both acceptance and actual receipt. 25. Acceptance may precede, be contemporaneous ivith, or subsequent to, receipt, and both may be subseciuent to the contract of sale. 26. A sample constitutes a "part of the goods," if it be con- sidered by the parties as part of the bulk sold. Having considered the meaning of the words, "no contract for the sale of goods, wares, or merchandise for the price of £10 or upwards," it remains to consider under what circum- stances such contracts "shall be allowed to be good." The section provides that they shall not be allowed to be good, "ex- cept (1) the buyer shall accept part of the goods so sold, and actually receive the same ; (2) or give something in earnest to bind the bargain, or in part payment ; (3) or that some note or memorandum in writing of the said bargain be made and sign- ed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." *^ Acceptance and Receipt. Referring to the first exception, Lord Blackburn says : *' "If we seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this provision is not complied with, unless the two things concur : The buyer must accept, and he must actually receive part of the goods, and the contract will not be good unless he does both ; and this is to be borne in mind, for, as there may be an actual receipt without an acceptance, so there may be an accep- 81 Carpenter v. Galloway, 73 Ind. 418; Bowman v. Conn, 8 Ind. 58; Brown v. Sanborn, 21 Minn. 402. 8 2 Benj. Sales, § 138 et seq. 83 Blaekb. Sales, 16. §§ 24-26) ACCEPTANCE AND EECBIPT. 83 tance without any receipt. In the absence of authority, and judging merely from the ordinary meaning of language, one would say that an acceptance of part of the goods is an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract. So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfillment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods, assigning grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted, them. The question of acceptance or not is a question as to what was the intention of the buyer, as signified by his outward acts. The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often evidence of acceptance, but it is not the same thing; indeed, the receipt by the buyer may be, and often is, for the express purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his order or not. It may even be reasonable to try part of the goods by using them ; but, though this is a very actual receipt, it is no accept- ance, so long as the buyer can consistently object to the goods as not answering his order." It is to be observed that the two questions of acceptance and receipt are frequently confused in the cases, and it has some- times been questioned whether any distinction existed between them.** It is clearly established, however, that they are dis- tinct, and that both acceptance and receipt are essential.*' 8 4 Castle V. Sworder, 6 Hurl. & N. 832, 30 Law J. Exch. 310, per Crompton, J., and Cockburn, C. J. 8 6 Smith V. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 145; Cusack V. Robinson, 1 Best & S. 299, 30 Law J. Q. B. 261 ; Bill v. Bament, 9 Mees. & W. 36; Baldey v. Parker, 2 Barn. & C. 37; Saunders v. Topp, 4 Ekch. 390; Caulkins v. Hellman, 47 N. Y. 449, 7 Am. Rep. 461; Cooke v. Millard, 65 N. Y. 352, 367, 22 Am. Rep. 619; Maxwell 84 FORMATION OF THE CONTRACT. (Ch. 2 Acceptance may precede receipt,*" or receipt may precede ac- ceptance,*' and both may be subsequent to the contract of sale.** Their effect is to prove that there was a contract, the terms of which may then be proved by parol.*" Acceptance and Receipt of Part — Sample. As the statute requires ah acceptance and receipt simply of a part, it is immaterial how small such part is."" Thus accept- ance and receipt of a sample is sufficient, provided it be con- sidered by the parties as part of the bulk sold.°^ It is not suf- ficient if the sample be not so considered."^ So, also, accept- V. Brown, 39 Me. 98, 63 Am. Dec. 605; Powder River Live Stock Co. V. Lamb, 38 Neb. 339, 56 N. W. 1019. 86 ropt, p. 85. • 7 Post, p. 87. 8 8 Gault V. Brown, 48 N. H. 183, 188, 2 Am. Rep. 210; McKnight V. Dunlop, 5 N. Y. 537, 55 Am. Dec. 370; Marsh v. Hyde, 3 Gray" (Mass.) 331; Bush v. Holmes, 53 Me. 417; Field v. Runk, 22 N. .T. Law, 525, 530; McCarthy v. Nash, 14 Minn. 127 (Gil. 95); Rickey V. Tenbroeck, 63 Mo. 563. Acceptance can have no effect after the seller has disaffirmed. Taylor v. Wakefield, 6 El. & Bl. 705. See Washington Ice Co. v. Webster, 62 Me. 341, 361, 16 Am. Rep. 4G2; Brand v. Focht, *42 N. Y. 409. 89Tomkinson v. Stalght, 25 Law J. C. P. 85, 17 O. B. 697; Gar- field V. Paris, 90 U. S. 557, 566, 24 L. Ed. 821; Coffin v. Bradbury, 3 Idaho (Hasb.) 770, 35 Pac. 715, 95 Am. St. Rep. 37. 80 Garfield v. Paris, 96 U. S. 557, 24 L. Ed. 821 (labels deliverable under a contract for liquors as part of the goods sold); Damon v. Osborn, 1 Pick. (Mass.) 476, 11 Am. Dec. 229; Farmer v. Gray, 16 Neb. 401, 20 N. W. 276. A parol contract for the purchase of cor- porate stock owned in different portions by different persons, who individually consent to the sale, which is conducted by one of them, is the separate contract of each owner, so that a delivery of the stock of one does not prevent the operation, as to the contract of another, of the statute of frauds, which renders void parol contracts for the sale of goods above a certain price, vmless there is an ac- ceptance by the buyer, in whole or in part. Tompkins v. Sheehan, 158 N. Y. 617, '^?> N. E. 502. 91 Hinde v. Whitehouse, 7 East, 558; Talver v. West, Holt, 17S; Klinitz V. Surry, 5 Esp. 207; Gardner v. Grout, 2 C. B. (N. S.) 340; Brock V. Knower, 37 Hun (N. Y.) 609. 82 Cooper V. Elston, 7 Term R. 14; Simonds v. Fisher, cited in Gardner v. Grout, 2 C. B. (N. S.) 340; Moore v. Love, 57 Miss. 765; Dierson v. Petersmeyer, 109 Iowa, 233, SO N. W. 389. See Carver v. Lane, 4 E. D. Smith (N. Y.) 168. §§ 27-29) ACCEPTANCE AND RECEIPT. 85 ance and receipt of a part is sufficient, though the rest of the goods are still unmade/^ or though the contract embraces dif- ferent kinds of goods, only one of which is accepted and re- ceived."* SAME— ACCEPTANCE. 27« Acceptance is am assent by tbe buyer tbat tlie goods are to be taken by him under and in performance of the contract of sale. Whether the buyer has accepted is a question of his intention, as evidenced by his ^rords and acts. In England (but not in the United States) any dealing with the goods ivhich recognizes a pre- existing contract of sale constitutes an acceptance. 28. If the contract be for the sale of specific goods, the ac- ceptance takes place ivhen the contract is entered in- to, and is proved by the same evidence which proves the contract. 29. CONSTRUCTIVE ACCEPTANCE. If the goods have been received by the buyer, any dealing with them by him as oivner is evidence of acceptance. Lord Blackburn adds at the close of the passage quoted on a preceding page that "on the whole the cases are pretty con- sistent with these suggestions and with each other, as to what forms an acceptance within the statute, though not as to the strength of the proof required to establish it." "^ The Amer- ican cases also are pretty consistent with this statement of the law, but in England, as will be seen, an artificial construction has since the passage was written been put upon "acceptance," which is quite inconsistent with the views there expressed. The nature of an acceptance can best be understood by a con- sideration of the circumstances under which it is held to take place. If the contract of sale is for specified goods, an acceptance ordinarily takes place when the contract is entered into."* »3 Scott v. Railway Co., 12 Mees. & W. 33. 84 Elliott V. Thomas, 3 Mees. & W. 170. »6 Blackb. Sales, 17. 8 6 Cusack V. Robinson, 1 Best & S. 299, 30 Law J. Q. B. 261; Bog Lead Min. Co. v. Montague, 10 C. B. (N. S.) 481, 489; Cross V, O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; United States Reflector 86 FORMATION OF THE CONTRACT. (Ch. 2 Thus in Cusack v. Robinson," where the buyer was shown a lot of 156 firkins of butter and agreed to buy the lot, and the goods were forwarded to him, it was held that there was suf- ficient evidence to justify the jury in finding an acceptance. Blackburn, J., said: "There was sufficient evidence that the defendant 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 goods to be sent to London. This was certainly evidence of an acceptance." In such cases the acceptance of course precedes the receipt. Yet other cases hold or declare that, although the contract is one of sale of specific goods, an acceptance is not established merely by the words which indicate the buyer's assent to the sale, but that the acceptance, as well as the receipt, must be established by acts of the buyer over and above the words of the sale."^ If the goods are ready for delivery, an acceptance will readily be implied, for example, from marking the goods with the name of the buyer by his consent,"" although such marking would not constitute an actual receipt; but, if the goods are Co. v. Iliishton, 7 Daly (N. Y.) 410; Vietor v. Stroock (City Ct. N. Y.) 3 N. Y. Supp. 801; Id., 5 Daly (N. Y.) 329, 5 N. Y. Supp. C.j'J; Simp- son V. Krumdick, 28 Jlinn. 352, .355, 10 N. W. 18. See, also. Ex parte Safford, 2 Low (TJ. S.) 5r;3, 5(J5, Fed. Cas. No. 12,212; Ivnigbt V. Mann, 118 Mass. 143, 145; Hewes v. Jordan, 39 Md. 472, 484, 17 Am. Rep. 578; Langd. Cas. Sales, ]ii21. "There may be a receipt with- out any acceptance, and an acceptance without any receipt. * * * An instance of acceptance without receipt is where the sale is of a specific lot of goods, where the bargain itself identifies the goods as so sold, and as of the quality which the buyer agrees to buyt In such case the buyer accepts wljen the bargain is made, though he may not receive the goods at that time." Simpson v. Ivrumdick, per Gilflllan, C. J. 8 7 1 Best & S. 299, 30 Law J. Q. B. 2G1. »8 See Shindler v. Houston, 1 N. Y. 261, 49 Am, Dec. 316; Gorman V. Brossard, 120 Mich. 611, 79 N. W. 903j post, p. 88 and cases cited in note 109. Cf. Devine v. Warner, 7.i Conn. 37."), 53 Atl, 7S2, 96 Am. St. Rep. 211; Id., 76 Conn. 220, 56 Atl. 5i;2. The present English rule requires an act recognizing a pre-exist- ing contract. Post, p. 89. »» Bill V. Bament, 9 Mees. & W. 36; Hodgson v. Le Bret, 1 Camp. 233; Proctor y. Jones, 2 Car. & P. 532, per Best, C. J.; Saunders v. Topp, 4 Exch. 390, per Alderson, E.; Benj. Sales, § 166, note y; Kappleye v. Adee, 1 Thomp. & C. (N. Y.) 127. §§ 27-;iy) ACCEI'TA.NCE AND RECEIPT. 87 not ready for delivery, an acceptance will not readily be im- plied."" If the contract of sale be for goods which are not specific when the contract is entered into, there can be no acceptance till the seller has indicated to the buyer what goods he proposes to deliver in performance of the contract,^"^ and it seems that the buyer is then entitled to a reasonable time to examine the goods before deciding whether to accept them,^°^ though he may doubtless waive his right of examination.^"^ After the goods have been received by the buyer, his acceptance may be proved by any dealing with the goods on his part as owner,^"* looMaberley v. Shepparcl, 10 Bing. 99; Dauphiny v. Creamery Co., 123 Cal. 5-18, 56 Pac. 451. 101 Langd. Cas. Sales, 1021. 10 2 Hunt V. Hecht, 8 Exch. 814; Nicliolson v. Bower, 1 El. & El. 172: Smith v. Hudson, 6 Best & S. 4S1, 34 Law J. Q. B. 145, per Cockburn, 0. J.; Langd. Cas. Sales, 1021. In Morton v. Tibbett, post. Lord Campbell says: "The acceptance is to be something which is to precede, or at any rate to be contemporaneous witli, the actual receipt of the goods, and is not to be a subsequent act after the goods have been actually received, weighed, measured, or exam- ined." This view may be required by the artificial construction put on "acceptance" by Lord Campbell and the latest English decisions. But, where the term is construed in its natural sense, the right to examine before acceptance or rejection would seem to exist of neces- sity. See Kent v. Huskinson, 3 Bos. & P. 233. 103 "It [acceptance] means some act done after the vendee has exercised, or had the means of exercising, his right of rejection." Hunt V. Hecht, 8 Exch. 814, 22 Law J. Exch. 293, per Martin, B. "According to Lord Campbell [Morton v. Tibbett, cited post], there may be an acceptance and receipt of goods by a purchaser within the statute of frauds, although he has had no opportunity of ■ex- amining them, and although he has done nothing to preclude him- self from objecting that they do not correspond with the contract. I agree with that. But in such case the party must have done something to waive his riglit to reject the goods." Per Bramwell, B., in Coombs v. Railway Co., 3 Hurl. & N. 510, 27 Law J. Exch. 401. Of course, the buyer may waive the right to examine. Currie V. Anderson, 2 El. & EI. 592. 101 Beaumont v. Brengeri, 5 C. B. 301; Parker y. Wallis, 5 EI. & Bl. 21: Garfield v. Paris. 96 U. S. 557, 563, 24 L. Ed. 821; Vincent V. Germond, 11 .Johns. (N. Y.) 2S3 ; Gray v. Davis, 10 N. T. 285; Jones V. Reynolds, 120 N. Y. 213, 24 N. B. 279; Townsend v. Har- graves, 118 Mass. 325, 332; Ex parte Safford, 2 Low. (U. S.) 563, Fed. Cas. No. 12,212; Barkalow v. PfeifEer, 38 Ind. 214; Bacon v. 88 FORMATION OF THE CONTRACT. (Ch. 2 for example by a resale,^"" and even by his retaining them for such time as to lead to the presumption that he intended to keep them as owner.^"" And a dealing with the goods, such as to constitute an acceptance, may take place as effectively with the bill of lading, which represents the goods, as with the goods themselves/"^ An acceptance implied from the conduct of the buyer is called a constructive acceptance. Whether the acts or omissions of the buyer amount to a constructive accept- ance is a question of fact for the jury, though the question is, of course, to be determined by the court, if the evidence is cap- able of only one construction.^"^ It is sometimes said that an acceptance must be established by some act of the buyer, and that mere words are not enough, but the cases in which such statements occur generally involve simply the proposition that mere words are not enough to constitute acceptance and re- ceipt,^"" and there is on principle no reason why the acceptance Eccles, 43 Wis. 227, 238; Sullivan v. Sullivan, 70 Mich. 583, 38 N. W. 472; Wyler v. Rothschild, 53 Xeb. 566, 74 N. W. 41; Leonard V. Medford, 85 Md. 66G, 37 Atl. 365, 37 L. K, A. 449. 105 Chaplin v. Rogers, 1 East, 195; Hill v. IVlcDonald, 17 Wis. 100; Phillips v. Mills, 55 Ga. 033; Marshall v. Ferguson, 23 Cal. 66. 106 Bushel v. Wheeler, 15 Q. B. 442; Coleman v. Gibson, 1 Moody & R. 168; Currie v. Anderson, 2 El. &. El. 592; Farina v. Home, 16 Jlees. & W. 119; Borrowscale v. Bosworth, 99 Mass. 379; Spencer v. Hale, 30 Vt. 314, 73 Am. Dec. 309; Downs v. Marsh, 29 Conn. 400; Gaff V. Homeyer, 59 Mo. 345; Hobbs v. Whip Co., 15S Mass. 194, 33 N. E. 405. 107 Currie.v. Anderson, 2 HI. & El. 592, 29 Law J. Q. B. 87; Mere- dith V. Meigh, 2 El. & Bl. 364, 22 Law J. Q. B. 401. See Quiutard V. Bacon, 99 Mass. 1S5: Rodgers v. Phillips, 40 N. Y. 519. 108 Edan v. Dudfleld, 1 Q. B. 302, per Denman, C. J.; Bushel v. Wheeler, 15 Q. B. 442, per Coleman and Williams, JJ.; Garfield v. Paris. 96 U. S. 557, 563, 24 L, Ed. S21; Hinchman v. Lincoln, 124 U. S. 38, 8 Sup. Ct. 360, 31 L. Ed. 337; Stone v. Browning, 68 N. Y. 598; Shepherd v. Pressey, 32 N. H. 49, 57; Corbett v. Wolford, 84 Md. 426, 35 Atl. 1088. 109 Shindler v. Houston, 1 N. Y. 201, 49 Am. Dec. 316; Bailey v. Ogden, 3 Johns. (N. Y.) 421, 3 Am. Dec. 509; Kellogg v. Witherhead, « Thomp. & C. (X. Y.) 525; Dole v. Stimpson, 21 Pick. (Mass.) 3,s4; Edwards v. Railway Co., 54 Me. 105; Kirby v. .Tohuson, 22 Mo. 354; Northrup v. Cook. 30 JIo. 208; Clark v. Labreche, 63 N. H. 3U7; Gorman v. Brossiiid, 12U Mich. 611, TO N. W. 903. §§ 27-29) ACCEPTANCE AND RECEIPT. 89 may not be evidenced by the buyer's declarations.^^" The re- ceipt of goods by a carrier or wharfinger appointed by the buy- er does not constitute an acceptance. These agents have au- thority to receive, but not to accept.^^^ Whether Acceptance must be in Performance of the Contract — In England. Beginning with the case of Morton v. Tibbett,"^ a different construction began in England to be placed on "acceptance," and it has become established that the acceptance need not be in performance of the contract, but that any dealing with the goods which recognizes a pre-existing contract of sale consti- tutes an acceptance. ^^' In Morton v. Tibbett, the defendant had made a verbal agreement with the plaintiff for the purchase of 60 quarters of wheat according to sample, each quarter to be of a specified weight, and the wheat was received on the defendant's lighter for conveyance to its destination, where it duly arrived, but in the meantime the defendant resold it on the same understanding as to weight. The' wheat on arrival was rejected by the second purchaser for short weight, and was thereupon rejected by the defendant on the same ground. It 110 Caulkins v. Hellman, 47 N. T. 449, 7 Am. Rep. 461; Shepherd V. Pressey, 32 N. H. 49, 58; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Galvin v. MacKenzie, 21 Or. 184, 27 Pac. 1039. See Stone v. Browning, 68 N. Y. 598. Acceptance is evidenced by mere words, where the contract is for specific goods, ante, p. 85. 111 Hanson v. Armitage, 5 Barn. & Aid. 557; Norman v. Phillips, 14 Mees. & W. 276; Hunt v. Hecht, 8 Exch. 814; Meredith v. Meigh, 2 El. & Bl. 370, 22 Law J. Q. B. 401, overruling Hart v. Pattley, 3 Camp. 528; Frostburg Min. Co. v. Glass Co., 9 Cush. (Mass.) 115; Allard v. Greasert, 61 N. Y. 1, 5; Jones v. Bank, 29 Md. 287, 96 Am. Dec. 533; Johnson v. Cuttle, 105 Mass. 447, 7 Am. Rep. 545; Keiwert V. Meyer, 62 Ind. 587, 30 Am. Rep. 206; Billin v. Henkel, 9 Colo. 394, 13 Pac. 420; Fontaine v. Bush, 40 Minn. 141, 41 N. W. 465, 12 Am. St. Rep. 722; Hudson Furniture Co. v. Carpet Co., 10 Utah, 31, 36 Pac. 132; Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727; Salo- mon v. King, 63 N. J. Law, 39. 42 Atl. 745 ; Gatiss v. Cyr, 1.34 Mich. 233, 96 N. W. 26. Cf. Leggett & Meyer Tobacco Co. v. Collier, 89 Iowa, 144, 56 N. W. 417. Contra: Spencer v. Hale, 30 Vt. 314, 73 Ain. Dec. 309; Strong y. Dodds, 47 Vt. 348. Cf. Agnew t. Dumas, 64 Vt. 147, 23 Atl. 634. 112 15 Q. B. 428, 19 Law J. Q. B. 382. 113 Kerr, Dig. Sales. § 10. 90 FORMATION OP THE CONTRACT. (Ch. 2 was held that the defendant had accepted, and Lord Campbell, after observing that it would be open to the buyer, after ac- ceptance of a part, "to object at all events to the quantity and quality of the residue," announced : "We are of the opinion that * * * there may be an acceptance and receipt within the meaning of the act, without the buyer having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords exclusive evidence of the contract having been fulfilled. We are therefore of the opinion in this case that, although the defendant had done noth- ing which would have precluded him from objecting that the ^^'heat dehvered was not according to the contract, there was evidence to justify the jury in finding that the defendant ac- cepted and received it." It would seem that the resale before examination was such an act of ownership as was inconsistent with the continuance of the right of property in the seller, that the defendant had thereby waived his right to reject the wheat, and that his conduct was sufficient evidence of an accept- ance.^^* But the construction announced by Lord Campbell, that acceptance does not preclude rejection, has, after some dis- sent,^ ^* prevailed, and was adopted by the court of appeals in the recent case of Page v. Morgan,^'^^ in which the natural meaning of "accept" is entirely abandoned. There the buyer examined the goods simply to see if they agreed with the ii-t Benj. Sales, § 150. 116 Hunt V. Hecht, 8 Exch. 814, 22 Law J. Exch. 293; Coombs v. Bristol & E. Ry. Co., 3 Hurl. & N. 510, 27 Law J. Exch. 401. See, also, Smith v. Hudson, 6 Best & S. 431, 34 Law J. Q. B. 14.j; Castle V. Sworder, 6 Hurl. & N. 832, 30 Law J. Exch. 310, per Cockbum, C. J. 116 15 Q. B. Div. 228. See. also, Cusack v. Robinson, 1 Best & S. 20;), 30 Law J. Q. B. 2G1, per Blackburn, J.; Currie v. Anderson, 2 El. & El. ."02. 20 Law .T. Q. B. ST, per Crompion, J.; Kibble v. Oou,gh, 38 Law T. (N. S.) 204; Rickard v. Moore, Id. 841. But where the buyer inspected the goods at the carrier's wharf on arrival, and wrote across the note of advice. "Refused, not according to represen- tation," and 10' days later notifled his refusal to the seller, it was held no acceptance and l'ni;p v. Morgan, 1.5 Q. B. Div. 22S, was dis- tinguished. Taylor v. Smith [1S93] 2 Q. B. 0.5. §§ 27-29) ACCEPTANCE AND RECEIPT. 91 sample, and rejected them as not equal to sample, and it was held that this constituted an acceptance. Brett, M. R., in giv- ing judgment, said: "All that is necessary is an acceptance which could not have been made except upon admission that there was a contract, and the goods were sent to fulfill that contract." "I rely * * * on the fact that the defendant examined the goods to see if they agreed with the sample. I do not see how it is possible to come to any other conclusion with regard to that fact than th^t it ^^-:^<^ t rlpi';-"- ■■ ■'-h the goods, involving an admission that there was a contract." Same — Iji the United States. In the United States, however, the later artificial construction of the English courts has never been adopted, and it is clearly established, in accordance with the statement of the law made by Lord Blackburn,^^'' and with the earlier English cases,'-^' that the acceptance must be in performance of the contract; that is, "there must be an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his property under the contract, and as so far satisfying the contract." ^^" "There is an acceptance of goods within the meaning of this sec- tion when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale whether there be an ac- ceptance in performance of the contract or not." Sale of Goods Act, § 4 (3). See Abbott v. Wolsey (1895) 2 Q. B. 97; Taylor v. Great Eastern Ry. (1901) 1 K. B. 774. 117 Ante, p. 82. 118 Howe V. Palmer, 3 Barn. & Aid. 321; Hanson v. Armitage, 5 Barn. & Aid. 557; Phillips v. Bistolli, 2 Barn. & C. 511; Smith v. Surnam, 9 Barn. & C.'561; Acebal v. Levy, 10' Bing. 370; Normaa V. Phillips, 14 Mees. & W. 277. 110 Caulkins v. Hellman, 47 N. Y. 449, 7 Am. Rep. 401; Stone v. Browning, 51 N. Y. 211, 68 N. Y. 598 ; Cooke v. Millard, 05 N. Y. 352, 370, 22 Am. Rep. 619; Knight v. Mann, 118 Mass. 143; Id., 120 Mass. 219; Meehan v. Sharp, 151 Mass. 564, 24 N. E. 907; Shepherd v. Pressey, 32 N. H. 49; Gorham v. Ifisher, 30 Vt. 428; Smith v. Fisher, 59 Vt. 53, 7 Atl. 816; Hewes v. Jordan, 39 Md. 472, 17 Am. Rep. 578; Bacon v. Eecles, 43 Wis. 227; Scotten v. Sutter, 37 Mich. 520; Simp- son V. Krumdick, 28 Minn. 352, .354, 10 N. W. 18; Jamison v. Simon, 68 Cal. 17, 8 Pac. 502; Garfield v. Paris, 90 U. S. 567, 24 L. Ed. 821; Meyer v. Thompson, 16 Or. 194, 18 Pac. 16; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Hershey Lumber Co. v. Lumber Co., 66 Minn. 449, 69 N. W. 215; Dinnie v. Johnson, 8 N. D. 153, 77 N. 92 FORMATION OF THE CONTRACT. (Ch. 2 As was observed in Phillips v. Bistolli,^'"' in a passage frequent- ly quoted in the American cases : "There must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual ac- ceptance by the latter, with an intention of taking to the pos- session as owner." And in the leading case of Caulkins v. Hell- man, Rapallo, J., said: "Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required." '^^^ This view is not inconsistent with the statement of Lord Campbell in Morton v. Tibbett that it would be open to the buyer, after acceptance of a part, to ob- ject to the quantity or quality of the residue, — a principle which is fully recognized by the American cases. ^^^ It is enough if the part received is accepted as a partial fulfillment of the con- W. 612; Dierson v. Petersmeyer, 109 Iowa, 233, 80 N. W. 389. Cf. Devine v. Warner, 75 Conn. 375, 53 Atl. 782, 96 Am. St. Rep. 211; Id., 76 Conn. 229, 56 Atl. 5G2; Mechanical Boiler-Cleaner Co. v. Kell- ner, 62 N. J. Law, .544, 43 Atl. 599. ■\^'lnere two shipments of goods were received by the defendant, and he wrote to the plaintiffs complaining of the quality, and stating that he would look them oyer again, and, if they were not all right, would return them, and he did return them two weeks later on the ground that he could "do better," there was evidence from which the jury might infer an acceptance and receipt. Standard Wall Paper Co. v. Towns, 72 N. II. 324, SB Atl. 744. "From this evi- dence," said the court, "it might be inferred that the plaintiff ex- amined the goods with the Intention of accepting them if they cor- responded with the sample, and that they were accepted by him, as they did in fact so correspond, but were subsequently returned because, in the language of his letter, he found he could 'do better.' Whether this inference should be drawn is a question of fact, as is also the question what inference should be made from the length of time the goods were kept before they were returned." See Sales Act, § 4 (3). 120 2 Barn. & C. 511. 121 47 N. Y. 449, 7 Am. Rep. 461. 122 Garfield v. Paris, 96 U. S. 557, 5C.2, 24 K Ed. 821; Hewes v. .lordan, 39 JId. 472, 483, 17 Am. Rep. 578. In Remick v. Sandford, 120 Mass. 309, 316, it is said by Devens, J., that "if the buyer ac- cepts the goods as those which he purchased he may afterwards reject them if they are not what they were warranted to be, but the statute is satisfied." See post, p. 369. §§ 30-31) ACCEPTANCE AND RECEIPT. 93 tract. It must, however, distinctly appear that the goods were accepted under the contract."^ This was strongly illustrated in Atherton v. Newhall,^^* where a small part of the goods was delivered by an expressman, and the buyer, having learned that the rest of the goods had been destroyed by fire, at once notified the seller that he would pay only for the part received. It was held that there was no acceptance. Gray, C. J., said : "The acceptance by the buyer of the part brought by the ex- pressman was not a sufficient acceptance to take the sale of the whole out of the statute, because it appears that it was not with the intention to perform the whole contract, and to assert the buyer's ownership under it, but, on the contrary, that he im- mediately informed the seller's clerk that he would be responsi- ble only for the part received." SAME— ACTUAL RECEIPT. 30. Actual receipt is the taking possession of tbe goods liy the buyer Trith the seller's consent. It implies such a transfer of possession as to divest the seller's lien, and may he effected: (a) By the actual delivery of the goods by the seller to the buyer or to his agent; or (b) By agreement. 31. BY AGREEMENT. An actual receipt takes place by agreement: (a) When the goods are in the actual possession of the sel- ler, if he becomes bailee of the goods for the buyer. (b) When the goods are in the custody of a third person as bailee of the seller, if such third person, with the consent of the seller, becomes bailee of the buyer. (c) When the goods are in the custody of the buyer, as bailee of the seller, if with the consent of the seller he ceases to hold them as bailee, and holds them as 123 Davis V. Eastman, 1 Allen (Mass.) 422; Townsend v. Har- graves, 118 Mass. 325; Atherton v. Newhall, 123 Mass. 141, 25 Am. Kep. 4T; Van AVoert v. Railroad Co., 6T N. Y. 5.38; Matthiessen & Weichers Refining Co. v. McMahon's Adm'r, 38 N. J. Law, 538. 12* 123 Mass. 141, 25 Am. Rep. 47. 'Ji FORMATION OF THE CONTRACT. (Ch. 2 Where acceptance is shown, a very liberal construction is placed on actual receipt.^ ^^ The simplest way in which a trans- fer of possession may be effected is by the removal of the goods by the buyer or his agent. ^-° Receipt, however, implies deliv- ery,'-'' and the receipt must be with the seller's consent, and with the intention on his part of transferring possession to the bu)er as owner. The test for determining whether there has been such a transfer of possession is whether the seller has part- ed with his lien.'^* If the goods are to be forwarded to the buyer, the time when the possession is transferred depends on the character of the person by whom the goods are car- ried. If they are carried by the seller's servant or agent, there is, of course, no transfer of possession so long as they remain in his hands. '^'' If they are forwarded by a carrier designated by the buyer, an actual receipt takes place when they are delivered to him for carriage. ^^^ And, where goods are forwarded by a common carrier, the carrier is, in the absence of special agree- ment, regarded as the agent of the buyer, and the result is the same as if the carrier were specially designated by him.^^^ The seller may, however, reserve the right of possession notwith- standing the delivery of the goods to the carrier, and in such a i25Chalm. Sale of Goods (6th Ed.) 159. i26Blackb. Sales, 25; Benj. Sales, § 180; Rodgers v. Jones, 129 Mass. 420, 422. 127 Saunders v. Topp, 4 Exch. 390, per Parke, B. ii28 Phillips V. BistoUi, 2 Barn. & C. 511; Baldey v. Parker, Id. .57. per Holroyd, J.; Bill v. Bament. 9 Jlees. & W. 37; Cusack v. Unliinson, 30 Law J. Q. B. 204, 1 Best & S. 299; Castle v. Sworder, 29 Law J. Excli. 235, 30 T.aw J. Exch. 310, 6 Hurl. & N. S32; Saf- tord V. MeDonough, 120 Mass. 2!Xi; Rodgers v. Jones, 129 Mass. 420; Ex parte Safford, 2 Low. (U. S.) 563, Fed. Cas. No. 12,212; Green V. Merriam, 2S Vt. 801; Marsh v. Rouse, 44 N. Y. 643; Stone t. Browning, 51 N. Y. 211; Maxwell v. Brown, 39 Me. 98, 103, 63 Am. Dec. (J05; Gardet v. Belknap, 1 Cal. 399; Hinchman v. Lincoln, 124 U. S. 38, 8 Sup. Ct. 309, 31 L. Ed. 337; post, p. 317. 120 Grey i-. Gary, 9 Daly, (N. Y.) 363; Agnew v. Dumas, 64 \'t. 147, 23 Atl. 034. 130 Bullock V. Tschergi, 4 McCrary (U. S.) 184, 13 Fed. 345; Cross V. O'Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Wilcox Silver Plate Co. V. Green, 72 N. Y. 17. See, also, cases cited ante, p. SO, note 111, and post, p. 290. 131 Post, p. 290. §§ 30-31) ACCEPTANCE AND RECEIPT. 95 case delivery to the carrier does not constitute an actual re- ceipt/'^ Actual Receipt by Agreement. The possession of the goods may, however, be transferred and an actual receipt take place, by agreement, without the physical delivery of the goods. Same — When Goods are in Possession of Seller. If the goods are in the possession of the seller at the time of the contract, an actual receipt takes place if the parties agree that the seller shall cease to hold as owner, and shall assume the character of bailee or agent of the buyer in respect to the custody of the goods, the possession of the seller being by the agreement converted into the possession of the buyer.^^^ A leading case on this point is Elmore v. Stone,^'* where the buyer of horses left them with the seller at livery. It was held that as soon as the seller conaented to keep them at livery his possession was changed, and that from that time he held, not as owner, but as any other liveryman might dp. But an agree- ment to hold in this changed character will not readily be pre- sumed, and it must distinctly appear that the seller has con- sented to abandon his lien.^-''^ Some cases even hold that a mere agreement that the seller shall hold as bailee is not enough, and that some act is necessary to establish the changed char- acter of the ownership ; ^^* but on principle it would seem 18 2 Post, p. 1C2. 133 Elmore v. Stone, 1 Taunt. 458; Beaumont v. Brengerl, 5 C. B. 301; Marvin v. Wallis, 6 E). & Bl. 726, 25 Law J. Q. B. 369; Castle V. Sworder, 20 Law J. Exch. 235, 30 Law J. Exch. 310, 6 Hurl. & N. 832; Cusack v. Robinson, 1 Best & S. 299, per Blackburn, J. Green v. Merriam, 28 Vt. 801; Means v. Williamson, 37 Me. 556; Ex parte SaEford, 2 Low. (U. S.) 503, Fed. Cas. No. 12,212; Janvrin v. Ma.xwell, 23 Wis. 51; Rodgers v. Jones, 129 Mass. 420, 422; Saf- ford V. McDonough, 120 Mass. 290, 291; Webster v. Anderson, 42 Mich. 554, 4 N. W. 288, 36 Am. Rep. 452; Devine v. Warner, 75 Conn. 375, 53 Atl. 782, 96 Am. St. Rep. 211; Id., 76 Conn. 229, 56 Atl. 5G2; post, p. 271. 134 1 Taunt. 458. 135 Tempest v. Fitzgerald, 3 Barn. & Aid. 680; Carter v. Tous- saint, 5 Barn. & Aid. 855; Holmes v. Hoskins, 9 Exch. 753. See Blackb. Sales, 26 ; post, p. 271. 138 Matthiessen & W. Refining Co. v. MeJIahon's Adm'r, 38 N. J. 9S FORMATION OF THE CONTRACT. (Cll. 2 tliat the only question is whether the agreement is distinctly es- tablished.^'^ Same — When Goods are in Possession of Third Person. If the goods at the time of the contract are in the custody of a third person as bailee, an actual receipt takes place when the buyer, the seller, and the bailee agree that the latter shall cease to hold for the seller, and shall hold for the buyer, or, as is sometimes said, when the bailee, with the seller's consent, at- torns to the buyer. ^'^ The possession of the agent being, in contemplation of law, the possession of the principal, a trans- fer of possession is thus effected by simply constituting the cus- todian the agent of the buyer. The consent of all parties is, of course, essential, and therefore an order from the seller to a warehouseman, wharfinger, carrier, or other bailee to deliver the goods to the buyer will be inoperative to transfer the posses- sion, unless the bailee attorns. '^'" Law, o3G ; Kirby v. Johnson, 22 Mo. 354 ; Bowers v. Anderson, 49 Ga. 143 ; Malone v. Plato, 22 Cal. 103. It is said in Shiudler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316, and some other cases (ante, p. SS), that mere words cannot constitute acceptance and receipt, and that su- peradded to the language of the contract there must be some acts of the parties amounting to a change of possession. See, also, Bailey V. Ogden, 3 Johns. (N. Y.) 399; Ely v. Ormsby, 12 Barb. (X. Y.) .570; Hallenbeck v. Cochran, 20 Hun iN. Y.) 410; Gorman v. Bi-ossard, 12fJ Mich. 611, 79 N. W. 903. In those cases there was nothing to show a change of possession from that of owner to that of bailee. But in Rappleye v. Adee, 65 Barb. (N. Y.) 589, where the pheep sold were separated from the rest of the seller's flock, the buyer's mark put upon them, and the parties agreed to let them run with the seller's sheep for a few days, it was held that the evidence war- ranted the jury in finding delivery and acceptance, and that the rule of Shindler v. Houston was properly applied. See, also, Wylie v. Kelly, 41 Barb. (N. Y.) 594. 137 Ben]. Sales, § 182. 138 Bentall v. Burn, 3 Barn. & C. 423; Farina v. Home, 16 Mees. & W. 119; Simmonils v. Humble, 13 C. B. (N. S.) 258; Townsend v. Hargraves, 118 JIass. 325, 332; Bassett v. Camp, 54 Vt. 2;r2; post, p. 819. See St. Paul & Minneapolis Trust Co. v. Howell, 59 Minn, 2!>5, 61 N. W.' 141. 130 Cases cited in note 138, supra. But where the goods were in a United States bonded warehouse, and the duties -were unpaid, it was held that an attornment by the warehouseman could have no effect to change the possession, since the goods were in possession of the §§ 30-31) ACCEPTANCE AND RECEIPT. 97 If, however, the goods are on the premises of a third person, who is not bailee, as timber lying at the disposal of the seller on land of a person from whom he bought it, or at a public wharf, "delivery may be effected by the vendor's putting th« goods at the disposal of the vendee and suffering the latter to take actual control of them." ^*° Same — When Goods are in Possession of Buyer. If the goods, at the time of the contract, are already in the possession of the buyer, an actual receipt takes place when the parties agree that the latter shall cease to hold them as bailee, and shall hold them as owner.^*^ Thus, in Lillywhite v. Dev- ereux,^*^ it is said that if the buyer, under such circumstances, deals with the goods in a manner inconsistent with the supposi- tion that his former possession remains unchanged, he may be said to have accepted and actually received them ; the court apparently taking the view that the consent of the seller to the transfer of possession was given by entering into the contract, and that the same acts on the part of the seller which were evi- dence of an acceptance were also evidence that he had begun to hold in the character of owner. United States, and the warehouseman was not the bailee of the sel- ler. In re Clifford, 2 Sawy. (U. S.) 428, Fed. Cas. No. 2,893. Where plaintiff purchased by verbal contract the seller's iindi- vided half interest in a machine which was in the possession of defendant, who was the owner of the other half, the statute was not satisfied, there being no evidence of acceptance and receipt. Gerndt V. Conradt, 117 Wis. 15, 93 N. W. 804. 140 Benj. Sales, § 178. See Tansley v. Turner, 2 Bing. N. C. 151; Cooper V. Bill, 3 Hurl. & C. 722; Marshall v. Green, 1 C. P. Div. 35. per Grove, J.: Leonard v. Davis, 1 Black. (U. S.) 476, 17 L. Ed. 222; Thompson v. Railroad Co., 28 Md. 396; Brewster v. Leith, 1 Minn. 56 (Gil. 40). Cf. I^angd. Cas. Sales, 1023. So of logs floating in the river. Post, p. 274. But see Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec. 316; Gorman v. Brossard, 120 Mich. 611, 79 N. W. 903. 141 Edan v. Dudfield, 1 Q. B. 306; Lillywhite v. Devereux, 15 Mees. & W. 285; Snider v. Thrall, 56 Wis. 674, 14 N. W. 814; Langd. Cas. Sales, 1023 ; Benj. Sales, § 173. Contra : Follett Wool Co. v. Deposit Co., 84 App. D.iv. 151, 82 N. T. Supp. 597. Cf. Marliham v. Jaudon, 41 N. Y. 235, 242; Brown v. Warren, 43 N. H. 430: Dorsey v. Pike, 50 Hun (N. Y.) 534, 3 N. Y. Supp. 730. Post, p. 318. 142 15 Mees. & W. 285. TirF.SAi,ES(2D Ed.) — 7 98 FORMATION OF THE CONTRACT. (Ch. 2 EARNEST OR PART PAYMENT. 32. Earnest is sometliiiig of value, not forming part of the price given, and received to mark the final assent of the parties to the bargain. 33. Fart payment may be made at or subsequently to the time of the contract of sale, either in money or anything of value, or by the actual extinguishment of an exist- ing indebtedness by means of an agreement independ- ent of the contract of sale. Earnest. The giving of earnest was formerly a prevalent custom in England, but it has fallen so much into disuse that the provi- sion in respect to it is of little practical importance. Earnest may be money or some gift or token given ^*' by the buyer to the seller to mark the final assent of both to the bargain.^** It follows that earnest and part payment are distinct.^*^ In a IMassachusetts case,^*° however, it was said that earnest is re- garded as part payment of the price, — a dictum which was hard- ly necessary to support the decision that money deposited with a third person by the parties, to be paid to either as a forfeiture if the other should neglect to fulfill his part of the contract, was not given in earnest. The thing must have some value, and on this ground a note given by the buyer for the price, and void for want of consideration, could not be regarded as given in earn- est.i" Part Payment. The part payment, like the acceptance and receipt, may be subsequent to the contract of sale,^** unless, as in some states, 143 "Wliere the buyer drew a shilling across the seller's hand, \rhich was called "striking a bargain," but kept the coin, the statute was not satisfied. Blenkinsop v. Clayton, 7 Taiint. 597. 1** Brae. 1, 2, c. 27. itsBenj. Sales, § ISO; Kerr, Dig. Sale, § 16; Howe v. Smith, 27 Ch. Div. 89, 101, per Fry, L. J. 14 6 Howe V. Hay ward, lOS Mass. 54, 11 Am. Eep. 306. See, also, Xoakes v. llorey, 30 Ind. 103. 14' Krohn v. Bantz, 68 Ind. 277. 14 8 Walker v. Nussey, 16 Mees. & W. 302, per Parke, B.; Thomp- §§ 32-33) EARNEST OR PART PAYMENT. 99 the statute expressly provides that it must be at the time of the contract.'*" The payment must, of course, be accepted.'^" Payment need not be in money, but may be by means of any- thing of value which by mutual agreement is given by the buyer, and accepted by the seller, on account or in part satisfaction of the price.'^' Thus it would seem that the transfer of a bill or note would suffice; '^^ and, under the New York statute re- quiring payment at the time, the delivery of a check, which was duly paid, has been held sufficient. '^^ But the delivery of the buyer's note does not operate as payment.'"* Nor does a mere agreement, forming part of the contract of sale, to set off or ap- ply in payment a debt due to the buyer constitute payment. '°'' Such an agreement, to be effective, must be by independent contract,'^" and many cases even hold that mere words are not sufficient, and that some act, such as the surrender or cancel- lation of the evidence of the indebtedness, or a receipt, is req- uisite."'' But, on principle, any independent verbal agreement, son V. Alger, 12 Mete. (Mass.) 428, 435; Marsh v. Hyde, 3 Gray (Mass.) 331. 149 Hunter v. Wetsell, 57 N. T. 375, 15 Am. Eep. 508; Id., 84 N. Y. 549, 38 Am. Rep. 544; .Tackson v. Tupper, 10 1 N. Y. 515, 5 N. B. 65: Bates v. Chesebro, 32 Wis. 594; Kerkhof v. Paper Co., 68 Wis. 674, 32 N. W. 766; Crosby Hardwood Co. v. Trester, 90 Wis. 412, 63 N. W. 1057. 150 Edserton v.JIodgej_41_yt_gXg.; Hershey Lumber Co. v. Lumber Co^eeTlinn. 449, 69""nT W^ 215. 151 White V. Drew, 56 How. Prac. 53; Sharp v. Carroll, 66 Wis. 62, 27 N. W. 832 (surrender of note of seller held by buyer) ; JVeir V. Hudnut,_115 Ind. 525, IS N.JE. 24; Burton v. Gage, 85 Minn. 355, ^88 Nrw. 997; Benj. Sales, §"1947" 152 Cliamberlyn v. Delarive, 2 Wils. 353; Kearslake v. Morgan, 5 Term E. 513; Griffiths y. Owen, 13 Mees. & W. 58. 163 Himter v. Wetsell, 84 N. Y. 549, 38 Am. Eep. 544. 154 Krohn v. Bantz, 68 Ind. 277; Combs v. Bateman, 10 Barb. (N. Y.) 573; Hooker v. Knab, 26 Wis. 511. i55-\YaIker v. Nussey, 16 Mees. & W. 302; Artcher v. Zeh, 5 Hill fN. Y.) 20O; Mattice v. Allen, *42 N. Y. 493; Pitney t. Glen's Falls Ins. Co., 65 N. Y. 6; Matthiessen & W. Refining Co. v. JlcJIahon's Adm'r, 38 N. J. 'Law, 536; Galbraith v. Holmes, 15 Ind. App. 34, 43 N. E. 575; Norton v. Davison (1899) 1 Q. B. 401. 166 Walker v. Nussey, 16 Mees. & W. 302, per Parke, B.; Norwe- gian Plow Co. v. Hanthorn, 71 Wis. 529. 37 N. W. 825. 15T See Artcher v. Zeh, Mattice v. Allen, Pitney v. Glen's Falls 100 FOEMATION OF THE CONTEACT. (Ch. 2 whereby the indebtedness is extinguished, would seem to be suiBcient.^''' THE NOTE OB. MEMORANDUM. 34. The note or memorandnin must state: (a) The names or descriptions of the parties in their re- spective capacities as seller and buyer. Cb) The price, if agreed on. (c) The goods sold. (d) Any other material terms of the contract, except that it need not state the consideration of the promise of the party to be charged. 35. The note or memorandnm may be made at any time be- fore action bronght, and may be •written on separate papers, provided they are all signed by the party to be charged or his agent, or that snch as are not so signed are attached to or referred to in a signed pa- per. 36. The note or memorandum need not be delivered to the party seeking to enforce the contract; it is sufficient if it admits the contract. Difference hetzoeen Contract in Writing and Note or Memoran- dum. At common law, the parties to a contract may reduce it to writing-, or may agree upon some existing writing as contain- ing the terms of contract, and when they do so they are bound by the terms of the written contract, and are not allowed to of- fer proof of different or additional terms. The same rule ap- plies to a writing which they agree upon as containing part of the terms of the contract ; for example, the specifications of an article to be manufactured. In all such cases the contract, so far as it is reduced to writing, cannot, in general, be proved by any other means than by the writing. This result takes place, Ins. Co., Matthiessen & AV. Refining Co. v. McMalion's Adm'r, cited in note 155; Brabin v. Hyde, 32 N. Y. 519; Gorman v. Brossard, 120 Mich. 611, 79 N. W. 903. 1 58 Dow V. Worttien, 37 Vt. 108. An agreement that the buyer shall pay a deht due by the seller to a third person assented to by the latter. Cotterill t. Stevens, 10 Wis. 422; Langd. Cas. Sales, 1037. §§ 34^36) THE KOTE OR MEMORANDUM. of course, only when the writing is by the consent of both parties agreed upon as containing their contract, in whole or in part.^^" The statute of frauds leaves the common-law rule in respect to contracts in writing as it was before. If the con- tract be in writing, the writing must be proved as containing the only legal evidence of the terms of the contract, even though the statute has been satisfied by acceptance and receipt, or by earn- est or part payment, and although, for lack of the signature of the party to be charged, the writing would not be sufficient as a statutory note or memorandum. ^'"' The note or memoran- dum differs from a contract in writing, in that under the stat- ute any writing which contains the terms of the contract is sufficient, if it be signed by the party to be charged. A con- tract in writing, indeed, if signed by the party to be charged, will satisfy the statute, but a mere admission in writing of an antecedent oral contract is sufficient.^"'- In other words, the statute may be satisfied in writing in two ways : By putting the contract in writing, or. by furnishing evidence in writing of an oral contract.'"^ A mere note or memorandum, however, unlike a contract in writing, need not be introduced in evidence at all, if the contract can be brought within the first or second ex- ceptions, though in such a case it may still be introduced as an admission of the terms of the contract, of which it would be strong, though not conclusive, evidence.^"' Note or M emorandum in the Nature of an Admission. The note or memorandum is in the nature of an admission of the contract by the party to be charged. Thus it may be in the form of a letter, and it is immaterial to whom the letter is ad- dressed — ^whether to a third person '"* or to the writer's own 158 Blackti. Sales, 40-^2; Benj. Sales, §§ 201-206. 180 Sievewright v. Archibald, 17 Q. B. 103, per Erie, J. 161 Sievewright v. Archibald, 17 Q. B. 10.3, per Patteson, X; Sauii- derson v. .Tackson, 2 Bos. & P. 238, per Lord Eldon; Parton t. Crofts, 33 Law J. C. P. 189, per Brie, C. .T. ; Bailey v. Sweeting, 9 C. B. (N. S.) 843, 30 Law J. C. P. 150'; Lerned v. Wannemaeher, 9 Allen (Mass.) 412, 416; Townsend v. Hargraves, 118 Mass. 325, 334; Bird v. Munroe, 66_Me. 337, 22 Arn^ Rep. 571. "'"^ * 162 Langd. Cas. Sales, 1032. 163 Blackb. Sales, 42. 164 Peabody v. Speyers, 56 N. Y. 230; Moore v. Moimtcastle, 61 Mo. 424. 102 FOR^IATION OF THE CONTRACT. (Ch. 2 agent."" It has been held that the memorandum is sufficient though never delivered; ^^^ for example, if it be in the form of a resolution of a corporation sought to be charged. '^'" It is even sufficient if it is in the form of a letter repudiating,^'* but not denying, the existence of the contract.^'' It is enough if the memorandum be in existence at the time the action is brought.^'" But the memorandum cannot be regarded as being nothing more than evidence of the contract, since it is held that its existence, unless the statute be otherwise satisfied, is a condition precedent to the right of action.'^'^ What the Note or Memorandum must Contain — Names of Parties. The statute itself expressly provides that the name of the party to be charged must be signed, and it has been settled by 166 Gibson v. Holland, L. E. 1 C. P. 1, 35 Law J. C. P. 5; Kleeman V. Collins, 9 Bush (Ky.) 400, 4GT; Lee v. Cherry, 85 Tenn. TUT, 4 S. W. 835, 4 Am. St. Rep. 800. Contra: Steel v. Fife, 48 Iowa, 99, 30 Am. Rep. 388. See Browne, St. Frauds, § 354a. 1^66 Drury y. Young,. 58 3J[d. 540, 42 Am. Rep. 343. But see Parker y'. Parker, 1 Gray (Mass.) 4ij9; Browne, St. Frauds, § 354. A signed, but undelivered, lease may be given in evidence to prove an agreement upon the details of a lease pursuant to one of the terms of a previously signed memorandum in writing of an oral agreement for a lease; and if said previous memorandum of agree- ment for a lease and the signed, but undelivered, lease, taken to- gether, show a completed agreement upon the terms of a lease, the statute of frauds is satisfied, and specific performance may be de- creed. Charlton v. Columbia Real Estate Co., OT N. J. Eq. 629, 60 Atl. 102, (;;i L. R. A. .394, 110 Am. St. Rep. 495. 167 Johnson v. Society, 11 Allen (JIass.) 123; Tufts v. Mining Co., 14 Allen (Mass.) 407; Argu s Co. v. City of Albany, 55 N, Y. 493, 14 Am. Rep. 296. i«_9 Baile.v V. Sweetin.s, 9 0. B. (N. S.) 843, 30 Law J. C. P. 150; Vi'ilkinson v. Evans, L. R. 1 C. P., at page 411; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; Louisville Asphalt Varnish Co. v. Lorick, 29 S. C. 533, 8 S. B. 8, 2 L. B. A. 212; Drury v. Young, 58 Md. 540, 42 Am. i:ep. 34.1. 160 Baron v. Eecles, 43 Wis. 227. I'o See cases cited in next note. 171 Bill V. Bament, 9 Wees. & W. 36. See, also, Gibson v. Hol- land, L. R. 1 C. P. 1, 35 Law J. C. P. 5, per Willes, J.; Lucas v. Dixon, 22 Q. B. Div. 357; Bird v. Munroe, 66 Me. 337, 22 Am. Rep. 571; Phillips v. Mills, 55 Ga. 633. §§ 34-30) THE NOTE OR MEMOIJANDDII. 103 the decisions that the name or description of the other party must appear, since it takes two to make a bargain, and other- wise no contract is shown. The memorandum must not only contain the names or descriptions of the buyer "^ and of the seller,''" but must show which is buyer and which is seller."* A description of the parties, however, instead of their names, is sufficient, and parol evidence is admissible to identify the per- sons described.^" Thus, when an agent signs his name without mentioning a principal, the other party may show that the con- tract was really made with the principal, who has chosen to describe himself by the name of his agent, just as it would be admissible to show his identity if he had used a feigned name.^'* But the converse of the proposition does not hold 17 2 Cbampion v. Plummer, 1 Bos. & P. (N. R.) 252. See, also, Snnborn v. Flagler, 9 Allen (ilass.) 474, 476; AVilliams v. Robinson, 73 Me. 185, 40 Am. Rep. 352; McConnell v. Brillhart, 17 111. 354, i;5 Am. Dec. 661; Mayer v. Adrian, 77 N. C. 83; Harvey v. Stevens, 43 Vt. 657; Peoria Grape Sugar Co. v. Babcock Co. (C. C.) 67 Fed. 892. 173 TGinitz v. Surry, 5 Esp. 267; Vandenbergb v. Spooner, L. R. 1 Excb. 316, 85 Law J. Bxch. 201; Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366; Sberburne v. Shaw, 1 N. H. 157, 8 Am. Dee. 47; JIcElroy v. Seery, 61 Bid. 389, 48 Am. Rep. 110; Mentz v. N^- jvitter, 122 N. Y^1,J5 N. E. 1044, 11 L. R. A. 97, lO" Am. St. Rep. .514. 174 Vandenbergh v. Spooner, L. R. 1 Exch. 316, 35 Law .1. Excb. 201; Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509; Calkins V. Falk, 1 Abb. Dec. (N. X.)' 291 ; Nichols v. Johnson, 10 Conn. 192 ; Sanborn v. Flagler, 9 Allen (Mass.) 474, 477; Oglesby Grocery Co. v. Blanufaeturing Co., 112 Ga. 3.59. 37 S. E. 372. The reauirement that the writing phould show which is seller and which buyer has been relaxed in some cases, where parol evidence — for example, proof of the occupation of the parties — has been admitted to raise an infer- ence on this point, y ewell v. Radford, L._R. 3 C^ P. 52, 37 Law J. C. P. 1; Salmon Falls Mfg. Co. v. Goddard, 14 "How. (U. S.) 446. 14 L. Ed. 493. But see dissenting opinion of Curtis, J., in the latter case, and Grafton v. Cummings, 99 U. S. 100, 111, 25 L. Ed. 3G6; Jlentz V. Newwitter, supra. i76Commins v. Scott, L. R. 20 Eq. 11; Catling v. King, 5 Ch. Dir 600; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. E0. If the price is to be determined in a manner agreed upon, a memorandum stating the agreement on this point Is sufficient. Atwood v. Cobb, 16 Pick. (Mass.) 227, 26 Am. Dec. 657 ; Argus Co. v. City of Albany, 55 N. Y. 495, 14 Am. Rep. 296 ; Nor- ton v. Gale, 95 111. 533, 35 Am. Rep. 173; Turner v. LoriUard Co., 100 Ga. 645, 28 S. E. 383, 62 Am. St. Rep. 345 ; Reid v. Glass Co., 85 Fed. 193, 29 C. C. A. 110. 183 Hoadly v. M'Lalne, 10 Bing. 482; Ashcrof t v. Morrin, 4 Man. & G. 4.30 ; Benj. Sales, § 249. 18 4 Thornton v. Kempster, 5 Taunt. 780; Waterman v. Meigs?, 4 Cush. (Mass.) 497; May v. Ward, 134 Mass. 127; Johnson v. Del- bridge, 3-" Mich. 436 ; Peoria Grape Sugar Co. v. Babcook Co. (C. C.) 67 Fed. 892 (quantity) ; ^Vmerican Iron & Steel Co. v. Mfg. Steel Co. (C. C.) 101 Fed. 200. Where a contract to sell scrap iron obligates the buyer to purchase all the seller's iron which he might desire to sell, the seller having 106 FORMATION OF THE CONTRACT. (Ch. 2 able the court to ascertain what they were.""' But parol evi- dence is admissible, as in the case of other writings, to identify the subject-matter,^*' to show the situation of the parties and the circumstances, and to explain the meaning of words and latent ambiguities.^*'' the privilege to indicate what he desired to sell, the contract con- tained a sufficient description of the iron sold to satisfy the statute of frauds. Burgess Sulphite Fibre Co. v. Broomfleld, 180 Mass. 283, 62 N. E. 367. 1S6 McLean v. Nicoll, 7 Jur. (N.- S.) 999; Pitts t. Beckett, 13 Mees. & W. 743; Archer v. Eaynes, 5 Bxch. G2o; Coddington v. Goddard, 16 Gray (Mass.) 4.36, 442 ; Biley v. Famsworth, 116 Mass. 223 (a mem- orandum containing a clause that the vendor shall "fulfill the condi- tions of sale," but not setting forth the conditions, is defective) ; Call- anan v. Chapin, 158 Mass. 113, 32 N. E. 941 ; Williams v. Robinson, 73 Jle. ISO, 40 Am. Eep. 3.j2 ; Stone v. Browning, OS N. Y. .598 ; John- son V. Buck, 35 N. J. Law, 338, 343, 10 Am. Rep. 243 ; James v. Muir, ;-;.T Mich. 223 ; Norris v. Blair, 39 Ind. 90, 10 Am. Rep. 135 ; Reid v. Kent\yorthy, 25 Kan. 701; Redus v. Holcomb (Miss.) 27 South. 524; lisher V. Andrews, 94 Md. 46, 50 Atl. 407; J. T. Stewart & Son v. Cook, 118 Ga. .541, 45 S. E. 398. Terms of payment : Davis v. Shields, 20 Weud. (N. Y.) 341 ; Wright v. Weeks, 25 N. Y. 153 ; O'Donnell v. Leeman, 43 Me. 158, 09 Am. Dec. 54. Time of delivery, if agreed: Kriete v. Myer, 61 Md. 558; Smith v. Shell, 82 JIo. 215, 52 Am. Rep. 365 ; Hawkins v. Chase, 19 Pick. (:Mass.) 502 (otherwise, if not agreed, since it will be presumed to be on demand). ISO Macdonald v. Longbottom, 2S Law J. Q. B. 203. on appeal 1 El. & EI. 977, 29 Daw J. Q. B. 256 ("your wool"); Barry v. Coombe, 1 Pet. (U. S.) 040, 7 L. Ed. 295; Tallman v. Franklin, 14 N. Y. 5,^4; New England Dressed Meat & Wool Co. v. Worsted Co., 105 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 516. 18T Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446, 14 L. Ed. 493; Brewer v. Horst-Lachmund Co., 127 Cal. 043, 60 Pac. 418, 50 L. R. A. 240; Benj. Sales, §§ 213-215. In Doherty v. Hill, 144 JIass. 40.5, 11 N. E. 581, it was held that, under the fourth section, a memorandum describing equally two pieces of real estate could not be supplemented by introducing a letter from the owner to the agent, showing which estate he had authority to sell, nor by evidence that the purchaser only knew of one estate owned by the seller. See, also, Jones v. Tye, 03 Ky. 390, 20 S. W. 38S. In Mead V. Parker, 115 Mass. 413, 15 Am. Eep. 110, in a memorandum dated at Boston, "a house on Church street" was held a sufficient descrip- tion. But see Mellon v. Davison, 123 Pa. 2!»S, 16 Atl. 4.';i; Andrew v. r.abcock. 03 Conn. 109, 20 Atl. 715; Portesque v. Crawford, K'm N. C. 29. 10 S. E. 910. Cf. Lowe v. Harris, 112 N. C. 472, 17 S. E. 5.39, 22 L. R. A. 379. There are few cases involving the description under §§ 34-36) THE NOTE OR MEMORANDUM. 107 Parol Evidence to Show That the Writing is Not a Note or Memorandum. Since the note or memorandum implies the existence of a parol contract, it may be shown, for the purpose of proving the insufficiency of the memorandum, that it is not the record of any parol contract; either that no contract in fact existed,"' or that the actual contract was different from that evidenced by the memorandum — for example, that it omitted a material term."" As was said by Lord Selborne, the statute of frauds "is a weapon of defense, and not offense, and does not make any signed instrument a valid contract by reason of the sig- nature, if it is not such according to the good faith and real intention of the parties." ^"^ Parol Evidence cls to Subsequent Agreement to Modify Orig- inal Contract. At common law a written contract, not under seal, may be waived, annulled, changed, or qualified by means of a subse- quent parol contract, written or unwritten. But this rule is not applicable to a contract which has been satisfied by a statutory note or memorandum. If the original contract be thus satis- fied, a subsequent contract, not evidenced by a sufficient note or memorandum, to modify the original contract, is invalid.'^"^ the seventeenth section, and those under the fourth section are con- flicting. See Wood, St Frauds, § 353; Williston, Cas. Sales, 2d ed., p. 979, note. 188 Hussey v. Home-Payne, 4 App. Cas. 315, per Lord Cairns, at page 320. 189 Pitts V. Becliett, 13 Mees. & W. 743 (that the wool sold should be dry); McMullen v. Helberg, 4 L. R. Ir. 94, 6 L. R. Ir. 4(;3 (that the sale was by sample); McLean v. Nicoll, 7 Jur. (N. S.) 999 (that glass should be of best quality); Peltier v. Collins, 3 Wend. (X. Y.) 4:i9, 20 Am. Dec. 711 (warranty); Boardman v. Spooner, 13 Allen (Mass.) 353, 90 Am. Dec. 196 (that the goods are to be subject to approval); Remick v. Sandford, 118 Mass. 102 (that sale was by sample). See, also, Jenness v. Iron Co., 53 Me. 20; Lang v. Henry, 54 X. H. 57; Frank v. Miller, 38 Md. 450; Lee v. Hills, 66 Ind. 474; Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, 62 Am. St. Rep. 345; Fislier v. Andrews, 94 Md. 46, 50 Atl. 407. And see note 185, ante. 130 Hussey v. Horne-Payne, 4 App. Cas. 311, 323. 101 Stead v. Dawber, 10 Adol. & B. 57, overruling Cuff v. Penn, 1 Jraule & S. 21; Marshall v. Lynn, 6 Mees. & W. 109; Swain v. Sea- 108 FORMATION OF THE CONTRACT. (Ch. 2 The subsequent contract being invalid, the original contract may be enforced. ^"^ But whether parol evidence is admissible to prove a subsequent contract for a waiver or abandonment of the entire contract is an open question. ^°^ Parol evidence is admissible, however, to prove substantial performance when the performance is completed and accepted, and such performance is a defense by way of accord and satisfaction.^'* Separate Papers. It is immaterial whether the note or memorandum be written at one time, or at different times, and it may consist of any number of letters, telegrams, or other pieces of paper. If the connection between the papers be physical, it is enough if they were attached at the time of signature, and this may be shown mens, 9 Wall. (U. S.) 254, 269, 19 L. Ed. 554; Ladd v. King, 1 R. I. 224, 51 Am. Dec. G24; Dana v. Hancock, 30 Vt 616; Blood v. Goodrich, 9 Wend. (N. Y.) 68, 24 Am. Dec. 121; Hill v. Blake, 97 N. Y. 216; Carpenter v. Galloway, 73 Ind. 418; Heisley v. Swan- strom, 40 Minn. 196, 41 N. W. 1029; Burns v. Real Estate Co., 52 ^linn. 31, 53 N. W. 1017; Eeid v. Glass Co., 85 Fed. 193, 29 C. C. A. 110; Lawyer v. Post, 109 Fed. 512, 47 C. C. A. 491; Walter v. Bloede Co.. !)4 Md. SO. .50 Atl. 4::3; Warren v. Manufacturing Co., 161 JIo. 112, i;l S. W. G44. Cf. Cummings v. Arnold, 3 Mete. (Mass.) 486, 37 Am, Dec. 155; Stearns v. Hall, 9 Cush. (Mass.) 31; Whittier v. Dana, 10 Allen (Muss.) .326; Negley v. Jeffers, 28 Ohio St 90. See, also. Richardson v. Cooper, 25 Me. 450. 19 2 Moore v. Campbell, 10 Exch. 323, 23 Law J. Esch. 310; Noble V. Ward, L. R. 1 Exch. 117, 35 Law J. ElscU. 81. A voluntary forbearance Tiy one party at the request of the other does not prevent the former from determining his forbearance and reverting to his rights tmder the contract; and parol evidence of such forbearance may be given, the effect of such evidence being, where the request for forbearance came from the defendant, to es- top him from averring that the plaintiff was not ready and willing to perform according to the contract. Hickman v. Haynes, L. R. 10 C. P. .598; Benj. Sales, § 217a. See, also. Smiley v. Barker, 83 Fed. 684, 2S C. C. A. 9. 1S3 Goss V. Lord Nugent, 5 Barn. & Add. 65, per Denman, C. J.; Harvey v. Graham, 5 Adol. & E. 61, 73. The afhrmative was held in Buel V. Miller, 4 N. H. 196. lot Moore v. Campbell, 10 Exch. 323, per Parke, B.; Leather Cloth Co. V. Hieronimus, L. R. 10 Q. B. 140; Ix)ng v. Hartwell, 34 N. J. Law, 1:G, 127; I^dd v. King, 1 R. L 224, 231, 51 Am. Dec. 624; Swain V. Seamens, 9 Wall. (U. S.) 254, 19 L. Ed. 554; Langd. Cas. Sales, 1034. §§ 34;-36) THE NOTE OR MEMORANDUM. 109 by parol."'' If they were never attached, the signed paper must make such a reference to the other as to enable the court to construe the whole together, as containing all the terms of the bargain.!"" If they are not connected by attachment or refer- ence, they cannot be connected by parol.^"" Parol evidence is, however, admissible to explain an ambiguous reference, and to identify the document to which the signed paper refers.^"' losKenworthy v. Schofield, 2 Bam. & C. 945, per Holroyd, J. 196 Saunderson v. Jackson, 2 Bos. & P. 23S; Jackson v. Lowe, 1 Bing. 9; Salmon Falls Mfg. Co. v. Goddard, 20 Curt Dec. 376, 14 How. (U. S.) 446, 14 L. Ed. 493; Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Fisher v. Kuhn, 54 Miss. 480; Olson v. Sharpless, 53 Minn. 91, 55 N. W. 125; Ryan v. XJ. S., 136 U. S. 68, 10 Sup. Ct. 913, 34 L. Ed. 447; Bayne v. Wiggins, 139 V. S. 210, 11 Sup. Ct. 521, 35 L. Ed. 144; Third Nat. Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119; Devine v. Warner, 76 Conn. 229, 56 Atl. 562; Cobb V. Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734. But if all the separate papers are signed, reference in the one to the other need not be made, if by inspection and comparison it appears that they severally form part of the same transaction. Thayer v. Luce, 22 Ohio St. 62. The paper referred to need not be In existence when the signed paper is executed. Freeland v. Ritz, 154 Mass. 257, 28 N. E. 226, 12 L. R. A. 561, 26 Am. St. Rep. 244. IS' Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 Barn. & C. 945; Pierce v. Corf, L. R. 9 Q. B. 210; Boydell v. Drum- mond, 11 Bast, 142; Jacob v. Kirk, 2 Mood. & R. 221; Johnson v. Buck, 33 N. J. Law, 338, 10 Am. Rep. 243; O'Donnell v. Leeman, 43 Me. 158, 69 Am. Dec. 54; Morton v. Dean, 13 Mete. (Mass.) 3S5; _Coe_v^ough^ll6 N. Y^273, 22 N. E. 550; Prank v. Miller, 38 Md. "IsoTBrown v. Whipple, 58 *N. H. 229; North v. Mendel, 73 Ga. 400, 54 Am. Rep. 879; Turner v. Lorillard Co., 100 Ga. 645, 28 S. B. 383, 62 Am. St. Rep. 345; Swallow v. Strong, 83 Minn. 87, 85 N. W. 942. But in Lerned v. Wannemacher, 9 Allen (Mass.) 412, it was held that, when a memorandum is drawn up in duplicate, one signed by the seller and the other by the buyer, they may be read together as if signed by both. See, also, Bhoades v. Castner, 12 Allen (Mass.) 130. In Ridgway v. Ingram, .50 Ind. 145, 19 Am. Rep. 706, where the mem- orandum was indorsed on an order of sale, but, without referring to it, the court held that there was no connection. Followed in Wils- tach V. Heyd, 122 Ind. 574, 23 N. E. 963. 198 Ridgway v. Wharton, 6 H. L. Cas, 238 (instructions); Baumann V. James, 3 Ch. App. 508 ("terms agreed upon"); Long v. Millar, 4 C. P. Div. 450 ("purchase"); Cave v. Hastings, 7 Q. B. Div. 125 ("our arrangement"); Beckwith v. Talbot, 05 U. S. 2S9, 24 L. Ed. 496 (but see Grafton v. Cummings, 99 U. S. 100, 112, 25 L. Ed. 366); White v. Breen, 106 Ala. 159, 19 South. 59, 32 L. R. A. 127; Strouse v. Elting, 110 FORMATION OF THE CONTRACT. (CIl. 2 Papers connected by reference must be consistent, for otherwise it would be impossible to determine what the bargain was with- out parol evidence to show which stated it correctly/"' The memorandum may be in pencil. ^'"' SAME— SIGNATURE OF THE PARTY. 37. Only the signature of tlie party against Tvhom tlie con- tract is sought to be enforced is required. 38. The signature may be by mark or initials, and may be. nrritten in pencil. Unless the statute requires the name to be '*subscribed,'* the signature may be print- ed, and may be at the beginning or in the body of the document. Although the seventeenth section requires the writing to be signed by the "parties" ^°^ to be charged, the memorandum is sufficient if signed only by the party against whom the con- tract is sought to be enforced. ^°^ It follows that the contract is good or not at the option of the party who has not signed. 110 Ala. 132, 20 Soutb. 123; Kingsley v. SiebrecM, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486; Brewer v. Horst-Laclimund Co., 127 Cal. 643, GO Pac. 418, 50 L. R. A. 240. An extreme application of the rule admitting parol evidence was made in Louisville Asphalt Varnish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8, 2 L. R. A. 212. The late case of Oliver v. Hunting, 44 Ch. Div. 205, seems irreconcilable with the earlier decisions. A letter beginning "Dear sir,'' and the addressed envelope in which It came, may be read together. Pearce v. Gardner (1897) 1 Q. V: 688. 100 Smith V. Surman, 9 Barn. & C. 561; Thornton v. Kempster, 5 Taunt. 7S6. Calkins v. Falk, 1 Abb. Dec. (N. X.) 291; Phippen v. Hyland, 19 U. C. C. P. 416. 200 Clason's Ex'rs v. Baijey, 14 Johns. (N. Y.) 484; Merritt v. 01a- son7?2^ToFiisr(X; T.) 102," 7 Am. Dec." 286. 2 01 The language of the fourth section is "by the party to be charged." 202 Allen V. Bennet, 3 Taunt. 169; Thornton v. Kempster, 5 Taunt. 78;;; Clason's Ex'rs v. Bailey, 14 Johns. (X. Y.) 484; McCrea v. Pur- mort, in Wend. (N. Y.) 460i, 30 Am. Dec. 103; Justice v. Lang, 42 N. Y. 403. 1 Am. Rep. 576; Old Colony R. Corp. v. Evans, 6 Gray (JIass.) 25, 31, 66 Am. Dec. 394; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352; Hodges v. Rowing, 58 Conn. 12, 16 Atl. 979, 7 L. §g 37-38) THE NOTE OR MEMORANDUM. Ill The signature may be by mark,"'' though not by mere de- scription/" or may be by initials, if they are intended as a signature."" It may be written in pencil; "« or it may be printed, provided there is sufficient evidence of the adoption of the printed name, as where the seller fills out and gives the buy- er a bill of parcels, with the name of the seller printed there- on."' Some statutes require the name to be "subscribed," and under them the signature must be at the end."* Under the original enactment, however, and generally in the absence of express provisions requiring a different construction, the sig- nature is good, though it be at the beginning or in the body of the document; but, if the name is put in an unusual place, it is a question of fact whether it was so written for the purpose of authenticating the document."' As was said by Lord West- R. A. 87; Easton v. Montgomery, 90 Oal. 307, 27 Pac. 280, 25 Am. St. Rep. 123; Cunningliam v. Williams, 43 Mo. App. G29. See, also, Reuss V. Picksley, L. R. 1 ETxch. 342, and other cases cited in note 180, ante, ^vhich hold that a written offer accepted by parol is a suf- ficient memorandum. Contra: Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139, 55 Am. Rep. 708. 203 Baker v. Dening, 8 Adol. & E. 94 (under fifth section). See, al- so, Zacharie v. Franklin, 12 Pet. (U. S.) 151, 9 L. Ed. 10.35. 204 A letter by a mother to her son, beginning, "My dear Robert," and ending, "Your affectionate mother," with a full direction con- taining the son's name and address, is not sufficiently signed. Selby V. Selby, 3 Mer. 2. 205 Sanborn v. Flagler, 9 Allen (Mass.) 474; Salmon Falls Mfg. Co. v. Goddard, 14 How. (IJ. S.) 446, 14 L. Ed. 493. See Palmer v. Stephens, 1 Denio (N. Y.) 471; Benj. Sales, § 257. The omission of a middle name is immaterial. Pessenden v. Mussey, 11 Cush. (Mass.) 127. 206 Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286; Cla- son's Bx'rs v. Bailey, 14 Johns. (N. T.) 484. 207 Saunderson v. Jackson, 2 Bos. & P. 238; Schneider v. Norris, 2 Maule & S. 236; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343; Com. V. Ray, 3 Gray (Mass.) 441, 447. Otherwise where the statute requires the name to be "subscribed." Viele v. Osgood, 8 Barb. (N. Y.) 130. Signing by means of a rubber stamp is sufficient. In re Deep River Nat. Bank, 73 Conn. 341, 47 Atl. 67.5. 208 Davis v. Shields, 26 Wend. (N. Y.) 341; James v. Patten, 6 N. Y. 9, 55 Am. Dec. 376; Doughty v. Brass Co.. 101 N. Y. 644, 4 N. E. 747. Contra: California Canneries Co. v. Scatena, 117 Cal. 447, 49 Pac. 462. 209 Johnson v. Dodgson, 2 Mees. & W. 653; Durrell v. Evans, 1 112 FORMATION OF THE CONTRACT. (Ch. 2 bury, in a case ^^° under the fourth section, where it was held that the name, which occurred in the bod}' of the instrument, re- ferred only to the particular part in which it was found, and was insufficient : "The signature must be so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument." SAME— AGENTS AUTHORIZED TO SIGN. 39. The authority of an. agent to sign the memorandnjn may be conferred by parol, and may be proved by subse- quent ratification. 40. The agent must be a third person, and not one of the par- ties; but a person who acts as the agent of one party in making the contract may act as the agent of both parties in making the memorandum. The statute simply provides that the note or memorandum shall be signed by the parties to be charged, "or their agents thereunto lawfully authorized." The manner in which their agents may be authorized is left to the rules of the common law. Thus the agent need not be authorized in writing, and subse- quent ratification is equivalent to prior appointment.^" And, Hurl. & C. 174, 31 Law J. Exch. .337; Clason's Ex'rs v. Bailey, 14 Johns. (N. Y.) 4S4; Hawkins v. Chase, 19 Pick. (Mass.) 502; Penni- man v. Hartshorn, 13 Mass. 87; Coddington v. Goddard, 16 Gray (Mass.) 43U; Batturs v. Sellers, 5 Har. & J. (Md.) 117, 9 Am. Dec. 492; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343; Anderson v. Harold, 10 Ohio, 400; McConnell v. Brillbart, 17 111. 354, 65 Am. Dec. GUI; Tingley t. Boom Co., 5 Wash. 644, 32 Pac. 737, 33 Pae. 1055; New England Dressed Meat & Wool Co. t. Worsted Co., 1C5 JIass. 32S, 43 N. E. 112, 52 Am. St. Rep. 510; Anderson v. Man- ufacturing Co., 30 Wash. 147, 70* Pac. 247; Ferguson v. Trovaten, 94 Minn. 209, 102 N. W. 373. Defendants' clerk by their authority drew up a letter addressed to them, containing the terms on which plaintiff was to serve them, which plaintiff signed. Held, that the letter was a sufficient memorandum to bind defendants. Evans v. Hoare [1892] 1 Q. B. 593. See, also. Smith v. Howell, 11 N. J. Eq. 319; Adams v. Field, 21 Vt. 256; John Griffith's Corp. v. Humber [1899] 2 Q. B. 414. 210 Caton V. Caton, L. B. 2 H. L. 127. 211 Maclean v. Dunn, 4 Bing. 722; Soames v. Spencer, 1 Dowl. & R. 32; Hawkins v. Chase, 19 Pick. (Mass.) 502, 505; Batturs v. Sel- §§ 39-40) THE NOTE OR MEMORANDUM. 113 as we have seen, it is immaterial whether the agent sign his own name or that of his principal."^ Authority to contract im- plies authority to sign the memorandum, and the memorandum may be made subsequently to the contract, if the authority has not been revoked.^^' Who may be Agent to Sign. The agent to sign must be a third person, and not the other party to the contract.^^* This rule does not, however, exclude the agent of the seller from acting as the agent of buyer,'' ^^ but such agency must be clearly proved. For example, the mere fact that the seller's salesman signs his own name to the memo- randum at the request of the buyer is not proof of agency to sign the buyer's name.^^° The auctioneer at a public sale is the agent of the buyer as well as of the seller to sign the memorandum."'' "The tech- lers, 5 Har. & J. (Md.) 117, 9 Am. Dec. 492; Yerby v. Grigsby, 9 Leigh (Va.) 387; Conaway v. Sweeney, 24 W. Va. 643; Eoebl v. Haumesser, lU Ind. 311, 15 N. E. 345; Wiener v. Whipple, 53 Wis. 298, 302, 10 N. W. 433, 40 Am. Rep. 775. 212 Ante, p. 103. See, alsa, Williams v. Bacon, 2 Gray CMass.) 387; Yerby v. Grigsby, 9 Leigh (Va.) 387; Conaway v. Sweeney, 24 W. Va- 649; Hargrove v. Adcock, 111 N. C. 166, 16 S. B. 16. 213 Williams v. Bacon, 2 Gray (Mass.) 387, per Merrick, J.; Farm- er V. Robinson, cited in note to Heyman v. Neale, 2 Camp. 337. 214 Sharman v. Brandt, L. R. 6 Q. B. 720; Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 Barn. & Aid. 333; Smith v. Arnold, 5 Mason (U. S.) 414, Fed. Cas. No. 13,004 ; Bent v. Cobb, 9 Gray (Mass.) 397, 69 Am. Dec. 295; Johnson v. Buck, 35 N. J. Law, 338, 342, 10 Am. Rep. 243; Tull v. David, 45 Mo. 444, 100 Am. Dec. 385. Cf. Snyder v. Wolf ord, 33 Minn. 175, 22 N. W. 254, 53 Am. Rep." 22. 215 Durrell v. Evans, 30 Law J. Exch. 254, 6 Hurl. & N. 6G0; Benj. Sales, §§ 267, 267a. Where plaintiffs' traveling salesman called on defendant, and was authorized by him to transmit to his principals an offer for the purchase of cotton, a letter written by the salesman to plaintiffs, transmitting the offer so made, was not such a memoran- dum as would charge defendant under the statute of frauds; the salesman not being his agent in the transaction. Wilson v. Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680. 21S Graham v. Musson, 5 Bing. N. C. 003; Graham v. Fretwell, 3 Man. & G. 368; Murphy v. Boese, L. R. 10 Exch. 126. See, also, Sewall V. Fitch, "8 Cow. (N. Y.) 215; Ijams v. Hoffman, 1 Md. 423; Bamber v. Savage, 52 Wis. 110, 8 N. W. 609, 38 Am. Rep. 723. 217 Simon v. Metivier, 1 Wm. Bl. 599; Hinde v. Whitehouse, 7 East, TlFr.SALES(2D Ed.)^ — S 114 FORMATION OF THE CONTRACT. (Ch. 2 nical ground is," as was said by Shaw, C. J., "that the pur- chaser, by the very act of bidding, connected with the usage and practice of auction sales, loudly and notoriously calls on the auctioneer or his clerk to put down his name as the bidder, and thus confers on the auctioneer or his clerk authority to sign his name, and this is the whole extent of his authority." ^^^ It fol- lows that the auctioneer's authority to sign the memorandum ends with the sale, and that a memorandum subsequently signed is invalid,^^' and that he is not the agent to sign for the buyer at a private sale.^^" Nor can the auctioneer, if he is himself the seller, bind the buyer by signing the memorandum. ^^^ The auctioneer's clerk, as well as the auctioneer himself, may make the memorandum, provided, at least, that he acts openly in en- tering the bids, so that the assent of the bidder may be im- plied."^' 558; Morton v. Dean, 13 Mete. (Mass.) 385; McComb v. Wright, 4 Johns, Ch. (N. Y.) 659; Harvey v. Stevens, 43 Vt. 653; Johnson v. Buck, 35 N. J. Law, 338, 10 Am. Eep. 243; Gill v. Hewett, 7 Bush (Ky.) 10; Atkinson v. Washington & Jefferson College, 54 W. Va. 32, 46 S. B. 253; Garth v. Davis, 120 Ky. 106, 85 S. W. 692. Cf. Dunham v. Hartman, 153 Mo. 625, 55 S. W. 233, 77 Am. St. Rep. 741. 218 Gill V. Bicknell, 2 Cush. (Mass.) 355, at page 358. See, also, Emmerson v. Heelis, 2 Taunt. 38, per Sir James Mansfield. The in- ference of agency to sign for the bidders may be rebutted. Bartlett V. Purnell, 4 Adol. & E. 792. Between the fall of the hammer and the making of the memoran- dum, the bidder has a locus poenitentiae, and may withdravr his bid. Pike V. Balch, 38 Me. 302, 61 Am. Dec. 248; Gwathney v. Cason, 74 N. C. 5, 21 Am. Eep. 4S4; Dimham v. Hartman, supra. 219 Horton v. McCarty, 53 Me. 394. Cf. Smith v. Arnold, 5 Mason (U. S.) 414, Fed. Cas. No. 13,004, per Story, J.; Bamber v. Savage, 52 Wis. 110, 113, 8 N. W. 609, 38 Am. Kep. 723. The vendor is bound, though the auctioneer does not sign till the next day; his authority not having been revoked. White v. Mfg. Co., 179 Mass. 427, 60 N. E. 791. 220 Mews v. Carr, 1 Hurl. & N. 486, 26 Law J. Esch. 39. Cf. Eartlett v. Purnell, 4 Adol. & E. 792. 221 Farebrother v. Simmons, 5 Barn. & Aid. 333; Bent v. Cobb, 9 Gray (Mass.) 397, 69 Am. Dec. 295; Johnson v. Buck, 35 N. J. Law, 338, 342, 10 Am. Eep. 243; Tull v. David, 45 Mo. 444, 100 Am. Dec. 3S5. 222 Bird V. Boulter, 4 Barn. & Adoi. 443; Johnson v. Buck, 35 N. J. Law, 338, 10 Am. Eep. 243; Cathcart v. Keirnaghan, 5 Strob. (S. C.) 120; Gill V. Bicknell, 2 Cush. (Mass.) 355, 358; Frost v. Hill, 3 §§ 39-40) THE NOTE OK MEMOEANDTTM. 115 The signature of a clerk of a telegraph company to a dispatch, the sending of which is authorized by either party, is suffi- cient.^^^ An agent must sign as such, and his signature as a mere witness is inoperative.^** Same — Broker. Brokers are as a rule agents for both parties. When so act- ing, they have authority to do all that is necessary to bind the bargain, and hence may sign the requisite memorandum.^'"' In this country it is customary for the broker to make an entry of the sale in a book kept for that purpose, and such an entry, if it contains the terms of the bargain, is a sufficient memoran- dum,^^' nor need it be signed by the broker.^^^ A note con- taining the terms of the bargain, and delivered by him to either party, is also sufficient,^^^ though, if he delivers to buyer and seller notes which materially differ, there is no valid mem- orandum. ^^^ In England it is customary for the broker, when he makes a contract, to reduce it to writing, and to deliver to each party a copy of the terms as reduced to writing by him, and also Wend. (N. T.) 386 ; Coate v. Teriy, 24 U. O. O. P. 571. But it seems that there is no general custom by which the clerk as such is the bidder's agent. Pierce v. Corf, L. K. 9 Q. B. 210, 215, per Blacli- burn, J. Cf. Cathcart v. Keimaghan, 5 Strob. (S. C.) 129, per Wald- law, J. 223 Godwin v. Francis, L. R. 5 C. P. 295; Smith v. Easton, 54 Md. 138, 39 Am. Eep. 355; Howley v. Whipple, 48 N. H. 487; Gray, Communication Tel. §§ 138-142. 2 24 Gosbell V. Archer, 2 Adol. & E. 500. 225 Coddington v. Goddard, 16 Gray (Mass.) 436. 2 26 Coddington v. Goddard, 16 Gray (Mass.) 436; Clason's Ei'rs V. Bailey, 14 .Johns. (N. Y.) 484; Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286; Sale v. Darragh, 2 Hilt. (N. Y.) 184; Williams V. Woods, 16 Md. 220; Bacon v. Bccles, 43 Wis. 227. 227 Coddington v. Goddard, 16 Gray (Mass.) 436; Merritt v. Clason, 12 Johns. (N. Y.) 102; Clason's Ex'rs v. Bailey, 14 Johns. (N. Y.) 484. 228 Butler V. Thomson, 92 TJ. S. 412, 23 L. Ed. 684; Bibb v. Allen, 149 TJ. S. 481, 13 Sup. Ct. 930, 37 L. Ed. 819; Remick v. Sandford, 118 Mass. 102; Newberry v. Wall, 84 N. Y. 576; Weidmann v. Cham- pion (N. Y.) 12 Daly, 522; Bacon v. Eccles, 43 Wis. 227. 229 Peltier v. Collins, 3 Wend. (N. Y.) 459, 20 Am. Dec. 711; Suy- dam V. Clark, 2 Sandf. (N. Y.) 133; Bacon v. Eccles, 43 Wis. 227; Bibb V. Allen, 149 V. S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819, per Jackson, J. H6 FORMATION OF THE CONTEACT. (Ql. 2 to enter them in his book and to sign the entry.^^" As to the effect of the entry in the broiler's book, there has been great difference of opinion. According to Benjamin, the view which seems to have prevailed, unlike that adopted in this country, and founded, perhaps, in some measure on the fact that brokers in London were until recently required by law to make such en- tries, is that the entry constitutes the contract itself, and is a contract in writing; ^'^ but this at the present day is doubt- ful. ^^'^ Difficult questions have arisen in England, where the sold note and the bought note differ from each other or from the entry in the broker's book. The result of the English deci- sions on this point, which owing to the difference in the law and the custom are of comparatively little value as precedents in this country, may be briefly stated as follows: ^^^ A signed entry by the broker of the terms of the contract is a good memorandum, and in some cases may constitute a contract in writing.^^* Where the contract has been reduced to writing, it will not be affected by subsequent bought and sold notes con- taining other terms, unless the parties have agreed to make a new contract in accordance with the terms of the notes; ^^° but 230 Benj. Sales, § 276. 231 Heynian v. Neale, 2 Camp. 337, per Lord Ellenborougb ; Thorn- ton V. Charles, 9 Mees. & W. 802, per Farke, B.; Sievewright v. Archibald, 17 Q. B. 115, 20 Law J. Q. B. 529, per Lord Campbell, C. J., and Patterson, J.; Thompson v. Gardiner, 1 C. P. Div. 777. Contra: Thornton v. Meux, Moody & M. 43, per Abbott, C. J.; Tovvnend v. Drakeford, 1 Car. & K. 20, per Denman, C. J. ; Thorn- ton V. Charles, supra, per Lord Ablnaer. But these authorities are overruled in Sievewright v. Archibald, supra. Benj. Sales, § 294. 232Benj. Sales (5th Eng. Ed.) 2ST, 302. See, aho, Langdell, Cas. Sales, 103.5. 233 The statement, in substance, is taken from Benj. Sales (5th Eng. Ed.) 302, where it is said that the propositions are fairly deducible from the authorities, though some of the points cannot be considered as finally settled. The authorities cited for the several propositions are found in notes 234-240, infra. 234 Thornton v. Charles, 9 Mee'?. & AY. 802 (per Parke, B.); Sieve- wright V. Archibald, supra (per Lorrl Campbell and Patterson, J.): Thompson v. Gardiner, 1 G. P. Div. 777. 23 6 Hey worth v. Knight, 17 C. B. (N. S.) 29S; Hawes v. Porster, 1 Mood. & R. 368, as explained by Parke, B., in Thornton v. Charles, suijra. See, also, Lewis v. Brass, 3 Q. B. Div. 667. § 41) EFFECT OF NONCOMPLIANCE WITH THE STATUTE. 117 evidence of an intention (which may be inferred from the course of dealing between the parties or the usage of trade) to con- tract only by means of two notes, is relevant to show that what was apparently a concluded contract was not intended to be such.^'"' The bought and sold notes are deemed to constitute a single document.^''^ If they differ, they are nullities,^^* unless the parties have assented to one as containing the terms of the contract, in which case the difference is immaterial.''^* The bought and sold notes are prima facie presumed to agree, and, therefore, if one is put in evidence, the other will be presumed to correspond with it, until the contrary is shown.''*'* EFFECT OF NONCOMPLIANCE "WITH THE STATUTE. 41'. Failure to comply with the provisions of the statute in respect to acceptance and receipt, earnest or part pay- ment, or note or memorandum, [probably] does not render the contract void, but merely prevents its en- forcement. The seventeenth section declares that, if there be no accept- ance and receipt, no earnest or part payment, and no note or memorandum, the contract shall not "be allowed to be good." ^*^ As to the meaning of these words, there are in England conflicting dicta, but no direct decision ; some judges assuming that the words of the seventeenth section (unlike those of the fourth section, which declares that "no action shall 23 6 Hey worth v. Knight, supra; Cowie v. Remfry, 5 Moore, P. C. 232; Moore v. Campbell, 10 Exch. 323. 2 37 sievewright v. ArchibaM, supra; Grant v. Fletcher, 5 Bam. & C. 436; Goom v. Aflalo, 6 Barn. & 0. 117. 238 Sievewright v. Archibald, supra;" Grant v. Fletcher, supra; Gregson v. Ruck, 4 Q. B. 747 ; Caerleon Tin Plate Co. v. Hughes, 65 Law J. 118, 119. 239 Bowe V. Osborne, 1 Starkie, 140; Moore v. Campbell, 10 Exch. 323. 2 40 Hawes v. Forster, 1 Mood. & R. 3G8; Parton v. Crofts, 16 0. B. (N. S.) 11. 241 Sales Act, § 4 (1) substitutes "enforceable by action." So Sale of Goods Act, § 4 (1). See Taylor v. Railway Co. (1901) 1 Q. B. 774; Benj. Sales (5th Eng. Ed.) 306. 118 FORMATION OF THE CONTRACT. (Ch. 2 be brought") ''*" go to the existence of the contract/*' and Others that there is no difference in the effect of the two sec- tions, and that the provision affects only the remedy.''** The latter view is sustained by the weight of opinion,'*^ and is cer- tainly in conformity with the construction of the section in other respects, — for example, that, if one party has signed the contract, it may be enforced against him, though not against the other; that a mere written admission at any time before ac- tion brought, even if it repudiates the contract, is sufficient, be- cause it is evidence of the existence of the contract; that ac- ceptance and receipt or part payment before action brought satisfies the section. This view has been affirmed by decision in Massachusetts, ^*° though the opposite view has been taken in Missouri.^*' In some states, however, the statute declares that the contract shall be "void." 2 42 See Clark, Cont. (2d Ed.) 91. 243 Leroux v. Brown, 12 C. B. 809; Laythoarp v. Bryant, 2 Bing. N. C. Ti5, 747. 244 Bailey v. Sweeting, 9 'C. B. (N. S.) 843, 30 Law J. C. P. 150, per Williams, J.; Maddlson v. Alderson, 8 App. Gas. 467, 4SS, per Lord Blackburn; Britain v. Rossiter, 11 Q. B. Div. 123, 127, per Brett, L. J. 246 Pol. Cont (2d Am. Ed.) 605; Anson, Cont. 67. See Browne, St. Frauds, e. 8; 9 Am. Law Eev. 434. 2*6 Townsend v. Hargraves, 118 Mass. 325; Ajnsinck v. Insur- ance Co., 129 Mass. 185; Wainer v. Insurance Co., 153 Mass. 335, 26 N. B. 877, 11 L. R. A. 598. See, also, Jackson v. Stanfield, 137 Ind. 592, 37 N. E. 14, 23~L. R. A. .588; Bird v. Munroe, 66 Me. 337, 22 Am. Rep. 571, Cowell v. Insurance Co., 126 N. C. 684, 36 S. E. 1S4. Of. Stockdale v. Dunlop, 6 Mees. & W. 224. 247 Houghtaling v. Ball, 20 Mo. 563. To the same effect. Green v. Lewis, 26 U. C. Q. B. 618. § 42) EFFECT OF CONTliACT IN PASSING PKOPERTT. 119 CHAPTER in. EFFECT OP THE CONTRACT IN PASSING THE PROPERTY- SALE OP SPECIPIC GOODS. 42. In General. 43. Rules for Ascertaining Intention. 44. Reservation of Right of Possession or Property. 45. Sale on Approval or Trial. 4a. Sale or Return. IN GENERAL. 42. (1) Where there Is a contract to sell specific or ascer- tained goods, the property in them is transferred to ~the^ "Bnyer~at snch time as the parties, to the contract intend it to be transferred. (3) For the purpose of ascertaining the intention of the parties, regard mnst be had to the terms of the con- tract, the conduct of the parties, and the circumstan- ces of the case.i Executed and Executory Sales. The distinction between sales and contracts to sell has been already pointed out.^ As we have seen, in a sale the property passes at once, and in a contract to sell it does not pass until the contract is executed by the seller. In the one case the seller sells; in the other, he promises to sell. We have also seen that the goods which are the subject of sale must, as a rule, be owned by the seller, and that a contract to sell goods not yet in existence or acquired by the seller can only take effect as a con- tract to sell.' Moreover, even if the goods which are the sub- ject of sale are actually owned by the seller, it is clear that if they are part of other similar goods, as 10 sheep out of a flock of 20, the property in the part sold cannot pass unless the particular goods are designated; in^ other words, unless the goods are specific* But provided the goods are specific, the 1 See Sales Act, § 18; Sale of Goods Act, § 17. 2 Ante, p. 2. » Ante, p. 46. * Post, p. 147. 120 EFFECT OF CONTRACT IN PASSING PROPERTY. (Cll. 3 rule holds universally that the property in them will pass when- ever the parties so intend. ° And, therefore, whether a sale be executed or executory, and, if originally executory, when it will become executed, depends solely upon the intention of the parties. The intention is to be gathered from the terms of the contract, the conduct of the parties, and the circumstances of the case." If the intention is clear, no question can arise. But because the parties often fail to make clear their intention, frequently for lack of clearness in the intention itself, the courts have established certain rules of interpretation for the purpose of determining what is to be deemed the intention of the parties.' Delivery. It is universally held that delivery of the goods is not essen- tial to the transfer of the property to the buyer.' In some juris- dictions, however, an exception to this rule is recognized, and it is held that delivery is necessary to transfer the property as against bona fide purchasers from the seller and as against at- taching creditors without notice of the prior sale." This doc- trine is to be distinguished from the doctrine that retention of possession by the seller is a fraud upon the seller's creditors and that in such case the sale can be avoided by them.^° The pres- 6 Seath V. Moore, 11 App. Cas. 3-50, 370, 380; Shepherd v. Harrison L. R. 5 H. L. 116, 127; Hatch v. Oil Co., 100 V. S. 124, 130, 2.1 L. Ed .S.-.-l; Eluee Cotton Cases, 22 ^Yall. (U. S.) ISO, 1S7, 22 L. EJ. S'ui Wevcbants' Bxch. Bank v. McGraw, 8 C. C. A. 420, 50 Fed. 072 ; Terry V. Wheeler, 25 N. Y. 520, 525; Callaghan v. Myers, 89 111. 5GG, 570 Winslow V. Leonard, 24 Pa. 14, i!2 Am. Dee. 354 ; Kent Iron & Hard- ware Co. V. Norbeck, 150 Pa. 559, 24 Atl. 737; Lingliam v. Eggleston, 27 Mich. 324; Hovey v. Gow, 81 Mich. 314, 45 N. W. 0S5 ; Kneeland V. Renner, 2 Kan. App. 451, 43 Pac. 05 ; O'Farrel v. McClure, 5 Kan. .Vpp. 880, 47 Pac. 160; State v. Wharton, 117 Wis. 558, 94 N. W. 350; Elaclib. Sales, 128; Benj. Sales, § 309. 6 Byles V. Colier, 54 Mich. 1, 19 X. W. 5G5; Hood v. Bloch, 29 W. Va. 244, 11 S. B. 910; Day v. Gravel, 72 Minn. 159, 75 N. W. 1; Pacific Lounge & Mattress Co. v. Rudebeck, 15 Wash. 336, 46 Pac. 392; Wad- hams & Co. V. Balfour, 32 Or. 313, 51 Pac. 642; Towne v. Davis, 66 X. H. 396, 22 Atl. 450; Branisan v. Hendrickson, 17 Ind. ApiL lOS, 46 K. E. 560; Smith v. Investment Co., 114 Wis. 151, SO N. W. S20; State V. Wharton, 117 Wis. 558, 94 N. W. 3-59. See, also, cases in pre- cediiis note. ^ r(ll3urv, 10 Hun (X. Y.) 540; Allen v. HartfieUl, 70 111. 358, 3G1; Fenelon v. Hogoboom. § 43) RULES FOR ASCERTAINING INTENTION. 125 sometimes said that the property has not passed, when it was only necessary to determine that the delivery was conditional upon payment, and hence that the buyer had not acquired the right to possession and a perfect title. ^^ Rule 2.^Goods to be Put in Deliverable State. Although an agreement for the sale of a specific chattel is prima facie an executed sale, the presumption may, as we have seen, be rebutted; and, if it appears that the parties have agreed that the property shall pass on the performance of a condition, the property will not pass until the condition is per- formed; and, if nothing has occurred in the meantime to de- feat the transfer, it will then take place. When the parties have not expressed their intention clearly, it must be collected from the whole agreement. The rule now under consideration, as well as rule 3, of which there is no trace in the reports be- 31 Wis. 172, 176; Riley v. Wheeler, 42 Vt. 528, 532. See, also, Tyler V. Freeman, 3 Cush. (Mass.) 261; Whitney v. Eaton, 15 Gray (Mass.) 225; Hirschorn v. Canney, 98 Mass. 149; Adams v. O'Connor, 100 Mass. 515, 1 Am. Rep. 137; Stone v. Perry, 60 Me. 48; Seed v. Lord, 66 Me. 580; Peabody v. Maguire, 79 Me. 572, 575, 12 Atl. 630; Paul V. Reed, 52 N. H. 136; Dows v. Kidder, 84 N. Y. 121; Harris v. Smith, 3 Serg. & R. (Pa.) 20; Lester v. McDowell, 18 Pa. 91; Wabash Eleva- tor Co. V. Bank, 23 Ohio St. 311 ; Fishback v. Van Dusen, 33 Minn. Ill, 22 N. W. 244; 2 Kent, Comm. 497; Empire State Type Founding Co. V. Grant, 114 N. Y. 40, 21 N. E. 49; Johnson-Brinkham Commis- sion Co. V. Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615; Wilson & Wallace v. Oomer, 125 Ga. 50O, 54 S. E. 355. As to condi- tional delivery, see National Bank of Commerce v. Railroad Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566, and cases cited in preceding note. In many of these cases it is said that the "property" had not passed, and in some of them it is clear that It had not, either because at the time of the bargain the goods were not In a deliverable state or were not specific, or because deliv- ery vpas to be made by the buyer at a particular place, or for some other reason; while in others it is clear that it must have been held, had the question been raised, that the risk of loss was by the con- tract cast upon the buyer, and hence that the property passed. In all such cases, where the question is simply whether the buyer acquired a good "title," it is immaterial to determine whether the sale was conditional, or whether only the delivery was conditional, since in either case the title of the buyer is conditional upon payment. See Benj. Sales (Corbin's 6th Am. Ed.) § 318 et seq. 2 6 Post, p. 130. 126 EFFECT OF CONTRACT IN PASSING PROPEKTT. (Ch. 3 fore the time of Lord Ellenborough, appear to have been adopted from the civil law.^'' Blackburn observes that the first rule* is founded in reason. Inasmuch as it. is for the benefit of the seller that the property should pass and the risk of loss be thereby transferred from the seller, who may still, retain possession of the goods as security for the price, it is reasonable that, where the seller is bound to do something before he can call upon the buyer to accept the goods, the intention of the parties should be presumed to be that the seller is to do the thing before obtaining the benefit of the transfer.^' The rule is firmly established both in Eng- land ^° and in America.^" Thus, in the case of trees to be trim- med," cotton to be ginned and baled,'^ fish to be dried,'^ grain to be threshed,^* hops to be baled,'"* or animals to be fat- tened,^" by the seller, the doing of that thing is presumptively 2' Blackb. Sales, 174. ♦Blackburn's first rule, — here Rule 2. 28 Blackb. Sales, 175; Benj. Sales, § 318 et seq. The presumption yields to evidence ot a contrary intention. Young v. Matthews, L. R. 2 C. P. 127; Barber v. Thomas, 66 Kan. 463, 71 Pac. 845. 29 Rugg V. Minett, 11 East, 210; Aeraman v. Morrice, 8 C. B. 449, 19 Law J. C. P. 57 ; Tansley v. Turner, 2 Scott, 238, 2 Bing. N. C. 151; Boswell v. Kilborn, 15 Moore, P. C. 309, 8 Jur. 443; Seath v. ^[oore, 11 App. Cas. 330, 370. The English act requires notice to the buyer that the act has been done. Sale of Goods Act, § 18, rule 2. But the decisions in this country do not add this qualification. 3 Blgee Cotton Oases, 22 Wall. (U. S.) 180, 18S, 22 L,. Ed. 803; Fos- ter V. Ropes, 111 Mass. 10 ; Sumner v. Hamlet 12 Pick. (Mass.) 70. 82; North Pacific Lumbering & Mfg. Co. v. Kerron, 5 Wash. 214, 31 Pac. 595; Malone v. Stone Co., 36 Minn. 325, 31 N. W. 170 (payment of storage charges); Cunningham Iron Co. v. Manufacturing Co. (C. C.) 80 Fed. 878; Larkin v. Johnson, 8 Kan. App. 114, 54 Pac. 690; James Smith Woolen Mach. Co. v. Holden, 73 Vt. 396, 51 Atl. 2; Backhaus V. Buells, 43 Or. 558, 73 Pac. 342; See Sales Act, § 19, rule 2. Of. Sale of Goods Act, § 18, rule 2. See, also, cases cited in the succeed- ing notes to this paragraph. 81 Aeraman v. Jlorrice, 8 0. B. 449, 19 Law J. 0. P. 57. s 2 Blgee Cotton Oases, 22 Wall. (XJ. S.) 180, 193, 22 L. Ed. 863; Bond V. Greenwald, 4 Heisk. (Tenn.) 453. a 3 Foster v. Ropes, 111 Mass. 10. 84 GrofC V. Belche, 62 Mo. 400; Thompson v. Conover, 32 N. J. Law, 4G6. 3 6 Keeler v. Vandervere, 5 Lans. (N. T.) 313. 36 Restad V. Engemoen, 05 Minn. 148, 67 N. W. 1146. § 43) RULES FOB ASCEKTAINING INTENTION. 127 a condition precedent to the transfer of the property. And if the parties contract for the sale of an unfinished chattel, as a partly-built carriage or ship, in the absence of anything to show a contrary intention, the property will not pass until the chattel is completed. °'' It is also within the principle of this rule that, if the goods are to be delivered by the seller at a particular place, the property will not pass until delivery,'' unless a contrary intention is expressed '° or is inferable from other circumstances, such as the payment of the price.*" But the fact that something is to be done to the goods by the seller after delivery will not prevent the property from passing,*'- unless a different intention appears.*^ Rule J. — Price to be Ascertained by Weighing, Measuring, or Testing. Blackburn states the rule,*^ that where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, etc., the per- formance of that thing is a condition precedent to the trans- fer of the property, thus stating the rule, not as one of pre- sumption, but as an absolute rule; and he regards it as hastily 87 Halterline v. Rice, 62 Barb. (N. T.) 593; Pritchett v. Jones, 4 Rawie (Pa.) 260. As to contracts for chattels to be manufactured by the seller, see post, p. 160. 3s Calcutta & B. S. Nav. Co. v. De Mattos, 32 Law J. Q. B. 322, 335, per Cockburn, 0. J.; The Venus, 8 Cranch (U. S.) 253, 275, 3 L. Bd. 553; Suit v. Woodhall, 113 Mass. 391; Sneathen v. Gnibbs, 88 Pa. 147; Devine v. Edwards, 101 III. 138; Miller v. Seaman, 176 Pa. 291, 35 Atl. 134; Northern Pacific Lumbering & Mfg. Oo. v. Ker- ron, 5 Wash. 214, 31 Pac. 595. 8 8 Lynch V. O'Donnell, 127 Mass. 311. *o Weld v. Came, 98 Mass. 152; Terry v. Wheeler, 25 N. T. 520; Bethel Steam-Mill Co. v. Brown, 57 Me. 9, 18, 99 Am. Dec. 572; Ling- ham V. Eggleston, 27 Mich. 324, 329; Rail v. Lumber Co., 47 Minn. 422, 50 N. W. 471; Penley v. Bessey, 87 Me. 530, 33 Atl. 21; McEIwee V. Lumber Co.. 69 Fed. 302, 16 C. C. A. 232; Morris v. Winn, 98 Ga. 482, 25 S. E. 562 ; Lynch v. Daggett, 62 Ark. 592, 37 S. W. 227 ; Haglng V. Combs, 102 Ky. 165, 43 S. W. 222. 41 Hammond v. Anderson, 1 Bos. & P. (N. R.) 69; Graves v. Hepke, 2 Bam. & Aid. 131; Slount Hope Iron Co. v. Buffinton, 103 Mass. 62; Morrow v. Reed, 30 Wis. 81. 42 Kitson Mach. Co. v. Holden, 74 Vt 104, 52 Atl. 271. 43 Blackburn's second rule. 128 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 3 adopted from the civil law, where it was a logical deduction from the principle that there could be no sale until the price was fixed.*^ But the Court of Exchequer, in 1863, reviewed the English authorities,*^ and concluded that the rule should be modified by confining it to acts to be done by the seller, and that it is to be regarded merely as a rule of presumption, thus bringing it within the principle of the second rule.*" The rule is generally laid down in the United States as one of presumption, sometimes without confining it to acts to be done by the seller,*^ though sometimes confining it to acts to be done by the seller or by the seller in connection with the buyer.*' In some cases it has been confined to acts to be done by the seller.*' It is to be observed, however, that in many of the cases which declare the rule the weighing, measuring, or testing was necessary, not merely to ascertain the price, but to as- certain the goods by separating them from a larger mass, and the property could not pass because the goods were not specif- *4 Blackb. Sales, 175. *6 Hanson v. Meyer, 6 East, 614; Zagury v. Fiirnell, 2 Camp. 240; Withers v. Lyss, 4 Camp. 237; Simmons v. Swift, 5 Barn. & C. S.57; Logan V. Le Mesurier, 6 Moore, P. C. 116. 4 6 Turley v. Bates, 2 Hurl. & C. 200, 33 Law J. Exch. 43; Chalm. Sale of Goods Act (6th Ed.) 49. The point was not necessary to the decision of Turley v. Bates. Of. Martineau v. Kitching, L. R. 7 Q. B, 430. Sale of Goods Act, § 18, rule 3, so provides, adding the requirement of notice to the buyer. iTMacomber v. Parker, 13 Pick. (Mass.) 175, 183; Riddle v. Var- num, 20 Pick. (Mass.) 2S0; Barnard v. Poor, 21 Pick. (Mass.) 378; Sherwin v. Mudge, 127 Mass. 547; Smart v. Batchelder, 57 N. H. 140; Nesbit V. Burry, 25 Pa. 20S; Nicholson v. Taylor, 31 Pa. 128, 72 Am. Dec. 728; Frost v. Woodruff ^. 54 111. 155; Tfosenthal v. Kahn, 19 Or! 571, 24 Pac. 989; Gibbs v. Benjamin, 45 Vt. 124; Wesoloski v. Wysoski, 186 Mass. 405, 71 N. E. 982. 4s Elgee Cotton Cases, 22 Wall. (U. S.) ISO, 188, et seq., 22 L. Ed. 863; Llngham v. E.sgleston, 27 :Mich. 324; Boswell v. Green, 25 N. J. Law, 3S0, 398; Haxall v. Willis, 15 Grat. (Va.) 434, 442; McGlung V. Kelley, 21 Iowa, 508, 511; King v. .Tarman, 35 Ark. 190, 37 Am. Rep. 11; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299, 87 N. W. 268, 55 L. R. A. 301, 92 Am. St. Rep. 452; Parman v. Marshall (Tenn.) 51 S. W. 116. 4 Burke v. Shannon, 43 S. W. 223, 19 Ky. Law Rep. U70. § 43) RULES FOR ASCERTAINING INTENTION. 129 ic.^" At best the fact that the price remains to be ascertained affords little reason for inferring an intention that the property shall not pass; and in some jurisdictions the rule is not rec- ognized, but it is held, as in other cases where there is an un- conditional contract for the sale of goods in a deliverable state, that the property passes unless a different intention ap- pears/^ The Sales Act o mits the rule.'" In jurisdictions where the rule prevails, if the goods are actually delivered, it is held that this shows an intention to complete the sale; and in such case a provision that they are to be weighed, measured, or tested will not prevent the prop- erty from passing.^' And, if they have been weighed, meas- ured, or tested, the mere arithmetical calculation of the price is immaterial.^* Where the property has passed, so that the goods are at the risk of the buyer, but the goods are destroyed, and consequently 60 See Joyce v. Adams, 8 N. T. 297; Smart v. Batehelder, 57 N. H. 140; Martin v. Hurlbut, 9 Minn. 142 (Gil. 132); Rosenthal v. Kahn, 19 Or. 571, 24 Pac. 989; post, p. 147. ^ei^anger v. Waterbury, 116 N. T. 371, 22 N. E. 404; Cleveland v. ^ViTlTams, 29 Tex. 204, 94 Am. Dec. 274 ; Boaz v. Schneider, 69 Tex. 128. 6 S. W. 402; Lassing v. James, 107 Cal. 348, 40 Pac. 534; Young V. Minkler, 14 Colo. App. 204, 59 Pac. 622 ; Allen v. Kushford, 72 Neb. 907, 101 N. W. 1028. And see Farmers' Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. 214, 1 K R. A. 767, 9 Am. St. Rep. 443; Lobdell v. Horton, 71 Mich. 681, 40 N. W. 28; Allen v. Elmore, 121 Iowa, 241, 96 N. W. 769. Cf. Kein v. Tupper, 52 N. Y. 550. 62 See Sales Act, § 19. Cf. Sale of Goods Act, § 18, rule 3. 6 3 Macomber v. Parker, 13 Pick. (Mass.) 175, 183; Riddle v. Var- num, 20 Pick. (Mass.) 280; Odell v. Railroad Co., 109 Mass. 50; Bur- rows V. Wbitaker, 71 N. Y. 291, 27 Am. Rep. 42 ; Boswell v. Green, 25 N. J. Law, 390; Scott v. "Wells, 6 Watts & S. (Pa.) 357, 40 Am. Dec. 568; Leonard v. Davis, 1 Black (U. S.) 476, 483, 17 L. Ed. 222; Upson V. Holmes, 53 Conn. 500; Baldwin v. Doubleday, 59 Vt. 7, 8 Atl. 576; Haxall V. Willis, 15 Grat. (Va.) 434, 445; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Cunningham v. Ashbrook, 20 Mo. 553; Morrow V. Reed, 30 Wis. 81; Foster v. Magill, 119 111. 75, 8 N. E. 771; Sedg- wick V. Cottingham, 54 Iowa, .512, 6 N. W. 738; King v. Jarman, 35 Ark. 190, 37 Am. Rep. 11. The property passes, if such is the intention, although the necessary acts have not been done. Mayberry v. Mill Co., 112 Tenn. 5M, 85 S. W. 401. 64Tansley v. Turner, 2 Bing. N. C. 151; Bradley v. Wheeler, 44 N. Y. 495; Welch v. Spies, 103 Iowa, 389, 72 N. W. 548. TiFr.SAi,Es(2D Ed.) — 9 130 EFFECT OF CONTRACT IN PASSING PEOPERTT. (Cll. 3 the price cannot be ascertained by weighing, or measuring, in the manner agreed, the weight or quantity may be as- certained in some other way, and the buyer may recover the price." KESEKVATION OF RIGHT OF POSSESSION OB PROP- ERTY. 44. Where there Is n contract for the sale of specific goods, the seller may by the terms of the contract reserve the right of possession or property in the goods nntil cer- tain conditions have been fulfilled. The right of pos- session or of property may be thns reserved, notwith- standing the delivery of the goods to the bnyer, or to a carrier or other bailee for the purpose of transmis- sion to the buyer. s< In General. As we have seen, where there is a contract for the sale of specific goods the property in them is transferred to the buyer at such time as the parties intend it to be transferred."^ By the terms of the contract the property may pass when the con- tract is made, and in such case the transfer of the property may be, and generally is, subject to the seller's lien; that is, the seller may reserve the right of possession in the goods until payment of the price. °' As a rule the seller loses this right when be delivers the goods to the buyer. '^* Again, by the ex- press or implied terms of the contract the seller may reserve the property in the goods until certain conditions shall have been fulfilled, '"* and this notwithstanding the delivery of the goods to the buyer.*^ "Where the buyer is by the contract bound to do anything as a condition, either precedent or con- current, on which the passing of the property depends, the 6 5 Martineau t. Kitching, L. R. 7 Q. B. 436, 455 (per Blackburn, J.); Upson V. Holmes, 51 Oonn. 500; Sedgwick v. Cottlngham, 54 Iowa, 512, 6 N. W. 738; Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445, 54 Am. Rep. 619; Allen v. Elmore, 121 Iowa, 241, 96 N. W. 769. es See Sales Act, % 20 (1). »» Post, p. 317. 67 Ante, p. 119. «» Ante, p. 125. 68 Ante, p. 122. «i Post, p. 133. § 44) KESEKVATION OF EIGHT OF POSSESSION. 131 property will not pass until the condition is fulfilled, even though the goods may have been actually delivered into the possession of the buyer." °* So, notwithstanding the delivery of the goods to a carrier for the purpose of transmission to the buyer, the seller may reserve the property in the goods, or may reserve the right to possession, as in the case of shipments C. O. D.°' The cases involving the transfer of the property upon delivery of the goods to a carrier are generally cases where the goods were not specific, and goods were subsequently appropriated to the contract, and the question was whether the seller by the terms of the appropriation had reserved the property or right of possession ; but where the contract is for the sale of specific goods to be paid for on delivery, the property in which is re- served by the contract, the question whether the seller has re- tained the property or the right to possession, notwithstanding delivery of the goods to a carrier for transmission to the buyer, depends upon the same considerations.'* The commonest condition precedent to the passing of the property is the payment of the price. Such a condition may be expressed, or it may be implied from the circumstances. ''' Where Property and Right to Possession are to Pass on Pay- ment. As a rule, where no such condition is expressed, if the goods are specific and in a deliverable state, and a different intention does not appear, the property in the goods passes when the contract is made, although the seller is entitled to retain pos- session, unless credit is given, until the price is paid.^' But an intention that the property, as well as the right to possession, shall not pass until payment, may be indicated by the conduct of the parties and the circumstances of the case ; and in some cases a stipulation that the goods are to be paid for, either in cash, or by note, or by acceptance, upon delivery, has been • held to indicate such an intention.*' In all cases where such 82 Benj. Sales, § 320. «3 Post, p. i.-j7. «* Post, p. 162. 5 Silsby v. Railroad Co., 176 Mass. 158, 57 N. E. 376; ante, p. 123. «6 Ante, p. 121. «7 Ante, p. 124. 132 EFFECT OF CONTHACT IN PASSING PKOPEETT. (Ch. 3 an intention appears, the property will pass only upon payment, unless the condition has been waived.*"* It is, of course, competent for the seller to waive the con- dition, and, since payment and dehvery are concurrent and mutually dependent acts,"" an unconditional delivery by the seller without payment is a waiver of the condition.^" If, how- ever, the delivery is conditional — that is, if it is accompanied by a reservation of the property until payment — the condition is not waived. To constitute a conditional delivery, it is not nec- essary that the seller should declare the condition in express terms ; but it is sufficient if the intent of the parties can be in- ferred from their acts and the circumstances of the case. Hence, if the delivery is made with the expectation that the price will be shortly paid, or the contemplated security given, «8 Bishop V. Shillito, 2 Barn. & Aid. 329, note a. And see cases cited In note 25, supra, and notes 70, 75, infra, 6 9 Post, p. 268. 7 Smith V. Dennie, 6 Plcli;. (Mass.) 262, 17 Am. Dec. 368; Farlow V. Ellis, 15 Gray (Mass.) 220; Upton v. Ctotton Mills, 111 Mass. 446; Wigton V. Bowley, 130 Mass. 252; Peabody v. Maguire, 79 Me. 572, 585, 12 Atl. 630; Paul v. Eeed, 52 N. H. 136; Ward v. Shaw, 7 Wend. (N. Y.) 404; Smith v. Lynes, 5 N. Y. 41; Parker v. Baxter, 86 N. Y. 586; Cole v. Berry, 42 N. J. Law, 308, 36 Am. Eep. 511; Bowen v. Burk, 13 Pa. 146; Mackaness v. Long, 85 Pa. 158; Thompson v. Wedge, 50 Wis. 642, 7 N. W. 560; Fishback v. Van Dusen, 33 Minn, 111, 22 N. W. 244; Warder, Mitchell & Co. v. Hoover, 51 Iowa, 491, 1 N. W. 795; Freeport Stone Co. v. Carey, 42 W. Va. 276, 26 S. E. 183; Wheeler & Wilson Mfg. Co. v. Bank, 105 Ga. 57, 31 S. E. 48; Hirsch v. Lumber Co., 69 N. J. Law, .509, 55 Atl. 645. "The important question, in determining whether there has been a waiver of a condition of sale, Is: Has the vendor manifested, by his language or conduct, an intention or willingness to waive the condi- tion and make the delivery unconditional and the sale absolute, with- out having received payment or the performance of the conditions of sale? This must depend on the intent of the parties at the time, to be ascertained from their conduct and language, and not from the mere fact of delivery alone. Whether there has been a waiver is a ques- tion of fact. It may be proved by various species of evidence — by dec- larations, by acts, or by forbearance to act. But, however proved, tht question is: Has the vendor voluntarily and unconditionally delivered the goods without intending to claim the benelit of the condition?" Fishbaek v. Van Dusen, supra, per Mitchell, J. And see George W. Merrill Furniture Oo. v. Hill, 87 Me. 17, 32 Atl. 712. See, also, Lewen- berg V. Hayes, 91 Me. 104, 39 Atl. 469, 64 Am. St. Rep. 215. § 44) EESERVATION OF EIGHT OF POSSESSION. 133 the delivery will ordinarily be conditional, because there is an implied understanding that the buyer will act honestly, and take the goods subject to the contract. In such case, if the payment or security is omitted, evaded, or refused by the buyer upon getting possession, the seller may immediately reclaim the goods ; ^^ and he may enforce this right against the buyer's attaching creditor ^^ or assignee in bankruptcy,''' or against an innocent purchaser from the buyer.'* Unconditional delivery of the goods to a carrier or other bailee for the purpose of transmission to the buyer is equiva- lent to delivery to the buyer, and is a waiver of the condi- tion; '° but the seller may reserve the property in the goods, or the right of possession, notwithstanding such delivery, by indicating his intention at the time of the shipment.'" So-Called "Conditional Sales." There is a class of transactions, commonly called "conditional sales," where by the express terms of the contract the pos- session of the goods is to be delivered to the buyer, but the property in them is to remain in the seller until payment of the price. These contracts usually provide for the time of payment, and the price is often payable in installments, and they are sometimes called "installment contracts." They are to be distinguished from those contracts, considered in the preceding paragraph, in which the condition is, indeed, that the property shall not pass until payment, but which con- template that payment is to be made upon delivery." The term "conditional sale" is misleading, for the transaction is not a sale, but a contract to sell. The distinguishing features of these contracts are that they confer upon the buyer the right to Ti Ante, p. 124. 72 Peabody v. McGuire, 79 Me. 572, 12 Atl. 630. '8 Ballantyne v. Appleton, 82 Me. 570, 20 Atl. 2S5. li National Bank of Commerce v. Railroad Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. But see Comer v. Cunningham, 77 N. T. 391, 33 Am. Rep. 626. 7 5 Scharff t. Meyer, 133 Mo. 428, 34 S. W. 858, 54 Am. St. Rep. 672. '8 Post, p. 162. 7 7 See National Bank of Commerce v. Railroad Co., 44 Minn. 224, 231, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566. 134 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 3 possession and use of the goods upon prescribed terms, usually until default in payment, while reserving in the seller the prop- erty in the goods as security for payment." "Conditional Sale" Distinguished from Other Transactions. A "conditional sale'' differs from a bailment with an option to buy, in that the buyer is bound to pay the price.''" It differs from a mortgage, in that the property is not transferred. ^^ In many respects, indeed, a conditional sale is analagous to a sale with a mortgage back to secure the price; *^ but the two transactions are distinct.*^ At the same time it is often diffi- cult to determine whether a particular transaction is a condi- tional sale, or whether it is a lease, or an absolute sale with a reservation of a lien or mortgage to secure the price. The character of the transaction depends upon the intention of the parties, which is evidenced in most cases by a written contract, and which is not determined by the name which the parties have given to the instrument, but is to be gathered from all its terms.*' Thus instruments in the form of leases, and so des- ignated, and providing that the so-called lessee shall become the owner of the thing leased upon payment of stipulated in- stallments of rent, usually equivalent to the value of the thing, which the lessee agrees to pay, and reserving the right on the part of the lessor upon default in payment to resume posses- sion, have often been held to be conditional sales.'* And in- 7 8 See Harkness v, Russell, 118 U. S. 663, 7 Sup. Ct 51, 30 L. Ed. 28.'. i» Ante, p. 8. eo Ante, p. 9. SI Post, p. 140. See 20 Harv. Law Rev. 371-372, 378-380. In some jTirisdictions conditional sales are held to be subject to the provisions of a statute requiring chattel mortgages to be filed or re- corded. Hervey v. Locomotive Works, 93 U. S. 664, 23 L. Ed. 1003 ; In re Ducker, 134 Fed. 43, 67 C. O. A. 117 (Kentucky law); Clark v. Bright, 30 Colo. 199, 69 Pac. 506. 82 See, Harkness v. Russell, supra; Nichols v. Ashton, 155 Mass. 205, 29 N. E. 519; W. W. Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. 1110; Gilbert v. Cash Register Co., 176 111. 288, 52 N. B. 22; Freed Furniture & Carpet Co. v. Sorensen, 28 Utah, 419, 79 Pac. 564, 107 \m. St. Rep. 731. 83 Herryford v. Davis, 102 U. S. 235, 26 L. Ed. 160; Hughes v. Har- 1am, 166 N. T. 427, 60 N. E. 22. 84 Hervey v. Locomotive Works, 93 U. S. 664, 23 L. Ed. 1003; Sing- § 44) KICSEEVATION OF RIGHT OF POSSESSION. 13." struments in the form of leases have been held to be sales with a reservation of lien or mortgage back to secure the price, where the intention was manifest that the property should pass with such reservation.^" And, on the other hand, the same construction has been placed in some cases upon instruments in the form of conditional sales, where such ijj substance ap- peared to be the transaction contemplated.*' Effect of Conditional Sale. Under a conditional sale, notwithstanding the delivery of possession, the property does not pass to the buyer until the condition of payment is performed.*' And, where the question is unaffected by statute, the buyer cannot pass title to others, either to his attaching creditor ** or to bona fide purchasers.'* er Mfg. Co. v. Oole, 4 Lea (Tenn.) 439, 40 Am. Rep. 20; Loomia v. Bragg, 50 Conn. 228, 47 Am. Rep. 638; Hays v. Jordan, 85 Ga. 741, 11 S. E. 833, 9 L. R. A. 373; Gerrisli v. Clark, 64 N. H. 492, 13 Atl. 870; Cowan v. Manufacturing Co., 92 Tenn. 376, 21 S. W. 663; Quinn V. Machinery Co., 5 Wash. 276, 31 Pac. 866; Campbell v. Atherton, 92 Me. 66, 42 Atl. 232; Lundy Furniture Co. v. White, 128 Oal. 170, 60 Pac. 759, 79 Am. St. Rep. 41; Wilcox v. Cherry, 123 N. C. 79, 31 S. B. 369; Smith v. Aldrich, 180 Mass. 367, 62 N. E. 381 ; Unitype Co. v. Long, 143 Fed. 315, 74 C. C. A. 453. 85 Herryford v. Davis, 102 U. S. 235, 26 L. Ed. 160. See, also, Pal- mer V. Howard, 72 Cal. 293, 13 Pac. 858, 1 Am. St. Rep. 60; Singer Mfg. Co. V. Smith, 40 S. O. 529, 19 S. E. 132, 42 Am. St. Rep. 897. Cf. Murch V. Wright, 46 111. 487, 95 Am. Dec. 455. 86 Chicago Railway Equipment Co. v. Bank, 136 TJ. S. 268, 10 Sup. Ct. 990, 34 L. Ed. 349; Baldwin v. Crow, 86 Ky. 679, 7 S. W. 146; A. H. Andrews & Co. v. Bank, 20 Colo. 313, 36 Pac. 902; 0. Aultman & Co. V. Silha, 85 Wis. 359, 55 N. W. 711. 8 7 Ex parte Crawcour, 9 Ch. Dlv. 419; Campbell Printing Press & JIfg. Co. V. Walker, 114 N. Y. 7, 20 N. E. 625; Briggs v. McEwen, 77 Iowa, 303, 42 N. W. 303; Cincinnati Safe Go. v. Kelly, 54 Ark. 476, 16 S. W. 263; Bunday v. Machine Co., 143 Mich. 10, 106 N. W. 397. 5 L. R. A. (N. S.) 475. If a note is given in conditional payment, the property does not pass. Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687, 33 L. Ed. 125; Triplett V. Implement Co., 68 Ark. 230, 57 S. W. 261, 82 Am. St. Rep. 284. 8 8 Hussey V. Thornton, 4 Mass. 405, 3 Am. Dec. 224; Forbes v. JIarsb, 15 Conn. 384; Mack v. Story, 57 Conn. 407, 18 Atl. 707; Arm- ington V. Houston, 38 Vt. 448, 91 Am. Dec. 366; Rogers v. Whitehouse, 8 9 See note 89 on following page. 136 EFFECT OF CONTRACT IN PASSING PEOPEETT (Ch. 3 "The vendee in such cases," said the court in a leading case,^" "acquires no property in the goods. He is only a bailee for a specific purpose. The delivery which in ordinary cases passes the title to the vendee must take effect according to the agree- ment of the parties, and can operate to vest the property only when the contingency contemplated by the contract arises. The vendee, therefore, in such cases, having no title to the prop- erty, can pass none to others. He has only a bare right of pos- session; and those who claim under him, either as creditors or purchasers, can acquire no higher or better title. Such is the necessary result of carrying into effect the intention of the 71 Me. 222; Strong v. Taylor, 2 Hill (N. Y.) 326 ; Herring v. Hoppock, 15 N. T. 409; Cole v. Mann, 62 N. Y. 1; Goodell v. Fairbrother, 12 R. I. 233, 34 Am. Rep. 631; Call v. Seymour, 40 Ohio St. 670; Dewes Brewery Co. v. Merritt, 82 Jlich. 198, 46 N. W. 379, 9 L. R. A. 270; City Nat. Bank v. Tufts, 63 Tex. 113; Nichols v. Ashton, 155 Mass. 205, 29 N. B. 519; Cleveland Mach. Works v. Lang, 67 N. H. 348, 31 Atl. 20, 68 Am. St. Rep. 675; Rodgers v. Bachman, 109 Cal. 552, 42 Pac. 448. 8 9 Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct 51, 30 L. Ed. 2S5 : Zuchtmann v. Roberts, 109 Mass. 53, 12 Am. Rep. 663; Ballard v. Burgett, 40 N. Y. 314 (cf. Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626) ; Weeks v. Pike, 60 N. H. 447 ; Sanders v. Keber, 28 Ohio St. 630; Sumner v. Cottey, 71 Mo. 121; Fairbanks v. Eureka Co., 67 Ala. 109 ; Sumner v. Woods, 67 Ala. 139, 42 Am. Rep. 104 ; ilc- Comb V. Donald's Adm'r, 82 Va. 903, 5 S. B. 558; Standard Imple- ment Co. V. Parlin & Orendorffi Co., 51 Kan. 544, 33 Pac. 360 ; Mar- vin Safe Co. V. Norton, 48 N. J. Law, 410, 7 Atl. 418, 57 Am. Rep. 566 ; Baals v. Stewart, 109 Ind. 371, 9 N. E. 403 ; Gill v. De Armant, 90 Mich. 425, 51 N. W. .527; Lansing Iron & Engine Works v. Wil- bur, 111 Jlich. 413, 69 N. W. 667; Ensley Lumber Co. v. Lewis, 121 Ala. 94, 25 South. 729 ; Triplett v. Implement Co., 68 Ark. 230, 57 S. W. 261. 82 Am. St. Rep. 284; Lorain Steel Co. v. Railway Co., 187 Mass. 50O, 73 N. E. 646; Freed Furniture & Carpet Co. v. Sorensen, 28 Utah, 419, 79 Pac. 564, 107 Am. St. Rep. 731 ; Studebaker Bros. Co. V. Man, 13 Wyo. 358, SO Pac. 151, 110 Am. St. Rep. 1001; Id., 14 Wyo. 68, 82 Pac. 2. It is otherwise where the buyer is expressly or impliedly authoriz- ed to sell. Winchester Mfg. Co. v. Carman, 109 Ind. 31, 9 N. E. 707, 58 Am. Rep. 3S2 ; Spooner v. Cummings, 151 Mass. 313, 23 N. B. 839 ; Columbus Buggy Co. v. T^urley, 73 Miss. 529, 19 South. 232, 32 L. R. A. 260, .55 Am. St. Rep. 550. The seller may by his acts be estopped from asserting title. Mis- sissippi River Logging Co. v. Miller, 109 Wis. 77, 85 N. W. 193. 8 Goggill v. Railroad Co., 3 Gray (Mass.) 545, per Bigelow, J. § 44) EESEEVATION OF EIGHT OF POSSESSION. 137 parties to a conditional sale and delivery. Any other rule would be equal to a denial of the validity of such contracts. But they certainly violate no rule of law, nor are they contrary to sound policy." In several states, however, a different view of the policy of the law is entertained, and it is held that if the seller delivers the goods to the buyer, so as to clothe him with apparent ownership, a bona fide purchaser from the buyer or his execution creditor is entitled to protection as against the claim of the seller."^ In many states, among them some in which the validity of conditional sales as against creditors and purchasers had been sustained by the courts, statutes regulating conditional sales have been passed. These statutes usually provide that the contract shall be void as against purchasers and creditors unless in writing and filed or recorded like a chattel mortgage.'^ But, although the property does not pass, the buyer acquires a defeasible interest, which before breach of condition he may 91 Murch V. Wright, 46 111. 487, 95 Am. Dec. 455; Vandnzor v. Al- len, 90 111. 499 ; Hervey v. Locomotive Works, 93 U. S. G64, 23 L. Ed. 1003 (involving the Illinois rule) ; Lincoln v. Quynn, 08 5Id. 299, 11 Atl. 848, 6 Am. St. Rep. 446 (bona fide purchaser protected. Cf. Cen- tral Trust Co. V. Manufacturing Co., 77 Md. 202, 26 Atl. 493) ; Greer V. Church, 13 Bush (Ky.) 430; In re Ducker, 134 Fed. 43, 67 C. C. A. 117 (Kentucky law). In Pennsylvania a distinction is drawn between a conditional sale and a bailment with an option to purchase during the bailment or at its termination. In the latter case it is held, as in other jurisdic- tions, that the ownership of the bailor is protected against creditors of the bailee and purchasers from him. Rowe v. Sharp, 51 Pa. 26 ; Goss^Printing Co. v. Jordan, 171 Pa. 474, 32 Atl. 1031. But in the case of a conditional sale it is held, anomalously, that delivery to the buyer subjects the goods to execution at the suit of his creditors and makes it transferable to bona fide purchasers from him. Haak v. Llnderman, 64 Pa. 499, 3 Am. Rep. 612; Ott v. Swea'man, 166 Pa. 217, 31 Atl. 102. In Colorado it seems that creditors without notice and bona fide purchasers from the buyer are protected. Jones v. Clark, 20 Colo. 353, 38 Pac. 371. 2 Such a statute has been held not to apply to a conditional de- livery under a cash sale. Freeman v. Kraemer, 63 Minn. 242, 65 N. W. 455 ; Hirsch v. Lumber Co., 69 N. J. Law. 509, 55 Atl. 645. And see Plymouth Stove Foundry Co. v. Fee, 182 Mass. 31, 64 N. E. 419. 138 EFFECT OF CONTRACT IN PASSING PKOPERTT. (Ch. o sell or mortgage,'' and which is subject to attachment by his creditors,"* and which upon the performance of the condition becomes perfect. "The vendee acquires, not only the right of possession and use, but the right to become the absolute own- er upon complying with the terms of the contract. These are rights of which no act of the vendor can divest him, and which, in the absence of any stipulation in the contract restraining him, he can transfer by sale or mortgage. Upon performance of the condition of the sale, the title of the property vests in the vendee, or, in the event that he has sold or mortgaged it, in his vendee or mortgagee, without further bill of sale." "' And, like other bailees, he may maintain an action of trover against one who wrongfully invades his possession."" The seller also may sell or mortgage his interest in the goods or in the contract, and it may be attached by his creditors."^ Remedies of Seller under Conditional Sale. Upon default in payment or in performance of any other condition of the contract, the right of possession revests in »3 Day V. Bassett, 102 Mass. 445 ; Chase v. Ingalls, 122 Mass. 381 ; Carpenter v. Scott, 13 R. I. 477; Nutting v. Nutting, 63 N. H. 221. See Wincliester v. King, 46 Mich. 102, 8 N. W. 722; Sunny Soutb Lumber Co. v. Lumber Co., 63 Arl;;. 268, 38 S. W. 902; Albright v. Meredith, 58 Ohio St. 194, 50 N. E. 719. 94 Newhall v. King.?bury, 131 JJass. 445; Denny v. Eddy, 22 Piclc. (Mass.) 535; Hurd v. Fleming, 34 Vt. 109; Hervey v. Diamond, CT N. H. 342, 39 Atl. 331, 68 Am. St. Rep. 673. Contra : Kecli v. State, 12 Ind. App. 119, 39 N. E. 899. But the seller may retain the right to possession notwithstanding delivery. Nichols v. Ashton, 155 Mass. 205, 29 N. E. 519. '>^ Carpenter v. Scott, supra. 06 Harrington v. King, 121 Mass. 2G0 ; Lord v. Buchanan, 69 Vt. 320, 37 Atl. 1048, 60 Am. St. Rep. 933. Cf. Smith v. Gufford, 36 Fla. ^s:, 18 South. 717, 51 Am. St Rep. 37. »7 Burnell v. Marvin, 44 Vt. 277; Everett v. Hall, 67 Me. 497; McMillan v. Larned, 41 Mich. 521, 2 N. W. 662; Ross-^VIeehan Brake- Shoe Co. V. Ice Co., 72 Miss. 608, 18 South. 364 ; Laudigan v. Mayer, 82 Or. 245, 51 Pac. 649, 67 Am. St. Rep. 521 ; Standard Steam Laundry V. Dole, 22 Utah. 311, 61 Pac. 1103; Spoon v. Frambach, 83 Jlinn. 301, 86 X. W. 106; Bank of Little Rock v. Collins, 66 Ark. 240, 50 S. W. 694 ; Nye v. Daniels, 75 Vt. 81, 53 Atl. I-'IO ; Cutting v. Whitte- more, 72 N. H. 107, 54 Atl. 1098 ; Barton v. Groseclose, 11 Idaho, 227, 81 Pac. 623. § 44) KESERVATION OF RIGHT OF POSSESSION. 139 the seller,"' and he may retake the goods or maintain an ac- tion of replevin to recover them."" By his mere default, how- ever, the buyer does not forfeit his rights under the contract, for before possession is retaken the buyer may still pay the price and retain the goods. ^"" And the seller may waive the default,^"^ as by allowing the buyer to remain in possession and extending the time of performance, or accepting part pay- ment of the price ; and if he does so he cannot resume posses- sion without demand for performance and refusal by the buyer to comply with it.^°^ In a conditional sale, since the price is payable irrespective of the transfer of the property, the seller may maintain an action for the price, although the property has not passed.^"' But, if he brings an action for the price, it is generally held that he has elected to treat the sale as absolute, and that he 9 8 Hubbard v. Bliss, 12 Allen (Mass.) 590. 9 9 Hill V. Freeman, 3 Cush. (Mass.) 257; Salomon v. Hathaway, 126 Mass. 4S2 ; Hughes v. Kelly, 40 Ck>nn. 148 ; Stone v. Perry, 60 Me. 48; Whitney v. McConnell, 29 Mich. 12; Wiggins v. Snow, 89 Slich. 476, 50 N. W. 991 ; Proctor v. Tilton, 65 N. H. 3, 17 Atl. 638 ; Richardson Drug Co. v. Teasdall, 52 Neb. 698, 72 N. W. 1028; Wil- merding v. Furniture Co., 122 Ga. 312, 50 S. E. 100 ; Worthington v. A. G. Rhodes & Son Co., 145 Ala. 656, 39 South. 614 ; National Cash Register Co. v. Petsas (Wash.) 86 Pac. 662. Some cases require a demand. New Home Sewing-Mach. Co. v. Bothane, 70 Mich. 443, 38 N. W. 326 ; Nattin v. Riley, 54 Ark. 30, 14 S. W. 1100. 100 Vaughn v. McFayden, 110 Jlich. 234, 68 N. W. 135; Nattin v. Riley, supra. After default by the buyer, and demand of possession and tender back of unpaid notes by the seller, the buyer can no longer assign his interest Lippincott v. Rich, 19 Utah, 140, 56 Pac. 806. 101 Cole V. Hines, 81 Md. 476, 32 Atl. 196, 32 L. R. A. 455. 102 Hutchings v. Munger, 41 N. Y. 155 ; O'Rourke v. Hadcock, 114 N. Y. 541, 22 N. E. 33 ; People's Furniture & Carpet Co. v. Crosby, 57 Neb. 282, 77 N. W. 658, 73 Am. St. Rep. 504 ; Mosby v. GofC, 21 R, I. 494, 44 Atl. 930 ; Cable Co. v. Wasegizig, 130 Mich. 387, 90 N. W. 24. 103 Smith V. Aldrieh, 180 Mass. 367, 62 N. E. 381. He may sue for each installment as It falls due. Gray v. Booth, 64 App. Div. 231, 71 N. Y. Supp. 1015. See Sales Act, § 63 (2) ; 20 Harv. Law Rev. 378- 381; post, p. 346. 140 EFFECT OF CONTRACT IN PASSING PROPEETT. (Ch. 3 cannot afterwards reclaim the goods. ^"^ On principle, how- ever, it seems that the maintenance of an action for the price is not inconsistent with the retention of the property in the seller, since by the terms of the contract the property is to re- main in him until the price is paid, and the reservation of the property is for the very purpose of securing payment, and that the seller should be allowed to sue for the price and also to reclaim the goods to make them available as security; and some cases so hold.^"° Conversely, it is generally held that, if the seller reclaims the goods, he cannot afterwards sue for the price; ^'"' but on principle the mere resumption of possession is not inconsistent with the exercise of the right under the con- tract to recover the price, and some cases so hold.'^"'' It is gen- 104 Bailey v. Hervey, 135 Mass. 172; Whitney v. Abbott, 191 Mass. 59, 77 N. B. 524 ; Cronipton v. Beach, 62 Conn. 25, 25 Atl. 446, 18 L. R. A. 187, 36 Am. St. Rep. 323 ; Button v. Trader, 75 Mich. 29."i, 42 X. W. 834 ; Richards v. Schreiber, Conchar & Westphal Co., 98 Iowa, 422, 67 N. W. 569; Holt Mfg. Co. v. Ewlng, 109 Cal. 353, 42 Pae. 435; Smith Y. Barber, 153 Ind. 322, 53 N. E. 1014 ; Orcutt v. Rickenbrodt, 42 App. Div. 238, 59 N. X. Supp. 1008 ; Alden v. W- J. Dyer & Bro., 02 Jlinn. 134, 09 N. W. 784; Dowagiac Mfg. Co. v. Mahon, 13 N. D. 516, 101 N. W. 903 ; Butler v. Dodson, 78 Ark. 569, 94 S. W. 703. 106 Campbell Printing Press & Mfg. Co. v. Publishing Co., 56 N. J. Law, 676, 29 Atl. 681, 44 Am. St. Rep. 410 ; Jones v. Snider, 99 Ga. 276, 25 S. E. 668 ; Thomason v. Lewis, 103 Ala. 426, 15 South. 830 ; E. B. Forbes Piano Co. v. Wilson, 144 Ala. 586, 39 South. 04.5. If the seller attaches or levies on execution upon the goods, this is a recognition of the buyer's ownership, and an election. Tanner & De Laney Engine Co. v. Hall, 89 Ala. 630, 7 South. 187; Fuller v. Fames, 108 Ala, 464, 19 South, 366; Albright v. Meredith, 58 Ohio St. 194, 50 N. E. 719. So if the seller attempts to establish a materialman's lien. Hick- man V. Richburg, 122 Ala. 638, 26 South. 130. Cf. Warner Elevator Mfg. Co. V. Loan Ass'n, 127 Mich. 323, 86 N. W. 828, 89 Am. St. Rep. 473 ; Bierce v. Hutchins, 205 U. S. 340, 27 Sup, Ct, 524, 51 L. Ed, S23 (April 8, 1907), See 20 Harv, Law Rep. 371, 372, 106 Seanor v. McLaughlin, 165 Pa. 150, 30 Atl. 717, 32 L. R. A. 467; Earle v. Robinson, 91 Hun, 363, 36 N. Y. Supp. 178, affirmed 157 N. Y, GP3, 51 K. E. 1090; White v. A. W. Gray's Sons, 96 App. Div, 3.54, 89 N. Y. Supp. 481 ; Perkins v. Grobben, 116 Mich. 172, 74 N. W, 469, 39 L. R. A. 81.5, 72 Am. St. Rep. 512 ; C. Aultman & Co. v, Olson, 43 Minn. 409, 45 N. W. S-52 ; Keystone JIfg, Co, v. Cassellius, 74 :\tinu. :15, 76 N, W. 1028. 107 Tufts V, D'Arcambal, 85 Mich. 185, 4S N, W. 407, 12 L. R, A. § 44) KESERVATION OF EIGHT OF POSSESSION, lil erally held that the seller need not, in an action against the bu_ver or a purchaser from him to recover the value of the goods upon their conversion, allow for partial payments,^"* or, in re- plevin, refund the same,^"' and that, although the seller re- claims the goods, the buyer cannot recover for installments paid.^^° But some courts refuse to enforce the harsh rule of forfeiture of the installments paid,^^^ and other courts, upon equitable principles, where the court has equitable powers, re- quire the seller to account for payments received. ^'^^ In some states the matter is regulated by statute. '■^^ Risk of Loss. As a rule the risk of loss attaches to the ownership of the goods,^^* and unless otherwise agreed they remain at the seller's risk until the property in them is transferred to the buyer, so that, if they are destroyed or injured before the trans- fer, he cannot recover the price ;^^° but when the property 446, 24 Am. St. Rep. 79 ; Dederick v. Wolfe, 68 Miss. 500, 9 South. 350, 24 Am. St Rep. 2S.5 ; McPherson v. Lumber Co., 70 Jliss. 649, 12 Soutli. 8o7 ; JleCormick Harvesting Mach. Co. v. Koch, 8 Okl. 374, 58 Pac. 626. Ana see Tufts v. Brace, 103 Wis. 341, 79 N. W. 414. losAngier v. Manufacturing Co., 1 Gray fXiass.) 621, 61 Am. Dec. 436 ; Morgan v. Kidder, 55 Vt. 367 ; Hawkins v Hersey, SO Me. 394. 30 Atl. 14 ; Lorain Steel Co. v. Railway Co., 187 Mass. 500, 73 N. E. 640. But see Johnston v. Whittemore, 27 Mich. 463. 109 Duke V. Shackleford, 56 Miss. 552; Fleck v. Warner, 25 Kan. 402. If the buyer has equities by reason of installments paid, they cannot be asserted in replevin brought by the seller after condition broken. Thirlby v. Rainbow, 93 ilich. 164, 53 N. W. 159; Ryan v. Wayson, 108 Jllch. 519, 66 N. W. 370. 110 Latham v. Summer, 89 111. 233, 31 Am. Rep. 79 (but see Singer Mfs. Co. V. Ellington, 103 111. App. 517) ; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592. 111 Shafer r. Russell, 28 Utah, 444, 79 Pac. 559. ii=Hine V. Roberts, 48 Conn. 267, 40 Am. Rep. 170; Guilford v. McKinley, 61 Ga. 230; Snook v. Raglan, 89 Ga. 251. 15 S. B. 364; A. D. Puffer & Sons Mfg. Co. v. Lucas, 112 X. C. 377, 17 S. E. 174, 19 L. R. A. CS2. 113 Weil V. State, 46 Ohio St. 450, 21 N. E. 643; Whitelaw Furni- ture Co. V. Boon, 102 Tenn. 719, 52 S. W. 155 ; Matteson v. Milling Co., 143 Cal. 436, 77 Pac. 144. 114 See„Martineauj&, Kltching, L. R^^ 7 Q. B^ 486, per Blackburn, J. ;'9 Harv. Law'Rev. 106. "" 115 Kein v. Tupper, 52 N. Y. 550; Lingham v. Eggleston, 27 Mich. 142 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 3 is transferred they are the buyer's risk, whether delivery has been made or not.^^° So goods delivered on approval are at the seller's risk,^^^ while goods delivered on sale or return are at the risk of the buyer.^^* The parties may, however, fix the risk by agreement.^^" Where goods are delivered upon a conditional sale, the property being reserved in the seller, many cases hold, in ac- cordance with the general rule, that the goods remain at the seller's risk, and that, if they are lost or injured without the buyer's fault before payment, the buyer is not bound to pay the price. ^^^ Upon a conditional sale, however, the buyer ordinar- ily receives all the incidents of ownership except the title, the transaction being analogous to an absolute sale with a mort- gage back to secure the price; ^^^ and many cases therefore hold that the goods are at the risk of the buyer, who has the beneficial interest.^''^ In accordance with this view, which is supported by the weight of authority, the proposed Sales Act provides : "Where delivery of the goods has been made to 324 ; Drews v. Logging Co., 53 Minn. 199, 54 N. W. 1110 ; Towne v. Davis, 66 N. H. 396, 22 Atl. 450; Porter v. Bridgers, 132' N. O. 92, 43 S. E. 551. If the buyer has paid the price, and the goods are destroyed, he may recover it. Joyce v. Adams, 8 N. T. 291 ; Slade v. Lee, 94 Mich. 127. 53 N. W. 929 ; Stone v. Walte, 88 Ala. 599, 7 South. 117. 1 1 8 Terry v. Wheeler, 25 N. Y. 520 ; Bill v. Fuller, 146 Cal. 50, 79 Pac. 502: ante, p. 12.T. iSpe Sales Act. 5 22. 117 Elphiek v. Barnes, '> C. P. Div. .S21 ; post, p. 144. 118 Carter v. Wallace, 32 Hun (N. T.) 384; .Jacob Strauss Saddlery Co. V. Kingman, 42 Mo. App. 208; Foley v. Felrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39 ; post, p. 145. iioMartiueau v. Kitching, L. R. 7 Q. B. 436; Inglis v. Stock, 10 App. Cas. 203. 120 Randle v. Stone & Co., 77 Ga. 501; Glisson v. Heggie, 105 Ga. 30. 31 S. E. 118; Swallow v. Emery, 111 Mass. 355; Wolf v. Di Lorenzo. 21 Misc. Rep. 521, 47 N. T. Supp. 719; J. M. Arthur & Co. V. Blackman (C. C.) 63 Fed. 536 ; Bishop v. Minderhout, 128 Ala. 162, 29 South. 11, 52 L. R. A. 395, 86 Am. St. Rep. 134 ; American Soda Fountain Co. v. Blue, 146 Ala. 682, 40 South. 218. 1 = 1 Ante, p. 134. 122 Tufts V. Griffin, 107 N. C. 49, 12 S. E. 68, 10 L. R. A. 526, 22 Am. St. Rep. 863; Burnley v. Tufts, 66 Miss. 49, 5 South. 027, 14 Am. St. Rep. 540 ; Tufts v. Wynne, 45 Mo. App. 42 ; Osbom v. Lum- ber Co., 91 Wis. 526, 65 N. W. 184; American Soda Fountain Co. v. § 45) SALE ON APPROVAL OR TRIAL. 143 the buyer, or to a bailee for the buyer, in pursuance of the contract, and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery." ^^^ SALE ON APPROVAL OR TRIAL. 45. When, goods are delivered to the buyer on approval, or on trial, or on satisfaction, or other similar terms, un- less a different intention appears, the property there- in passes to the buyer— (a) When he signifies his approval or acceptance to the sel- ler, 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 such time, and, if no tinxe has been fixed, on the expiration of a reason- able time. W^hat is a reasonable time is a question of fact.i2* Vaughn, 69 N. J. Law, 582, 55 Atl. 54 ; La Valley v. Ilavenna, 78 Vt. ' 152, 62 Atl. 47, 2 L. R. A. (N. S.) 97, 112 Am. St. Rep. 898. In La Valley v. Ravenna, supra, the court said : "The defendant's promise to pay was absolute, and was made upon a sufficient con- sideration ; for he got just what he bargained for, the use, possession, and enjoyment of the property, with the right to acquire the absolute title upon payment of the stipulated price, and this was the considera- tion for his promise. The seller had done all that he was to do to or with the property by the terms of the contract — all that he was to do at all, except to receive the price; and upon that the title passed, without further action on the part of either party. The defendant's promise was in no sense conditioned on the seller's ability to deliver the title. He could not return the property to the seller, and thereby avoid further liability." 123 Sales Act, § 22 (a). Section 22 (b), following the English Sales Act, § 20, provides also : "Where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in default as regards any loss which might not have occurred but for such default." 12* Sales Act, § 19, rule 3 (2). 114 EFFECT OF CONTRACT IN PASSING PEOPEKTT. (Ch. 3 SALE OR RETURN. 46. 'When goods are delivered to the buyer "on sale or re- turn,'' or on other terms indicating an intention to mahe a present sale, but to give the buyer an option to return the goods, instead of paying the price, un- less a different intention appears, the property passes to the buyer on delivery; but he may revest the property in the seller by returning or tendering the goods 'within the time fixed in the contract, or, if no time has been fixed, urithin a reasonable time.i^^ Sale on Approval. Conditions postponing the transfer of the property may ex- ist for the benefit of the buyer as well as of the seller. In- stances of such conditions are afforded in sales "on trial,'' or "on approval," or "on satisfaction." '■^^ Such a transaction amounts to a bailment, with the right in the bu3'er to convert the bailment into a~sale, at his option. ^^'^ In such cases there is no sale until the buyer signifies to the seller his approval or acceptance, or does some act adopting the transaction as a sale.^^* If he does not signify his approval or acceptance, but retains the goods without giving notice of rejection, it is gen- erally held that the property passes on the expiration of the time limited for trial,^^^ or, if no time is limited, on the expira- 126 Sales Act, § 19, rale 3 (1). 126 Post, p. 234. 127 Ante, p. 8. 128 Swain V. Shepherd, 1 Moody & R. 223; Elphick v. Barnes. 5 C. P. Div. 821, 326 ; Hunt v. Wyman, 100 Mass. 198 ; Whitehead v. Van- derbilt, 10 Daly (N. T.) 214; Pitts' Sons Mfg. Co. v. Poor, 7 III. App. 24 ; Mowbray v. Cady, 40 Iowa, 604 ; Pierce v. Cooley, 56 Jlich. 552. 23 N. W. 310 ; Glasscock v. Hazell, 109 N. C. 145, 13 S. E. 7S0 ; Da- vis Gasoline Engine Works Co. v. McHugb, 115 Iowa, 413, 88 N. W. 948; In re George M. Hill Co., 123 Fed. 8G6. 59 C. C. A. 354. See, also, O'Donnell v. Wing & Son, 121 Ga. 717, 49 S. E. 720. 129 Humphries v. Carvalho, 16 East, 45; Elphick v. Barnes, 5 C. P. Div. 321; Waters Heater Co. v. Mansfield, 48 Vt. 378; Butler v. School Dist., 149 Pa. 351, 24 Atl. 308; Spickler v. Marsh, 36 Md. 222 ; Delamater v. Chappell, 48 Md. 244, 253 ; Prairie Farmer Co. v. Tay- lor, 69 111. 440, 18 Aon. Rep. 621 ; Aultman v. Theirer, 34 Iowa, 272 ; Columbia Eolllng-Mill Co. v. Machine Co., 55 N. J. Law, 391, 26 Atl. 888 : Turner v. Foundry Co., 97 Mich. 166, 56 N. W. 356 : Grabfelder § 4:6) SALE OR RETURN. 145 tion of a reasonable time/^" although some cases hold that i failure to return is merely evidence of intention on the buyer's / part to exercise his right to purchase/'^ Sale or Return. A bailment with an option in the bailee to buy is, however, essentially different from a sale with the right of return. It is, of course, competent for the parties to agree that the prop- erty in the goods shall pass to the buyer on delivery, and that, if he does not approve of the goods, he may return them. In the latter case the transaction is a sale defeasible on the ful- fillment of a condition subsequent.^^^ The property vests in the buyer, and, upon the exercise of his right of return, it re- vests in the seller. To have this effect, the option must be ex- ercised within the time fixed, ^"^ or, if no time be fixed, within a reasonable time.^'* In case the buyer disables himself from performing, the sale becomes absolute.^"* The difficulty lies in ascertaining the intention, and different constructions would probably be placed upon the same transaction by different V. Vosburgb, 90 App. Div. 307, 85 N. T. Snpp. 633. A sale on condi- tion that the buyer may return on a certain contingency becomes ab- solute if he disables himself from performing the condition by mort- gaging the goods. Lynch v. Willford (Minn.) 59 N. W. 311. Using a harvesting machine for a day after deciding to return it was a waiver of the right to return. Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090. 130 Moss V. Sweet, 16 Q. B. 493, 20 Law J. Q. B. 167 ; Dewey v. Erie Borough, 14 Pa. 211, 53 Am. Dec. 533; S. C. Forsaith Mach. Co. v. Mengel, 99 Blieh. 280, 58 N. W. 305. 131 Hunt V. Wyman, 100 Mass. 198, per Wells, J. ; Kahn v. Kla- bunde, 50 Wis. 235, 6 N. W. 888. See Sturm v. Boker, 150 U. S. 312, 331, 14 Sup. Ct. 99, 37 L. Ed. 1093 ; Springfield Engine Stop Co. v. i Sharp, 184 Mass. 266, 68 N. E. 224. 132 Ray V. Thompson, 12 Cush. (Mass.) 281, 59 Am. Dec. 187; Schle- singer v. Stratton, 9 R. I. 578, 580; Hotchkiss v. Higgins, 52 Conn. 205, 52 Am. Rep. 582; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552 ; Wind v. Her, 93 Iowa, 316, 61 N. W. lOOl, 27 L. R. A. 219 ; Gay V. Dare, 103 Cal. 454, 37 Pac. 466 ; Weles v. McNerney, "4 Conn. 675, 51 Atl. 1064. Cf. Head v. Tattersall, L. R. 7 Exch. 7 ; Sturm v. Boker, 1.50 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093. 133 Stevens v. Hertzler, 114 Ala. 563, 22 South. 121. 134 House V. Beak, 141 111. 290, 30 N. B. 1065, 33 Am. St Rep. 307. 13 5 Ray V. Thompson, supra. Tiff.Sales(2d Ed.)— 10 146 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 3 courts.'^' Thus, in several cases where goods were dehvered to the buyer upon his agreement to return them on a specified day, or else to pay for them, the transaction has been con- strued as an executed sale with the -right of return; ^" but it is perhaps open to doubt whether it would not be more in ac- cordance with the intention of the parties to construe such a transaction as a bailment with the right to purchase. The terms "sale on trial," "sale on approval," and "sale or return" are often used without much distinction; ^'* but the term "sale or return" is in this country often confined to sales defeasible upon the return of the goods, in distinction to the terms "sale on trial" and "sale on approval," which are confined to cases in which the approval of the buyer is a condition precedent to the transfer of the property; ^^° and the distinction is a con- venient one. 136 Ray V. Thompson, 12 Cush. (Mass.) 281, 59 Am. Dec. 187. 137 Dearborn v. Turner, 16 Me. 17, 33 Am. Dec. 630; Buswell v. Bicknell, 17 Me. 344, 35 Am. Dec. 262; Crocker v. Gullifer, 44 Me. 491, 404, 69 Am. Dec. 118; McKinney v. Bradlee, 117 Mass. 321; Martin v. Adams, 104 Mass. 262. 138 Cf. Moss V. Sweet, 16 Q. B. 493, 20 Law J. Q. B. 167; Meldrum V. Snow, 9 Pick. (JIass.) 441, 20 Am. Dee. 489 ; Kahn v. Klabunde, 50 Wis. 235, 208, 6 N. W. 888; Spickler v. Marsh, 36 Md. 222; Benj. Sales, § 595. The English Sale of Goods Act, § 18, rule 4, does not make the distinction. See Chalmers, Sale of Goods Act (6th Ed.) 50. 139 Cf. Schlesinger v. Stratton, 9 R. I. 578, 580; Hotchkiss v. Hlg- gins, 52 Conn. 205, 52 Am. Rep. 582 ; Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552 ; Benj. Sales (Bennett's 6th Am. Ed.) pp. 568, 569 ; Id. (Corbin's Ed.) p. 796, note 30. §§ 47-48) EFFECT OF CONTRACT IN PASSING PEOPERTY. 147 CHAPTER IV. EFFECT OP THE CONTRACT IN PASSING THE PKOPEBTY (Continued)— SALE OF GOODS NOT SPECIFIC. 47-48. In General. 49-50. Subsequent Appropriation. 51-53. Reservation of Rigtit of Possession or Property. IN GENERAI.. 47. NO PROPERTY PASSES UNTIL GOODS ARE ASCER- TAINED. 'Where there is a contract for the sale of unascertained goods, no property in the goods is trans- ferred to the buyer unless and until the goods are as- certained; but property in an undivided share of as- certained goods may be transferred as stated in the folloiring section. i 48. UNDIVIDED SHARES. (1) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an oivner in common ivith the oTvner or ovruers of the remaining shares, (2) UNIFORM MASS. In some jurisdictions, but not in all, there may be a sale of an undivided share of a specific mass of goods of uniform character, though the seller purports to sell and the buyer to buy a definite num- ber, ureight or measure of the goods in the mass, and though the number, freight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes ourner in common of such a share of the mass as the number, iveight or measure bought bears to the number, iveight or measure of the mass.^ The rule that the parties must be agreed on the specific goods which are to be the subject of the sale is founded, as Blackburn says, on the very nature of things; for, until the parties are agreed on the specific goods, the contract can be no more than a contract to supply goods answering a particular description, and since the seller would ftilfill his contract by 1 See Sales Act, § 17. 2 See Sales Act, § 6. 148 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 4 furnishing any goods answering tlie description, and the buyer could not object to them, provided they answered the descrip- tion, it is clear that there can be no intention to transfer the property in any particular goods.' Where Goods are Part of Specific Stock. But, where the goods are so far ascertained that the parties have agreed to take them from a particular stock owned by the seller, a different question may arise. If the goods are part of a specific stock, consisting of units of varying quality or value, as a number of sheep out of a flock, it is clear that a selection must take place before the property in any particular units can pass.* But if the goods are part of a uniform mass, such as grain or oil or coal, so that any unit is the equivalent of any other unit, it is possible that the parties may intend that the property in an undivided share shall pass, the parties becoming owners in common of the mass ; and such an inten- tion may be inferable although the contract is not in terms for the sale of an undivided interest, as a half or a third, but where it is for the sale of a certain number of bushels or gal- lons or tons of the mass of grain or oil or coal, the buyer in such case to become owner of such share of the mass as the number df units bought bears to the number of units in the mass. In England no such distinction is recognized, and the general rule is applied, even though the mass be of uniform quality and value. ° But in the United States, while many cases main- 3 Blackb. Sales, 12-t; Benj. Sales, 352; 2 Kent, Comm. 496. 4 Ilahn V. Fredericks, .30 Micb. 223, 18 Ann. Rep. 119 ; Steaubli v. Bank, 11 Wash. 42(;, 39 Fae. 814; Liglithouse v. Bank, 162 N. Y. •336, 56 N. E. 738; Wilson v. Salt Co., 50 App. Div. 114, 63 N. Y. Supp. 5a5; Martin Bros. & Co. v. Lesan, 129 Iowa, 573, 105 N. W. 990. 6 Wallace v. Breeds, 13 East, 522; Austen v. Craven, 4 Taunt. 644; White V. Wilks, 5 Taunt. 176; Busk Y. Davis, 2 JIaule & S. 39-7; SUeplcy V. Davis, 5 Taunt. 617; Gillett v. Hill, 2 Cromp. & M. 530; Gabarron v. Kreeft, L. R. 10 Exch. 274. See Sale of Goods Act, § 16. Whitehouse v. Frost, 12 East, 614, may, perhaps, rest upon this distinction. See Busk v. Davis, 2 Maule & S. 397. But the case has been much questioned in England. Benj. Sales, § 354. It is, however, frequently cited as an authority in the American cases which recognize the distinction. §i 47-48) IN GENERAL. 149 tain strictly the older rule,® others hold that if the sale be of a certain quantity, by weight or measure or count, its separa- tion from a specific, uniform mass is not necessary to pass the property, when the intention to do so is otherwise manifested.' Upon the question of intention, the payment of the price, and particularly the undertaking of the seller to hold as bailee of 6 Woods V. McGee, 7 Ohio, 127, pt 2, 30 Am. Dec. 220 (but see New- hall V. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426) ; Scudder v. Wors- ter, 11 Gush. (Mass.) 573; Ropes v. Lane, 9 Allen (IVIass.) 502; Kee- ler V. Goodwiu, 111 Mass. 490; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; Reeder v. Machen, 57 Md. 56; Ferguson v. Bank, 14 Bush (Ky.) 555; Courtright v. Leonard, 11 Iowa, 32; McLaugh- lin V. Piatti. 27 Gal. 451; Dunlap v. Berry, 4 Scam. (111.) 327, 39 Am. Dec. 413; Warten v. Strane, 82 Ala. 311, 8 South. 231; Gommercial Xat. ^ank , v. Gillette, 90 Ind--J68, 46 Am. Rep. 222; Jeraulds v. "Brown, 64" N. H. 606, 15 Atl. 123;' New England Dressed Meat & Wool Co. V. Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 516; Conard v. Railroad Co., 214 Pa. 98, 63 Atl. 424. See, also, Golder v. Ogden, 15 Pa. 528, 53 Am. Dec. 618; Haldeman v. Dun- can, 51 Pa. 66; Morrison v. Woodley, 84 111. 192. Some cases cited as authorities on this point, perhaps, rest on the ground that the mass was not uniform. Woods v. McGee, supra; Hutchinson t. Htm ter. 7 Pa._140j McLaughlin v. Piatti, 27 Cal. 45"r"(see llorr~v: Barker, 8 Gal."603; Id., 11 Cal. 393, 70 Am. Dec. 791). See Stone V. Peacock, 35 Me. 385, 388. I Kimberly v. Patehin, 19 N. Y. 330, 75 Am. Dec. 334; Russell v. Carrington, 42 N. Y. 118, 1 Am. Rep.' 498; Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726;_Hurff v. Hires, 40 N. J. Law, 581, 29 Am. Rep. 2S2; Chapman v. Shepard, 39 Conn. 413; Waldron VTChase, 37 Me. 414, 59 Am. Dec. 56 (but see Morrison v. Dingley, 63 Me. 553); Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Kep. 426; Carpenter v. Graham, 42 Mich. 191, 3 N. W. 974; Young v. Miles, 20 Wis. 615; Horr v. Barker, 8 Cal. 603; Id., 11 Cal. 393, 70 Am. Dec. 791; Kingman v. Holmquist, 36 Kan. 735, 14 Pae. 168, 59 Am. Rep. 604; Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L. R. A. 400; Mackellar v. Pillsbury, 48 Minn. 396, 51 N. W. 222 ; (barrels) : Phil- lips V. Oemulgee Mills, 55 Ga. 633; Watts v. Hendry, 13 Fla. 523; Wagar v. Railroad Co., 79 Mich. 648, 44 N. W. 1113; Welch v. Spies, 103 Iowa, 389, 72 N. W. 548; O'Keefe v. Leistiko'w (N. D.) 104 N. W. 515. Where the contract was for "merchantable brick," to be sorted from the kiln by the buyer, the title did not pass; it being impossible to determine either what brick, or what relative portion of the kiln, were sold. Kimberly v. Patchin, supra, distinguished on the ground that it did not appear that the brick were uniform and of equal value. Anderson v. Crisp, 5 Wash. 178, 31 Pac. 638, 18 L. R. A. 419. 150 EFFECT OF CONTRACT IN PASSING PEOPERTT. (Ch. 4 the buyer, are material ; * and it has also been held that the de- livery of the mass to the buyer, with power to make the sep- aration, is evidence of an intention to pass the property.' In some cases where an undivided interest was held to have pass- ed it is perhaps doubtful whether such intention existed ; ^" but on principle there is no reason why the intention, if it exists, should not be given effect, and the doctrine that the property may pass in such cases without separation is support- ed by the weight of authority in this country. ^^ Tlie doctrine has also been applied where the contract was to sell unascer- tained goods and the seller appropriated to the contract out of a larger mass the specified number of units. ^^ Elevator Cases. Analogous to the cases last mentioned are the so-called "Ele- vator Cases,'' which hold that grain delivered by the owners at ^See Foot v. Marsh, 51 N. Y. 2S8. » Page V. Carpenter, 10 N. H. 77; Lamprey v. Sargent, 58i N. H. 241; ^\e\a V. Cutler, 2 Gray (Mass.) 195; Croze r. Land Co., 1-13 Mich. 514, 107 N. W. 313, 114 Am. St. Rep. 677. But see Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334, per Comstock, J., comment- ing on Crofoot v. Bennett, 2 X. Y. 258. 10 Pleasants v. Pendleton, 6 Kand. (Va.) 473, 18 Am. Dec. 720, a leading case, of which it was observed by Grimke, J., in Woods v. McGee, 7 Ohio, 127, pt. 2, 30 Am. Dec. 220, that "it was a hard case, and hard cases make shipwreck of principles." 11 It is adopted by Sales Act, § 6. See, also, sections 17, 76 (fungible goods). 12 Where defendants ordered 400 hectolitres of nuts, after being in- formed that they were sold in bulk by hectolitres, the buyer to fur- nisli baKS on arrival of shipment, and on arrival of steamer received a delivery order for 400 hectolitres in bulk in separate hold, and on presentment of the order found that the 400 hectolitres destined for theiu were embraced in a consignment of 5S2 hectolitres to vari- ous consignees, which was the usual method of shipment, it was held, In an action for the price, that the delivery on board vested in de- fendants' title to ioo/682 of the consignment, and that the tender of the GS2 hectolitres for defendants to take their share was a suffi- cient delivery. The court said: "A distinction is made between those cases where the act of separation is burdensome and expensive, or involves selection, and those where the article is uniform in bulk and the act of separation throws no additional burden on the buyer. In the latter class of cases a tender of too much, from which the buyer is to take the proper quantity, is a good delivery." Brown- field V. Johnson, 128 Pa. 254, 18 Atl. 548, 6 L. R. A. 48. Post, p. 282. § ; 49-50) SUBSEQUENT APPKOPRIATION. 131 an elevator, and stored in a common mass, is owned by the de- positors as tenants in common, and that the interest of any one of them may be transferred without separation.^* There is, however, in the Elevator Cases, this essential distinction : that the tenancy in common is created by the original deposit and mixture of goods, so that in case of a sale by one owner there can be no question that the intention is to transfer the property in an undivided interest. SUBSEQUENT APPROPRIATION. 49'. IN GENERAI<. Where there is a contract for the Bale of TLnasceyt aimed goods, the property In them is not transferred until there has been an appropriation of the goods to the contract— 'that is, u. specification or selection, by the seller with the assent of the bnyer, or by the buyer nrith the assent of the seller, of the goods -which are to be the subject-matter of the sale; and when goods are so appropriated to the contract, withjthe intention of passing the property in them, the property is transferred. 50. RULES FOR ASCERTAINING INTENTION AS TO TIME AVHEN PROPERTY IS TO PASS. Unless a different intention appears, the follow^ing are rules for ascer- taining the intention of the parties as to the time \phem the property in the goods is to pass to the buyer: (1) Where there is a contract to sell unascertained or fu- ture goods by description, and goods of that descrip- tion and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer \irith the as- sent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. (2) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not), for the purpose of transmission to or a holding for the buyer, 13 Gushing v. Breed, 14 Allen (Mass.) 376, 92 Am. Dee. 777; Kee- ler V. Goodwin. Ill Mass. 490; Dole v. Olmstead, 36 111. 150, 85 Am. Dec. 397; Id., 41 111. 344, 89 Am. Dec. 380; AVarren v. Milliken, 57 Me. 97. Ante, p. 7. 152 EFFECT OF CONTRACT IN PASSING PEOPERTT. (Ch. 4 he is presumed to have unconditionally appropriated the goods to the contract, except in the cases embraced in the follondng subsection and in sections 51-53. In many jurisdictions this presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods, and the goods are marhed Tvith the Tvords **co«llect on delivery," or their equivalents; but in other juris- dictions it is held that in such cases the property does not pass until delivery to the buyer. (3) If a contract to sell requires the seller to deliver the goods to the buyer or at a, particular place, the prop- erty does not pass until the goods have been delivered to the buyer or have reached the place agreed upon.i* Although no property can pass until the goods have been ascertained, it does not necessarily follow that because they have been ascertained the property passes. The transfer of the property, in such case, as well as in the case of a contract for the sale of goods originally specific, depends solely on the in- tention of the parties, and, while in both cases the presumption is that the parties intend the property to pass,^° it may well happen that, though they subsequently agree upon the specific goods, they intend that the property shall remain in the seller until the performance of a condition. To effect a transfer of the property, it is necessary, not only that the goods be ascer- tained, but that they be appropriated to the contract with the intention of passing the property in them. The term "ap- propriation to the contract," as has been observed by Chalmers, J.,^" is unfortunate; for it sometimes means simply that the goods have been specified as the subject-matter of the contract, so that the seller would break it by delivering any other goods, though the property still remains in him, while, on the other hand, it may, and usually does, mean that the goods have been designated with the intention of passing the property in them to the buyer — that is, finally appropriated to the contract, so as to pass the property in them.^' 14 See Sales Act, § 19, rules 4 and 5. loBIackb. Sales (2d Ed.) 128. loClialm. Sale of Goods Act (6th Ed.l Pil. 17 Wait V. Daker, 2 Exch. 1, 8, per Parke, B. §§ 49-50) SUBSEQUENT APFROPUIATION. 153 How Effected. An appropriation, so as to pass the property in the goods, can only take place by the assent of both parties,^' but the as- sent may be implied as well as express ; ^^ and it may be given by either party after ="> or before a selection by the other. When the goods are afterwards selected by the buyer with the assent of the seller, or, if selected by the seller, are approved by the buyer, no difficulty arises. ''' As was said by Holroyd, J., "The selection of the goods by the one party, and the adop- tion of the act by the other, converts that which was before a mere agreement to sell into an actual sale, and the property thereby passes." ^^ Appropriation by Act of Seller. "The difficulty arises when the seller makes the selection pur- suant to an authority derived from the buyer ; and it is often a nice question of law whether the acts done by the seller mere- ly express a revocable intention to appropriate certain goods to the contract, or whether they show an irrevocable determina- tion of a right of election." ^^ Authority to make the appropria- tion is generally conferred upon the seller by implication upon the ground that he is by the contract authorized or required to do an act in respect to the goods on behalf of the buyer which, from the nature of the act, he cannot do until the goods are ap- propriated.^* Until he performs the act, he may change his 18 Campbell v. Mersey Docks & Harbour Board, 14 C. B. (N. S.) 412, per Willes, J.; Godts v. Rose, 17 C. B. 229, per Willes. J.; Jen- ner v. Smitb, L. R. 4 C. P. 270, per Brett, J.; Eeeder v. Macben, 57 Md. 56; Home Ins. Co. v. Heck, 05 111. Ill; Andrews v. Cbeney, G2 N. H. 404; American Hide & Leather Co. v. Chalkley & Co., 101 Va. 458, 44 S. E. 705. 19 Campbell v. Board, 14 C. B. (N. S.) 412, per Erie, J.; Alexander V. Gardner, 1 Bing. N. 0. 671; Sparkes v. Marshall, 2 Bing. N. C. 761. 20 Rohde V. Thwaites, 6 Barn. & C. 388. 21 Benj. Sales, § 358. 22 Rohde V. Thwaites, 6 Barn. & C. 888. See, also, Hatch v. Oil Co., 100 U. S. 124, 136, 25 L. Ed. 554; Augustine v. McDowell, 120 Iowa, 401, 94 N. W. 919. 23 Chalm. Sale of Goods Act (6th Ed.) 50. 2iLangd. Cas. Sales, 1028; Smith v. Edwards, 156 Mass. 221, 30 154 EFFECT OF CONTRACT IN PASSING PEOPEETT. (Ch. i mind as often as he will as to what goods he will select, for the contract gives him till then to make the choice ; but, when once he has performed the act, his election is determined, and the property in the goods passes to the buyer.^^ Thus where, by the contract, the seller is to sell a certain number of bar- rels of flour, and to load them into the wagon or vessel of the buyer, who is to fetch them away, the seller has implied au- thority to appropriate the goods, and he may select any goods he pleases, provided they conform to the contract, and he may select first one lot, and then another, without affecting the property in them ; but when once he loads the barrels into the buyer's wagon or vessel the appropriation is final, and, unless he reserves the property in the goods, ^"^ the property passes. ^^ So when the seller is to deliver the goods at a place designated by the contract, unless a different intention appears,^* the property passes upon the delivery.^^ An act of appropriation. X. E. 1017, per Holmes, J.; JIartz v. Putnam, 117 Ind. 392, 20 N. B. 270. Where the seller is authorized to do such an act, the implication of authority is not overcome by the fact that the sale is by sample; for the property passes only provided they do conform, and the right to refuse the goods if they do not conform to the description always exists. Kuppenheimer v. Wertheimer, 107 ilich. 77, 64 N. W. n.-,2, 61 Am. St. Rep. 317; Wndliams & Co. v. Balfour, 32 Or. 313. 51 Pac. 642. But see Jenner v. Smith, L. R. 4 C. P. 270. 26Blackb. Sales, 128; Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. 2 6 Post, p. 162. 27 Ben,i. Sales, § 359; Gill v. Benjamin, 64 Wis. 362. 25 N. W. 445, .54 Am. Rep. 619 (to be delivered over the rail of the buyer's vessel). A foreign merchant contracted for several cargoes of lumber, to be delivered, seasoned, f. o. b. ship in the A. river, within seven months of May 1st; certain advances to be made before June 1st. The advances were made, and the first cargo was prepared by August, piled by itself, and the buyer notified. The buyer had dif- ficulty in chartering ships, and the lumber was burned. Held, that the title had not passed. Schreyer v. Lumber Co., 4 C. C. A. 547, 54 Fed. 653. 28 Cole V. Bryant, 73 Jliss. 297, 18 South. 655. "29 National Bank v. Dayton, 102 U. S. 59, 26 L. Ed. 77; Hyde v. Lathrop, 2 Abb. Dec. 436; Claflin v. Railroad Co., 7 Allen (Mass.) 341; Veazie v. Holmes, 40 Me. 69; Bloyd v. Pollock, 27 W. Va. 7r,; Sedgwick v. Cottingham, 54 Iowa, 512, 6 N. W. 738; Brigham v. Hib- §§ 49-50) SUBSEQUENT APPROPRIATION. 155 if authorized, is sufficient to transfer the property, even though the goods remain in the seller's control.'" The authority to make the appropriation may, however, be withdrawn before it is exercised, and if it be afterwards acted on the seller can- not recover the price, but his remedy is by action to recover damages for non-acceptance.'^ Appropriation by Delivery to Carrier. The commonest form of appropriation by act of the seller is by the delivery of the goods to a carrier as agent for the buyer. Delivery to a carrier for transmission to the buyer, pursuant to the contract, is an appropriation of the g^oods to the contract, and passes the property in them, unless by the terms of the contract or appropriation the seller reserves the right of property in them, or unless he is to deliver them to the buyer at their destination, in which case the property does not pass until such delivery.'^ Thus, if the buyer orders goods to be sent to him at his expense, and the seller delivers goods conforming to the contract to a carrier for transmission to the buyer, the appropriation is complete upon such delivery, and the property passes,'' provided that the seller does not reserve bard, 2S Or. 386, 43 Pac. 383; Bayne v. Hard, 77 App. Div. 251, 79 N. Y. Supp. 208, affirmed 174 N. Y. 534, 66 N. E. 1104. 3 Where the buyer accepted by telegram the seller's offer to sell him 60 tubs of butter of a specified quality at 27 cents per pound, and they immediately set apart the butter, weighing it and marking it as his, and sent him a bill marked "cash on demand," the appropriation was authorized and passed the property. Jlitchell v. LeClair, 165 Mass. 308. 43 N. E. 117. See, also, Tift v. Wight & Weslosky Co., 113 Ga. 681, 39 S. E. 503. Cf. Andrews v. Cheney, 62 N. H. 404. 31 Unexcelled Fireworks Co. v. Polites, 130 Pa. 536, 18 Atl. 1058, 17 Am. St. Rep. 788. 32 Sales Act, § 19, rules 4, 5. 33 Fragano v. Long, 4 Barn. & C. 219: Browne v. Hare, 4 Hurl. & N. 822, 29 Law J. Exch. 6; affirming 3 Hurl. & N. 484, 27 Law J. Exch. 372 ; Tregelles v. Sewell, 7 Hurl. & N. 574 ; Calcutta & B. S. Nav. Co. V. De Mattos, 32 Law J. Q. B. 322, 328, per Blackburn, J. ; Pinch V. Mansfield, 97 Mass. 89; Merchants' Nat. Bank v. Bangs, 102 Mass. 291 ; Odell v. Railroad Co., 109 Mass. 50 ; Frank v. Hoey, 128 Mass. 203 ; Smith v. Edwards, 156 Mass. 221, 30 N. B. 1017 ; Tor- rey v. Corliss, 33 Me. 333 ; Arnold v. Prout, 51 N. H. 587 : Hobart v. Littlefield. 13 R. I. .341 ; Krulder v. Ellison, 47 N. Y. 36, 7 Am. Rep. 402; Bailey v. Railroad Co., 49 N. Y. 70; Pacific Iron Works v. 156 EFFECT OP COXTEACT IN PASSING PEOPERTT. (Cll. 4 the property.'* The right to make the appropriation springs from the authority to deHver to the carrier as agent for the buyer, wihch is equivalent to delivery to him personally, and such authority may either be conferred by the express terms of the contract, or may be implied from the course of trade. If, however, the seller is to deliver to the buyer at the place of des- tination, unless a different intention appears, delivery to the carrier is not delivery to him as agent of the buyer, but as agent of the seller, and hence does not pass the property.'" Railroad Co., 62 N. T. 272; Schmertz v. Dwyer, 53 Pa. 335; Phila- delphia & R. Ry. V. Wireman, 88 Pa. 264 ; Kelsea v. llaniifacturing Co., 55 N. J. Law, 320, 26 Atl. 907, 22 L. R. A. 415; Magruder v. Gage, 33 Md. 344, 3 Am. Rep. 177 ; Watkins v. Paine, 57 Ga. 50 ; Pil- green v. State, 71 Ala. 368; Diversy v. Kellogg, 44 111. 114, 92 Am. Dec. 154: Ellis v. Roche, 73 111. 280; Ranney v. Higby, 4 Wis. 154; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Rep. G24 ; Gar- retson v. Selby, 37 Iowa, 529, 18 Am. Rep. 14 ; Burton v. Baird, 44 Ai-k. 556 ; Dyer v. Railway Co., 51 Minn. 345, .53 N. W. 714, 3S Am. St. Rep. 506 ; Wind v. Her, 93 Iowa, 316, 61 N. W. 1001, 27 L. R. A. 219 ; Neimeyer Lumber Co. v. Railroad Co., 54 Neb. 321, 74 N. W. 670, 40 L. R. A. 534; Mobile Fruit & Trading Co. v. McGuire, 81 Minn. 232, 83 N. W. S:;;.T ; Althouse v. MeJIillan, 1.32 Mich. 14.3, 92 N. W. 941 ; Sam- uel M. Lawder <^ Sons Co. y. Grocery Co., 97 Md. 1, 54 Atl. 634 ; P. .1. Bowlin Liquor Co. v. Beaudoin (N. D.) 108 N. W. .545 ; Lombard Wa- ter-Wheel Governor Co. v. Paper Co., 101 Me. 114, 63 Atl. 55."i, 6 L. R. A. (N. S.) 180. 3* Post, p. 162. 8 5 Calcutta & B. S. Nav. Co. v. De Mattos, 32 Law J. Q. B. 323, per Blackburn, J. ; Dunlop v. Lambert, 6 Clark & F. 600, per Lord Cottenham ; Suit v. Woodhall, 113 Mass. 391 ; McNeal v. Braun, 53 N. J. Law, 617, 23 Atl. 687, 26 Am. St. Rep. 441 ; Bloyd v. Pollock, 27 W. Va. 75 ; Congar v. Railroad Co., 17 Wis. 477 ; Braddock Glass Co. V. Irwin, 1.53 Pa. 440, 25 Atl. 490. Some cases hold that it is not enough to overcome the presumption that the property passes on de- livery to the carrier. Mee v. McNider, 109 N. Y. 500. 17 N. E. 424 ; Neimeyer Lumber Co. v. Railroad Co., 54 Neb. 321, 74 N. W. 670, 40 L. It. A. 534. Contra: Devine v. Edwards, 101 111. ]3S. Sales Act, § 10, rule 5, provides : "If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a par- ticular place, the property does not pass until the goods have been delivered to the I)uyer or reached the place agreed upon." That the seller is to pay the freight is evidence of an intention that the prop- erty does not pass on delivery to the carrier. Suit v. Woodhall, 113 Mass. 391; Berger v. State, 50 .\rk. 20, 6 S. W. 15; McLaughlin y. §§ 49-50) SUBSEQUENT APPIlOrRlATION. 157 Whether delivery to the carrier in pursuance of an order to that effect from the buyer, with directions to collect the price on delivery to the buyer, or, as the transaction is usually des- ignated, "shipment C. O. D.," operates as a transfer of the property is a question on which the authorities differ. On the one hand, it is held that in such a case the carrier is the seller's agent, and hence that the property does not pass until de- livery by the carrier to the buyer; ^" but other cases hold that the condition as to payment is intended merely to reserve the Marston, 78 Wis. 670, 47 N. W. 1058; Havens v. Fuel Co., 41 Neb. 153, 59 N. W. 681 ; Hunter Bros. Milling Co. v. Kramer Bros., 71 Kan. 468, 80 Pae. 963. F. O. B. A stipulation that the seller shall deliver the goods "f. o. b." — that is, "free on board" — at a place named means that he is to pay the cost of transportation to that place. Sheffield Furnace Co. V. Coke Co., 101 Ala. 446, 14 South. 672. If the goods are to be "f. o. b." at the initial point of transportation, the seller must pay the expenses up to and including loading on board. See Sheffield Furnace Co. V. Coal & Coke Co., supra ; Congdon v. Kendall, 53 Neb. 282, 73 N. W. 659; Samuel M. Lavpder & Sons Co. v. Grocery Co., 97 Md. 1, 54 Atl. 634; Benj. Sales (5th Eng. Ed.) 683. If the goods are to be shipped "f. o. b." at the place of destination, the seller is to pay the freight or cost of transportation to that place, and, unless a dif- ferent intention appears, the property will not pass until the goods reach their destination. Miller v. Seaman, 176 Pa. 291, 35 Atl. 134 ; Capehart v. Improvement Co., 103 Ala. 071, 16 South. 627, 49 Am. St. Rep. 60 ; Alabama Nat. Bank v. Parker & Co., 146 Ala. 513, 40 South. 987; Hunter Bros. Milling Co. v. Kramer Bros., 71 Kan. 468, 80 Pac. 968. Cf. Knapp Electrical Works v. Wire Co., 157 111. 456, 42 N. E. 147. In Neimoyer Lumber Co. v. Railroad Co., 54 Neb. 321, 74 N. W. 670, 40 L. R. A. 534, it was held that "prices f. o. b. Omaha" did not mean that the delivery should take place at Omaha. As to the meaning of "f. o. b. cars," see Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820, 67 L. R. A. 756, 106 Am. St. Rep. 989 ; Davis v. Cement Co. (C. C.) 134 Fed. 274, affirmed 142 Fed. 74, 73 C. C. A. 388 ; Elliott v. Howison, 146 Ala. 568, 40 South. 1018; Hurst v. Manufacturing Co., 73 Kan. 422, 85 Pac. 551, 6 L. R. A. (N. S.) 928. 36 State V. O'Neil, 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557 (see, also, dissenting opinion of Harlan, J., in O'Neil v. Vermont, 144 U. S. 323, 12 Sup. Ct. 693, 36 L. Ed. 450, in which a writ of error was dismissed on the ground that no federal question was involved) ; Lane v. Chad- wick, 146 Mass. 68, 15 N. E. 121 ; Baker v. Bourcicault, 1 Daly (N. T.) 23 ; U. S. V. Shrlver (D. C.) 23 Fed. 134 ; Wagner v. Hallack, 3 Colo. 176. 15S EFFECT OF CONTRACT IN PASSING PEOPEUTT. (Ch. 4 seller's lien for the price, and that the delivery of the goods to the carrier, being made in pursuance of the instructions of the buyer, passes the property.^' The latter view, which appears to be supported by the weight of authority, is adopted by the proposed Sales Act.^' Other Forms of Appropriation by Act of Seller. Appropriation by the act of the seller may take place even before the goods are forwarded, as where they are to be sent in sacks furnished by the buyer. Under such circumstances, unless the seller reserves the property, the appropriation is com- plete, and the property passes as soon as the seller puts the goods into the sacks. ^' Another common form of appropriation by act of the seller is where, in pursuance of the contract, he incorporates his own materials with the property of the buyer, as where a carpenter is employed to repair a chattel .or to erect a building on land of his employer. As soon as the incorporation takes place, the property in the materials passes ; but up to that moment the carpenter has the right to use any materials he sees fit, and the mere fact that he has selected materials with the intention of incorporating them confers upon the employer no right of prop- erty in them.*" 3- Com. V. Fleming, 130 Pa. 138, 18 Atl. C22, 5 L. R. A. 470, 17 Am. St. Rep. 7C3 ; Higgins v. Murray, 73 N. Y. 252, semble ; State v. In- to.xif-ating Liquors, 7:?. Me. 278; Pilgreen v. State, 71 Ala. 368; State V. Carl, 43 Ark. 353, 51 Am. Rep. 505; Hunter v. State, 55 Ark. 357, 18 S. W. 374 ; Norfolk S. R. Co. v. Barnes, 104 N. C. 25, 10 S. E. 83, n L. R. A. 611 ; State v. Flauagon, 38 W. ^'a. 53, 17 S. E. 792, 22 L. R. A. 430, 45 Am. St. Rep. 836 ; State v. Peters, 91 Me. 31, 39 Atl. 342 ; James v. Commonwealth, 102 Ky. 108, 42 S. W. 1107 ; City of Carth- age V. Duvall, 202 111. 234, 66 N. B. 1099 ; City of Carthage v. Mun- sell, 203 111. 474, 67 N. E. 831 ; Keller v. State (Tex. Cr. App.) 87 S. W. 669, 1 L. R. A. (N. S.) 489. 3 8 Sales Act, § 19, rule 4 (2). J8 Aldrid.ce v. Johnson, 7 El. & Bl. 885, 26 Law J. Q. B. 296 ; Lang- ton V. Higgius, 4 Hurl. & N. 402, 28 Law J. Exch. 252. In Ogg v. Shuter, 1 C. P. Div. 47, reversing L. R. 10 C. P. 159, it was held that, by taking a bill of lading to his own order, the seller reserved the right of disposal, notwithstanding the fact that he had put the goods in the buyer's sacks. 40 Tripp V. Armitage, 4 Mees. & W. 087; Wood v. Bell, 6 El. & Bl. 355, affirming 5 El. & Bl. 772 ; Seath v. Moore, 11 App. Cas. 350, 381 ; §§ 49-50) SUBSEQUENT APPROPRIATION. 159 Seller must Act in Conformity with Authority. Where the appropriation is to be made by the seller, no property in the goods selected by him will pass unless he exercises his authority in conformity with the contract. Thus no property will pass if the goods do not conform to the de- scription/^ or unless he ships the goods within the time speci- fied,*^ or in the manner specified,*^ or unless he delivers to the carrier designated, if a particular carrier be designated by the contract,** or if he delivers to a carrier where transmis- sion by carrier is not within the agreement.*' Again, no prop- erty will pass if he sends a greater quantity of goods than the buyer has ordered ; and if he does so there must be a subse- quent acceptance by the buyer, in order to pass the property.*" _Jplmson_v. Hunt, 11 Wend. (K T.) 135; Wilkins v. Holmes, 5 Gash. (Mass.) 147; Langd. Cas. Sales, 1029. 41 Wait V. Baker, 2 Exch. 1, per Parke, B.; Vigers v. Sanderson (1901) 1 Q. B. 608; Gardner v. Lane, 12 Allen (Mass.) 39 (cf. Id., 9 Allen [Mass.] 492, 85 Am. Dec. 7T9; Id., 98 Mass. 517); Wolf v. Dietzsch, 75 111. 205; Brown v. Berry, 14 N. H. 459; Aultman, Miller & Co. V. Clifford, 55 Minn. 159, 56 N. W. 593, 43 Am. St. Eep. 478; New England Dressed Meat & Wool Co. v. Worsted Co., 105 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 51G. The buyer may elect to keep the goods. Graff v. D. M. Osborne Co., 56 Kan. 162, 42 Pac. 705. Where a tender of the goods under such an appropriation is rejected, the seller may within the contract time appropriate other goods. Borrowman v. Free, 4 Q. B. Div. 500. *2 Rommel v. Wingate, 103 Mass. 327. Where the order requires shipment on a specilied day, shipment before the day does not pass the property. Hoover v. Maher, 51 Minn. 269, 53 N. W. 646; Crane v. MMlson, 105 Mich. 554, 63 N. W. 506. The buyer may waive the delay, and assent to the subsequent appropriation. Alexander v. Gardner, 2 Bing. N. C. 671. *3 Jones V. Schneider, 22 Minn. 279. _44 Wheelhonse v. Parr, 141 Mass. 593, 6 N. E. 7S7. jt's Hague V. Porter„ JL Ui\\ (N. Y.) 141. _*8 Cunliffe v. Harrison, 6 Exch. 903; Downer v. Thompson, 2 Hill (N. Y.) 137 (cf. Id., 6 Hill [N. Y.] 208); Rommel v. Wingate, 103 Mass. 327; Barton v. Kane, 17 Wis. 38; Bailey v. Smith, 43 N. H. 141; Comstock v. Sanger, 51 Mich. 497, 16 N. W. 872. Where earth- enware was ordered, and additional earthenware, entirely different, was sent in the same crate, held, that the property had not passed. Levy V. Green, 1 El. & El. 969, 28 Law J. Q. B. 319. Some Amer^ lean cases hold that the seller "may satisfy the contract by ten- dering a greater quantity, from which the buyer may select, provid- IGO EFFECT OF COXTEACT IN FA^SIXG PROPEllTT. (Ch. i So if the quantity of goods is contracted for as an undivided whole, as a cargo or a boatful, the property in the goods will not pass until the whole quantity is put on board,'" even though the vessel is the vessel of the btiyer.** Appropriation by Act of Buyer. Although cases in which authority to make the appropria- tion is conferred on the buyer are comparatively rare, the same principle applies to him as to the seller, if by the contract an act which necessarily determines the selection is to be per- formed by the buyer. For example, suppose that by the con- tract the seller sells out of a stack of bricks 1,000, to be selected by the buyer, who is to send his cart and fetch them away. Here the buyer may choose first one part of the stack, and then another, until he has done the act determining his elec- tion ; that is, until he has put the bricks into his cart. When he has done that, his election is determined, and he cannot put back the bricks and take others from the stack.*® Goods Made to Order. Where a chattel is made to order out of the materials of the maker, it seems, on principle, that the ordinary rule should apply ; that is, that unless the maker is authorized or required to do in respect to it, after it is completed, some act necessa- rily involving its appropriation to the contract — for example, to forward it to the buyer — the property will not pass until it is accepted by him."" In making the chattel, as in procuring ed the mass does not vary in quality." Benj. Sales (Corbin's Gtli Am. Ed.) §§ 512, 531. This is said to be a sequence from Kimbevly V. Patchin, supra, and other cases holding that where the goods sold are part of a specific bulk, of uniform character, the prop- erty in an undivided part may be ti-ausferred without separation. Ante, p. 149; post, p. 282. i^ Anderson v. Morice, L. R. 10 C. P. 609, aCBrmed 1 App. Cas. 713. Of. Colonial Ins. Co. v. Insurance Co., 12 App. Cas. 12S. 48 Rochester & O. Oil Co. v. Hughey, 56 Pa. 322; Hays v. Packet Co. (D. C.) 33 Fed. 552. 49 Benj. Sales, § 359; Valentine v. Brown, 18 Pick. (Mass.) 5i9. Cf. Inhabitants of Westfield v. Mayo, 122 Mass. 100, 23 Am. Kep. 292. 6 Although the property does not vest in the buyer on completion, It passes upon his assent to its appropriation to the contract Wil- kins r. Brnmhead. 6 Man. & G. 963. §§ 49-50) SUBSEQUENT APPROPRIATION. IGl goods in any other way to fulfill a contract, the seller is act- ing for himself, and not for the buyer, and he can satisfy his contract equally well by making and tendering another chattel within the stipulated time as by tendering the chattel first made. This view has been sustained in England, and in many of the courts of this country; ^^ but in others it is held that the property passes as soon as the seller finishes the chattel, and sets it apart for the buyer. '^^ Chattel to be Paid for in Installments as Work Progresses. In shipbuilding contracts, where it is provided that the pay- ments shall be made in installments at particular stages in the progress of the work, a peculiar rule of construction has been adopted in England, by which the parties are held, by implica- tion, to have evinced an intention that the property in the un- completed vessel shall pass on the payment of the first in- stallment.^^ It follows that, as new materials are incorporated in the unfinished vessel, they become the property of the buyer. This rule of construction has not met with approval in the United States, and it is generally "* held that the intention of Bi Mucklow T. Mangles, 1 Taunt. 318; Atkinson v. Bell, 8 Barn. & C. 277; Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Tufts V. Grewer, "83" Me. 407, 22 Atl. 382; Shaw v. Smitli, 48 Conn. 306, 40 Am. Rep. 170; Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176; Scudder v. Steamboat Co., 1 CliflE. (TJ. S.) 370, 378, Fed. Cas. No. 12,565, per Clifford, J.; Butterwortli v. McKinly, 11 Humpii. (Tenn.) 206, per Totten, J.; Tufts t. Lawrence, 77 Tex. 526, 14 S. W. 165; Heiser v. Mears, 120 N. C. 443, 27 S. E. 117; Haynes v. Quay, 134 Mich. 229, 95 N. W. 1082. See Whitcomb v. Whitney, 24 Jlich. 486; Pratt V. Peck, 70 Wis. 620, 36 N. W. 410; Langd. Cas. Sales, 1029. Such cases appear to fall within Sales Act, § 19, rule 4, being "fu- ture goods." See Benj. Sales (5th Eng. Ed.) 366. Post, p. 348. 6 2 Bement v. Smith, 15 Wend. (N. Y.) 493; Ballentine v. Robinson, 46 Pa. 177; Shawhan v. Van Nest, 25 Ohio St. 490, 18 Am. Rep. 313; Higgins T. Murray, 4 Hun (N. Y.) 565; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S. W. 210. See, also, West Jersey R. Co. v. Car-Works Co., 32 N. J. Law, 517; Gordon v. Norris, 49 N. H. 376; Fordice v. Gibson, 129 Ind. 7, 28 N. E. 303. Post, p. 348. B3 Woods V. Russell, 5 Barn. & Aid. 942; Clarke t. Spence, 4 Adol. & E. 448. See, also, Seath v. Moore, 11 App. Cas. 350, 380; Reid V. MacBeth (1904) App. Cas. 223. Cf. Laidler v. Burlinson, 2 Mees. & W. 602. Bi The English rule was followed in Scudder v. Steamboat Co., 1 TiFr.SALES(2D Ed.) — 11 162 EFFECT OF CONTRACT IN PASSING PEOPEETT. (Oh. 4 the parties as to the time when the property is to be transferred is to be determined, as in other cases, from the terms of the contract and the circumstances of the transaction.'*' There- fore, unless a contrary intention appears, the ordinary rule will prevail — that no property passes before the chattel is com- pleted." RESERVATION OF RIGHT OF POSSESSION OR PROP- ERTY. 51. IN GENERAIi. Wiem there is a contract for the sale of niiascertaiiied goods, and goods are subsequently appropriated to the contract, the seller may, by the terms of the appropriation, reserve the right of pos- session or property in the goods until certain condi- tions have been fulfilled. The right of possession or property may be thus reserved notTvithstanding the delivery of the goods to the buyer, or to a, carrier or other bailee for the purpose of transmission to the buyer. * 52. BY Blljli OF liADING. Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or his agent, the seller prima, facie reserves the proper- ty in the goods; but ivhere by the bill of lading the goods are deliverable to the buyer or his agent, or to the order of the buyer or his agent, prima facie the property in the goods passes to the buyer. 53. DEALING W^ITH Bllili OF LADING TO SECURE PRICt. AVhen, upon shipment, the seller takes a bill of lading and deals with it so as to secure the contract price. Cliff. (U. S.) 370, Fed. Cas. No. 12,565, and Sandford v. Ferry Co., 27 Ind 522. 5 5 Clarkson v. Stevens, 106 U. S. 505, 1 Sup. Ct. 200, 27 L. Ed. 139, affirming Stevens v. Shippen, 29 N. J. Eq. 602, 06 Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55; TViiliams v. Jacliman, 16 Gray (IMass.) 514; Briggs v. Light Boat, 7 Allen (Mass.) 287; Wright v. Tetlow, 99 Mass. 397; Elliott v. Edwards, 35 N. J. Law, 265, Edwards v. Elliott, 36 N. J. Law, 449, 13 Am. Rep. 463; Derbyshire's Estate, 81 Pa. 18; Green v. Hall, 1 Houst. (Del.) 506; Hall V. Green, 1 Honst. (Del.) 546, 71 Am. Dec. 96; In re Carter, 21 App. Div. 118, 47 N. Y. Supp. 383; Yukon Elver Steamboat Co. y. Gratto, 136 Cal. 538, 69 Pac. 252. *See Sales Act, § 20 (1). §§ 51-53) RESERVATION OF EIGHT OF POSSESSION. 163 either hy sending to an agent tlie bill of lading, -nritli a bill of excliange drawn on the buyer for the price, with instructions to deliver the bill of lading only on acceptance or payment of the bill of exchange, or by transfeirring the bill of lading as security to a, banker nrho has discounted the bill of exchange, the property in the goods does not pass to the buyer until acceptance or payment of the bill of exchange, or tender of the price, as the case may be. And, if the seller transmits the bill of exchange and bill of lading to the buyer to secure acceptance or payment of the bill of ex- change, the buyer is bound to return the bill of lading if he does not honor the biU of exchange, and if he trrongfully retains the bill of lading he acquires no added right thereby. The rule that the seller who delivers goods to a carrier in pursuance of authority derived from the buyer is presumed thereby to appropriate the goods unconditionally to the con- tract, like other rules for determining when the property has passed, is simply a rule of construction adopted for the purpose of ascertaining the real intention of the parties, which they have , failed to express.^'' And therefore, if it appears that the seller, > though authorized to make such appropriation, has by the terms \ of the appropriation reserved the property in the goods, the | presumption must yield to the facts. ^^ The commonest way of ! reserving the p_ro_perty is iy means of the bill of lading.^" \ Right of Disposal. i Where goods are delivered to a carrier, and a bill of lading is taken, the delivery by the seller is not a delivery to the buyer, but to the carrier as bailee f or delivery to the person indicated by the bill of lading."" When, therefore, the seller ships the goods which he intends to deliver under the contract, by taking a bill of lading making the^opds deliverable to him- self or to his agent, orjo^the qrcier,of himself or of his agent, he thereby' ret aiiis the right to the possession of the goods. The time when the property passes depends upon the intention of 5 7 Benj. Sales, § 381. 68 See Godts v. Rose, 17 C. B. 229. 5 Ante, pp. 33-36. Wait V. Baker, 2 ESci. 1, per Parke, B.; Gabarron v. Kreeft, 10 Esch. 274, per Bramwell, B.; Benj. Sales, § 399. 164 EFFECT or CONTRACT IN PASSING PROPERTY. (Ch. 4 the parties, and it may be that the seller in such case reserves the property as well as the right to possession, or that the property passes notwithstanding the form of the bill of lading. Where the seller has appropriated the goods to the contract, but takes a bill of lading to himself or to his own order under circumstances which indicate that he intends to reserve the property, it is commonly said that he thereby reserves "the right of disposal." It has been justly said that "the term 'right of disposal' is not the most apt word to employ when laying down a general rule with regard to the passing of the prop- erty," °^ and, although it has been retained in the English Sale of Goods Act,"' it has been discarded by the proposed American Sales Act."' The rules established by the decisions involving the so-called right of disposal will be stated in the following sections. •1 Benj. Sales (5tli Eng. Ed.) p. 318, note 6. "Wtiere the shipper takes and keeps in his own or his agent's hands a bill of lading in this form to protect himself, this is ef- fectual so far as to preserve to him a hold over the goods iintil the bUl of lading Is handed over on the conditions being fulfilled, or at least until the consignee Is ready and willing and offers to fulfill these conditions, and demands the bill of lading. And we think that such a hold retained under the bill of lading is not mere- ly a right to retain possession of the goods until these conditions are fulfilled, but involves a power to dispose of the goods on the ven- dee's default, so long, at least, as the vendee continues in default." Ogg v. Shuter, 1 C. P. Div. 47, per Lord Cairns. In Mirabita v. Bank, 3 Exch. Div. 164, Bramwell, L. J., says: "I think it not necessary to inquire whether what the shipper possess- es is a property, sti'ictly so called, or a jus disponendi, because I think, whichever it is, the result must be the same." But in the same case Cotton, L. J., appears to speak of the reservation of the right of disposal and of the reservation of the right of properltf as synonymous. 6 2 Section 19. «' Section 20. In the note to this section Prof. Wllliston says: "Subsection (1) follows with some change of expression section 19 of the English Act, except that for the somewhat loose phrase 'right of disposal' is substituted 'possession or property.' The phrase 'jus disponendi' has gained some currency as the expression of the right of a seller who has definitely appropriated goods to a contract but who nevertheless takes a bill of lading to his own order. The truth is he has reserved the property as security. The situation l3 similar to that in a conditional sale." §§ 51-53) KESERVATION OF EIGHT OF POSSESSION. IGo Bill of Lading to Seller or to His Order. When goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or of his agent, prima facie the seller reserves the pfoper^Jn the go_ods.** The fact that tTie seller takes the bill oF lading to his own order is al- most decisive to show his intention to reserve the property." The presumption may, indeed, be rebutted by proof that in so doing he acted as agent of the buyer and did not intend to re- serve the property; and it is for the jury to determine, as a question of fact, what the real intention was."" But the mere fact that the seller sends to the buyer an invoice describing the «* Mirabita v. Bank, 3 Exch. Div. 164, 172, per Cotton, L. J.; ..Wait V. Baker, 2 Exch. jL; Brandt v. Bowlby, 2 Barn. & Adol. 932; Moakes ~v. Nicholson, 19 C. B. (N. S.) 290, 34 Law J. C. P. 273; Ogg v. Shu- ter, 1 C. P. Div. 47, reversing L. R. 10 C. P. 159; Ellershaw v. Mag- niac, G Exch. 570; Palke y. Fletcber, 34 Law J. C. P. 146 (mate's receipt); IS'Ierchants' Nat. Banli' v. Bangs, 102 Mass. 291, 295; Farm- ers' & Mechanics' Nat. Bank v. Logan, 74 N. Y. 568, 578; Brwin v. Har- ris, 87 Ga. 333, 13 S. E. 513; Alabama, G. S. K. Co. v. Mt. Vernon Co., 84 Ala. 173, 4 South. 356; Forcheimer v. Stewart, 65 Iowa, 593, 22 N. W. 886, 54 Am. Rep. 30 ; Bergman v. Railroad Co., 104 Mo. 77, 15 S. W. 992. See, also, StoUenwerck v. Thacber, 115 Mass. 224; Vaughn v. Railroad Co., 27 R. I. 235, Gl Atl. 695. See Sales Act, § 20 (2). Cf. Sale of Goods Act, § 19 (2), which provides that "the seller is prima facie deemed to reserve the right of disposal." The second sentence of Sales Act, § 20 (2), is new. The delivery to the carrier may be such as to vest the property in the buyer, so that the issue of a bill of lading making the goods '' otherwise deliverable will not divest it. Ogle v. Atkinson, 5 Taunt. 759. See, also, Philadelphia & R. R. v. Wireman, 88 Pa. 264. The property and the right to possession vest in the buyer upon indorsement and delivery of the bill of lading. Wilmshurst v. Bowker, 2 Man. & G. 792; Key v. Cotesworth, 7 Exch. .^05; Chas. F. Orthwein's Sons v. Elevator Co., 32 Tex. Civ. App. 600, 75 S. W. 364; Mitchell v. Baker, 208 Pa. 377, 57 Atl. 760. Where the seller took a receipt making the goods deliverable to himself, and gave the buyer an order making the goods deliverable to him, and the carrier attorned to the buyer, the property passed. Hatch v. Bayley, 12 Cush. (Mass.) 27. 66 Shepherd v. Harrison, L. R. 5 H. L. 116; Dows v. Bank, 91 XJ. S. 618, 23 L. Ed. 214; Newcomb v. Railroad Corp., 115 Mass. 2.30; VlUage^of Bellefontaine v. Vassaux, 55 Ohio St 323, 45 N. E. 321. 66 Joyce V. Swann, 17 C. B. (N. S.) 84 : Van Casteel v. Booker, 2 Exch. 691; Browne v. Hare, 4 Hurl. & N. 822, 29 Law J. Exch. 6; Merchants' Nat. Bank v. Bangs, 102 Mass. 291; Hobart v. Llttlefleld, 166 EFFECT OF CONTRACT IN PASSING PEOPEKTT. (Ch. 4 goods as shipped on his account and at his risk, while evidence of an intention to transfer the property/^ is not enough to rebut the presumption ; " and the presumption arises, althougli the seller ships the goods in the buyer's own vessel, and the bill of lading states that the goods are freight free and the buyer's own property." The presumption that the seller reserves the property arises, also, when he takes the bill of lading to him- self or t6 his agent.'" When the seller thus reserves the prop- erty in the goods, for the purpose of entirely withdrawing them from the contract, he may dispose of them absolutely, even though he thereby commits a breach of the contract ; nor will the property in the goods pass to the buAcr upon tender by him of the price or of performance of the conditions of the contract.'^ If the property does pass, but the seller retains possession of the bill of lading, he thereby reserves a right to the possession of the goods as against the buyer; in other words, he preserves his lien.'^ The effect of a shipment under the circumstances under con- sideration was stated in a leading case as follows : '^ "In the case of such a contract [a contract for sale of goods not spe- cific], the delivery by the vendor to a common carrier, or (un- less the effect of the shipment is restricted by the terms of the 13 E. I. 341; Hamilton v. Brewing Co., 129 Iowa, 172, 105 N. W. 438, 2 L. R. A. (N. S.) 1078. 67 Walley v. Montgomery, 3 East, 585. Where ttie shippers, who were indebted to the consiyuee, tools a bill of lading in their own name, but wrote to him, "We deliver you this load on our indebted- ness," the property passed, and the consignee could maintain replev- in against a creditor of the shippers who attached the goods while in possession of the carrier. Straus v. Wessel, 30 Ohio St. 211. «8 Cases cited in note 65, supra. 69 Turner v. Trustees of Liverpool Docks, 6 Bxch. 543; Gabarron V. Kreeft, L. K. 10 Exch. 274. TO Where the seller delivered goods to a carrier, consigned to him- self in care of the buyer, the property did not pass. Ward v. Taylor, 56 111. 494. 71 Wait v. Baker, 2 Exeh. 1; Ellershaw v. Magnlac, 6 Exch. 570; Gabarron v. Kreeft, L. R. 10 Exch. 274. 7 2 See Browne v. Hare, 4 Hurl. & N. S22, 29 L. J. Exch. 6, per Pollock, C. B. 7» Mirabita v. Bank, 3 Exch. Diy. 164, per Cotton, L. J. §g 51-63) KBSEKVATION OF EIGHT OF POSSESSION. 167 bill of lading) shipment on board a ship of, or chartered for, the purchaser, is an appropriation sufficient to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so, not as agent or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself a power, of disposing of the property, and consequently there is nq final appropriation, and the property does not, on shipment, pass to the. purchasers." It must not be supposed, however, that, because the shipper is agent of the consignee, the property, if originally in the ship- per, necessarily passes on shipment ; for, if he advances his own money or credit for the purchase of the goods, he is in the position of a seller, and he may reserve the property in the goods to the extent of his advances, in the same manner.^* "Where a commercial correspondent, however set in motion by a principal for whom he acts, advances his own money or credit for the purchase of property, and takes the 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 orig- inal principal shall pay the purchase price, he becomes the owner of the property instead of its pledgee, and his relation to the original mover in the transaction is that of an owner un- der a contract to sell and deliver when the purchase price is paid." " T* Jenkyns v. Brown, 14 Q. B. 496. '6 Moors V. Kidder, 106 N. Y. 32, 12 N. E. 818. In Drexel v. Pease, 133 N. Y. 129, 30 N. E. 732, referring to the doctrine stated in Moors v. Kidder, supra, tlie court says: "Nothing therein gives color to the idea that the correspondent's ownership is of that char- acter which would permit his exaction, even though agreed to hy the principal, of a general lien upon the property for other and prior indebtedness of the principal as against one in the situation of St. Amant. The correspondent's position is one of ownership, so far only as is necessary to secure him for the advances he made upon the merchandise described in the bill of lading, and in such a case as this he is bound to sell upon receipt of the purchase price from the principal, or, in other words, upon receipt of the amount he advanced upon its credit. In no other sense is the correspondent the owner of the property." 168 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 4 Bill of Lading to Buyer or to His Order. If by the bill of lading the goods are deliverable to the order of the buyer or of his agent, it seems that prima facie the prop- erty passes, but that by retaining the possession of the bill of lading the seller would reserve a right to the possession of the goods as against the buyer.'^ Where the goods are deliverable to the buyer, and not to his order, a somewhat different ques- tion is presented. It appears to be the custom of railway com- panies, when the bill of lading is not in terms negotiable, to deliver to the consignee named without presentation of the bill of lading, and it has been held that, in view of such a custom, although it cannot affect the question of the title of a trans- feree of the bill of lading as against the transferror thereof, the carrier is justified in delivering to the consignee without production of the bill of lading, as against such transferee, at least before notice of the transfer.^' The fact that the seller takes a bill/of lading in this form, however, is not con- clusive in determining whether the property passes to the buy- er on shipment. In such a case, prima facie the property pass- '« See Browne v. Hare, 4 Hurl. & N. S22, 29 L. J. Bxcti. 6, per Pol- lock, C. B., and Erie, J. Cf. Sales Act, § 20 (3). Prof. Wllliston says that this subsection, wliich is not in the English act, is thought to be wari'anted by existing law. Where C. & Co., acting as commission agents for T. & Co. to pro- vide funds for the purchase of goods drew bills on T. & Co. which tliey discounted, and with the proceeds purchased goods which they shipped, sending the bill of lading making the goods deliverable to the order of T. & Co. and the invoices by post direct to them, advis- ing them of the bills drawn on them, which in ordinary course they accepted on presentment and paid at maturity, and some of which they accepted, but some of which they refused to accept, and none of which they paid, it was held that the property passed as soon as the goods were put on board and the bills of lading were put in the post directed to T. & Co. Ex parte Banner, 2 Ch. Div. 2TS. Where the goods were shipj)ed on the buyer's chartered vessel, and the seller took a set of three bills of lading making the goods deliverable to the buyer's order, but only one of the bills was stamped, and the seller retained it and sent one of the others to the buyer, this was evidence of an intention to reserve the prop- erty. Moakes v. Nicholson, 34 Law J. C. P. 273, 19 C. B. (X, S.) 200. 7 7 Forbes v. Kailroad Co., 133 JIass. 1.5-1. Cf. Colgate v. Penn- sylvania Co., 102 N. y. 120, G N. E. 114. §§ 51-53) EESEKVATION OF RIGHT OF POSSESSION. 169 es;^' but this inference may be overcome by evidence of a different intention, as by showing that the seller dealt with the bill of lading for the purpose of securing the price/" although this has been held not conclusive.^" Dealing with Bill of Lading to Secure Price. Although, when the seller on shipment takes a bill of lad- ing to his own order, not as agent for the buyer, but on his own behalf, he thereby reserves the property in the goods, and the buyer acquires no rights in them, notwithstanding their appropriation to the contract, a different situation arises ifl the seller deals with the bill of lading only to secure the price,/ and not with the intention of withdrawing the goods entirely from the contract — as where he sends the bill of lading, to- gether with a bill of exchange drawn on the buyer for the price, to an agent, with instructions to deliver the bill of lading on acceptance' or payment of the bill of exchange. In such case, indeed, the property does not pass to the buyer until acceptance or payment of the bill of exchange or tender of the price; *^ 7 8 Emery v. Bank, 25 Ohio St. 3G0, 18 Am. Rep. 299; Bank of Litchfield v. Elliott, 83 Minn. 469, 86 N. W. 454. Where the seller delivered goods to a carrier, consigned to the buyer, and took a shipping receipt in the name of the buyer, which he sent with a draft to a bank, with directions to deliver the re- ceipt on acceptance of the draft, a finding that the propei'ty passed to the buyer on delivery to the carrier was warranted. Wigton v. Bowley, 130 Mass. 252. 7 Emery v. Bank, supra; Merchants' Exchange Bank v. McGraw, 8 C. C. A. 420, 59 Fed. 972; Scharff v. Meyer, 133 Mo. 428, 34 S. W. 858, 54 Am. St. Kep. 672; Hilmer v. Hills, 138 Cal. 134, 70 Pac. 106O; Greenwood Grocery Co. v. Elevator Co., 72 S. C. 450, 52 S. E. 191, 2 L. R. A. (N. S.) 79, 110 Am. St. Rep. 627. 80 Bank of Litchfield v. Elliott, supra. 81 Mirabita v. Bank, 3 Exch. Div. 164, per Cotton, L. X; Shepherd V. Harrison, L. R, 4 Q. B. 195; Id. 493, in the house of lords, L. R. 5 H. L. 116; Ogg v. Shuter, 1 O. P. Div. 47; Alderman v. Rail- road, 115 Mass. 233; Farmers' & Mechanics' Nat. Bank v. Logan, 74 N. Y. 568, 578; Seeligson v. Philbrick (C. 0.) 30 Fed. 600; Jones V. Brewer, 79 Ala. 545; Freeman v. Kraemer, 63 Minn. 242. 65 N. W. 455; Baker v. Railroad Co., 98 Iowa, 438, 67 N. W. 376; Willman Mercantile Co. v. Fussy, 15 Mont. 511, 39 Pac. 738, 48 Am. St. Rep. 698; The Prussia (D. C.) 100 Fed. 484; Portland Flouring Mills Co. V. Insurance Co., 130 Fed. 860, 65 C. C. A. 344; McArthur Co. V. Bank, 122 Mich. 223, 81 N. W. 02; Hopkins v. Cowen, 90 Md. 153, 170 EFFECT OF CONTRACT IN PASSING PEOPERTT. (Ch. 4 but upon such acceptance, or payment, or tender, the property vests in him.^^ The seller thus retains the legal title to the goods only as security, the equitable title vesting in the buyer, the seller's right over the goods being in the nature of a mort- gage. Again, if the seller draws on the buyer for the price, and transmits the bill of exchange and the bill of lading directly to the buyer, upon condition that he shall not retain the bill of lading unless he honors the bill of exchange, the buyer is bound to return the bill of lading if he does not co.-.ply with the conditions; and if he wrongfully retains the bill of lading he acquires thereby no added right to it or to the goods. ^' 44 Atl. 1O02, 47 L. E. A. 124; Vanghn v. Kailroad Co., 27 R. I. 235, 61 Atl. 695. A bill of lading deliverable to order of tbe seller, when attached to and forwarded with a time draft, witliout special instructions, to an agent, for collection, may be surrendered to tbe drawee on acceptance of the draft. National Bank of Commerce v. Bank, 91 U. S. 92, 23 L. Ed. 208. r.ut it bas been held such a bill of lading attached to and for- warded with a sight draft for collection, without other instructions, may not be surrendered without payment of the draft, notwithstand- ing that the draft is entitled to grace. Jlichaud v. Lumber Co., 122 Mich. 305, 81 N. W. 93; And see Security Bank v. Luttgeu, 29 Minn. 303, 13 N. W. 151; Second Nat. Bank v. Cummings, 89 Tenn. 009, 18 S. W. 115, 24 Am. St. Rep. 61S; Kentucky Refining Co. v. Relining Co., 104 Ky. 559, 47 S. W. 602, 42 L. R. A. 3.13, 84 Am. St. Rep. 4C;S. Where tbe buyer paid the draft and received tbe bill of lading without notice of an attachment of tbe goods as the seller's prop- erty, the attachment was good. Kentucky Refining Co. v. Eefiuiug Co., 104 Ky. 559, 47 S. W. 602, 42 L. R. A. 3.j3, 84 Am. St. Rep. 408. Cf. Peters v. Elliott, 78 III. 321. 82 Mirabita v. Bank, supra. In this case Cotton, L. J., said: "But, if tbe bill of lading has been dealt with only to secure tbe contract price, there is neither principle nor authority for holding that in such a case the goods shipped for the purpose of com- pleting the contract do not, on payment or tender by the purchaser of the contract price, vest in him. When this occurs there is a per- formance of the condition subject to which the appropriation was made, and everything which, according to the intention of tbe par- ties, is necessary to transfer the property is done; and in my opin- ion, under such circumstances, tbe property does, on payment or tender of the price, pass to the purchaser." 83 Shepherd v. Harrison, L. R. 4 Q. B. 196; Id. 493, L. R. 5 H. L. 116, 133, per Lord Cairns; Cahn v. Pockett (ISOS) 2 Q. B. 61; Id. (1899) 1 Q. B. 643; Cayuga County Nat. Bank v. Daniels, 47 N. §§ 51-53) EESERTATION OF EIGHT OF POSSESSION. 171 Whether a buyer who does not comply with the condition, where the bill of lading makes the goods deliverable to him, either by its terms or by indorsement, can confer a good title upon a bona fide purchaser, independently of statute, is a ques- tion upon which the courts are not in accord.^* Most frequently, when the seller wishes to secure the price, he draws on the buyer for the amount and obtains a discount of the bill of exchange from a banker, to whom he delivers it with the indorsed bill of lading attached. Under these circum- stances the banker acquires a special property in the goods to secure his advances, and the property does not pass to the buyer until acceptance or payment of the bill or tender of the price/ ^ The same rule is applied when the seller takes Y. 631; Farmers' & Mechanics' Nat. Bank v. Logan, 7i N. Y. 568; Moors V. Kidder, 106 N. Y. 32, 12 N. E. 818. Wbere the seller depos- ited in the mail, directed to the buyer, an unindorsed bill of lading, attached to a draft for the price, ttie question whether the prop- erty had passed was for the jxiry. Alabama G. S. R. Co. v. Mt. Ver- non Co., 84 Ala. 173, 4 South. 356. A banker who made advances and took the bill of lading to his own order, with authority to dispose of the goods as security, and who indorsed the bill of lading to the buyer as his agent only to enable him to get the goods from the carrier, did not release his title. Moors v. Wyman, 146 Mass. 60, 15 N. E. 104. See Sales Act, § 20 (4), which provides that if he wrongfully retains the bill of lading "he acquires no added right thereby." Cf. Sale of Goods Act, § 19 (3), where the language is, "The property does not pass to him." It seems that wrongful retaining of the bill of lading would confer no right to possession, although the property might have passed. 84 Ante, p. 36. Sales Act, § 20 (4), in accordance with mercan- tile understanding and convenience, protects the bona fide pur- chaser, although the bill of escliange has not been honored. 86 Mirabita v. Bank, 3 Exch. Div. 164; Jenkyns v. Brown, 14 Q. B. 496, 19 Law J. Q. B. 2S6; Dows v. Bank, 91 U. S. 618, 23 L. Ed. 214; Forty Sacks of Wool (C. 0.) 14 Fed. 643; First Nat. Bank of Cairo v. Crocker, 111 Mass. 163; Fifth Nat. Bank of Chicago v. Bayley, 115 JIass. 228; Forbes v. Railroad Co., 133 Mass. 154; Bank of Rochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Farmers' & Mechanics' Nat Bank v. Logan, 74 N. Y. 568; Hieskell v. Bank, 89 Pa. 155, 33 Am. Rep. 745; Halsey v. Warden, 25 Kan. 128; Se- curity Bank v. Luttgen, 29 Minn. 363, 13 N. W. 151; Grayson Coun- ty Nat. Bank v. Railway (Tex. Civ. App.) 79 S. W. 1094. 172 EFFECT OF CONTRACT IN PASSING PROPERTY. (Ch. 4 a bill of lading making the goods deliverable to the buyer and thus deals with it to secure the price. ^° Under these circum- stances the banker acquires a special property in the goods to secure his advances.'^ In some cases it has been held that a banker who purchases a draft, with the bill of lading attached making the goods deliverable to the order of the consignor, assumes the obligation of the seller to deliver according to the contract the goods represented by the bill of lading to the drawee of the draft ; '^ but it is believed that this doctrine is erroneous. On principle the assignee of the bill of lading and of the draft takes the title of the seller only as security, and acquires substantially the right of a mortgagee, his interest be- ing discharged by payment of the debt, and he becomes subject »3 See cases cited note 79, supra. 'f Whether one to whom a bill of lading is Indorsed as security Is a pledgee or a mortgagee depends upon the intention of the parties. Sewell v. Burdick, 10 App. Cas. 74. It seems that a bank- er who makes advances and takes the bill of lading to his own or- der, with authority to take possession and dispose of the goods for his security or reimbursement, is a mortgagee. See Moors y. Kidder, 106 N. T. 32, 12 N. B. 818; Mershon v. Wheeler, 76 Wis. 502, 45 N. W. 95. In Moors v. Wyman, 146 Mass. 60, 15 N. B. 104, it was said that the banker "had a title, whether absolute or qualified does not mat- ter." But in Moors v. Drury, 186 Mass. 424, 71 N. E. 810, the Tiew was taken that the banker was owner, and not a mortgagee or pledgee. And see In re New Haven Wire Co., 57 Gonn. 352, 18 Atl. 266, 5 L. R. A. 800. Where a shipper drew against his consignment for sale upon the consignees, with whom his account was already overdrawn, and assigned the duplicate bill of lading to a bank which discount- ed the draft, the consignees had no right to apply the goods or their proceeds in discharge of the shipper's liability to themselves arising from other transactions; the bank having acquired title to the consignment to the extent of the draft discounted on security thereof. First Nat Bank v. Ege, 109 N. Y. 120, 16 N. E. 317, 4 Am. St. Rep. 431; See, also, Drexel y. Pease, 133 N. Y. 129, 30 N. E. 732. 8 8 Finch V. Gregg, 126 N. O. 176, 85 S. E. 251, 49 L. R, A. 679 (cf. Sloan V. Railroad Co., 126 N. C. 487, 36 S. E. 21 ; Perry v. Bank, 131 N. 0. 117, 42 S. E. 551); Searles Bros. v. Grain Co., 80 Miss. 688, 32 So. 287; Haas v. Bank, 144 Ala. 562, 89 South. 129, 1 L. R. A. (N. S.) 242. §§ 51-53) RESERVATION OF RIGHT OF POSSESSION. 173 to no liability to the buyer which he does not expressly as- sume; and this view is sustained by the weight of authority."" 8 9 Tolerton & Stetson Co. v. Bank, 112 Iowa, 706, 84 N. W. 930, 50 L. R. A. 777; S. Blaisdell, Jr., Co. v. Bank, 96 Tex. 626, 75 S. W. 292, 62 L. R. A. 968, 97 Ajn. St. Rep. 944 (overruling Landa v. Lat- tin Bros., 19 Tex. Civ. App. 246, 46 S. W. 4S); Blaisdell & Co. v. Wlilte & Co. (Tex. Civ. App.) 76 S. W. 70; Hall v. Keller, 64 Kan. 211, 67 Pac. 518, 62 L. B. A. 758, 91 Am. St. Rep. 209. And see 49 L. R. A. 679, note; 1 L. R. A, (N. S.) 242, note; 14 Harv. Law Rev. 159. 174 FEAUD AND EETENTION OF POSSESSION. (Ch. 5 CHAPTEE, V. FRAUD AND RETENTION OF POSSESSION. 54-55. Contract or Sale Induced by Fraud. 56-57. Remedies of Defrauded Party. 58-59. Fraud on Creditors — Retention of Possession. 60. How Far DeliveiT is Essential to Transfer of Property against Creditors and Purchasers. CONTRACT OK SALi: INDUCED BY FRAUD. 54. When a, party to a contract to sell or a sale tas been in- duced to enter into it by the frand of the other party, the contract or sale is voidab le at his option. 55. CHARACTERISTICS OF FRAUD. Frand is a false repre- sentation of fact, made Tvith a knowrledge of its false- hood, or in rechless disregard tvhether it be true or false, with the intention that it shall be acted upon by the complaining party, and actually inducing him to act upon it. Fraud renders all contracts voidable both at law and in eq- uity. A man is not bound by a contract to which his consent has been obtained by fraud, because but for the fraud he would not have consented.^ Fraud is commonly said to be so subtle in its nature and manifold in its forms as to be impossible of definition. Never- theless the statement of its essential characteristics which has been given above, substantially in the language of Sir Wil- liam R. Anson ^ sufficiently indicates the nature of such fraud as will render voidable a contract of sale. The same state of facts which is ground for avoidance also gives rise to an action at common law for deceit, in which the defrauded party may recover such damages as he has suffered by reason of the false representation. And a practical test of fraud, as opposed to misrepresentation which is not fraudulent, is that the first 1 Benj. Sales, § 428 et seq.; post, p. 188. 2 Anson, Cont 145. His discussion of fraud has been closely fol- lowed. And s«e Clark, Cont. (2d Ed.) 220. §§ 54-55) CONTKACT OR SALE INDUCED BT FRAUD. 175 does, and the second does not, give rise to an action ex de- licto.'' Praud is a False Representation. A mistaken belief in the facts may be created by active means, as by fraudulent concealment or misrepresentation, or passively, by mere nondisclosure. But it is only when a man is under some obligation to disclose facts that mere silence will be considered as a means of deception. In contracts of sale, disclosure is not ordinarily incumbent on the seller.* The rule is caveat emptor. It has even been held that the seller is under no obligation to communicate the existence of latent defects, such as a hidden disease in an animal, unless by act or implica- tion he represents such defects not to exist ; ^ but it is general- ly held in this country that the intentional nondisclosure of such a defect by the seller, when he knows or has reason to know that it is unknown to the buyer, is fraudulent. ° On the other hand, the buyer is not bound to disclose to the seller facts as to which information is equally open to both; for example, facts which would enhance the price.' Nor does » Clark, Cont. (2a Ed.) 209. * Smitli V. Hughes, K R. 6 Q. B. 597; Laidlaw v. Organ, 2 Wheat (U. S.) 178, 4 L. Ed. 214; People's Bank v. Bogart, 81 N. Y. 101,^37 Am. Rep. 481; Kintzing v. McElrath, 5 Pa. 4G7; Cogel v. Kniseley, 89 111. 598. "Ward V. Hobbs, 3 Q. B. Diy. 150, 4 App. Gas. 13; Beninger v. Corn-in, 24 N. J. Law, 257; Paul v. Hadley, 23 Barb. (N. Y.) 521; Morris v. Thompson, 85 111. 16. « Paddock t. Strobridge, 29 Vt. 471; Maynard v. Maynard, 49 Vt. 297; Jeffrey v. Bigelow, 13 Wend. (N. YJ 518, 28 Am. Dec. 476; Han- son V. Edgerly, 29 N. H. 343; Barron v. Alexander, 27 Mo. 530; Grigs- by V. Stapleton, 94 Mo. 423, 7 S. W. 421; Cardwell v. McClelland, 3 Sneed (Tenn.) 150; Armstrong v. Huffstutler, 19 Ala. 51 ; Marsh v. Webber, 13 Minn. 109 (Gil. 99); Turner v. Huggins, 14 Ark. 21; Dow- ling V. Lawrence, 58 Wis. 282, 16 N. W. 5.52; Stewart v. Ranche Co., 128 U. S. 383, 388, 9 Sup. Ct. 101, 32 L. Ed. 439; Downing v. Dear- born, 77 Me. 457, 1 Atl. 407; Joplin Water Co. v. Bathe, 41 Mo. App. 285. 7 Fox V. Mackreth, 2 Brown, O. C. 400; Turner v. Harvey, Jac. 170, per Lord Eldon; Laidlaw v. Organ, 2 Wheat. (U. S.) 178, 4 L. Ed. 214; Blydenburgh v. Welsh, Baldw. (U. S.) 331, Fed. Cas. Xo. 1,583; Kintzing v. McElrath, 5 Pa. 467. A duty to disclose arises where the buyer stands in a confidential relation to the seller. Smith v. Sweeney, 69 Ala. 524; Oliver v. Oli- 176 FRAUD AND RETENTION OF POSSESSION. (Cll. 5 his failure to disclose that he is insolvent amount to fraud, if be does not buy intending not to pay.' As a rule, to charge the seller with fraud, there must be some active attempt to deceive either by statement which is false, or, at least, by representa- tion which, though true as far as it goes, is accompanied by such a suppression of the facts as to convey a misleading impres- sion." If the buyer wishes to protect himself further, he must require of the seller a warranty of any matter the risk of which he is unwilling to assume.^" Any device, however, used by the seller to induce the buyer to omit inquiry or examination imo defects, is as much a fraud as active concealment.^^ The Representation must he of Fact. Fact is here used in distinction from opinion, intention, and law. Same — Not Matter of Opinion. A mere representation of opinion which turns out to be un- founded will not invalidate a contract.^^ Thus statements of ver, 118 Ga. 362, 45 S. B. 232. Cf. Fletcher v. Bartlett, 157 Mass. 113, 31 N. E. 760. 8 Post, p. 179. » Peek V. Gurney, L. R. 6 H. L. 377, 403, per Lord Cairns; Chamber- lin V. Puller, 59 Vt. 247, 9 Atl. 832; Bench v. Sheldon, 14 Barb. (X. Y.) 66. A partial statement by the buyer as to his financial condition, if misleading, Is fraudulent. Newell v. Randall, 32 Minn. 171, 10 N. W. 972, 50 Am. Rep. 562; Collins v. Cooley (N. J. Eq.) 14 Atl. 5T4: Ten- nessee Coal, I. & R. Co. V. Sargent, 2 Ind. App. 458, 28 N. E. 215. Cf. Standard Horseshoe Co. v. O'Brien, 88 Md. 335, 41 Atl. 898; Tootle v. Petrie, 8 S. D. 19, 65 N. W. 43. 10 Veasey v. Doton, 3 Allen (Mass.) 380, 381; Morrison v. Koch, 32 Wis. 254, 261. 11 Matthews v. Bliss, 22 Pick. (Mass.) 48, 52; Smith v. Country- 1 man, 30 N. Y. 665, 681 ; Roseman v. Canovan, 43 Cal. 110 ; Croyle ■ . Y. Moses, 90 Pa. 250, 35 Am. Rep. 654 ; Firestone v. Werner, 1 Ind. App. 293, 27 N. B. 623. See, also, Burnett v. Hensley, 118 Iowa, 575, 92 N. W. 678. 12 Belcher v. Costello, 122 Mass. 189; Homer v. Perkins, 124 Mass. 431, 26 Am. Rep. 677 ; Holbrook v. Connor, 60 Me. 578, 11 Am. Rep. 212 ; Lyons v. Briggs, 14 R. I. 222, 51 Am. Rep. 372 ; Watts v. Cum- mins, 59 Pa. 84 ; Buschman v. Codd, 52 Md. 207 ; O'Donnell & Dner Brewing Co. v. Parrar, 163 111. 471, 45 N. B. 283 ; Barrie v. .Terome, 112 111. App. 329 ; Vodrey Pottery Co. v. H. E. Home Co., 117 Wis. 1, 98 N. W. 823; Greene v. Soci6t& Anonyme (O. O.) 81 Fed. 64; Han- §§ 54-55) CONTRACT OR SALE INDUCED BT FRAUD. 177 value are generally regarded as expressions of opinion,*'' though representations of facts affecting the value,** for ex- ample that a third person gave so much for a thing," are ma- terial. And the circumstances may be such as to justify the other party in relying on a statement of value, as where the one party has special knowledge or means of knowledge not open to the other,*" or the relations between them are con- fidential.*' By a somewhat fine distinction, however, state- ments of what the seller gave or was offered for the thing sold are by some courts deemed to be mere statements of value, on which the buyer is not entitled to rely.** In like manner, com- sen V. Cold Storage Co., 86 Fed. 832. Clark, Cont. (2d Ed.) 224, and eases cited. 13 Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166 ; Poland v. Brownell, 131 Mass. 138, 41 Am. Rep. 215 ; Uhler v. Semple, 20 N. J. Eq. 288 ; Schramm v. O'Connor, 98 111. 539 ; Kennedy v. Richardson, 70 Ind. 524 ; Johnson v. Seymour, 79 Mich. 156, 44 N. W. 344. Market value: Bums v. Mahannah, 39 Kan. 87, 17 Pac. 319; Cronk v. Cole, 10 Ind. 485. i^Olirysler v. Canaday, 90 N. H. 272, 278, 43 Am. Bep. 166; Col- lins V. Jackson, 54 Mich. 186, 19 N. W. 947 ; Ooolidge v. Goddard, 77 Me. 578, 1 Atl. 831 ; Smith, Kline & French Co. v. Smith, 166 Pa. 563, 31 Atl. 343 ; Wilson, Close & Co. v. Pritchett, 99 Md. 583, 58 Atl. 360. 1 B Belcher v. Costello, 122 Mass. 189 ; Kilgore v. Bruce, 166 Mass. 136, 44 N. E. 108 ; Coolidge v. Goddard, 77 Me. 578, 1 Atl. 831 ; Cas- well V. Hunton, 87 Me. 277, 32 Atl. 899. isPicard v. McCormick, 11 Mich. 68; Bish v. Beatty, .111 Ind. 403, 12 N. E. 523 ; Murray v. Tolman, 162 111. 417, 44 N. E. 748 ; An- drews V. Jackson, 168 Mass. 266, 47 N. E. 412, 37 L. R. A. 402, 60 Am. St Rep. 390; Welch v. Olmstead, 90 Mich. 492, 51 N. W. 541; Maxted v. Fowler, 94 Mich. 106, 53 N. W. 921 ; Peck v. Jenison, 99 Mich. 326, 58 N. W. 612 ; Stoppleman v. Paetz, 75 Wis. 510, 44 N. W. 834; Crane v. Elder, 48 Kan. 259, 29 Pac. 151, 15 L. R. A. 795; Hirschberg Optical Co. v. Richards, 62 JIo. App. 408 ; Strand v. Grif- fith, 97 Fed. 854, 38 C. C. A. 444. 17 Hauk V. Brownell, 120 111. 161, 11 N. E. 416 ; Baum v. Holton, 4 Colo. App. 406, 36 Pac. 154. 18 Medbury v. Watson, 6 Mete. (Mass.) 249, 259, 39 Am. Dec. 726; Hemmer v. Cooper, 8 Allen (Mass.) 334; Holbrook v. Connor, 60 Me. 578, 11 Am. Rep. 212 ; Dillman v. Nadlehoffer, 119 111. 567, 7 N. E. 88 ; Way v. Ryther, 165 Slass. 226, 42 N. E. 1128 ; Gassett v. Glazier, 165 Mass. 473, 43 N. E. 193 ; Boles v. Merrill, 173 Mass. 491, 53 N. E. 894, 73 Am. St. Rep. 308 ; Cole v. Smith, 26 Colo. 506, 58 Pac. 1086 ; Tiff. Sales (2d Ed.)— 12 178 FEAUD AND RETENTION OF POSSESSION. (Ch. 5 mendatory expressions, such as men habitually use to induce others to enter into a bargain, known as "dealer's talk," are not deemed representations of fact. "Simplex commendatio non obligat." '" The line between fact and opinion is a narrow one, and, when a statement may be taken in either sense, it is for the jury to determine which it is.^" A false representation by the seller concerning the quality, character, or soundness of the goods, if made with knowledge of its falsity or without belief in its truth,^^ may be ground for avoiding the sale, provided the circumstances were such that the buyer was entitled to rely on the representation.'"' Mackenzie v. Seeberger, 76 Fed. 108, 22 C. 0. A. 83. Contra : Sand- ford V. Handy, 23 Wend. (N. Y.) 260 ; Van Epps v. Harrison, 5 Hill (N. T.) 63, 40 Am. Dec. 314; Fairchild v. McMaion, 139 N. T. 290, 34 N. E. 779, 36 Am. St. Rep. 701 ; Harlow v. LaBrum, 82 Hun (N. T.) 292, 31 N. T. Supp. 487; Miller v. Buchanan, 10 Ind. App. 474, 38 N. B. 56 ; Moline Plow Co. v. Carson, 72 Fed. 387, 18 C. O. A. 606 ; Strickland v. Graybill, '.T7 Ya. 602, 34 S. E. 475. One attempting to sell an express business falsely stated the price he paid for it, and that another was attempting to buy it at a cer- tain price, and that the business was earning a certain sum, and he had a stated number of regular customers, who paid sums named. Held that, though the two first-named representations were merely "dealer's talk," the latter were material, and the buyer had a right to rely on them. Boles v. Merrill, supra. In Way v. Ryther, supra, it was held that, where the seller stat- ed that the goods were billed to him at a certain price, evidence that he stated that he could not find the bill and kept it from the buyer to prevent him from discovering the cost was admissible to show fraud. And see Welch v. Burdick, 101 Iowa, 70, 70 N. W. 94 ; Strand v. Griffith, 97 Fed. S54, 38 C. C. A. 444. 18 Jlorse V. Shaw, 124 INIass. 59; Teague v. Irwin, 127 Mass. 217: Sledge V. Stott, 56 Ala. 202 ; Jackson v. Collins, 39 Jlich. 557, 561 ; Patten v. Glatz (0. C.) 87 Fed. 283 ; Terhune v. Coker, 107 Ga. 352, 33 S. E. 394. 20 Homer y. Perkins, 124 Mass. 431, 433, 26 Am. Rep. 677; Kim- ball V. Bangs, 144 Mass. 321, 11 N. E. 113; Dawson v. Graham, 48 Iowa, 378. 21 Hazard v. Irwin, 18 Pick. (Mass.) 95; Scott v. Perrin, 4 Bibb. (Ky.) oOO; Nelson v. Martin, 105 Pa. 229; Ripley v. Chase, 78 Mich. 12G, 43 N. W. 1097, 18 Am. St. Rep. 428 ; McCorkell v. KarhofC, 90 2= Bruner v. Strong, 61 Tex. 055; H. Hirschberg Optical Co. v. Micbaelson, 1 Neb. (Uaof.) 137, 95 N. W. 461; Hulet v. Achey, 39 Wash. 91, 80 Pac. 110.",. §§ 54-55) CONTKACT OR SALE INDUCED BY FRAUD. 179 Same — Not Matter of Intention — Intention Not to Pay. Again, an expression of intention does not amount to a state- ment of fact, nor does a promise ; and a representation that a thing is must be distinguished from a promise that it shall be.="' Yet there is a distinction between a promise which the promisor intends to perform and one which he intends to break. In the first place, he represents his intention that something shall take place in the future ; in the second case, he not only makes a promise which is ultimately broken, but he represents his ex- isting intention — that is, he represents his state of mind to be other than it really is.^* And accordingly it is held that if a man buys goods on credit not intending to pay for them, he makes a fraudulent misrepresentation, and that the seller may rescind the sale.^° Iowa, 545, 58 N. W. 913 ; Blythe v. Speabe, 23 Tex. 420 : Whitworth V. Thomas, 83 Ala. 308, 3 South. 781, 3 Am. St. Rep. 72.", ; Spauld- ing V. Hanscom, 67 N. H. 401. 32 Atl. 154 ; Hennessey v. Damourette, 15 Colo. App. 354, 62 Pac. 229. 2 3 Long V. Woodman, 58 Me. 49. 24 Anson, Gont. 148; Clark, Cont (2d Ed.) 225. 2 6 Load V. Green, 15 Mees. & W. 216; Ferguson v. Carrington, 9 Bam. & C. 59 ; Donaldson v. Farwell, 93 U. S. 631, 23 L. ISd. 993 ; Byrd v. Hall, *41 N. Y. 646; Johnson v. Monell, Id. 655; Stewart T. Emerson, 52 N. H. 301; Dow v. Sanborn, 3 Allen (Mass.) 181; Parker v. Byrnes, 1 Low. (U. S.) 539, Fed. Cas. No. 10,728 ; Stouten- bourgh V. Konkle, 15 N. J. Eq. 33; Powell v. Bradlee, 9 Gill & J. (Md.) 220 ; Talcott v. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501 ; Allen V. Hartfleld, 76 111. 358; Farwell v. Hanehett, 120 III. 573, 11 N. E. 875; Fox v. Webster, 46 Mo. 181; Belding v. Frankland, 8 Lea (Tenn.) 67, 41 Am. Rep. 630 ; Oswego Starch Factory v. Lendrum, 57 Iowa, 573, 10 N. W. 900, 42 Am. Rep. 53 ; Henry v. Vliet, 36 Neb. 138, 54 N. W. 122, 19 L. R. A. 590; Frisbee v. Chiekering, 115 Mich. 185, 73 N. W. 112; Cox Shoe Mfg. Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; Waterbury v. Miller, 13 Ind. App. 197, 41 N. B. 3S3; Reager v. Kendall (Ky.) 39 S. W. 257; Bugg v. Wertheimer- Schwartz Co., 64 Ark. 12, 40 S. W. 134; Seisel v. Wells, 99 Ga. 159, 25 S. E. 266. In Pennsylvania it Is held that a mere intention not to pay, though accompanied by insolvency, is not sufficient, but that there must be artifice, trick, or false reprepentation. Smith v. Smith, 21 Pa. 367, 60 Am. Dec. 51; Rodman v. Thalheimer, 75 Pa. 232 ; Bughman v. Bank, 159 Pa. 94, 2S Atl. 209. In Alabama it is declared that it must appear (1) that the buyer was at the time insolvent or in failing circumstances; (2) that he had a precon- ceived design not to pay for the goods, or no reasonable expectation 180 FRAUD AND RETENTION OF POSSESSION. (Ch. 5 The intention not to pay must exist at the time of the sale "' or contract to sell,-^ and must be an intention not to pay at all.^' Therefore the mere fact that the buyer knows that lie is insolvent and fails to disclose the fact does not constitute fraud, if he does not buy intending not to pay.^° Some cases, indeed, hold that it is not enough to constitute fraud that the buyer has no reasonable expectation of being able to pay ; ^* but it is generally held that the absence of reasonable expecta- tion of being able to pay is equivalent to an intention not to pay.^^ of being able to pay for them; and (3) that he intentionally con- cealed these facts, or made a fraudulent representation in regard to them. Maxwell v. Shoe Co., 114 Ala. 304, 21 South. 1009; Wilk V. Key, 117 Ala. 285, 23 South. 6. 2 6 Starr v. Stevenson, 91 Iowa, 684, 60 N. W. 217; John V. Far- well Co. V. Linn, 59 111. App. 245 ; Syracuse Knitting Co. v. Blanch- ard, 69 N. H. 447, 43 Atl. 637; Leedom v. Mayer, 114 Wis. 267, 90 N. W. 169. And see Skinner v. Hoop Co., 119 Mich. 467, 78 N. W. 547, 75 Am. St. Rep. 413 ; Brooks v. Paper Co., 04 Tenn. 701, 31 S. W. 160. Cf. Whitten v. Fitzwater, 129 N. T. 626, 29 N. E. 298. 27 Foerster v. Gallinger, 62 Hun (N. Y.) 439, 17 N. Y. Supp. 144. 28 Burrill v. Stevens, 73 Me. 395, 40 Am. Rep. 366 ; Starr v. Stevenson, 91 Iowa, i.;S4, 60 N. W. 217; Armstrong v. Lewis, 38 111. App. 164 ; Beebe v. Hatfield, 67 Mo. App. 609 ; Strickland v. Willis (Tex. Civ. App.) 4.". S. W. 602. 2 Cross V. Peters, 1 Greenl. (Me.) 376, 10 Am. Dec. 78; Morrill V. Blaekman, 42 Conn. 324; Bell v. Ellis, 33 Cal. 620; Mears v. Wai)les, 3 Houst. (Del.) 581; Camahan v. Bailey (C. C.) 28 Fed. 519; Kelsey v. Harrison, 29 Kan. 143; Dalton v. Thurston, 15 R. I. 418, 7 Atl. 112, 2 Am. St. Rep. 005; Illinois Leather Co. v. Fh-nn, lOS Mich. 91, 65 N. W. 519; Kitson v. Farwell, 132 111. 327, 23 N. E. 1024; Edelhoff v.. Manufacturing Co., 86 JId. 595, 39 Atl. 314; Sprague, Warner & Co. v. Kempe, 74 Minn. 405, 77 N. W. 412 ; Gavin V. .\rajistead, 57 Ark. 574, 22 S. W. 431, 38 Am. St. Rep. 202; Halla- cher V. Henlein (Tenn. Ch. .Vpp.) .39 S. W. 869; Fulton v. Gibian, OS <:Ja. 224, 25 S. E. 431 ; West v. Graff, 23 Ind. App. 410, 55 N. E. 506 ; Sinnott V. Bank, 164 N. Y. 386, 58 N. E. 286 ; Stein v. Hill, 100 Mo. App. 38, 71 S. W. 1107. 30 Biggs V. Barry, 2 Curt. (U. S.) 2.50, Fed. Cns. No. 1.402; Jlan- heimer v. Harrington, 20 Mo. App. 297 ; Burchinell v. Hirsh, 5 Colo. App. 500, 39 Pac. 352 ; Dorman v. Weakley (Tenn. Ch. App.) 39 S. W. .SOO; Syracuse Knitting Co. v. Blanchard, 09 N. H. 447, 43 Atl. 637. 31 Davis V. Stewart (C. C.) 8 Fed. 803; JatCrey v. Brown (C. C.> 20 Fed. 470 ; Wbltten v. Fitzwater, 129 N. Y. 620, 20 N. B. 208 ; Vv'il- mot v. Lyon, 49 Ohio St. 296, 34 N. E. 720; Slagle & Co. v. Goodiiow, §§ 54-55) CONTRACT OR SALE INDUCED BT FRAUD. 181 Same — Representation of Buyer as to Financial Condition. In a sale on credit, a representation by the buyer as to his solvency or financial condition is material, and if it is knowing- ly false, or is made without belief in its truth, and induces the sale, it constitutes fraud.'"' The representation must, of course, be of fact, and not of opinion,'' and must not relate to something to be done.''' Same — Not Matter of Law. Finally, a misrepresentation of law does not ordinarily give rise to an action of deceit or make a contract voidable.' ° Private right of ownership, however, although it may be the result, also, of a matter of law, is a matter of fact; and if the 45 Minn. 531, -48 N. W. 402 ; Edelhoff v. JManufacturlng Co., 86 Md. 595, 39 Atl. 314 ; Reid v. Lloyd, 52 Mo. App. 278 ; McKenzie v. Roths- child, 119 Ala. 419, 24 South. 716. 3 2 Judd y. Weber, 55 Conn. 267, 11 Atl. 40; Cincinnati Cooperage Co. V. Gaul, 170 Pa. 545, 32 Atl. 1093 ; McKinney v. Bank, 36 Neb. 029, 54 N. W. 903 ; Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; Clark v. William Munroe Co., 127 Mich. 300, 86 N. W. 816; Bell V. Kaufman, 9 Colo. App. 259, 47 Pac. 1035 ; McKenzie v. Weine- man, 116 Ala. 194, 22 South. 508; Bugg v. Shoe Co., 04 Ark. 12, 40 S. W. 134; Werthheimer Schwartz Shoe Co. v. Faris (Tenn. Ch. App.) 46 S. W. 336; Fitchard v. Doheny, 93 App. Div. 9, 86 N. Y. Supp. 964. A representation made after sale is, of course, immaterial. Coffin V. Hollister, 54 Hun (N. T.) 639, 7 N. Y. Supp. 734, affirmed 124 N. Y. 614, 20 N. E. 812; Robinson v. Levi, 81 Ala. 131, 1 South. .^.51; Manhattan Brass Co. v. Reger, 168 Pa. 644, 32 Atl. 64. But, if made before the sale is consummated, the seller may rescind. Bliss V. Sickles, 66 Hun, 633, 21 N. Y. Supp. 273, affirmed 142 N. Y. 647, 36 N. E. 1064; post, p. 182. 3 3 Franklin Sugar Refining Co. v. Collier, 89 Iowa, 69, 56 N. W. 279 ; White v. Fitch, 19 R. I. 687, 36 Atl. 42.5 ; Louis F. Fromer & Co. V. Stanley, 95 Wis. 56, 69 N. W. 820 ; William B. Grimes Dry-Goods Co. V. Jordan, 7 Kan. App. 192, 53 Pac. 186 ; Syracuse Knitting Co. T. Blanchard, 69 N. H. 447, 43 Atl. 637. 34 Cohn V. Broadhead, 51 Neb. 834, 71 N. W. 747 ; Louis F. Fromer & Co. V. Stanley, 95 Wis. 56, 69 N. W. 820; Skinner v. Hoop Co., 119 Mich. 407, 78 N. W. 547, 75 Am. St. Eep. 413. 3 5 Upton V. Tribilcock, 91 U. S. 45, 49, 23 L. Ed. 203; Starr v. Bennett, 5 Hill (N. Y.) 303; Townsend v. Cowles, 31 Ala. 428; Fish V. Cleland, 33 111. 238; Clem v. Railroad Co., 9 Ind. 488, 68 Am. Dec. Ons ; People v. Board of Sup'rs, 27 Cal. 655 ; Clark, Cont. (2d Ed.) 226. 182 PEAUD AND RETENTION OF POSSESSION. (Ch. 5 seller fraudulently represents the goods to be his own, when they are not, the buyer may avoid the contract on that ground.^' The Representation must be Made with Knowledge of Its Falsity, or in Reckless Disregard of the Truth. A false statement, made by one who believes the truth of what he asserts, though it may warrant avoidance for mis- take,^'' or may amount to a warranty,^* is not fraudulent.^^ A false statement, made without knowledge of its falsity, is not as a rule fraudulent.*" But the mere absence of belief is enough; for, if a man states as true that of which he is ig- norant, he must be held as responsible as if he had asserted what he knew to be untrue. TTherefore, if a man makes a rep- resentation recklessly, without knowledge whether it be true or false, and it is actually false, his liability is the same as if he knew it was false^^ and, if he represents a fact as true of his S6 Case V. Hall, 24 Wend. (N. T.) 102, 35 Am. Dec. G05; Sweetman V. Prince, 62 Bart). (N. Y.) 256; Simpson v. Wiggin, 3 Woodb. & M. (U. S.) 413, Fed. Cas. No. 12,SST ; Hale v. Philbrick, 42 Iowa, 81 ; Hal- sell V. Musgrave, 5 Tex. Civ. App. 476, 24 S. W. 35S; ante, p. .".2. As to wacranty of title, see post, p. 242. Fraudulent representation as to lien or incumbrance. Merritt v. Robinson, 35 Ark. 483 ; Steven- son V. Marble (C. C.) 84 Fed. 23. Failure to disclose want of title may constitute fraud. Abbott v. Marshall, 48 Me. 44. 3 7 ,\nte, p. ^>2 et seq. S8 Post, p. 2.?G et seq. so Benj. Sales, § 429. 4 Collins V. Evans, 5 Q. B. 820; Ormrod v. Hutb, 14 Meos. & W. 651 ; Lord v. Goddard, 13 How. (U. S.) 198, 14 L. Ed. Ill : King v. Eagle Mills, 10 Allen (Mass.) 548; Pettigrew v. Cbellis, 41 X. PI. 95; Allen Wauaniiil^er, 31 N. J. Law, 370; Bigler v. Flickinger, 55 Pa. 270 ; Lumui v. Association, 49 Md. 233, 33 Am. Rep. 246 ; Mason T. Chappell, 15 Grat. (Va.) 572; Kimbell v. Moreland, 55 Ga. 164; Parmlee v. Adolpb, 28 Obio St. 10; Tone v. Wilson, 81 111. 529; Greg- ory v. SchoenoU, 55 Ind. 101; Rawson v. Harger, 48 Iowa, 2G'J; Mamloek v. Fairbanks, 46 Wis. 415, 1 N. W. 107, 32 Am. Rep. 716 ; Merriam v. Lumber Co., 23 Minn. 314 ; Rightor v. Roller, 31 Ark. 171 ; Clark, Cont. (2a Ed.) 229. But see Ilolcomb v. Noble, 69 Mich. 39(1, 37 N. W. 407; Totten v. Burhans, 91 Mich. 499, 51 N. W. 1119. 41 Western Bank of Scotland v. Addie, L. R. 1 H. L. Sc. 145; Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64; Weir v. Bell, 3 Exch. Div. 238, 242; Nettleton v. Beach, 107 Mass. 499; Fisher v. Mellen, 103 Mass. 503 ; Cole v. Cassidy, 138 M.ips;. 437, ',2 Am. Rep. 284; Hammond v. Pemiock, 61 N. Y. 145; Meyer v. Amidon, 45 N. Y. 169; Bower v. Fenn, 90 Pa. 359, 35 Am. Rep. GC.2 ; Cowley §§ 64r-55) CONTRACT OK SALE INDUCED BY FRAUD.. 183 own knowledge when he has no knowledge, it is immaterial that he believed it to be true.'- And it is generally held in this country that an unqualified statement of a material fact sus- ceptible of knowledge implies a representation of knowledge, and that if the representation be false it is fraudulent.*" In England and in some states it is held that a statement made in the honest belief that it is true is not fraudulent, notwith- standing absence of reasonable grounds for believing it true.** Motive. If the representation was fraudulent as the term has above been explained, it is immaterial that the motive was innocent.*" Alust be Intention That Representation should be Acted on — Representation to Commercial Agency. The representation must be made with the intention that it should be acted on.*° Another statement of this rule is that the V. Smyth, 46 N. J. Law, 380, 50 Am. Rep. 432 ; Smith v. Newton, 59 Ga. 113; Foard v. McComb, 12 Bush (Ky.) 723; Frenzel v. Miller, 37 Ind. 1, 10 Am. Rep. 62 ; Parmlee v. Adolph, 28 Ohio St. 10 ; Cotz- hausen v. Simon, 47 Wis. 103, 1 N. W. 473 ; Walsh v. Morse, 80 Mo. 569. 42 Litchfield v. Hutchinson, 117 Mass. 195; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313; Marsh v. Falker, 40 N. Y. 562; Dulaney V. Rogers, 64 Mo. 201. 4 3 Chatham Furnace Oo. v. MoCeatt, 147 Mass. 403, 18 N. B. 168, 9 Am. St. Rep. 727 (cf. Goodwin v. Trust Co., 152 Mass. 189, 25 N. B. lOO); Bullitt V. Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A. 149, 18 Am. St. Rep. 485 ; Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507; Beetle v. Anderson, 98 Wis. 5, 73 N. W. 560; Hadcock V. Osmer, 153 N. Y. 604, 47 N. B. 923; Hamlin v. Abell, 120 jNIo. 188, 25 S. W. 516 (cf. Bank of Atchison County v. Byers, 139 Mo. 627, 41 S. W. 325) ; Olcott v. Bolton, 50 Neb. 779, 70 N. W. 366; Braley v. Powers, 92 Me. 203, 42 Atl. 362; Walters v. Baves, 105 Ga. 584, 32 S. B. 609; Simon v. Rubber Shoe Co., lO.") Fed. 573, 44 C. C. A. 612, 52 L. R. A. 745; Clark, Oont. (2d Ed.) 230; 9 Oyc. 423. 4* Derry v. Peek, 14 App. Cas. 337; Merwin v. Arbuckle, 81 111. 501 ; Lamberton v. Dunham, 165 Pa. 129, 30 Atl. 716 ; Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437 ; Anson, Cont. (8th Ed.) 172. 45 Polhlll V. Walter, 3 Bam. & Adol. 114; Peek v. Gurney, L. R. 6 H. L. 409 ; Hammond v. Pennock, 61 N. Y. 145 ; Cowley v. Smyth, 46 N. J. Law, 380, 50 Am. Rep. 432 ; Clark, Cont. (2d Bd.) 232. 46 Buschman v. Codd, 52 Md. 202; Humphrey t. Merriam, 32 Minn. 197, 20 N. W. 138 ; Carter v. Harden, 78 Me. 528, 7 Atl. 392 ; Thorp 184 FEADD AND RETENTION OF POSSESSION. ''Ch. 5 representation must be made as part of the same transaction.*^ If a representation is made by one of the parties to the contract, the intention that it should be acted on will generally be mani- fest. The representation need not, however, be made directly to the injured party.*' Thus a statement made by the buyer to a commercial agency for the purpose of being communicated to its patrons and thereby obtaining credit, if communicated to the seller, is a representation on which he may rely,*' al- V. Smith, 18 Wash. 277, rA Pac. 381; Holt v. Sims, 94 Minn. 1.57, 102 N. W. 386. 47 Pollock, Cont. C3rd Ed.) 545; Barnett v. Barnett, 83 Va. 504, 2 S. E. 733'. 4 8 Barry v. Croskey, 2 Johns. & H. 1, 17, per Wood, V. C, at page 22 ; Langridge v. Levy, 2 Mees. & W. 519 ; Peek v. Gurney, L. R. 6 H. L. 377 ; Wells v. Cook, 16 Ohio St. G7, 88 Am. Dec. 436 ; Bank of Montreal v. Thayer (C. C.) 7 Fed. 623. 4 8 Pechheimer v. Baum (C. O.) 37 Fed. 167, 2 L. B. A. 153; Furry V. O'Connor, 1 Ind. App. 573, 28 N. E. 103 ; Emerson v. Spring Co., 100 Mich. 127, 59 N. W. 659; Gainseville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S. W. 959, 19 Am. St. Rep. 738 ; John V. Farwell Co. V. Boyce, 17 Mont. 83, 42 Pac. 98; Charles P. Kellog Co. v. Holm, 82 ftlinn. 416, 85 N. W. 159; Soper Lumber Co. v. Halsted & Har- mount Co., 73 Conn. 547, 48 .\tl. 423; George D. Mashburn & Co. V. Dannenbcrg Co., 117 Ga. 567, 44 S. E. 97 ; Ernst v. Cohn (Tenn. Ch. App.) 02 S. W. 186 ; Courtney v. Slanufacturing Co., 97 Md. 409, 55 Atl. 614, 99 Am. St. Rep. 456 ; Tennent Shoe Co. v. Stovel & Brand, 78 S. W. 417, 25 Ky. Law Rep. 1015 ; Tindle v. Birkett, 57 App. Div. 4.j0, 67 N. Y. Supp. 1017, affirmed 171 N. Y. 520, 04 N. E. 210. 89 Am. St. Rep. 822; Arnold v. Richard.<^on, 74 App. Div. 581, 77 N. Y. Supp. 70:^ ; In re Epstein (D. C.) 109 Fed. 874. One who makes a statement to an agency is not bound to furnish it with a statement of a change in his condition not amounting to insolvency. Cortland Mfg. Co. v. Piatt, 83 Mich. 419, 47 N. W. 330 ; Reid, Miu-dock & Co. v. Kempe, 74 Minn. 474, 77 N. W. 413. And see Burchinell v. Hirsh, 5 Colo. App. 500, 39 Pac. 352 ; Strickland v. Willis (Tex. Civ. App.) 43 S. W. 002. Othtvwise if he has become insolvent, or his condition has become such that he will be obliged to suspend. Mooney v. Davis. 75 Mich. ISS, 42 N. W. S02, 13 Am. St. Rep. 425. And see Boaz v. Manufacturing Co. (Tex. Civ. App.) 40 S. W. 866. Failure to report the truth, when he knows a false rating is being carried on the books of the agency, is fraudulent. Taylor v. Mills Co., 47 .\rk. 247, 1 S. W. 283; Prisbee v.^Chickering, 115 Mich. 1S5, 73 N. W. 112 ; P. Cox Shoe Mfg. Co. v. Adams, 105 Iowa, 402, 75 N. W. 316. §§ 54r-55) CONTRACT OR SALE INDUCED BY FRAUD. 185 though the buyer is, of course, not responsible for representa- tions made by the agency based on information not furnished by himself. "^ In order to entitle the seller to rely on a repre- sentation as to the buyer's financial condition, the representa- tion must be made to himself or to a third person for the pur- pose of being communicated/^ Whether a statement may be regarded as a representation of financial standing at a later date depends on the circumstances of the particular case."^ The Representation must be Material and must Induce the Sale. A material representation is one which would affect the judg- ment of a reasonable man governing himself by the principles on which men in practice act in the kind of business on hand.^' If such an untrue statement has been made and was in fact an inducement to the other party to enter into the contract, it is unimportant that it was not the sole inducement; but it is enough if it was a material element in influencing him to enter into it/* If the representation was such that it might induce 00 Macullar v. McKinley, 99 N. Y. 353, 2 N. E. 9; Wachsmuth v. Martini, 154 111. 515, 39 N. E. 129; P. Cox Shoe Mfs. Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; Hiller v. Ellis, 72 Miss. 701, 18 South. 95, 41 L. R. A. 707 ; Cream City Hat Co. v. Tollinger, 62 Neb. 98, 86 N. W. 921; Berkson v. Heldman, 58 Neb. 595, 79 N. W. 162; In re Roalswick (D. C.) 110 Fed. 639. 51 Van Kleek v. Leroy, 4 Abb. Dec. (N. Y.) 479; Bach v. Tuck, 57 Hun (N. Y.) 588, 10 N. Y. Supp. 884, affirmed 126 N. Y. 53, 2G N. B. 1019; Bliss v. Sickles, 66 Hun (N. Y.) 633, 21 N. Y. Supp. 273, af- firmed 142 N. Y. 647, 36 N. E. 1064; Staver & Abbott Mfg. Co. v. Coe, 49 III. App. 426 ; McKenzie v. Weineman, 116 Ala. 104, 22 South. 508. Cf. Silberman v. Munroe, 104 Mich. 3-52, G2 N. W. 555 ; Hamil- ton-Brown Shoe Co. V. Milliken, 62 Neb. 116, 86 N. W. 913. 6 2 Morris v. Talcott, 96 N. Y. 107; Howell v. Berger, 19 Misc. Rep. 315, 44 N. Y. Supp. 259; Goldsmith v. Stern (Sup.) 84 N. Y. Supp. 809. Statement to commercial agency. Humphrey v. Smith, 7 App. Div. 442, 39 N. Y. Supp. 1055 ; Schram v. Strouse (Tex. Civ. App.) 28 S. W. 262 ; Nicholls v. McShane, 16 Colo. App. 165, 64 Pac. 375 ; Wal- drop V. Wolff, 114 Ga. 610, 40 S. E. 830; George D. Mashbufu & Co. V. Dannenberg Co., 117 Ga. 567, 44 S. E. 97. 5 3 Pol. Cont. 528; See Greenleaf v. Gerald, 84 Me. 91, 46 Atl. 799, 50 L. R, A. 542, 80 Am. St. Rep. 377. 54 Safford v. Grout, 120 Mass. 20; McAleer v. Horsey, 35 Jtd. 439; Ruff V. Jarrett, 94 111. 475; Moline-Milburn Co. t. Franklin, 37 Minn. 137, 33 N. W. 323; Hahlo v. Grant, 56 Hun, 649, 10 N. Y. Supp. 186 FRAUD AND RETEXTION OF POSSESSION. (Ch. 5 the other party to enter into the contract on the faith of it, it is a fair inference that he actually acted in reliance upon it.^^ And, if he actually relies upon the representation, the fact that he had means of knowledge which, if used, would have led to a discovery of the untruth will not bar him of his rem- edy." The mere fact that he obtained other information, if it did not disclose the falsity of the representation, is im- material."'' But, however false or dishonest the representations may be which are used to induce a party to enter into a contract, they do not constitute a fraud if he is not deceived ; for under such circumstances the inducement or motive is not the representa- tions, which are not believed, but some independent motive."' The representations must be relied upon."" For the same rea- ISS, affirmed 132 N. T. 593, 30 N. E. 1151; Higbee v. Trumloauer, 112 lowd, 74, 83 N. W. 812; French & American Importing Co. v. Drug Co., 75 Ark. 95, 86. S. W. 836. es Smith v. Chadwick, 9 App. Cas. 187; Redgrave v. Hurd, 20 Ch. r>iv. 1; Holbrook v. Burt, 22 Pick. (Mass.) 546; Hicks v. Stevens, 121 III. 186, 11 N. B. 24a; Garrison v. Electrical Works, 59 N. J. Eq. 440, 45 Atl. 612. as Eedumve v. Hurd, 20 Ch. Biv. 1; Jackson v. Collins, 39 ilich. 5.j7; Kendall v. Wilson, 41 Yt. 567; Stewart v. Stearns, 63 N. H. 90, 56 Am. Rep. 496 ; Union Nat. Bank v. Hunt, 76 Mo. 430. " Olcott V. Bolton, .50 Neb. 770, 70 N. W. 366; Cabaness v. Hol- land, 19 Tex. Civ. App. 383, 47 S. W. 379; Light v. Jacobs, 183 Mass. 206, 66 N. E. 799. If the buyer relies on an examination or test made by himself or another, he does not rely on the representation. Howell v. Biddle- com, 62 Barb. (N. Y.) 131; Hagee v. Grossman, 31 Ind. 223; Haley V. Mannintr, 2 Tex. Civ. App. 17, 21 S. W. 711; Brewer v. Arantz, 124 Ala. 127, 26 South. 922. f^s Gunby v. Siuter, 44 Md. 237; Phipps v. Buckman, 30 Va. 401; Gregory v. Sclioenell. 55 Ind. 101; Sledge v. Scott, 56 Ala. 202; Smith V. Newton, 50 (Ja. 113. If the buyer accepts the goods with knowl- edge of the fraud, he cannot repudiate the contract. Baird v. City of New York, 96 N. Y. 567; Thompson v. Libby, 36 Minn. 287, 31 N. W. 52; Norfolk & New Brunswick Hosiery Co. v. Arnold, 49 N. J. E(i. .".OO, 23 Atl. 514; W. W. Kimball Co. v. Raw, 7 Kan. App. 17, 51 Pac. 7S0. 68 Ming V. Woolfolk, 116 U. S. 500, 6 Sup. Ct. 489, 20 L. Ed. 740; Hanna v. Knyburn, 84 111. 533; Iloldom v. Ayer, 110 111. 4lSr Lil- ifiithal V. Brewing Co., 154 JIass. 1S5, 28 N. E. 151, 12 U R. A. S21, 26 Am. St. Rep. 234. The fact that a considerable time has elapsed after the representa- §§ 54-55) CONTRACT OR SALE INDUCED BT FRAUD. l8'l son, if the attempted fraud does not come to the knowledge of the other party, it will not avail him in avoidance of the con- tract. Thus where the seller inserted a metal plug to conceal a weak spot in a gun manufactured to the order of the buyer, who took it without inspection, it was held that the attempted fraud did not exonerate him from paying for the gun ; since, although the seller intended to deceive him, he had in fact not been deceived.^" If the action is for deceit, damages from the fraud must be proved.'^ Representations Where Means of Knozvledge are at Hand. Many cases lay down the rule broadly that, if the means of knowledge are at hand and equally available to both parties, the buyer will not be heard to say that he has been deceived. °^ But it seems, on principle, that a person cannot escape the effect of his fraudulent representation on the ground of the credulity of the injured party or of his negligence in failure to ascertain the facts. °^ And it is accordingly very generally held that, if the buyer actually relies on the seller's representa- tion, the fact that he had means of knowledge which, if used, would have led to a discovery of the untruth, will not bar him of his remedy.** tion before the contract was entered into does not necessarily show that it was not relied on. Seaver v. Dingley, 4 Me. 306; Keeve v. Dennett, 145 Mass. 23, 11 N. B. 938; Chisholm v. Eisenhuth, 69 App. Div. 134, 74 N. Y. Supp. 496. «o Horsfall v. Thomas, 1 Hurl. & 0. 90. See remarks on this case in Anson, Cont. 152. oiPasIey v. Freeman, 3 Term R. 51; 2 Smith, Lead. Cas. (8th Ed.) GiJ: Brown v. Blunt, 72 Me. 415; Weaver v. Wallace, 9 N. J. Law, 2.:il. 62 Slaughter v. Gersou, 13 Wall. (U. S.) 379, 20 L. Ed. 627; An- schutz V. Miller (0. 0.) 20 Fed. 376; Brown v. Leach, 107 Mass. 364; Poland V. Brownell, 131 Mass. 138, 41 Am. Eep. 215; Gatling v. Newell, 12 Ind. 118; Journal Printing Co. v. Maxwell, 1 Pennewill (Del.) 511, 43 Atl. 615; Griffith v. Strand, 19 Wash. 686, 54 Pac. 613. See Whiting v. Price, 172 JIass. 240, 51 N. E. 1084, 70 Am. St. Rep. 262, per Holmes, J.; Clark, 0)nt. (2d Ed.) 228. 63 Clark, Cont. (2d Ed.) 228. 64 Hale V. Philbrick, 42 Iowa, 81; Chamberlin v. Fuller, 59 Vt 247, 9 Atl. 832; Burroughs v. Guano Co., 81 Ala. 2.j3, 1 South. 212; Fargo Gas & Coke Co. v. Electric Co., 4 N. D. 219, 59 N. AV. 1066, 37 L. R. A. 593; Strand v. Griffith, 97 Fed. 854, 38 C. C. A. 444. 188 FRAUD AND RETENTION OF POSSESSION. (Ch. 6 REMEDIES OF DEFRAUDED PARTY. 56. ELECTION TO AFFIRM OR RESCIND. The defrauded party may: (1) Affirm the contract or sale, and recover damages for the frand in an action of deceit, or, if sned on thei contract, set np the frand in reduction of the demand. (2) Rescind the contract or sale and recover what he has parted with, or set up the rescission in defense of am action on the contract. 57. BONA FIDE PURCHASERS. A bona fide purchaser for value from the fraudulent buyer acquires an indefeas- ible title. Election to AfErm. or Rescind. A contract induced by fraud is not void, but only voidable, at the option of the party defrauded ; in other words, it is valid until rescinded. It is for the party defrauded to elect whether he will be bound.' ^ But, if he afRrms the contract, he must affirm it in all its terms. Thus a seller who has been in- duced by fraud to sell on credit cannot sue for the contract price before the expiration of the credit, but must rescind, and sue in trover or replevin."" When the contract is once affirmed, the election is completely determined."' After affirmance, the 5 Rawlins v. Wickham, 3 De Gex & J. 304, 322; Clough v. Lon- don & N. W. Ry. Co., L. R. 7 Exch. 26; Union Stoeli-Yards & Transit Co. v. Mullory, Son & Zimmerman Co., 157 111. 554, 41 N. B. 888, 48 Am. St. Rep. 341; Wilson v. Hundley, 96 Va. 96, 30 S. B. 492, 70 Am. St. Rep. 837. And see cases cited note 66 ; infra ; Clark, Cont. (2d Ed.) 234. ne Ferguson v. Carrington, 9 Barn. & C. 50: Emma Silver Jlin. Co. V. Mining Co. (C. C.) 7 Fed. 401; Adler v. Fenton, 24 How. (TJ. S.) 407, 16 L. Bd. 606; Butler v. Hildreth, 5 Jletc. (JXass.) 49; Dellone V. Hull, 47 Md. 112; Stewart v. Emerson, 52 N. H. 301, 310; Bulk- ley V. Moi-gnn, 46 Conn. 303; Kellogg v. Turpie, 93 111. 2G5, 34 Am. Rep. 103; Stoutenbourgh v. Konkle, 15 N. J. Eq. 33; Weed v. Page, 7 "Wis. 503. Otherwise in New York, where it is held that the sell- er may rescind as to the credit and sue at once for the price. "Wigand v. Sicliel, *42 N. V. 120; Roth v. Balmer, 27 Barb. (X. Y.) 652; Heilbronn v. Herzog, 3?; App. Div. 311, 53 N. Y. Supp. 841, 843; Jaffrey v. AVolf, 4 Okl. 303, 47 Pac. 496 (Xew York contract). See, also, Dietz v. Sutcliffe, 80 Ivy. 0.-,n. OT Clough V. Railway Co., L. R. 7 Ivxch. 20, 34; JloJler v. Tuska, §§ 56-57) REMEDIES OP DEFRAUDED PARTY. 189 sole remedy of the defrauded party for the fraud is by way of damages, which he may recover in an action of deceit ; or, if he be the buyer, he may set up the fraud by way of recoup- ment in an action by the seller for the price."* It is not nec- essary that the affirmance should be express. Any acts which unequivocally treat the contract as subsisting, such as dealing with the goods as his own on the part of the buyer or taking security for the price on the part of the seller, will have the same effect."^ Bringing suit on the contract is a conclusive affirmance.^" Bringing an action for deceit, if the buyer re- tains the goods, and asks damages for the difference between the goods as represented and as they actually were, is an af- firmance.''^ Where the election to affirm has once been ex- 87 N. Y. 166; Pence v. Langdon, 99 U. S. 578, 582, 25 L. Ed. 420; First Nat. Bank v. Tootle, 59 Neb. 44, 80 N. W. 264. 68 Harrington v. Stratton, 22 Pick. (Mass.) 510; Perley v. Balch, 23 Pick. (Mass.) 283, 34 Am. Dec. 56; Foulk v. Eckert, 61 111. 318;' Liikens v. Aiken, 174 Pa. 152, 34 Atl. 575. A vendee who iias been induced by the fraud of his vendor to make a contract of purchase, which contains warranties made by the vendor, has a choice of remedies. He may rescind the con- tract, restore what he has received, and recover back what he has paid, or he may affirm the contract, recover the damages he has sus- tained for the fraud, and also those resulting from a breach of the warranties of the vendor; but he cannot do both. Wilson v. Cattle Eanch Co., 73 Fed. 994, 20 C. C. A. 241. 69 Clouffh V. Railway Co., L. R. 7 Exch. 26, 34; Grymes v. Sanders, 93 U. S. 55, 62, 23 L. Ed. 798; Joslin v. Cowee, 52 N. Y, 90; Seavy v. Potter, 121 Mass. 297; Cross v. Hayes, 45 N. J. Law, 565; Davis v. Betz, 66 ^Ala. 206; Evans v. Montgomery, 50 Iowa, 325, 337; Bridgeford v. Adams, 45 Ark. 136; Droege v. Manufactur- ing Co., 163 N. Y. 466, 57 N. E. '747; Samples v. Guyer, 120 Ala., 611, 24 South. 942. Acquiescence is evidence of election. Fleming V. Hanley, 21 R. I. 141, 42 Atl. 520. A mere effort to obtain security is not an election. Cortland Mfg. Co. v. Piatt, 83 Mich. 419, 47 N. W. 330. '0 Cases cited in note 66, supra ; First Nat. Bank v. Tootle, 59 Neb. 44, 80 N. W. 264. But obtaining judgment in ignorance of the fraud does not amount to an affirmance. Clough v. London & X. W. Ry. Co., L. R. 7 Exch. 20, 35; Kraus v. Thompson, 30 Minn. 61. 14 N. W. 266, 44 Am. Rep. 182. 71 Emma Silver Min. Co. v. Mining Co. (C. C.) 7 Fed. 401, 402. It has indeed been laid down broadly that bringing action for deceit affirms the sale. Kimball v. Cimningham, 4 Mass. 505, 3 Am. inO FRAUD AND RETENTION OF POSSES'ilON. (Ch. 5 ercised, the subsequent discovery of a new incident in the fraud will not revive the right to rescind.^^ If, on the other hand, the defrauded party elects to rescind, he must manifest his election by distinctly communicating to the other party his intention to repudiate the contract.^' It is not necessary to a rescission that the contract should be judicial- ly set aside.''* Thus, if the defrauded party be the buyer, he may refuse to accept the goods if he discover the fraud before delivery, or may return them, if the discovery be not made till after delivery; and, if he has paid the price, he may recover it back on offering to return the goods.' ^ On the other hand, the defrauded party may set up the rescission as a defense in an action by the other on the contract; '° or he may, if the remedy at law is inadequate, institute proceedings in equity to have the contract set aside.''' Election to rescind waives the right to sue on the contract.'' ° Dec. 230. Cf. Whiteside v. Brawley, 152 Mass. 133, 134, 24 N. E. loss. But the action for deceit does not necessarily Imply an af- firmance, as where the seller reclaims such goods as he can reach, and as to the remainder sues the buyer to recover damages for the fraud. Hersey v. Benedict, 15 Hun (N. Y.) 2S2. See, also, Hub- hell V. Meigs, 50 N. Y. 480, 48T: Miller v. Barber, 66 N. Y. 558, r.G4 ; Lenox v. Fuller, 30 Jlich. 2CS ; Clark, Cont. (2d Ed.) 235 ; 9 Cyc. 433. T2 Campbell v. Fleming, 1 Adol. & E. 40; Pratt v. Philbrook, 41 Me. 132. But see Pierce v. Wilson, .34 Aln. .596. 7 3 Ashley's Case, L. R. 9 Eq. 263; Hammond v. Pennock, 61 N. Y. 145, l.Vj; Potter v. Taggart, 54 Wis. 3U5, 400, 11 N. W. 678; Gates V. Bliss, 43 Vt. 209. 7 4 Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64, 73. 75 Clarke v. Dickson, EI. Bl. & El. 148; Coolidge v. Brigham, 1 Mete. (Mass.) 547. 7 6 Clough V. Railway Co., L. R. 7 Exeh. 26, 30. 7 7 Anson, Cont. 154; Clark, Cont. (2d Ed.) 235. 7 8 Farwell v. Myers, 59 Mich. 179, 26 N. W. 328; Wright v. Zeig- ler, 7u Ga. 501. Cf. Powers v. Benedict, S8 N. Y. 605. The seller wbo has rescinded, but has not recovered all the goods, may sue for the conversion of the remainder, or, if they have been converted into money, may waive the tort and sue in assumpsit. Farwell V. MYei=^, 04 Mich. 234, 31 N. W. 128; Powers v. Benedict, 88 N. Y. 605; Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201, 10 Am. St. Rep. 377. §§ 56-57) REMEDIES OF DEFEAUDED PARTY. 191 Restitutio in Integrum. The right of a party to rescind for fraud, as for other causes, is conditional upon his restoring the other party to the position in which he v/as before the contract. Thus the seller must re- turn or offer to return the price, and the buyer must return or offer to return the goods," though he need not do so if they are absolutely worthless.'" Accordingly, if the buyer has con- sumed or sold any part of the goods, he cannot rescind; though, if he is the guilty party, he cannot prevent a rescission if the seller elects to take a partial restoration.*^ But the fact TO Clarke v. Dickson, El. Bl. & El. 14S; Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798; Kimball v. Cunningham, 4 Mass. 502, 3 Am. Dec. 230; Tiiayer v. Turner, 8 Mete. (Mass.) 550; Cook v. Gilman, 34 N. H. 5G0; Hammond v. Buckmaster, 22 Vt. 875; Tisdale v. Buckmore, 33 Me. 461; Burton v. Stewart, 3 Wend. Of. Y.) 236, 20 Am. Dec. 692; Masson v. Bovet, 1 Denio (N. Y.) 69, 43 Am. Dee. 651; Babeock y. Case, 61 Pa. 427, lOO Am. Dec. 654; Haase v. Mit- chell, 58 Ind. 213; Herman v. Haffenegger, 54 Cal. 161; Friend Bros. Clothing Co. v. Hurlburt, 98 Wis. 183, 73 N. W. 784; Samples v. Guyer, 120 Ala. 611, 24 South. 942. Where the buyer's note has been received In payment. It is sulB- cient if he surrender It at the trial. Thurston v. Blanchard, 22 Piek. (Mass.) 18, 33 Am. Dee. 700. See, also, Nichols v. Michael, 23 N. Y. 264, 80 Am. Dec. 259; Skinner v. Hoop Co., 119 Mich. 407, 78 N. W. 547. Cf. Farwell v. Hanchett, 120 111. 573, 11 N. E. 875. Contra: Thompson v. Peck, 115 Ind. 512, 18 N. E. 16, 1 L. E. A. 201. The seller cannot excuse failure to return the note of a third person given for the price by showing that it was worthless by reason of the maker's insolvency. Crossen v. Mm-phy, 31 Or. 114, 49 Pae. 858. Clark, Oont. (2d Ed.) 237. 80 Kent V. Bornstein, 12 Allen (Mass.) 342; Brewster v. Burnett, 125 Mass. 68, 28 Am. Rep. 203; Smith's Adm'r v. Smith, 30 Vt 139; Dill V. O'Ferrall, 45 Ind. 268. If the things received are capable of serving any purpose of ad- vantage by their possession or control, or if their loss would be a disadvantage in any way, they must be returned. "This rule is held with great strictness in actions at law, as in the ease of the casks that contained worthless lime (Connor v. Henderson, 15 Mass. 319, 8 Am. Dee. 103), and the sack that covered the rejected bale of cotton. Morse v. Brackett, 98 Mass. 205; Id., 104 Mass. 494." Bas- sett V. Brown, 105 Mass. 558. 81 Hammond v. Pennock, 61 N. Y. 145; Harper v. Terry, 70 Ind, 264. 192 FRAUD AND RETENTION OF POSSESSION. (Ch. 5 that the thing has depreciated in value by natural causes or reasonable use, or that it has been necessarily destroyed in dis- covering the fraud, will not defeat rescission on his part/^ And if in the meantime he has incurred expenses for repairs he may on rescission and return recover the cost,'^ but if he is the guilty party he cannot exact a payment of such cost as a condition of rescission.'* And if the defrauded party, by rea- son of the wrongful conduct of the wrongdoer, is rendered in- capable of restoring the latter to his former position, to that extent such restoration is unnecessary to a rescission.*^ In- deed, the rule requiring the return of what has been received is frequently relaxed where its enforcement would not tend to accomplish a just result. "This rule," it has been said, "is wholly an equitable one. Impossible or unreasonable things, which do not tend to accompHsh equity in the particular trans- action, are not required." ^^ Thus it has been held that the seller may rescind without returning payments on account of the price, where it appears that the value of the goods claimed does not exceed the balance unpaid,*^ or where the fraudulent buyer has disposed of more than enough of the goods to cover 82 Veazie v. Williams, 8 How. (U. S.) 134, 15S, 12 L. Ed. 1018; Neblett v. Macfarland, 92 U. S. 101, 104, 23 L. Ed. 471; Gatling v. Newell, 9 Ind. 572; Faulkner v. Klamp, 16 Neb. 174, 20 N. W. 220; Campbell Printing Press & Mfg. Co. v. Marsh, 20 Colo. 22, 36 Pac. 790. S3 Canada v. Canada, 6 Cusb. (Mass.) 15; Farris v. Ware, 60 Me. 482. »* Guckenheimer t. Angevine, 81 N. Y. 394; Chainberlin v. Ful- ler, .59 ^'t. 247, 9 Atl. 832. 86Masson v. Bovet, 1 Denio (N. Y.) 69, 43 Am. Dec. 651; Ham- mnnrt V. Pennnck, 61 N "^. 145: P'iptiIx Iron Works Co. v. MrEvo'TV. 47 Neb. 228, 66 N. W. 290, 53 Ara. St. Rep. 527 ; Gates v. Raymond, 100 Wis. 657. 82 N. W. 530. 8« Sloane v. Shiffer, 156 Pa. 59, 27 Atl. 67, per Dean, J. See 9 Cyc. 441. 8 7 Schofleld V. Shiffer, 156 Pa. 05, 27 Atl. 69. See, also, Tootle v. Bank, 34 Neb. 863, 52 N. W. 306; Sisson y. Hill, 18 R. I. 212, 26 Atl. 196, 21 L. R. A. 206; Gay v. D. M. Osborne & Co., 102 Wis. 641, 78i N. W. 1079; John V. Farwell Co. v. Hilton, 84 Fed. 293, 39 U B. A. 579. §§ 56-57) REMEDIES OF DEFRATJDED PARTY. 193 the amount paid/' or where the goods have been damaged by the buyer to the amount of the payment received.*' Bona Fide Purchasers from Prcmduleiit Buyer. It follows from the principle that the contract is voidable, and not void, that, when innocent third persons have for value acquired rights under the sale, their rights are indefeasible. The rule is also stated to be an application of the principle of convenience that, when one of two innocent parties must suf- fer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud. °° Thus, when a sale is procured by fraud, the property in the goods is transferred by the contract,^^ subject to the seller's right of rescission, and a purchaser in good faith from the fraudulent 8 8 Sloane v. Shiffer, supra. Where the sale sought to he rescinded consists of several pur- chases, plaintiff is entitled to treat them as independent sales; and all payments made by defendants on account may he applied to the first purchase, unless otherwise designated by defendants; and plain- tiff would be entitled to rescind the other sales, without returning or offering to return the payments received on the first. Friend Bros. Clothing Co. v. Hulbert, 98 Wis. 183, 73 N. W. 784. 8 Phenix Iron Works Co. v. McEvony, 47 Neb. 228, 66 N. W. 290, 58 Am. St Eep. 527. 9 Tol. Cont (3d Ed.) 556; Babcock v. Lawson, 4 Q. B. Div. 394. Where J. on August 21st had contracted to sell to defendants a quantity of linseed, and they gave their notes, which he pledged as collateral for a loan, and J., who had been negotiating with plaintiffs for the linseed, on August 21st contracted for it, and on August 24th, induced by his fraudulent representations, plaintiffs delivered it to him, and he delivered it to defendants, plaintiffs were entitled to recover it; defendants not having parted with value upon the assertion of a right by J. for which plaintiffs were in any way responsible. Barnard v. Campbell, 55 N. Y. 456, 14 Am. Eep. 289; Id., 68 N. Y. 73, 17 Am. Rep. 208. But where the buyer by fraud obtained delivery of corn from the seller, and defendants purchased a bill of exchange drawn by the buyer, relying on his representations that it was drawn on a ship- ment of grain, it could not be said that defendants "trusted to an assertion of title for which the plaintiffs were in no way responsi- ble." Parker v. Baxter, 86 N. Y. 586. 81 In some of the early cases it was held that the property did not pass. See Earl of Bristol v. Wilsmore, 1 Barn. & C. 514; Benj. Sales, § 434. Tiff.Sales(2d Ed.) — 13 194 FEAUD AND RETENTION OF POSSESSION. (Ch. 5 buyer before the sale is rescinded acquires a good title. '^ The purchase must be in good faith; that is, the purchaser must acquire title from the fraudulent buyer without notice of the -defects in his title, or knowledge of circumstances to put him upon inquiry as to the source of the wrongdoer's title." ^ The purchase must be for value, and hence the protection does not extend to attaching creditors "* or to an assignee in bankrupt- cy." » By the great preponderance of authority in this country a person is not held to be a purchaser for value if he takes the goods in payment of a pre-existing debt,*" or by way of pledge 9 2 White V. Garden, 10 C. B. 919, 30 Law J. C. P. 167; Stevenson V. Newnliam, 13 C. B. 285, 22 Law J. C. P. 110; Pease v. Gloahec, L. R. 1 P. C. 220, 3 Jtloore, P. C. (N. S.) 556; Rowley v. Bigelow, 12 Pick, (ilass.) 307, 23 Am. Dec. 607; Hoffman v. Noble, 6 Mete. (Mass.) 68, 39 Am. Dec. 711; Easter v. Allen, 8 Allen (Mass.) T; Kingsbury v. Smith, 13 N. H. 109; Titcomb v. Wood, 38 Me. 561; Williamson v. Russell, 39 Ck)nn. 406; Paddon v. Taylor, 44 N. Y. 371; Stevens v. Brennan, 79 N. Y. 254; Sinclair v. Healy, 40- Pa. 417, 80 Am. Dec. 589; Hall v. Hinks, 21 Md. 406; Williams v. Given, 6 Grat (Va.) 268; Kern v. Thurber, 57 Ga. 172; Wood v. Yeatman, 15 B. Mon. (K:y.) 270; Hawkins v. iDavis, 8 Baxt. (Tenn.) 500; Chicago Dock Co. v. Foster, 48 III. 507; Holland v. Swain, 94 111. 154; Bell V. Cafferty, 21 Ind. 411; Singer Mfg. Co. v. Sammons. 49 Wis. 316, 5 N. W. 7SS; Wineland v. Coonce, 5 Mo. 296, 32 Am. Dec. 320; Cochran v. Stewart, 21 Minn. 435; Sargent v. Sturm, 23 Cal. 359.. 83 Am. Dec. 118; Lightman v. Boyd, 132 Ala. 618, 32 South. 714; Sales Act, § 24; ante, p. 43. 8 3 Barnard v. Campbell, 58 N. Y. 73, 17 Am. Rep. 20S; Seheuer v. Goetter, 102 Ala. 313, 14 .South. 774; Starr v. Stevenson, 91 Iowa, 684, 60 N. W. 217. I* Bufflngton v. Gerrish, 15 Mass. 158, 8 Am. Dec. 97; Devoe v. Brandt, 53 N. Y. 462; Thaxter v. Foster, 153 Mass. 151, 26 N. B. 434; 3:homps('n v. Rose, 16 Conn. 71, 41 Am. Dec. 121; Jordan v. P-irker, 56 Me. 557; Oswego Starch Fact. v. Lendrum, 57 Iowa, 573, 10 N. W. 900, 42 Am. Rep. 53. 8 5 Donaldson v. Farwell, 93 U. S. 631, 23 L. Ed. 993; Bussing v. Rice, 2 Cush. (Mass.) 48; Singer v. Schilling, 74 Wis. 369, 43 N. SV, 101; Benesch v. Weil, 69 Md. 276, 14 Atl. 606; Wallace v. Cohen, 111 N. C. 103, 15 S. B. 802. Contra: Wickham v. Martin, 13 Grat. (Va.) 427; Oberdorfer v. Meyer, 88 Va. 384, 13 S. E. 756. 86 Stevens v._Brennan, 79 N^-.X- 258; Sleeper v. Davis, 64 N. H. 59, 6 Atl. 201,'~l6' AniTSrTlep. 377; Poor v. Woodburn, 25 Vt. 235; McGraw v. Solomon, 83 Mich. 442, 47 N. W. 345; Henderson v. Gibbs, 39 Kan. 679, IS Pac. 020; Eaton v. Davidson, 46 Ohio .St 355, 21 N. E. 442; Hurd v. Bickford, 85 Me. 217, 27 Atl. 107, 35 Am. §§ 56-57) REMEDIES OF DEFRAUDED PARTY. 195 or mortgage as security for a pre-existing debt.'^ In this re- spect the rule is different from that appHcable to negotiable in- struments, as to which an antecedent debt constitutes value where an instrument is taken in satisfaction or as security there- for."* For the sake of having a single rule for what constitutes a valuable consideration, and in view of mercantile convenience, the proposed Sales Act has adopted the rule that "an antecedent debt or pre-existing claim, whether for money or not, con- stitutes value where goods or documents of title are taken in satisfaction thereof or as security therefor." °° If the fraudu- lent buyer has sold the goods to a bona fide purchaser, the seller may in equity follow the proceeds of the resale so long as they in tvxrn have not come into the hands of a bona fide pur- chaser,^"" provided they can be traced and identified.^"^ St. Rep. 353; Starr v. Stevenson, 91 Iowa, 684, 60 N. W. 217; Schloss V. Feltus, 108 Mich. 525, 61 N. W. 707, 36 L. U. A. 161; Woonsocket Rubber Co. v. Loewenberg, 17 Wash. 29, 48 Pac. 785', 61 Am. St. Kep. 902; Belleville Pump & Skein Works v. Samuelson, 16 Utah, 234, 52 Pac. 282. Contra: Shufeldt v. Pease, 16 Wis. 659; Butters v. Haughwout, 42 111. 18, 89 Am. Dee. 401. 97 Goodwin v. Loan & Trust Co., 152 Mass. 189, 199, 25 N. E. 100; Edson v. Hudson, 83 Mich. 450, 47 N. W. 347; Phenix Iron Works Co. v. McEvony, 47 Neb. 228, 66 N. W. 290, 53 Am. St. Rep. 527; Reid, Murdoch & Co. v. Bird, 15 Colo. App. 116, 61 Pac. 353; Adam, Meldrum L% Anderson Co. v. Stewart, 157 Ind. 678, 61 N. E. 1002, 87 Am.' St. Kep. 240; Phelps, Dodge & Palmer Co. r. Samson, 113 Iowa, 145, 84 N. W. 1051. To vest a mortgagee with the rights of an innocent purchaser, a pre-existing debt is not sufficient; but, if any sum is paid at the time of tlie execution of the mortgage, the mortgagee may be protected to that extent. Commercial Nat. Bank y. Pirie, 82 Fed. 799, 27 C. C. A. 171. 88 Norton, Bills & Notes (3d Ed.) 310. 8 9 Sales Act, § 76 (1). 10 American Sugar Refining Co. y. Fancher, 145 N. T. 552, 40 N. E. 206, 27 L. R. A. 757; Sheffield y. Mitchell, 31 App. Div. 206, 52 N. Y. Supp. 925. In American Sugar Refining Co. v. Fancher, supra, where the goods were resold and the original seller rescinded. It was held that equity had jurisdiction to follow the proceeds into the hands of the fraudulent buyer's assignee for the benefit of creditors and subject them to a lien in favor of the defrauded seller. 101 Farwell v. Kloman, 45 Neb. 424, 63 N. W. 798. 196 FRAUD AND RETENTION OF POSSESSION. (Ch. 5 Same — Fraudulent Impersonation. A sale, however, is to be distinguished from a mere delivery of possession induced by fraud ; for in the latter case the per- son obtaining possession acquires no property in the goods, and can pass none to a third person, howrever innocent. ^"^ Thus where a person obtains goods by fraudulently impersonating a third person,^"' or by pretending to be the agent of a third per- son,^"* to whom the owner supposes he is selling the goods, the person thus obtaining the goods acquires no title, and a bona fide purchaser from him stands in no better position. In such a case there is no contract at all, as the seller never consented to sell to the person to whom he delivered the goods. 10 2 Baehr v. Clark, 83 Iowa, 313, 49 N. W. 840, 13 L. E. A. 717. 103 CuDdy V. Lindsay, 3 App. Cas. 459; Loeffel v. Pohlman, 47 Mo. App. 574. In Cundy v. Lindsay, supra, one A. Blenkarn wrote to plaintiffs, proposing to buy goods of them. The letters were headed "37 Wood Street," and the signature, "Blenkarn & Co.," was written to re- semble "Blenkiron & Co." ; there being a reputable firm of "W. Blen- kiron & Son" at 123 Wood street Plaintiffs, who knew the reputa- tion of W. Blenkiron & Son, but not their street number, sent the goods to "Blenkiron & Co.," 37 Wood Street, and Blenkarn sold the goods to defendants, who were bona fide purchasers. In the action for conversion, it was held that plaintiffs could recover; they having no knowledge of and not intending to deal with Blenkarn, but with Blenkiron & Co., and no contract of sale having existed with Blen- karn. Compare Edmunds v. Transportation Co., 135 Mass. 283, where A. in person represented to the seller that he was B., a man of credit, and the seller, relying on the representation, sold goods to him, and it was held that the property passed; there being a contract, though voidable between the parties, and the seller intending to con- tract with the person identified by sight and hearing. io4Higgons V. Burton, 20 Law J. Exch. 342; Hardman v. Booth, 1 Hurl. & C. SO.^., 32 Law J. EXch. 105; Moody v. Blake, 117 Mass. 23, 19 Am. Rep. 394; Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 5.5 .Vm. Kep. 439; Barker v. Dinsmore, 72 Pa. 427, 13 Am. Rep. 697; Hamet v. Letcher, 37 Ohio St. 350, 41 Am. Rep. 519; McCrilJls v. Allen, 57 Vt. 505; Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 307. See, also, Kinsey v. Leggett, 71 N. Y. 387; Rogers v. Dutton, 182 Mass. 187, 65 X. B. 50; Smith Premier Typewriter Co. v. Stidger, 18 Colo. App. 261, 71 Pac. 400. If the buyer makes no false representation, he can give good title, although the seller supposed he was buying as agent for another. Stoddard v. Ham, 129 Mass. 383, 37 Am. Rep. 369; ante, p. 52. §§ 58-59) FKADD ON CREDITORS. 197 Rescission must be Within a Reasonable Time. What is a reasonable time after the discovery of the fraud depends on the circumstances of the case.^"" Mere lapse of time will furnish evidence, and, when the lapse of time is great, probably conclusive evidence, of affirmance/"' If in the meantime the superior rights of third persons have inter- vened, or the position of the other party has altered to his dis- advantage, the defrauded party would be deprived of his right to rescind.^""' FRAUD ON CREDITORS— RETENTION OF POSSESSION. 5S. IN GENERAIi. Ajsale made with the intent on the part of the sellei^'and Jthe buyer to delay, hinder, or de- fraud the creditors of the seller is deemed fraudulent, and may be avoided by such creditors, unless a third person has in good faith and for value acquired aji in- terest in the goods sold. A sale fraudulent as to cred- itors is valid as betnreen the parties, and a bona fide purchaser for value from the fraudulent buyer before avoidance acquires an indefeasible title. 59. RETENTION OF POSSESSION. -Where a person, hav- ing sold goods, continues in the possession of them, in some jurisdictions it is held by the courts or is enacted that such retention of possession is conclu- sive evidence of fraud; while in other jurisdictions it is held or enacted that such retention of possession is prima facie evidence of fraud, but that the good faith of the transaction may be show^u. 106 Smith V. Bank, 45 Neb. 344, 63 N. W. 796; Boles v. Merrill, 173 Mass. 491, 53 N. B. 894, 73 Am. St. Eep. 308. 106 Clough V. Railway Co., 7 Excli. 26; Byrd v. Rautman, 85 Md. 414, 36 At!. 1099. loT Olough V. Railway Co., L. R. 7 (Exch. 2,6, 35; Pence t. Lang- don, 99 TJ. S. 578, 25 L. Ed. 420; Grymes v. Sanders, 93 U. S. 55, 62, 23 L. Ed. 798; Williamson v. Railroad Co., 28 N. J. Bq. 277, 293; Id.. 29 N. J. Eq. 311, 319; Willoughby v. Moulton, 47 N. H. 205; Burton v. Stewart, 3 Wend. (N. Y.) 239, 20 Am. Dec. 692; Herriu V. Libbey, 36 Me. 357; Chamberlin v. Fuller, 59 Vt. 247, 9 Atl. 832; Wilson V. Fisher, 5 Houst (Del.) 395; Bassett v. Brown, 105 Mass. 551, 557; ETvans v. Montgomery, 50 Iowa, 325; Hall v. FuUerton, 69 111. 448; Parmlee v. Adolph, 2S Ohio St. 10; Collins v. Townsend, 58 Cal. 608; Perry v. Pearson, 135 111. 218, 25 N. E. 636; Snyder v. 198 FRAUD AND RETENTION OF POSSESSION. (Ch. 5 The foundation of the law on this subject is usually consid- ered to be the statute of 13 Eliz. c. 5,"' made perpetual by the statute of 29 Eliz. c. 5, although earlier statutes had been previously passed, and it has been said upon high authority that the principles of the common law are so strong against fraud that without these statutes every end proposed by them would have been obtained.^"" The statute of 13 Eliz. c. 5, pro- vides in substance that all conveyances and sales of land or chattels made with intent to delay, hinder, or defraud creditors shall be utterly void and of no effect against them, with a pro- viso that the act shall not extend to defeat any estate or in- terest conveyed upon good consideration and bona fide to any person not having at the time of such conveyance notice of the fraud. The statute has been substantially re-enacted in many of the states of the Union, but its principles have been adopted even in states where no such statute has been passed. ^'■'' Hegan, 40 S. W. 693, 19 Ky. Law Rep. 517; Clark, Cont. (2d Ed) 236. los "For the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, as vcell of lands and tenements as of goods and chattels, * * * devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful ac- tions, suits, debts: * * * be it therefore declared, ordained and enacted that all and every feoffment, gift, grant, alienation, bargain,, and conveyance of land, tenements, hereditaments, goods, and chat- tels, * * * and also every bond, suit, judgment, and execution * * ♦ had or made to or for any intent or purpose before declared and expressed shall be from henceforth deemed and taken (only against that person or persons, • * * -^'hose actions, suits, debts, « * * by such guileful, covinous, or fraudulent devices and prac- tices, * * * are * * * in any v,ays disturbed, hindered, delayed, or defrauded) to be clearly and utterly void. • * *" St. 13 Eliz. c. 5. 109 Cadogan v. Kennett, 1 Cowp. 432, per Lord Mansfield; Hamilton V. Russel, 1 Oranch (U. S.) 300, 31G, 2 L. Ed. 118, per Marshall, C. J. ; Sturtevant v. Ballard, 9 Johns. (N. Y.) 337, 338, 6 Am. Dec. 2S1, per Kent, C. J. 110 Dyer v. Homer, 22 Pick. (JIass.) 258; Butler v. Moore, 73 Me. 151, 40 Am. Rep. 048. By force of the common law, transfers of goods and chattels with intent to defraud creditors are voidable, though "goods and chattels" are not named in the Minnesota stat- ute. Byrnes v. Volz, 53 Minn. 110, 54 X. W. 942. §§ 58-59) FRAUD ON CREDITORS. 199 Mutual Intent to Defraud. A sale is not fraudulent against creditors unless the intent to delay, hinder, or defraud them is shared ^xl!lS-S!^S3J^66 as well as by the debtor. ^^^ Therefore the mere intent on the part of the debtor to defeat a creditor will not avoid a sale as fraud- ulent, if it be made bona fide and for a valuable consideration/" It is sufficient if the consideration be a past indebtedness. For it is not fraudulent at common law to prefer one creditor to another. If the debtor is unable to pay all his debts, he commits no fraud (in the absence of statutory provisions reg- ulating the distribution of insolvent estates) by appropriating his property to the satisfaction of one or more of his creditors to the exclusion of all others. ^^^ Nor does it make any dif- ference that both debtor and creditor know that the effect of such appropriation will be to deprive other creditors of the power of reaching the debtor's property by legal process in satisfaction of their claims, or that such is actually the intention of the debtor; provided there is no secret trust agreed upon or understood between the debtor and creditor in favor of the former, and that the sole object of the latter is to obtain pay- ment or security for his debt.^^* But if the purpose of the debtor is to defraud his creditors, and that purpose is partici- pated in by the preferred creditors, although the principal pur- pose of the conveyance is to secure a bona fide debt of the lat- in Rindskopf V. Myers, 87 Wis. 80, 57 N. W. 967. 112 Wood V. Dixie, 7 Q. B. 892; Darvill v. Terry, 6 Hurl. & N. 807, 30 Law J. Exch. 355; Beurmann v. Van Buren, 44 Mich. 496, 7 N. W. 67. Creditors cannot complain of a transfer of exempt prop- erty. Bresnalian v. Nugent, 92 Mich, 76, 52 N. W. 735; Nash v. Stev- ens, 96 Iowa, 616, 65 N. W. 825. iisHolbird v. Anderson, 5 Term R. 235; Marbury v. BrooliS, 7 Wheat (U. S.) 556, 5 L. Ed. 522; Broolis v. Marbury, 11 Wheat. (U. S.) 78, 6 L. Ed. 423; Smith v. Slieary, 47 Conn. 47; Ferguson v. Spear, 65 Me. 277; Yorls County BanL: v. Carter, 38 Pa. 446, 80 Am. Dec. 494: Gage v. Chesebro, 49 Wis. 486, 5 N. W. 881; Butler v. White, 25 Minn. 432, ii^Banfleld v. Whipple, 14 Allen (Mass.) 13, 15; Oarr t. Briggs, 156 Mass. 7S, 81, 30 N. E. 470; Dudley v. Danforth, 61 N. Y. 626; Hessing v. JloOloskey, 37 111. 341; Sexton v. Anderson, 95 Mo. 373, 8 S. W. .^.64; Hirsch v. Richardson, 65 Miss. 227, 3 South. 569 ; Jewel] V. Knight, 123 U. S. 426, 434, 8 Sup. Ct. 193, 31 U Ed. 190; Nichols V. Bancroft, 74 Mich. 191, 41 N. W. 891. 200 FRAUD AND RETENTION OF POSSESSION. (Ch. 5 ter, the conveyance is wholly void as to the creditors intended to be defrauded.^^' In respect to the necessity of mutual fraudulent intent, con- veyances for a valuable consideration differ from voluntary con- veyances. The latter may be avoided where a fraudulent intent on the part of the debtor exists, although the grantee did not share it.^^° Retention of Possession. Whether a transfer of goods is bona fide or fraudulent is now generally held to be a question of fact for the jury. Few questions in the law, however, have given rise to greater con- flict of authority than that of the effect of retention of possession by the grantor upon the bona fides of the transaction. Reten- tion of possession and use by the grantor was resolved in Twyne's Case,^^^ the leading case upon the subject of fraudu- lent conveyances, to be a sign of fraud. In Edwards v. Har- ben,^^* it was held that if there be nothing but the absolute con- veyance without transfer of possession, the transaction is in point of law fraudulent; but later decisions in England es- tablish the proposition that continued possession is a fact to be considered by the jury as evidence of fraud, but it is not fraud per se.^^° Probably the prevailing view in the United States, where the question is unaffected by statute, is that retention of pos- session is prima facie evidence of fraud, but that the good faith of the transaction may be shown; ^^" but in some jurisdictions 110 Harris v. Sumner, 2 Pick. (Mass.) 137; Crowninshield v. Kit- tridge, 7 Mete. (Mass.) 520; Bean v. Smith, 2 Mason (U. S.) 252, Fed. Cas. No. 1,174. 113 Blake v. Sawin, 10 Allen (Mass.) 340; Young v. Heermans, 66 N. Y. 374; Laughton v. Harden, 68 Me. 20S; Wilson v. Spear, 68 Vt. 14.">, 34 Atl. 420. 11 T 3 Coke, SOb; 1 Smith, Lead. Cas. 1. 118 2 Term, R. 5S7. 110 Martindale v. Booth, 3 Barn. & Add. 498; Cookson v. Swrie, 9 App. Cas. (i.-iS, fl("14, per Lord Blackburn, who points out that it was to put a slop to the evils growing out of this rule that the bilU of sales acts were passed,— acts of similar character to the chattel mortgase acts in this country. i2o" Crawford v. Neal. 144 V. S. .585, 12 Sup. Ct. 759, 36 L. Ed. ri.-i2; Brooks v. Powers, 15 Jlass. 247, 8 Am. Dec. 99; Allen v. §§ 58-59) FRAUD ON CREDITORS. 201 it is held that retention of possession is conclusive proof of fraud.^"^ In many states statutes have been passed, some de- claring sales without transfer of possession fraudulent,^^^ and others declaring them merely prima facie fraudulent.^^' In jurisdictions where the rule prevails that retention of posses- sion is only prima facie evidence of fraud, some courts hold that a constructive delivery, as by an agreement on the part of the seller to hold as bailee, is sufficient,^^* and other courts de- clare that, if the subject of sale is not reasonably capable of de- livery, a "constructive deliver}^* is sufficient, giving a somewhat loose construction to that term.^^' Perhaps the true rule is, i where there is no actual delivery, that the nature of the goods and the impossibility or difficulty of transferring possession, and the situation of the parties, with all other circumstances tending to show that the possession after the sale was in pur- Wheeler, 4 Gray (Mass.) 123; Briggs v. Weston, 36 Fla. 629, 18 South. 852; Smith v. Jones, 63 Ark. 232, 37 S. W. 1052; Goodwin V. Goodwin, 90 Me. 23, 37 Atl. 352, 60 Am. St. Rep. 281; Teague V. Bass, 131 Ala. 422, 31 South. 4. 121 Hatstat V. Blakeslee, 41 Conn. 302; Parker v. Marvell, 60 N. H. 30; Weeks v. Prescott, 53 Vt. 57; Stephens v. Gifford, 137 Fa. 219, 20 Atl. 542, 21 Am. St. Rep. 808; Lehr v. Brodbeck, 192 Pa. 535, 43 Atl. 1006, 73 Am. St Rep. 828; Hadden v. Dooley, 92 Fed. 274, 34 0. C. A. 338. It is immaterial that the creditor has notice of the sale. War- wick Iron Co. V. Bank (Pa.) 13 Atl. 79. See, also, Ferrin v. Reed, 35 Vt 2; Lawrence v. Burnham, 4 Nev. 361, 97 Am. Dec. 540; Bas- singer v. Spangler, 9 Colo. 175, 10 Fac. 809. 12= See Stanley v. Coke Co., 24 Colo. 103, 49 Pac. 35; George v. Matonni, 123 Cal. 172, 55 Pac. 775, 56 Fac. 53; State v. Goetz, 131 Mo. 675, 33 S. W 161; Howard v. Dwight, 8 S. D. 398, 66 N. W. 935. 123 See Kipp V. Lamoreaux, 81 Mich. 299, 45 N. W. 1002; Hop- kins V. Bishop, 91 Mich. 328, 51 N. W. ,902, 30 Am. St Rep. 480; Mackellar v. Pillsbury, 48 Minn. 390, 51 N. W. 222; Philips v. Reitz, 16 Kan. 390; Densmore Commission Co. v. Shong, 98 Wis. 380, 74 N. W. 114; JVIenken v. Baker, 40 App. Div. 609, 57 N. Y. Supp. 541, af- firmed 166 N. Y. 628, 60 N. E. 1116; Higgins v. Spahr, 145 Ind. 167, 43 N. E. 11; Conrad v. Smith, 6 N. D. 337, 70 N. W. 815. See, also, Williston, Gas. Sales, 384, note. 124 Shaul V. Harrington, 54 Ark. 305, 15 S. W. 8S5; Hight v. Har- ris, 56 Ark. 98, 19 S. W. 235. Contra: Seavey v. Walker, 108 Ind. 78, 9 N. B. 347. i2BLathrop v. Clayton, 45 Minn. 124, 47 N. W. 544. 202 FRAUD AND EETENTION OF POSSESSION. (Ch. 5. suance of some agreement not inconsistent with tlie honesty o{ the transaction, are admissible in evidence to show its good faith. ^-° In jurisdictions where the retention of possession by the seller is conclusive proof of fraud, retention of possession in accordance with the terms of the transfer is generally im- material, and an_actJial_deliYery is required, unless the subject of the sale is not reasonably capable of an actual delivery, in which case it is only necessary that the buyer should assume control of the subject, so as reasonably to indicate to all con- cerned the fact of the change of ownership. '■^^ A full con- sideration of the conflicting decisions concerning the effect of re- tention of possession and of the various statutory provisions cannot be attempted in an elementary book.^^' In some jurisdictions the rule prevails that delivery, actual or constructive, is necessary to perfect the title of the buyer as against bona fide subsequent purchasers and attaching credit- ors,'^^" and the question how far delivery is essential to trans- fer title is to be distinguished from the question how far re- tention of possession by the seller is fraudulent. It is to be observed that many of the statutes which deal with the effect of retention of possession include bona fide pur- chasers among those as to whom the sale is to be deemed fraud- ulent."" 126 See IngaIls_v._Herrick, 108 Mass. 351, 11 Am. Eep. 360. 127 IMfKibbln v. Martin, Qi Pa. 352, 3 Am. Rep. 588; Lehr v. Brod- beck. V,r2 Pa. 535. 43 Atl. 1006, 73 Am. St. Rep. 82S. 128 Sales Act, § 20, does not attempt to lay down a uniform rule as to the effect of retention of possession, but simply provides in ef- fect that, if under the local rule the retention is fraudulent, the sale is void as to creditors. 12 Post, p. 204. 130 Thus the Minnesota statute provides: "Every sale by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same is accom- panied by an immediate delivery, and followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor or assignor and subsequent purchasers In good faith, unless those claiming under such sale or assignment make it ap- pear that the same was made in good faith, and without any intent to hinder, delay, or defraud such creditors or purchasers." Rev. Laws 1905, § 3496. §§ 58-59) FRAUD ON CKEDITOE8. 203 Who are Creditors. A sale may be fraudulent as to subsequent as well as exist- ing creditors ; and, if it is fraudulent as to existing creditors, it may be avoided by subsequent creditors. ^'^ The term "credit- ors" includes persons having claims sounding in tort.^'* Effect of Fraud. Sales vi^hich are fraudulent as to creditors are nevertheless valid between the parties, who are not allowed to defeat them by alleging their own fraud. ^''^ And, although the statute declares that such sales shall be void, they are in fact merely voidable, at the option of the defrauded creditors. And, therefore, as in the case of sales voidable by one of the parties for the fraud of the other, bona fide purchasers for value from the fraudulent buyer before avoidance acquire an indefeasible title. ^^* A fur- ther illustration of the voidable character of the transaction is the right which the buyer has to purge it of the fraud by the payment, before avoidance, of an adequate consideration.^^' I'lDay V. Cooley, 118 Mass. 524; McLane v. Jolinsoii, 43 Vt. 48; Hook v. Mowre, 17 Iowa, 195; Jones v. King, 86 111. 22.7.; Plunk- ett V. Plunkett, 114 Ind. 484, 16 N. E. 612, 17 N. E. 562; Byrnes v. Volz, 53 Minn. 110, 54 N. W. 942. 132 Damon v. Bryant, 2 Pick. (Mass.) 411; Jackson v. Jlyers, 18 Johns. (N. Y.) 425." A wife suing for a divorce and alimony is a "creditor." Byrnes v. Volz, 53 Minn. 110, 54 N. W. 942. See, also, Livermore v. Boutelle, 11 Gray (Mass.) 217, 71 Am. Dec. 708. 133 Dyer v. Homer, 22 Pick. (Mass.) 253; Harvey v. Var)|iey, 98 Mass. 118; Osborne v. Moss, 7 Johns. (N. Y.) 161, 5 Am. Dec. 252; Telford v. Adams, 6 Watts (Pa.) 429 ; Carpenter v. McClure, 39 Vt. 9, 91 Am. Dec. 370; Springer v. Drosch, 32 Ind. 486, 2 Am. Rep. 356; Clemens v. Clemens, 28 Wis. 637, 9 Am. Rep. 520; Butler v. Moore, 73 Me. 151, 40 Am. Rep. 348; Gary v. Jacobson, 55 Miss. 204, 30 Am. Rep. 514. Contra: Nellis v. Clark, 20 Wend. (N. Y.) 24; Id., 4 Hill (N. Y.) 424; Church vT "Muir, 33 N. J. Law, 318; Gross v. Gross; 94 Wis. 14, 68 N. W. 469. 134 Bean v. Smith, 2 Mason (U. S.) 252, Fed. Oas. No. 1,174; Green V. Tanner, 8 Mete. (Mass.) 411 ; Anderson v. Roberts, 18 Johns. .iN^)_515,_9 Am- I^ec- 235; Neafv. Williams, 18 Me. 301; Comey vTTickenng, 63 N. H. 126; Gordon v. Ritenour, 87 Mo. 54. 135 Oriental Bank v. Haskins, 3 Mete. (Mass.) 332, 37 Am. Dec. 140; Hutchins v. Sprague, 4 N. H. 469, 17 Am. Dec. 439; Bean v. Smith, 2 Mason (U. S.) 252, 278, Fed. Cas. No. 1,174. Contra: Merrill v. Meachum, 5 Day (Conn.) 341; Preston v. Crofut, 1 Conn. 527, note; Roberts v. Anderson, 3 Johns. Ch. (N. Y.) 371. 204 FRAUD AND BETENTION OF POSSESSION. (Ch. 5 HOW FAR DELIVERY IS ESSENTIAL TO TRANSFER OF PROPERTY AGAINST CREDITORS AND PUR- CHASERS. 60. In some states, in exception to the general principle that delivery is not essential to the transfer of the property, a, rule prevails that delivery is essential to such transfer as against bona fide purchasers and attaching creditors fvithout notice. While it is universally held that delivery is not necessary to transfer the property in the goods sold as between seller and buyer/^° a rule prevails in some states, as has already been pointed out, that delivery is necessary to transfer the property as against subsequent purchasers and attaching creditors with- out notice of the prior sale. A discussion of this rule, though logically falling under the head of the transfer of the property, can more conveniently be made here. The question how far delivery is essential to a transfer of the property against purchasers and attaching creditors is to be dis- tinguished from the question how far retention of possession is fraudulent as to creditors.^''' Even in jurisdictions which agree upon the rule that delivery is necessary for a transfer of the property against purchasers and attaching creditors, varying rules prevail as to the effect of retention of possession as evidence of fraud. ^'' The leading case in support of the rule that delivery is necessary to transfer the property as against subseqeuent purchasers and attaching creditors is Lan- 136 Ante, p. 121 et seq. i37 Ante, p. 200. 138 For example, in Massachusetts, the continuance of the seller in possession is not of itself enough to render the sale void as fraudulent, but is a fact to be considered as evidence of fraud, which ma.v be rebutted by proof that it was a sale for value and in good faith, and that possession was retained under an agreement not inconsistent with honesty in the transaction. Brooks v. Powers, 15 JIass. 247, 8 Am. Dec. 99; Shurtleff v. Willard, 19 Pick. 202. 211; Green v. Rowland, 16 Gray, 58; Usher, Sales, § 202; and cf. Id. § 140 et seq. The rule in Maine is the same. Reed v. .Tewett, 5 Greenl. (Me.) 96. In Xew Hampshire, if the seller fails to e.^plain the want of change, it is conclusive evidence of fraud. Coburn v. Pickering, 3 N. H. 42S: Ooolidge v. Melvin, 42 N. H. 516. See 19 Harv. Law Ilev. pp. 5('>9, 570. § 60) DELIVERY AS TO CREDITORS AND PURCHASERS. 205 fear v. Sumner,^ ^^ in which an assignment of tea then on a ship at sea was made to a bona fide creditor, and upon its arrival, and before the assignee could take possession, the tea was at- tached by a second creditor without notice of the prior as- signment. In an action of trover by the assignee against the sheriff, who levied the attachment, it was held that the want of delivery was fatal to the plaintiff's title. The court said : "De- livery of possession is necessary in a conveyance of personal chattels as against every one but the vendor. When the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold against the other." This case has been followed in Massachu- setts ^^^ and some other states,^*^ though the rule is opposed to the general principle, elsewhere recognized, that delivery is not essential to a transfer of the property.^*^ A leading case against this rule is Meade v. Smith,^*' in which the seller gave a bill of sale to the buyer, both parties being in New York, and the buyer went at once to Connecticut, where the goods were, to take possession, but in the meantime they had been attached by a creditor of the seller without notice of the prior sale, and it was held that the sale was not invalid for lack of delivery, there being no want of diligence on the part of the buyer in taking possession. "This claim proceeds," said Storrs, J., "on the ground, not that the want of a change of possession furnishes evidence of fraud in the sale, and that but for such 139 l7_Mass. 110, 9 Am. Dee. 119. 140 Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389; Hall- garten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433. 1*1 Fairfield Bridge Oo. v. Nye, 60 Me. 372; Reed v. Reed, 70 Me. 504; Cummings v. Gilman, 90 Me. 524, 38 Atl. 538; Crawford v. Forristall, 58 N. H. 114; Burnell v. Robertson, 5 Gilman (111.) 2S2; Huschle v. Morris, 131 III. 587, 23 N. B. 643. See, also, Jewett T. Lincoln, 14 Me. 116, 31 Am. Dec. 36; Winslow v. Leonard, 24 Pa. 14, 62 Am. Dec. 364; Kirven v. Pinckney, 47 S. C. 229, 25 S. E. 202. 142 Ante, p. 121. See Meyerstein v. Barber, L. R. 2 C. P. 38, 51; Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433; per Holmes, J.; Smith V. Jones, 63 Ark. 232, 37 S. W. 1052. 143 16 Conn. 346. This case seems not inconsistent with the rule prevailing in Connecticut that retention of possession is usual- ly conclusive evidence of fraud. See Hatstat v. Blakeslee^ 41 Gonn. 301. 206 FRAUD AND RETENTION OF POSSESSION. (Ch. 5 fraud the property would pass to the vendee, as against such purchasers and creditors, but that, as to them, there is no transfer of the property notwithstanding there be no fraud by ■reason of such want of possession ; in otlier words, that as to them, before such change of possession, the title of the vendee is merely inchoate and incomplete." And the decision rests upon the ground that "want of delivery to, or of the continu- ance of possession by, the vendee, is in no case considered in any other light than as furnishing evidence of fraud in the sale ; and where, for want of such delivery or continuance of possession, the sale has been pronounced void, it was only on the ground of such fraud." The rule requiring delivery, unlike that which makes reten- tion of possession evidence of fraud, does not operate in favor of purchasers or creditors who have notice of the sale.^** It is to be observed that, so far as concerns bona fide purchasers, the law in England has been changed by statute, and the rule now is in effect that, while delivery is not necessary as between the parties, it is necessary as against such purchasers.^*" What Constitutes Delivery. Where the rule of Lanfear v. Sumner prevails, if the trans- fer is bona fide and for a valuable consideration, very slight evidence is necessary to give a preference to a bona fide buyer as against an attaching creditor of the seller.^*^ If the buyer obtains possession before any attachment or second sale, the transfer is complete without formal delivery.'^*^ A delivery of a part in token of the whole is a sufficient constructive delivery, 144 Ludwig V. Fuller, 17 Me. 162, 3.7 Am. Dec. 245; Haskell v. Grcely, 3 Ci-oenl. (Me.) 425. But notice to the officer holding the writ before .service, but uncommunicated to the attaching creditor, is not notice to such creditor. McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200. 115 Sale of Goods Act, § 25 (1). This change was first intro- duced by the Factors' Act of 1889 (St. r,2 & .53 Vict. c. 45, § 8).. This section is substantially followed in the proposed American Sales Act, § 2.J. Ante, p. 32. 110 Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340; Har- dy V. Fotter, 10 Gray (Mass.) 89; Stinson v. Olark, S Allen (Mass.) :U0; Ini'iills V. Herrick, 108 Mass. 351, 11 Am. Rep. 360; In re Pease Gar & Locomotive Works (D. C.) 134 Fed. 919. 147 Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340. § 60) DELIVERY AS TO CKEDITOKS AND PURCHASERS. 207 although the goods are in the possession of various persons.^*' And where there can be no manual delivery, as in the case of goods at sea, a symbolical delivery, as of a bill of lading, is a good delivery.^*' So the delivery of a bill of sale of a ship at sea is valid, provided the buyer takes actual possession as soon as he reasonably can.^^" The delivery of the key of a warehouse where the goods are stored is a good delivery.^""- If the goods are in the possession of the seller, it is enough if he agrees to hold as bailee for the buyer.^''^ If they are in the pos- session of a third person, it is enough if notice of the sale is giv- en to him and he does not dissent.^'*' But the mere delivery of a bill of sale without delivery, actual or constructive, is not enough.^"* Some of these cases are hard to reconcile with the statement of Holmes, J., in a recent case,^'*° that the de- livery required by the rule in Lanfear v. Sumner is delivery in its natural sense, — that is, change of possession, — for it is generally held, in connection with other branches of sale, that mere notice to a bailee without his attornment does not con- stitute delivery. In the latter case it was held that the indorse- ment and delivery by the bailor of a receipt for goods stored in a private warehouse, making the goods deliverable to the bailor on the payment of charges, but not to his order, did not pass the title as against a creditor attaching the goods before notice to and attornment by the bailee. lis Legg V. Willard, 17 Pick. (Mass.) 140, 28 Am. Dec. 282; Hobbs V. Carr, 127 Mass. 532. And see Parry v. Llbbey, 166 Mass. 112, 44 N. E. 124. 149 Pratt V. Parkman, 24 Pick. (Mass.) 42. 150 Carter v. Willard, 19 Pick. (Mass.) 1, 9, 11; Conard v. Insur- ance Co., 1 Pet. (U. S.) 386, 389, 7 L. Ed. 189; Wheeler v. Sumner, 4 aiason (U. S.) 183, Fed. Oas. No. 17,501. 151 Packard v. Dunsmore, 11 Gush. (Mass.) 282; Vlning v. GUbreth, 39 Me. 496. 162 See Ingalls v. Herrick, 108 Mass. 351, 11 Am. Rep. 360. 153 Carter v. Willard, 19 PicTc^Mass.) 1; Russeir v. O'Erfen, 127 Mass. 349. And see Union Stockyard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 111. 554, 41 N. a 888, 48 Am. St. Rep. 341. 154 Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389; Farrar V. Smith, 64 Me. 74. i56Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433. See^ also. Gill v. Frank, 12 Or. 507, 8 Pac. 764, 53 Am. Rep. 378. 208 ILLEGALITT. (Ch. 6 CHAPTER VL ILLEGALITY. 61-62. In General. 63-64. Sales Prohibited by Common Law. 65. Sales Prohibited by Statute. 66-68. Effect of Illegality. 69. Conflict of Laws. IN GENERAIfa 61. An agreement Is not enforceable at lair, and therefore does not resnlt in a contract, if its object is illegal. 62. CLASSIFICATION OF UNLAAVFTJL SALES. Unlawful sales may be classified as sales prohibited hj— (a) The common laiir, or (b) Statute. To result in a contract, an agreement must create an obliga- tion; and it does not create an obligation if it be such that the courts cannot enforce it. An agreement, therefore, which is illegal or unlawful, is in fact no contract at all, although it is often spoken of as an illegal contract.^ Certain limitations are imposed by law upon the freedom of contract. Certain con- tracts of sale, either because of the subject-matter of the sale, or because of the purpose for which the sale is entered into, or because certain requirements of the law have not been complied with, or because of other reasons, are prohibited. If an agree- ment to sell contemplates an illegal sale, the law will not en- force the agreement, although all the other elements nec- essary to the formation of a valid contract may be present. If the agreement has been executed, by the delivery of the goods or the payment of the price, the court will not as a rule lend its aid to either party to recover what he has paid or de- livered. The effect of the illegality upon the rights of the parties, however, will be considered later.^ The modes in which the law expresses its disapproval of 1 Clark, Cont. (2d. Ed.) 254. » Post, p. 219. §§ 63-64) SALES PROHIBITED BY COMMCN LAW. 209 certain contracts may be roughly described as prohibition (1) by express rules of the common law ; (3) through the interpre- tation of the courts of the policy of the law; and (3) by stat- ute. The first two are not easy to distinguish because certain of the rules which have been formulated by the courts on mat- ters of public policy have become in effect rules of the common law.^ So far as concerns the law of sales, the subject may be discussed under the first and third heads. sai.es prohibited by common law. 63. An agreement to sell is illegal at common lavr if the thing to be sold is in itself contrary to good morals or de- cency. 64. Although the thing to he sold is innocent in itself, the agreement is illegal— (a) If it provides that the thing is to be applied to an il- legal purpose. (b) If the buyer intends to apply the thing to an illegal purpose, and the seller does some act in aid of such purpose. (c) If the buyer intends to apply the thing to a purpose in- volving a heinous crime, and the seller knours of such intention. (d) In some states, if the sale is made by the seller -with a vieur to the buyer's illegal purpose. In most jurisdictions, mere hnourledge on the seller's part that the buyer intends to apply the thing to an illegal purpose does not render the sale illegal. Sale of Things Contrary to Good Morals. A general rule of the common law is summed up in the maxim, "Ex turpi causa non oritur actio." Therefore the sale of a thing which is in itself contrary to good morals or public decency cannot become the basis of an action. Sales of an obscene book,'* and of indecent prints or pictures," have been de- 3 Anson, Cont 163; Oark, Ck)nt. (2d Ed.) 2.55. Sales prohibited by public policy are said to include: (1) Sales of offices; (2) sales by wbicli the seller is unreasonably restrained in carrying on his trade; and (3) sales of lawsuits. These subjects have little con- nection with the sale of goods, and need not be here considered. See Benj. Sales, §§ 512-529; Clark, Cont. (2d Ed.) 281 et seq. 4 roplett V. Stockdale, Ryan & M. 337. -" Fores v. Johnes, 4 Esp. 97. TirF.SAi,ES(2D Ed.)— 14 210 ILLEGALITY. (Ch. 6 clared illegal and void at common law,' although upon this point there have been few decisions. Sale of Innocent Thing for Unlawful Purpose. Whether the sale of a thing in itself an innocent and proper article of commerce, when the seller knows that it is intended to be used for an immoral or illegal purpose, is valid, is a ■question on which the authorities disagree, although the deci- sions in this country are fairly reconcilable. The earlier English cases held that something more than mere knowledge on the part of the seller of the illegal purpose was necessary, and that there must be evidence of an intention on his part to aid in the illegal purpose or to profit by the immoral act.' Thus, where clothes were sold to a prostitute, with knowledge that they were for the purpose of enabling her to pursue her calling, it was held that this was not enough, but that it must appear that the seller expected to be paid out of the profits of her prostitution, and that he sold the clothes to en- able her to carry it on, so that he might appear to have done something in furtherance of it.' And so, in an action for the price of spirits sold with knowledge that the defendant in- tended to use them illegally, it was held that the plaintiff could recover, since to deprive him of his right to payment, it was necessary that he should be a sharer in the illegal transaction." But the later English cases overrule this distinction, and hold that the sale is void if the seller knows of the illegal purpose.^" Thus, where the plaintiff supplied a brougham to a prostitute, it was held not necessary to show that he expected to be paid from the proceeds of her calling; that his knowledge of her calling justified the jury in inferring knowledge of her purpose ; and that this knowledge rendered the agreement void.^^ In the United States the cases, on the whole, follow substan- 8 Benj. Sales, § 504. 7 Benj. Sales, § 506 et seq. 8 Howry v. Bennet, 1 Camp. 348. » Hodgson V. Temple, 5 Taunt. 181. 10 Pearce v. Brooks, L. E. 1 Exch. 213; Cannan v. Bryce, 3 Bam. & Aid. 179. See, also, JIcKinnell v. Robinson, 3 Mees. & W. 435; Ajison, Cont. 192; Clark, Cent. (2d Ed.) 327. 11 Tfarce v. Brooks, L. R. 1 Exoh. 213. §§ 63-64) SALES PROHIBITED BT COMMON LAW. 211 tially the earlier English doctrine, and hold that mere knowl- edge of the buyer's unlawful purpose does not invalidate the sale,^^ though all agree that the sale is void if it be a part of the contract of sale that the goods are to be used for an illegal purpose,^^ or if the seller does any act in aid of the buyer's unlawful intention, as when he packs goods in a man- ner convenient for smuggling, or conceals the form of liquor so as to enable the buyer to evade the law,^* or marks domestic sardines as French to assist the buyer in selling them as such."^' It is frequently said, however, that knowledge of the buyer's ptu-pose to use the goods in the commission of a crime which is not merely malum prohibitum or of inferior criminality stands 12 Tracy v. Talmage, 14 N. T. 162, 67 Am. Dec. 132; Sortwell v. Hughes, 1 Curt. (U. S.) 244, Fed. Cas. No. 13,177; Green v. Oollins, 3 Clife. (U. S.) 494, Fed. Cas. No. 5,755; Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205 ; Tuttle v. Holland, 43 Vt. 542 ; Cheney v. Duke, 10 Gill & J. 11: Wallace v. Lark, 12 S. C. 576, 32 Am. Eep. 516; Bickel V. Sheets, 24 Ind. 1; Webber v. Donnelly, 33 Mich. 469; Michael V. Bacon, 49 Mo. 474, 8 Am. Rep. 138; Anheuser-Busch Brewing Ass'n V. IMason, 44 Minn. 318, 46 N. W. 558, 9 D. R. A. 50C, 20 Am. St. Rep. 580; J. M. Brunswick & Balke Co. v. Valleau, 50 Iowa, 120, 32 Am. Rep. 119 ; McKinney v. Andrews, 41 Tex. 3G3 ; Delavina V. Hill, 65 N. H. 94, 19 Atl. 1000; Gambs v. Sutherland's Estate, 101 Mich. 355, 59 N. W. 652. Mclntyre v. Parks, 3 Mete. (Mass.) 207, is in line with these decisions. See, also, Dater v. Earl, 3 Gray (Mas ■.) 4S2. But there are strong intimations in the later Massachusetts cases that the law is the other way. Suit v. Woodhall, 113 Mass. 391, 395; Finch V. Mansfield, 97 Mass. 89, 92; Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446, per Holmes, .T.; Clark, Cont. (2d Ed.) 328. See, also. Reed v. Brewer, 90 Tex. 144, 37 S. W. 418; Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Fac. 145, 51 L. R. A. 889, 79 Am. St. Rep. 960; St. Louis Fair Ass'n v. Carmody, 151 Mo. 566, 52 S. W. 365, 74 Am. St. Rep. 571. 13 Tracy v. Talmage, 14 N. Y. 162, 176, 67 Am. Dec. 132; Green V. Collins, 3 Cliff. (U. S.) 494, 501, Fed. Cas. No. 5,755; Clark, Cont. 4S1. 14 Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154 ; Aiken v. Blais- dell, 41 Vt. 655; Skiff v. Johnson, 57 N. H. 475; Banchor v. Man.sel, 47 Me. 58; Kohn v. Melcher (0. C.) 43 Fed. 641, 10 L. R. A. 439; Tracy v. Talmage, 14 N. T. 162, 67 Am. Dec. 132; Arnot v. CoaJ. Co., 68 N. X. 566, 23 Am. Rep. 190; Waymell v. Reed, 5 Term R. 599. 15 Materne v. Horwitz, 50 N. T. Super. Ct. 41; Id., 101 N. Y. 409, 5 N. B. 331. 212 ILLEGALITY. (Ch. 6 on a different footing.^' Thus knowledge that goods were to be used in aid of rebellion has been held to avoid their sale.'-' A few authorities, which are scarcely to be reconciled with the weight of authority in this country, hold that the sale is void if made "with a view to" the illegal purpose, or with the inten- tion of enabling the buyer to accomplish it; ^^ but if the con- tract does not provide for such purpose, and the seller's con- nection with the transaction is confined to a sale of the goods, it is difficult to see how any line between mere knowledge of the purpose and conduct in aid of it can practically be drawn. i« Hanauer v. Doane, 12 Wall. (U. S.) 342, 20 L. Ed. 439; Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132; Howell v. Stewart, 54 Mo. 400; Russell v. Post, 138 V. S. 425, 11 Sup. Ct. 353, 34 L. Dd. 1009. " Hanauer v. Doane, 12 Wall. (U. S.) 342, 20 L. Ed. 439; Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717. By the common law, sales to an alien enemy are void. Brandon v. Nesbitt, (i Term R. 23; Potts V. Bell, 8 Term R. 548; U. S. v. Lapene, 17 Wall. (U. S.) 601, 21 L. Ed. 093; Bank of New Orleans v. Mathews, 49 N. Y. 12. 18 Webster v. Munger, 8 Gray (Mass.) 5S4; Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Davis V. Bronson, 6 Iowa, 410. "When a sale of intoxicating liquors In another state has Just so much greater approximation to a breach of the Massachusetts law as is implied in the statement that it is made with a view to such a breach, it is void. Webster v. Munger, 8 Gray OInss.) 5S4; Orcutt v. Nelson, 1 Gray (Mass.1 536, 541; Hubbell V. Flint, 13 Gray (Mass.) 277, 270; Adams v. CouUiard, 102 Muss. 167, 172, 173. * * * if the sale would not have been made but for the seller's desire to induce an unlawful sale in Elaine, it would be an unlawful sale. * * * -^e assume that the sale would have taken place whatever the buyer had been expected to do with the goods. * • * The question is whether the sale is sav- ed by the fact that the intent mentioned was not the controllin? in- ducement to it. * * * If the sale is made with the desire to help him (the buyer) to his end, although primarily made for money, the seller cannot complain if the illegal consequence is attributed to him. If tlie buyer knows that the seller while aware of his intent is indifferent to it, or dis.Tpproves of it. It may be doubtful whether the connection is sufficient. It appears to us not unrea- sonable to draw the line as was drawn In Webster v. Munger, 8 Gray (JIass.) -^84, and to say that when the illecal intent of the liuyer Is not only known to the seller, but encouraged by the sale, as just explained, the sale is void." Graves v. Johnson, supra, per Holmes, J. See, also, Wasserboehr v. Morgan, 168 Mass. 291, 47 N. E. 126. § 65) SALES PROHIBITED BT STATUTE. 213 SALES PROHIBITED BY STATUTE. 65. Among statutes prohibiting sales the folloiring are the most important: (a) Statutes regulating the conduct of trades in certain commodities, or requiring a license of persons engaged in certain kinds of business, and, by Implication, pro- hibiting sales -where the statutory provisions have not been complied \irith. (b) Statutes prohibiting absolutely or conditionally the sale of intoxicating liquors. . (c) Statutes prohibiting sales on Sunday. (d) Statutes prohibiting -nragers. This subdivision includes statutes prohibiting the selling of goods for future de- livery, irhere the parties intend, not an actual deliv- ery, but a settlement by paying the difference between the market and the contract price. Where contracts are prohibited by statute, the prohibition is sometimes express and sometimes implied, and in either case the agreement cannot be enforced. Tlie usual way by which con- tracts are prohibited by implication is by the imposition of a penalty. Some cases hold that, whenever a statute imposes a penalty for an act or omission, it impliedly prohibits the same; ^^ but, by the weight of authority, the imposition of a penalty is only prima facie evidence of the intention to prohibit. The intention of the legislature will always govern, and the court will look to the language and subject-matter of the act and to the evil which it seeks to prevent.^" A consideration which receives great weight is whether the object of the pen- alty is protection to the public as well as revenue; for, if the penalty is designed to further the interests of public policy, it 19 Miller v. Post, 1 Allen (Mass.) 434; Pray v. Burbank, 10 N. H. 377; Hallett v. Novion, 14 Johns. (N. Y.) 273; Durgin v. Dyer, 68 Me. 143; Bancroft v. Dumas, 21 Vt. 456; Mitchell v. Smith, 1 Bin. (Pa.) 110, 2 Am. Dec. 417; Bacon v. Lee, 4 Iowa, 490. 20 Cope V. Rowlands, 2 Mees. & W. 149; Miller v. Ammon, 145 TJ. S. 421, 426, 12 Sup. Ct. 884, 36 L. Ed. 7.59; Harris v. Runnels, 12 How. (U. S.) 79, 84, 13 L. Ed. 901; Bowditch v. Insurance Co., 141 Mass. 292, 295, 4 N. E. 798, 55 Am. Rep. 474; Pangborn v. Westlake, 36 Iowa, 546; Niemeyer v. Wright, 75 Va. 239, 40 Am. Rep. 720; Clark, Cont. (2d Ed.) 260. 214 ILLEGALITY. (Ch. 6 amounts to a prohibition;"^ but, if it is designed solely for revenue purposes, the contract is not necessarily prohibited.^- A second consideration, which sometimes receives weight, is whether the penalty is recurrent upon every breach of the pro- visions of the statute, for, if it is recurrent, the inference is that the penalty amounts to a prohibition."' Statutes Regulating Trade. There are numerous statutes enacted for the purpose of pro- tecting the public in business dealings, which generally im- pose a penalty for noncompliance with their provisions, and which are construed as prohibiting sales on the part of dealers who have failed to comply with them. Among these statutes may be mentioned statutes requiring dealers to have their weights, measures, or scales approved or sealed; -* statutes re- quiring goods to be marked in a particular way,"° or to be in- spected,"" or to conform to a certain weight or to certain di- mensions,"^ or to be officially weighed or measured,"^ or to be 21 Cope V. Rowlands, 2 Mees. & W. 149; Cundell v. Da-wson. 4 C. B. 376; Griffith v. Wells, 3 Denio (N. Y.) 22(5; Seidenbender v. Charles, 4 Serg. & R. (Pa.) 150; Penn v. Bornman, 102 111. 523; Bis- bee V. McAllen, 39 Minn. 143, 39 N. W. 299; Clark, Oont. (2d Ed.) 261. 22 Brown v. Dimcan, 10 Barn. & C. 93; Lamed v. Andrews, 106 Mns-!. AZr\. S Am. Rep. ?,46; Corning v. Abbott, 54 N. H. 469: Aiken V. Elaisdell, 41 "Vt. (\'>5: Ruckman v. Bergholz, 37 N. J. Law, 437; Rahter v. Bank, 92 Pa. 36.?; Mandlebaum v. Gregovich, 17 Nev. 87, 28 Pac. 121, 45 Am. Rep. 4.S3. 23 Ritchie V. Smith, 6 C. B. 462; Benj. Sales, § 538. 24 Miller V. Post, 1 Allen (Mass.) 434; Bisbee v. McAllen, 39 Slinn. 143, 39 N. W. 299; Finch y. Barclay, 87 Ga. 393, 13 S. H. 566. See, generally, as to statutes regulating a trade or business, Clark, Cont. (2(1 Ed.) 263. 2 5 Forster v. Taylor, 5 Barn. & Adol. 887; McConnell v. Kitchens, 20 S. 0. 4.30, 47 Am. Rep. 845. = 6 Requiring fertilizers to be inspected or labeled. McConnell v. Kitchens, 20 S. C. 430, 47 Am. Rep. 845: Conley v. Sims, 71 Ga. 161; Baker v. Burton (C. C.) 31 Fed. 401; Williams v. Barfleld (C. C.) 31 Fed. 308; Campbell v. Segars, 81 Ala. 259, 1 South. 714. But see Xiemeyer v. Wright, 75 Ya. 239, 40 Am. Rep. 720. 27 Law V. Hodson, 11 East, 300; Wheeler v. Russell, 17 Jlass. 25,S. 2 8 Pray v. Burbank, 10 N. H. 377; Libby v. Downey, 5 Allen (Mass.) 299. § 65) SALES PKOIilBITED BY STATUTE. 21S sold by weight and not by measure, or vice versa ;^° and statutes requiring dealers to take out a license.^" The effect of noncompliance by the seller with such statutes is to preclude him from recovering the price. Statutes Regulating Sale of Intoxicating Liquor. Where a statute prohibits the sale of liquor absolutely, a con- tract of sale is, of course, invalid. But, whether absolutely prohibitory or not, such statutes are construed as intended, not merely for revenue, but to diminish the evils of intemper- ance. Therefore, where the statute simply imposes a penalty for selling without license, the sale is void.''^ Statutes Prohibiting Sunday Sales. At common law, sales, like other contracts entered into on Sunday, are valid. ''^ In later times, however, statutes have been passed in England, and in most of the states, prohibiting certain acts on Sunday, and whether sales are included in the prohibition depends upon the terms of the particular act. Where the statute prohibits the making of contracts, sales are, of course, included. And sales are included where the prohibi- tion is against labor, work, and business, since the making of contracts is secular business; ^^ but they are not included if the 2 9 Eaton V. Kegan, 114 Mass. 433. 30 Cope V. Rowlands, 2 Mees. & W. 149; Jolinson v. Hulings, 103 Pa. 498, 49 Am. Rep. 131; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385, 16 L,. R. A. 423, 36 Am. St. Rep. 637. SI Griffith V. Wells, 3 Denio (N. Y.) 226; Aiken v. Blaisdell, 41 Vt 655; Lewis v. Welch, 14 N. H. 294; Cobb v. Billings, 23 Me. 470; Melchoir v. McCarty, 81 Wis. 252, 11 Am. Rep. 605; O'Bryau V. Fitzpatriok, 48 Ark. 487, 3 S. W. 527; Bach v. Smith, 2 Wash. T. 145, 3 Pac. 831. And see Clark, Cont. (2d Ed.) 265. 3 2 Drury v. Defontaine, 1 Taunt. 131; Richardson v. Goddard, 23 How. (U. S.) 29, 42, 16 L. Ed. 412; Adams v. Gay, 19 Vt. 358; Bloom V. Richards, 2 Ohio St. 387; Richmond v. Moore, 107 111. 420, 47 Am. Rep. 445; Brown v. Browning, 15 R. I. 423, 7 Atl. 403, 2 Am. St. Rep. 908. ssPattee v. Greely, 13 Mete. (Mass.) 284; Northrup v. Foot, 14 Wend. (N. Y.) 249; Towle v. Larrabee, 26 Me. 464; Varney v. French, 19 N. H. 233; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252; Troewert v. Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808; nm-ant v. Rhener, 26 Minn. 362, 4 N. W. 610 ; Clark, Cont (2d Ed.) 265. 216 ILLEGALITY. (Ch. 6 prohibition is merely against labor.^* Again, if the prohibition is confined to labor, work, or business of a man's "ordinary calling," a sale not in the exercise of such calling is valid.'* If the law prohibits exposure of merchandise for sale, the prohibition extends only to public sales.'* Same — Ratification of Sunday Sale. Whether a Sunday sale is capable of ratification is a ques- tion on which there is much conflict of authority. A leading case on the point is Williams v. Paul,''' in which there was a subsequent promise to pay for the goods, on the strength of which it was held that an action could be maintained.; but this decision was questioned by Parke, B.,'* on the ground that the contract was incapable of ratification, and that the property in the goods having passed by delivery, the promise to pay for them was without consideration. If it is correct to say that the property passes in such case, this criticism appears to be un- answerable; but there is some authority to the effect that the property does not pass, and that, if the goods have not been paid for, the seller can maintain replevin or trover,'" in which case sufficient consideration for the new promise may be found. In this country the cases are in direct conflict, some holding that a Sunday contract can be ratified *" and others holding that 3 4 Richmond v. Moore, 107 111. 429, 47 Am. Rep. 445; Birks V. French, 21 Kan. 238. Contra, Reynolds v. Stevenson, 4 Ind. 619. 36Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, 3 Barn. & C. 232; Scarfe v. Morgan, 4 Mees. & W. 270; Allen v. Gardiner, 7 R. I. 22; Hazard v. Day, 14 Allen (Mass.) 4S7, 92 Am. Dec. 790; Swann v. Swann (C. C.) 21 Fed. 299; Amis v. Kyle, 2 Yerg. (Tenn.) 31, 24 Am. Dec. 4(B; Sanders v. Johnson, 29 Ga. Z>2%; Mills V. Williams, 16 S. C. 593; Clark, Cont. (2d Ed.) 206. But see Fennell v. Ridler, 5 Barn. & C. 406; Smith v. Sparrow, 4 Bing. &4. 8 6 Bdvnton V. Page, 13 Wend. (N. Y.) 423; Bats ford v. E!very, 44 Barb. (X. Y.) 618; Ward v. Ward, 75 Minn. 269, 77 N. W. 905. See, also, Hnlden v. O'Brien, 86 Minn. 297, 90 N. W. 531; State v. Weiss, 97 5Iinn. 125. 105 N. W. 1127; Clark, Cont. (2d Ed.) 207. 37 6 r.ing. 0.53. 38 Simpson v. Nicholls, 3 Mees. & W. 244, as corrected 5 Mees. & W. 702. 3 9 Post, p. 221. ■10 Adams v. Gay, 19 Vt. ?,C,n\ Flinn v. St. John, 51 Vt. 334, .345; Sayles v. Wellman, 10 R. I. 405; Banks v. Werts, 13 Ind. 203; Tucker § 65) SALES PROHIBITED BY STATUTE. 217 it cannot."^ So also the cases are conflicting on the question whether an action can be maintained when there is a subsequent promise to pay.*^ If the sale is made on Sunday, but the goods are not delivered until a week day, the buyer is Hable, not on the original promise, but on an implied promise to pay for the goods.*' Wagering Contracts. At common law, wagers that did not violate any rule of pub- lic decency or morality or any recognized principle of public policy were not prohibited,** although in many of the states of the Union wagering contracts on matters in which the parties have no interest have been held contrary to public policy and unenforceable. *° By statute to-day, in England, and in most, if not all, of the states, contracts by way of wagering and gaming are declared void. Therefore, a bet in the form of a sale, as the sale of a horse for $50 if H. G. is elected president, and for $500 if U. S. G. is elected, is invalid.*" T. West, 29 Ark. 386; Campbell v. Young, 9 Bush (Ky.) 240; Gwinn V. Simes, 61 Mo. 335; Smith v. Case, 2 Or. 190; Cook v. Forker, 193 Pa. 461, 44 Atl. 560, 74 Am. St. Rep. 609; Tennent-Stribling Shoe Co. V. Roper, 94 Fed. 739, 36 C. 0. A. 455. *i Day V. McAllister, 15 Gray (Mass.) 433; Tillock v. Webb, 56 Me. 100; Plaisted v. Palmer, 63 Me. 576; Grant v. McGrath, 56 Conn. 333, 15 Atl. 370; Butler v. Lee, 11 Ala. 885, 46 Am. Dec. 230; Vinz V. Beatty, 61 Wis. 645, 21 N. W. 787; Riddle v. Keller, 61 N. J. Eq. 513, 48 Atl. 818; Acme Electrical Illustrating & Advertising Co. V. Van Derbeck, 127 Mich. 341, 86 N. W. 786; Clark, Cont. (2d Ed.) 269. collecting cases. 4 2 Harrison v. Colton, 31 Iowa, 16; Melchoir v. McOarty, 31 Wis. 2.r,2, 11 Am. Rep. 605. See Winchell v. Carey, 115 Mass. .560, 15 Am. Rep. 151. Contra: Boutelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 152; Kountz v. Price, 40 Miss. 341. Post. p. 221. 43 Bradley v. Rea, 14 Allen (Mass.) 20; Id., 103 Mass. 188, 4 Am. Rep. 524; Foreman v. Ahl, 55 Pa. 325; Hopkins v. Stefan, 77 Wis. 45, 45 N. W. 676; BoIIin v. Hooper, 127 Mich. 287, 86 N. W. 795. See, also, Flynn v. Columbus Club, 21 R. I. 534, 45 Atl. 551. The delivery must be under circumstances showing a contract. Aspell V. Hosbein, 98 Mich. 117, 57 N. W. 27. 44 Anson, Cont. 166; Benj. Sales, § 542; Clark, Cont. (2d Ed.) 276. 4 5 Irwin V. Williar, 110 U. S. 499, 510, 4 Sup. Ct. 160, 166, 28 L. Ed. 225, and cases cited; Clark, Cont. (2d Ed.) 276. 4 6 Harper v. Grain, 36 Ohio St 338, 38 Am. Rep. 589; Bates v. Clifford, 22 Minn. 52. 218 ILLEGALITY. (Ch. 6 Same — Futures. The principal question that arises in the law of sales in con- nection with the subject of wagers is whether an executory contract for the sale of goods is not a device for gaming. As has been stated,*' a contract for the sale of goods to be deliv- ered at a future day is valid, even though the seller has not the goods or any means of getting them except that of buying them in the market. But such a contract is valid only provided the parties really intend and agree that the goods are to be delivered by the seller, and that the price is to be pnid by the buyer. If under the guise of such a contract, the real intent is merely to speculate in the rise and fall of prices, and the actual agreement is that the goods are not to be delivered, but that one party is to pay to the other the difference between the contract price and the market price of the goods, at the date fixed for the performance of the contract, then the whole con- tract constitutes nothing more than a wager, and is null and void.** But the contract does not become a wagering con- tract simply because one or both of the parties intend, when the time for performance arrives, not to require performance, but to substitute a settlement by payment of the difference be- tween the contract price and the market price, so long as it " Ante, p. 49. 48 Grizewood v. Blane, 11 C. B. 526; Irwin v. Willinr, 110 U. S. 49ft, 4 Sup. Ot. 160, 28 L. Ed. 225; White v. Barl.er. 123 U. S. 392, 8 Sup. Ct. 221, 31 L. Ed. ^i?^: Harvey v. Merrill, 150 Mnss. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159; Barnes v. Smith, 151* Slass. 344, 34 N. E. 403; Hatch v. Douglas, 48 Conn. IIB, 40 Am. Rep. 154; Flags v. Gilpin, 17 R. I. 10, 19 Atl. 1084; Kingsbury v. Kirwan, 77 N. Y. 612; Brua's Appeal, 55 Pa. 294; Burt v. Myer. 71 Md. 4(;7, 18 Atl. 79IJ; Lawton v. Blitch, 83 Ga. (ln3, 10 S. B. 353; McGrew v. Produce Exchange. 85 Tenn. 572, 4 S. W. 38, 4 Am. St. Rep. 771; Kahn v. Walton, 4G Ohio St. 195, 20 N. E. 2il3; Cothran V. Ellis, 125 111. 496, 16 N. B. IHG; Whitesides v. Hunt, !)T lud. 191, 49 Am. Rep. 441; Gregory v. Wendell, 39 Mi.'h. 337, 33 Am. Rep. 390: Cockrell v. Thompson. 85 Mo. 510; INIohr v. Micsen, 47 Minn. 228, 49 N. W. 8i;2; Tomblin v. Callen, m Iowa, 229. 28 N. W. 573; MoiTlssey v. Broomal, 37 Neb. 700, 55 N. W. 383; Dows v. Olnspel, 4 N. D. 251, 00 N. W. 00; Wagner v. Hildebrand, 187 Pa. :3(;, 41 Atl. .34; .Johnston v. Miller, 67 Ark. 172. 53 S. W. 1052; Ponder v. Cotton Co., 10i> Fed 373, 40 0. C. A. 416; Jlorris v. Tele- gviiiih Co., 94 Me. 423, 47 Atl. 92C. ; Atn'ater v. Manville, 106 Wis. (14, 81 N. W. 985; Clark, Cont. (2d Ed.) 278. §§ 66-68) EFFECT OF ILLEGALITY. 219 is agreed that the contract shall be performed according to its terms if either party requires it.** If either party intends an ac- tual sale, he may enforce the contract, though the other intends a wager."" Such intention is immaterial, except so far as it is made part of the contract, although it need not be made ex- pressly a part of the contract. EFFECT OF ILLEGALITY. 66. In no case can an action be maintained to enforce an il- legal agreement. 67. Where an agreement has been executed in \irhole or in part by the payment of money or the transfer of other property, the court Tpill not generally lend its aid to recover it back. The rule is that the court Tpill not lend its aid to a party w?ho, as the ground of his claim, must disclose an illegal transaction. This rule is subject to exceptions as follovrs, ivhere the action is brought, not to enforce the agreement, but in disaf- firmance of it: EXCEPTIONS — (a) In some cases a locus pcenitentise re- mains, and, nrhile the agreement is unperformed, mon- ey or goods delivered in furtherance of it are allow- ed to be recovered. (b) ^Vhe^e the parties are not in pari delicto, the one Tvho is less guilty may recover vc-hat he has parted urith. 68. If the agreement is for the sale for an entire price of various articles, some of vrhich may and others of ■which may not be lawfully sold, the •whole agreement is void; but, if a separate price is named for each ar- ticle, so that the consideration is apportionable, the agreement may be enforced so far as it relates to the articles law^fully sold. The courts will not lend their aid to the enforcement of an illegal agreement. "The objection," said Lord Mansfield, "that a contract is illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not 49 Harvey v. Jlerrill, 150 Mass. 1, 22 N. B. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159, per Field, J.; Clark, Cont. (2d Ed.) 279. BO Pixley v. Boynton, 79 111. 351; Whitesides v. Hunt, 97 Ind. 191, 49 Am. Rep. 441; Gregory v. Wendell, 39 Mich. 337, 33 Am. Rep. 390; Bangs v. Hornick (0. C.) 30 Fed. 97. 220 ILLEGALITY, (Ch. 6 for his sake, however, that the objection is ever allowed ; but it is founded in general principles of policy, which the defend- ant has the advantage of, contrary to the real justice as be- tween him and the plaintiff — by accident, if I may so say. The principle of public policy is this: 'Ex dolo malo non oritur actio.' No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action ap- pears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the courts go; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for, where both are equally in fault, 'potior est conditio de- fendentis.' " " Neither party can maintain an action on the illegal agree- ment, neither the seller for the price, nor the buyer for the goods, nor either to recover damages for its breach. ^^ Neither can the seller, although the goods are delivered, recover on an implied promise, since there is no ground on which a promise can be implied."' The agreement is void for all purposes, and neither party can maintain an action on a warranty or for fraudulent representations inducing the agreement.'^* But though the agreement is void, if it has been executed by the 61 Holman v. Jobnson, 1 Cowp. 341. 52 Holman v. Johnson, 1 Cowp. 341, per Lord Mansfield; Foster V. Thurston, 11 Cush. (Mass.) 322; Koby v. West, 4 N, H. 2S5, 17 Am. Dec. 423; Mateme v. Horwitz, 50 N. Y. Super. Ct. 41; Id., 101 N. Y. 40'."), 5 N. B. 331; Penn v. Bornman, 102 111. 523; Randon V. Toby, 11 How. (U. S.) 493, .520, 13 L. Ed. 784; Miller v. Ammon, 145 U. S. 421, 12 Sup. Ct. 8&4, 36 L. Ed. 750; Chuix-h v. Proctor, G6 Fed. 240, 13 C. C. A. 426; Storz v. Finklestein, 46 Neb. 577, ('.5 N. W. 105, 30 L. R. A. 644; Ullman v. Association, 167 Mo. 273, 66 S. W. 949, 56 L. R. A. 606. 53 Ladd V. Rogers, 11 Allen (JIuks.) 209; Foreman v. Ahl, 55 I'a. 325 ; O'Donnell v. Sweeney, 5 Ala. 407, 39 Am. Dec. 33iJ ; Pike v. King, 16 Iowa, 49. siHulet V. Stratton, 5 Cush. (Mass.) 530; Robeson v. French, 12 Mete. (Mass.) 24, 45 Am. Dec. 236; Northrup v. Foot, 14 Wend. CN. §§ 66-68) EFFECT OF ILLEGALITY. 221 delivery of the goods and the payment of the price, the court will not, as a rule, aid either party in disaffirming it. The seller cannot recover his goods, nor the buyer his money."' In this way possession acquired under illegal sales will often avail the buyer as a sufficient title. Neither party is allowed to impeach its validity by asserting the invalidity of his own act, and the transaction takes effect from the inability of either party to impeach it.^" The rule applies: "In pari delicto potior est conditio defendentis." It is not clear, however, that if the goods have been delivered, but not paid for, the seller cannot maintain an action founded on his right of property of which he has never been divested, though the authorities are conflicting. Thus, it has been held in the case of a Sunday sale that the seller can under such cir- cumstances maintain replevin, since he can make out a case founded on property and prior right of possession without re- ferring to the void contract,"' and it has also been intimated that he could sue for the conversion; °' in which case it seems that a sufficient consideration for a new promise to pay may be found in the consent of the seller to the transfer of the property at the time of such promise — ^the liability of the prom- T.) 249; Plaisted v. Palmer, 63 Me. 576; Finley v. Quirk, 9 Minn. 194 (Gil. 179), 86 Am. Dec. 93; Gunderson v. Richardson, 56 Iowa, 56, 8 N. W. 683, 41 Am. Rep. 81; Smith v. Bean, 15 N. H. 577, 578. B5 Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368; Horton V. Bufflnton, 105 Mass. 399; Greene v. Godfrey, 44 Me. 25; Chest- nut V. Harbaugh, 78 Pa. 473; Ellis v. Hammond, 57 Ga. 179; Block V. McMurry, 56 Miss. 217, 31 Am. Rep. 357; Kinney v. McDermot, 55 Iowa, 674, 8 N. W. 656, 39 Am. Rep. 191; Moore v. Kendall, 2 Pin. (Wis.) 99, 52 Am. Dec. 145; Singer Mfg. Co. v. Draper, 103 Tenn. 262, 52 S. W. 879. 5 6 Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368, per Wells, J. 57 Tucker v. Mowrey, 12 Mich. 378; Winfleld v. Dodge, 45 Mich. 355, 7 N. W. 906, 40 Am. 'Rep. 476. See, also, Magee v. Scott, 9 Gush. (Mass.) 148, 55 Am. Dec. 49. Contra, Smith v. Bean, 15 N. H. 577, 578; Kinney v. McDermot, 55 Iowa, 674, 8 N. W. 656, 39 Am. Rep. 191. 5 8 l.add V. Rogers, 11 Allen (Mass.) 209. See, also, Myers v. Mein- rath, 101 Mass. 366, 369, 3 Am. Rep. 368; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Oranson v. Goss, 107 Mass. 439, 441, 9 Am. Rep. 45. 222 ILLEGALITY. (Ch. 6 isor resting, however, upon a new contract, and not upon a rat- ification of the original contract.^" DisaMnnancc before Execution of Illegal Purpose. It is a general rule that where money has been paid upon an agreement whose object, although illegal, has not been in other respects carried out by performance, the party who has paid the money may disafifirm the contract, and recover the money in an action for money had and received."" Thus, where a corporation passed a resolution increasing its capital stock in violation of the law, and the plaintiff agreed to take certain shares of the new stock when issued, and paid an installment thereon, but the stock was never actually increased, nor were certificates issued, the court held that, conceding the illegality of the contract, the plaintiff was entitled to recover the money paid by him in part performance, the defendant not having per- formed any part of the agreement, and both parties having abandoned the illegal agreement before it was consummated. "'■ The rule was stated in a leading English case "^ as follows: "If money is paid, or goods delivered, for an illegal purpose, 6 8 Winfleld v. Dodge, 45 Mich. 355, 7 N. W. 906, 40 Am. Rep. 476; Haacke v. Literary Club, 76 Md. 429, 25 Atl. 422; Brewster v. Ban- ta, 66 N. J. Law, .3G7, 49 Atl. 718. An action may be maintained on a new piomise. Williams v. Paul, 6 Bing. 65,3; Harrison v. Colton, 31 lowp., 16; Molchoir v. -McCarty, 31 Wis. 252, 11 Am. Rep. OO.T. See Winchell y. Carey, ll.'^ Mass. 'r,Cfl. 15 Am. Rep. 151. Con- tra: Boutelle y. Melendy, 19 N. H. 196, 49 Am. Dec. 152; Kountz V. Price, 40 Miss. 341. 6 Taylor v. Bowers, 1 Q. B. Div. 291; Barclay v. Pearson [189.31 2 Gb. 154; Congress & Empire Spring Oo. v. Knowlton, 103 IF. S. 49, 26 L. Ed. 347; White v. Bank, 22 Pick. (Mass.) ISl, 189; Tyler V. Carlisle, 79 Me. 210, 9 Atl. 3.56, 1 Am. St. Rep. 301; Clarke v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98; Peters v. Grim, 149 Pa. 163, 24 Atl. 192, 34 Am. St. Rep. 599; Souhegan Nat. Bank v. Wal- lace, 61 N. H. 21; Adams Ekp. Co. v. Reno, 48 Mo. 264; Wasser- man v. Sloss, 117 Cal. 425, 49 Pac. 566, 38 L. R. A. 176, 59 Am. St Rep. 21 0; Stanslleld v. Kunz, 62 Kan. 707, 64 Pac. 614. Of. TJllman V. Association, 167 Mo. 273, 66 S. W. 949, 56 L. R. A. 606; Kearley V. Tliompson, 24 Q. B. Div. 742, 746. Contra: Knowlton v. Spring Co., 57 X Y. 518, Dwnght, C, dissenting. Benj. Sales, § 503a; Clark. Cont. (2d Ed.) 338. «i Congress & Empire Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347. «2 Taylor v. Bowers, 1 Q. B. Div. 291, per Mellish, L. J. §§ 66-68) EFFECT OF ILLEGALITT. 223 the person who had so paid the money or dehvered the goods may recover them back before the illegal purpose is carried out." Plaintiff Not In Pari Delicto. If the party asking to be relieved from an illegal agreement was not in pari delicto with the other party, the court may relieve him. "Where the parties to a contract against public policy, or illegal, are not in pari delicto (and they are not al- ways so), and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the transgression, reHef is given to him." ^' This exception appHes where the party seeking re- lief was induced to enter into the agreement by fraud, undue influence, or duress,"* or where the illegality is created by stat- ute, and the party seeking relief is one of the class of persons whom the statute was intended to protect."" Separable Contract. As a general rule governing all contracts, if any part of the consideration is illegal, the whole agreement is void."" This rule applies to sales, and, where such illegality exists, the seller cannot recover the price."' But if the contract is sep- arable, so that it is clear that the parties intend it to be carried into effect piecemeal, the illegality of one part will not pre- vent the legal part from being enforced."* Thus, when each 63 Reynell v. Sprye, 1 DeGex, M. & G. 660. See Clark, Oont. (2(3 Ed.) 340. S4 Smitb V. Cuff, 6 Maule. & S. 160, 165; Atkinson v. Denby, 6 Hurl. & N. 77S, 7 Hurl. & N. 934; Block v. McMurry, 56 Miss. 217, 31 Am. Rep. 357; Davidson v. Carter, 55 Iowa, 117, 7 N. W. 466; Bell V. Campbell, 123 Mo. 1, 25 S. W. 359, 45 Am. St. Rep. 505; Woodbam v. Allen, 130 Cal. 194, 62 Pac. 398. 65 Browning v. Morris, 2 Cowp. 790; Bowditch v. Insurance Co., 141 Mass. 292, 4 N. E. 798, 55 Am. Rep. 474; Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327; Clark, Cont. (2d Ed.) 341. 66 Waite V. Jones, 1 Bing. N. C. 656; Jones v. Waite, 5 Bing. N. C. 341; Trist v. Child, 21 Wall. (U. S.) 441, 22 L. Ed. 623; Clark, Cont. (2d Ed.) 321. 67 Holt V. O'Brien, 15 Gray (^Mass.) 311; Woodruff v. Hinman, 11 Vt. 592, 84 Am. Dec. 712; Laiug v. McCall, 50 Vt. 657; Filson v. Himes, 5 Pa. 452, 47 Am. Dec. 422; Ladd v. Dillingham, 34 Me. 316. 08 Odessa Tramways Co. v. Mendel, 8 Ch. Dlv. 235. 224 ILLEGALITY. (Ch. G article is sold for a separate price, the price of those articles which it was lawful to sell may be recovered."" If, however, a note is given for the price of all the articles, there can be no recovery upon it, since the note is based in part upon an illegal consideration.^" But if more than one note is given, and the legal items equal the amount of one of the notes, a recovery can be had upon it, because the plaintiff has the right to ap- propriate the other note to the illegal items. ''^ The rule that the illegality does not avoid the entire contract if it is divisible applies whether the illegality exists by stat- ute or by common law,^^ although it was formerly held that it did not apply where the illegality was created by statute, which it was said "is like a tyrant — where he comes, he makes all void." CONFLICT OF LA'WS. 69. The legality of a contract of sale is determined by the laTxr in force vrhere the sale is executed. As a rule, the validity of a contract is to be determined by the law of the place where it is made ; but, if it is to be per- formed in some other place, its validity is as a rule to be de- termined by the law of that place.'' If a sale is valid where «!>Boya V. Eaton, 44 Me. 51, 69 Am. Dec. 83; Carleton v. Woods, 28 N. H. 290; Walker v. Lovell, Id. 133, 61 Am. Dec. 605; Barrett V. Delano (ile.) 14 Atl. 288; Chase v. Burklaolder, 18 Pa. 48; Clark, Cont. (2d Ed.) 324. See, also, Shaw v. Carpenter, 54 Yt. 135, 41 Am. Rep. 837. 'oDeering v. Chapman, 22 Me. 488, 39 Am. Dec. 592; Cobum v. Odell, 30 N. H. .540; Kidder v. Blake, 45 N. H. 530; Alien v. Pearce, 84 Ga. 006, 10 S. B. 1015; Gotten v. McKenzie, 57 Miss. 418; Widoe V. Webb, 20 Ohio St. 431, 5 Am. Rep. 664; Braitch v. Guelick, 37 Iowa, 212; Oakes v. Merrifleld, 93 Me. 297, 45 Atl. 31; Wadsworth V. Dunnam, 117 Ala. 661, 23 South. 699. Of. Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837. See, also, Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837. 71 Crookshank v. Rose, 5 Car. & P. 19; Warren v. Chapman, lOS Mass. 87. See, also, llyuds v. Hays, 25 Ind. 31. '2 Pickering v. Railway Co., Tj. R. 3 O. P. 250; U. S. v. Bradley, 10 P«t. (U. S.) 343, 9 L. Ed. 448; Rand v. Mather, 11 Gush. (Mass.) 1, 7, 50 Am. Dec. 131; Anson, Cont. (4th Ed.) 189; Clark, Cont (2d Ed.) 322. '3 Clark, Cont (2d Ed.) 342. § 69) CONFLICT OF LAWS. 225 it is made, it will be enforced even in a state where it could not be lawfully made.'^ But, if the sale would be invalid in the state where it is attempted to be made — that is, where the property would pass — it will not be enforced there,'"' or in a jurisdiction where such a sale would be valid.'" And the com- ity which induces a state to enforce a foreign contract does not extend to the enforcement of a contract entered into with the design of evading its laws. Accordingly, a sale of intox- icating liquors or other goods, executed with the mutual de- sign of reselling in violation of the laws of another state, will not be enforced in the state whose laws are sought to be violated," or even in the state where the sale is made.'* The validity of a sale is determined by the law in force at the time of its execution, and a subsequent change in the law will not validate an invahd sale.'" 74 Greenw(X)d v. Curtis, 6 Mass. 358, 4 Am. Dec. 145 ; OrcTitt V. Nelson, 1 Gray (Mass.) 536; Torrey v. Corliss, 33 Me. 333; Dame v. Flint, 64 Vt. 533, 24 Atl. 1051; Braunn v. Keally, 146 Pa. 519, 23 Atl. 389, 23 Am. St. Eep. 811; Wagner v. Breed, 29 Neb. 720, 46 N. W. 2S6; Lynch v. Scott, 67 N. H. 58S, 30 Atl. 420; Miller Brewing Co. v. De France, 90 Iowa, 395, 57 N. W. 959; Westheimer V. Weisman, 60 Kan. 753, 57 Pac. 969. T6 Wasserboehr v. Boulier, 84 Me. 165, 24 Atl. 808, 30 Am. St. Eep. 344; Gipps Brewing Co. v. De France, 91 Iowa, 108, 58 N. W. 1087, 28 L. R. A. 386, 51 Am. St Eep. 329; Julius Winkelmeyer Brewing Ass'n v. Nipp, 6 Kan. App. 730, 50 Pac. 956. T6 Theo. Hamm Brewing Co. v. Young, 76 Minn. 246, 79 N. W. 111. " Waymell v. Eeed, 5 Term E. 599; Webster v. Munger, 8 Gray (Mass.) 584; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Fish- er V. Lord, 63 N. H. 514, 3 Atl. 927; Davis v. Bronson, 6 Iowa, 410. And see cases cited ante, p. 211, notes 13-15. Mere knowledge of the buyer's intention to resell in violation of the laws of another state is not enough. Hill t. Spear, 50 N. H. 253, 9 Am. Eep. 205; Webber v. Donnelly. 33 Mich. 469; Samuel Bowman Distilling Co. v. Nutt, 34 Kan. 724, 10 Pac. 163; ante, p. 211. 7 8 Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. E. A. 834, 32 Am. St Eep. 446; Wasserboehr v. Morgan, 168 Mass. 291, 47 N. B. 126. And see Bollinger v. Wilson, 76 Minn. 262, 266, 79 N. W. 109, 77 Am. St. Eep. 646; ante, p. 212. 7 9 Roby V. West 4 N. H. 285, 17 Am. Dec. 423; Banchor v. Man- gel, 47 Me. 58; Bailey v. Mogg, 4 Denio (N. Y.) 60; Handy v. Pub- lishing Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St Eep. 695; Clark, Cont (2d Ed.) 346. Tiff.Sales(2d Ed.)— 15 226 CONDITIONS AND WAEEANTIES. (Ch. 7 CHAPTER VH. CONDITIONS AND WARRANTIES. 70-72. In General. 73-75. Warranties. 76. Implied Warranty of Title. 77. Implied Warranty in Sale by Description. 78. Implied Warranties of Quality. 79. Implied Warranties In Sale by Sample. IN GENERAIta 70. PERFORMANCE OF CONDITIONS. Wliere the obliga- tion of either party to a, contract to sell or a sale is subject to any condition Tirhich. is not performed, suci party may refuse to proceed witli tbe contract or sale, or be may waive performance of tbe condition. If tbe other party has promised that the condition should happen or be perf ormetlT" such first mentioned party may also treat the nonperformance of the condition as a breach of Tvarranty.i 71. CONDITIONS AND W^ARRANTIES. Broadly speaking, any promise by the seller Tvith reference to the goods "which are the subject of a contract of sale is termed a. ''warranty." In a narrower sense, the term **^Far- ranty" is confined to such a promise when it is col- lateral to the main purpose of the contract and is in- tended by the parties to be such that its breach shall give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiat- ed. A promise with reference to the goods, if it is intended to be such that its performance by the seller shall be a condition of the obligation of the buyer to perform his promise to accept and pay for the goods, is often itself termed a "condition." 72. FULFILLMENT OF ^VARRANTY, WHEN A CONDITION. "Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his ob- ligation to furnish goods as described and as xrar- i Sales Act, § 11 (1). §§ 70-72) IN GENERAL. 227 ranted expressly or by implication in the contract to sell as a condition of the obligation of the bnyer to accept and pay for the goods.^ Performance of Conditions. After a contract of sale has been entered into, it is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the con- tract.^ A contract to sell or a sale may, however, be absolute or conditional.* If the obligation of either party is subject to any condition, the condition must, of course, be performed, unless its performance be waived, before the other party can enforce such obligation; and if the contract contains any promise the performance of which is a condition precedent to the obligation of the other party, such promise must hkewise be performed, unless its performance be waived. The subject of delivery, acceptance, and payment in performance of the con- tract, as well as of waiver and excuses for nonperformance, will be considered later.^ Dependent and Independent Promises. The promises of the parties to a contract may be independent, or they may be dependent or conditional upon one another. If they are independent, failure by one of the parties to per- form his promise does not discharge the contract; that is, does not give the other party a right to treat the contract as repudiated, but simply gives rise to a claim for damages.* On the other hand, if the promise of one party is dependent or conditional upon the promise of the other, the performance of the latter promise is either a condition precedent or a con- dition concurrent, as the case may be, to the obligation of the other party to perform. If it is a condition precedent, it must be performed before the obligation of the other party can arise ; if it is a condition concurrent, it must be performed simultaneously with the promise of the other party, or, in point of fact, since simultaneous performance is impossible, except in contemplation of law, there must be concurrent will- ingness to perform the two promises.* In either case the non- 2 Sales Act, § 11 (2). b Post, p. 2GS et seq., 305. 3 Post, p. 2Ca *Clark, Cont. (2d Ed.) 4.50. ■» See Sales Act, § 1 (3). « Clark, Cont (2d Ed.) 458. 228 CONDITIONS AND WARRANTIES. (Ch. 7 performance of the condition discharges the contract. In con- tracts of sale, as we shall see, unless otherwise agreed, delivery of the goods and payment of the price are concurrent con- ditions.' The difficulty lies in discovering whether the parties regarded a particular term as essential to the contract. If they did, its performance is a condition precedent, and failure to per- form it discharges the contract. If they did not, such failure can only give rise to an action for damages. The question whether a particular term in a contract is a dependent or an independent promise is a question of intention, and depends upon the construction of each individual contract. Various rules of construction for ascertaining the intention have been attempted; but the only rule that can safely be laid down is that the intention is to be ascertained from the language of the parties and the circumstances under which the contract is made.' As was said by Blackburn, J. : "Parties may think I some matter, apparently of very little importance, essential ; and, if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, it will be one ; or they may think that the performance of some mat- ter, apparently of some importance and prima facie a condi-. tion precedent, is not really vital, and may be compensated for in damages, and if they sufficiently expressed such an intention, it will not be a condition precedent." " "Conditions'' and Warranties. A promise upon the performance of which the obligation of the other party is conditional may thus go to the entire consideration, as in the case of the promise of the seller to sell and deliver the goods which are the subject of the con- tract. The seller may, however, expressly or by implication, make some promise relating to the goods, and this promise ^ Post, p. 268. 8 Graves v. Legg, 9 Exch. 709, 23 I^aw J. Exch. 228; Behn v. Bur- iiess, .32 Law J. Q. B. 204, 205; Watelimaii v. Crook, 5 Gill. & .T. (Md.) 239; Maryland Fertilizing & Manuf'g Co. v. Lorentz, 44 Md. 218; Grant v. Jobnson, _5_N^Y. 247; Knight v. Worsted Co., 2 Cush, (Mass.r^l, 287 ;~ Mill-Dam' Foundry y. Hovey, 21 Pick. (Mass.) 417, per Shaw, C. J. » Bettinl t. Gye, 1 Q. B. Div. 187. §§ 70-72) IN GENERAL. 229 may be dependent or independent, according to the intention of the parties ; that is its performance may be a condition prece- dent to the obligation of the buyer to accept and pay for the goods, or it may not. The distinction between dependent and independent promises is fundamental, and the rules of law applicable to them are well established; but there is great confusion in the use of the terms by which these promises on the part of the seller are designated. Very generally promises of both kinds are called warranties; but often the term "con- dition" is applied to a promise of the first kind, and the term "warranty" is applied only to one of the second kind.^" The use of "condition," in the sense of promise, is unfortu- nate.^^ In one use of j;he term, "condition" means an uncertain event or contingency on the happening of which the obligation of the contract depends ; there being no promise that the event or contingency shall happen. In such case the obligation of the contract does not attach until the condition is performed. Such conditions are sometimes called "contingent or casual conditions." ^^ As has been pointed out, however, the word 10 Chalm. Sale of Goods Act (6tli Ed.) 182; Clark, Cont. (23 Ed.) 211. Sir William Anson has collected six dil^erent senses in Tvhicli "warranty" is used in the cases. Anson, Cont. (5th Ed.) 309. 11 "The term 'condition,' as applied to contracts, appears to mean indifCerently (a) an uncertain event on the happening of which the obligation of the contract is to depend, and (b) the stipulation in the contract making its obligation depend on the happening of such event." Chalm. Sale of Goods Act (6th Ed.) 178. 12 "There is an important distinction between what may be called promissory conditions and contingent or casual conditions. In the latter case the obligations of both parties are suspended till the event takes place. In the former case the nonperformance 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 obligations of the contract do not attach. In the other case the contract is broken. * * * In the older cases promissory conditions were referred to as 'de- pendent covenants or promises,' and were contrasted with inde- pendent covenants or promises, namely, stipulations the breach of which gives rise to a claim for damages, but not to a right to treat the contract as repudiated. Now the term 'dependent promise' appears to be merged in the wider term 'condition precedent' " Chalm. Sale of Goods Act (6th Ed.) 179. 230 CONDITIONS AND WARRANTIES. (Ch. 7 "condition" is often applied to a promise, if it is of such a nature that its performance is a condition precedent to the ob- ligation of the other party to perform. ^^ For the sake of dis- tinction, the term "promissory condition" is sometimes ap- plied to such promises. Thus, in a contract to sell by descrip- tion, it is obvious that the seller does not perform his con- tract if he does not tender goods conforming to the descrip- tion ; and, if a contract contains a promise which forms part of the terms of the description of the goods, the performance of this promise is a condition precedent to the obligation of the buyer to accept and pay for the goods. Such promises often arise by implication, as in the case of the seller's implied prom- ise that he has a right to sell the goods, ^* that the goods shall correspond with the description,^^ that the goods shall be fit for the purpose for which they are required,^" that they shall be of merchantable quality,^' and that they shall correspond with the sample in quality.^* In the English Sale of Goods Act, these implied promises are called "conditions," ^° while in the proposed American Sales Act they are called "war- ranties." "" A warranty is ordinarily said to be a promise with refer- ence to the subject of the contract, but collateral to its main pur- pose.-^ A warranty is defined by the English act as "an agree- ment with reference to the goods which are the subject of a contract of sale, but collateral to the main purpose of such con- tract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repu- 13 Pope V. Allis, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393. "Con- ditions are either statements or promises which form the hasis of the contract. * * * When a term in the contract is ascern tained to be a condition, then, whether it he a statement or a prom- ise, the untruth or breach of it will entitle the party to whom it is made to be discharged from his liabilities under the contract" Anson, Cont. ((jth Ed.) 146. See Clark, Cont. (2d Ed.) 464. 1* Post p. 242. 17 Post, p. 2r,2. ic Post, p. 247. 18 Post p. 262. 18 Post, p. 252. IS Sections 11-15. 20 Sections 12-16. 21 See Chanter v. Hopkins, 4 Mees. & W. 399, 404; Dorr v. Fisher, 1 Gush. (Mass.) 271. §§ 70-Tl-') IN GENERAL. 231 diated." " Where, as in this act, "warranty" is used in this narrow sense, it is therefore opposed to "condition," when that word is used in the sense of promise ; the distinction being that between independent covenants and promises and dependent covenants and promises.^^ Yet, although the buyer need not accept the goods if any "condition" be unfulfilled, it is held in England and in many states that he may waive performance of the condition, and that he may also treat the nonperformance of the condition as a breach of warranty.^* Thus, the English act provides : "Where a contract of sale is subject to any con- dition to be fulfilled by the seller, the buyer may waive the con- dition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the con- tract as repudiated." ^° In the proposed American Sales Act, on the other hand, the word "condition" is restricted to condi- tion proper, and the word "warranty" is substituted for "con- dition," where in the English act it is used in the sense of prom- ise. The American act provides : "Where the property in the goods has not passed, the buyer may treat the fulfillment of the seller's obligation to furnish goods as described and as war- ranted expressly or by implication in the contract to sell as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods." ''° It is pointed out by the draftsmen of the act that as a breach of warranty justifies re- jection of the goods, and also an action for damages under this draft, the full meaning of the English act has been pre- served.^' On the whole, the use of the words "condition" and "war- ranty," as they are used in the American act seems preferable, both because it avoids using "condition" with a double mean- ing, and because the fact that a promise is or is not in form col- lateral does not always determine whether it is a "condition" or "warranty," as these words are used in the English act. When the buyer waives the performance of a "condition," and elects 22 Section 62 (1). 2 3 Clialm. Sale of Goods Act (6tli Ed.) p. 29. 24 Tost, p. 372. 2 5 Sale of Goods Act, § 11 (1) (a). 26 Section 11 (2). 2 7 Note to section 14. See section 69. Cf. section 11 (1). 232 CONDITIONS AND WAEKANTIES. (Ch. 7 to treat the breach as a breach of "warranty," ^' the promise, which has thus lost its character as a condition and become a warranty, is not in form collateral. And on a sale of specific goods by description, where the buyer asks for goods of a cer- tain kind, the seller is held to warrant that the goods furnished are of the kind asked for, although his obligation to do so does not rest upon a collateral promise.^* Again, in an executory contract, the buyer may, it seems, reject the goods if they are not of the kind or quality promised, although the promise was in form collateral.^" "It is thus immaterial," says Prof. Wil- liston,^^ "whether the promise is collateral or not, and the dis- tinction taken between conditions and warranties has probably caused more confusion than assistance. The essential thing under the English law is whether the contract is executed or executory. If it is executed, the buyer must seek redress in an action or counterclaim for damages, or in recoupment when sued for the price ; °^ if executory, the buyer may accept the goods, retaining his claim for damages,'^ or he may reject the goods.'* Doubtless it is true that in the case of an executed sale the promise will generally be collateral in form, while in the case of an executory sale it will generally form part of the description of the goods. But neither of these propositions is invariably true. A. may agree to sell goods next week, war- ranted sound, and he may transfer title to-day to goods ordered by description.'' In a few jurisdictions, however, the distinction between "con- ditions" and warranties is of importance, and it is held that, while a warranty survives acceptance, a condition that the goods shall be of a certain description does not, so far as con- cerns visible defects, when the buyer has had an opportunity for inspection.' "^ Conditions Proper. Attention has been called to the distinction between so-called promissory conditions, the nonfulfillment of which effects a dis- 28 Ante, p. 231. »o Po?t, p. 366. 20 Post, p. 2.')!. 81 16 Harv. Law Rev. 40.1, 467. 8 2 Post, p. 368. In gome jurisdictions he may rescind for breach of warranty. Post, p. 3G8. 3 3 Post, p. 372. 84 Post, p. SGj. 85 Post, p. 373. §§70-72) IN GENERAL, 233 charge of the contract by breach, and conditions properly so called, sometimes called "contingent" or "casual" conditions, and sometimes "suspensive" or "suspensory" conditions;^" that is to say, conditions the performance of which is a condition precedent to the obligation of the contract, but which neither party promises shall be fulfilled." Such conditions suspend the operation of the promise until they are fulfilled, as where the promise of the buyer is conditional upon the act of a third person, or even upon his satisfaction with the goods. Same — Sale Dependent on Act of Third Person. Where the performance of a contract is dependent upon the act of a third person, the act must be performed before the rights dependent upon it can be enforced,^ ^ even though the third person unreasonably refuses to act. This rule applies to a contract for the sale of goods to be approved by a third per- son. Thus, where the seller sold his horse for 1 shilling cash, and a further payment of £200, provided the horse should trot 18 miles an hour within a month, "J. N. to be the judge of the performance," it was held no defense to the buyer's action for the delivery of the horse that J. N. refused to be present at the trial.'* If the third person withholds his approval from mo- tives of fraud or bad faith, it has been held that the approval may be dispensed with.*" As a rule his decision is conclusive,*^ but not if it is procured by fraud. "^ se Anson, Cont (4th Ed.) 296, 297; Clark, Cont. (2d Ed.) 459. 3 7 Ante, p. 229. 38 U. S. V. Robeson, 9 Fet (TJ. S.) 319, 327, 9 L. Ed. 142; Johnson V. Ins. Co., 112 Mass. 49, 17 Am. Rep. 65; Leadhetter v. Ins. Co., 13 Me. 265, 29 Am. Dec. 505; SmJth^F. Briggs, 3 Denio (N. Y.) 73; Kirtland V. Moore, 40 N. J. Eq. 106, 2 Atl. 209; Clark, Cont. (2d"Ed.) 460. Where price is to he fixed by a third person, ante, p. 60. 3 8 Brogden v. Marriott, 2 Bing. N. C. 473. Cf. Deyo v. Hammond, 102 Mich. 122, 60 N. W. 455, 25 L. E. A, 719. 40 Baltimore & 0. R. Co. v. Brydon, 65 Md. 611, 9 Atl. 126, Zl Am. Rep. 318. 41 Bobbins v. Clark, 129 Mass. 145; New England Trust Co. v. Abbott, 162 Mass. 148, 38 N. E. 432, 27 L. R. A. 271; Thurman T. City of Omaha, 64 Neb. 490, 90 N. "W. 253 (opinion of attorney on legality of bonds). 42 Shipway v. Broadwood (1899) 1 Q. B. 369. 234 CONDITIONS AND WAKRANTIES. (Ch. 7 Same — Sale of Goods to be Satisfactory. Where it is a term of the contract that the goods shall be satisfactory to the bu_yer, his satisfaction is a condition prece- dent to his obligation to accept and pay for the goods. In such case it is immaterial that the goods are such that the buyer ought to have been satisfied with them ; for, although the com- pensation of the seller may thus be dependent on the caprice of the buyer, who unreasonably refuses to accept the goods, }'et the seller cannot be relieved from a contract into which he has voluntarily entered.*^ Of course, the parties may agree that the satisfaction is to be determined by the mind of a rea- sonable man, and not by the mere test or liking of the defend- ant.** In contracts in which the subject-matter involves the personal taste or judgment of the promisor,*'' for example, a suit of clothes ''^ or a picture,*'' the courts construe the contract as making the promisor the sole judge. And the tendency of the courts is perhaps to construe all contracts of sale providing for the satisfaction of the promisor in the same way.*' Where, *3 McCarren v. McNulty, 7 Gray (Mass.) 139; McClure v. Briggs, 58 Vt S2. 2 Atl. .5S3, 5S Am. Rep. 557; Seeley v. Welles, 120 Pa. r,0, 13 Atl. 736; Goodrich v. Van Nortwick, 43 111. 445; Warder, Bushnell & Glessner Co. v. Whitish, 77 Wis. 430. 4U N. W. 540; D. M. Osborne & Co. v. Francis, 38 W. Va. 312, 18 S. E. 591; Hou:^- ding V. Solomon, 127 Bllch. G54, 87 N. W. 57; Garland v. Keeler (N. D.) lOS N. W. 484. a Hawkins v. Graham, 149 JIass. 2S4. 21 N. E. 312, 14 Am. St. Rep. 422; Lockwood Mfg. Co. v. Regulator Co., 1S3 Mass. 25, GO N. E. 420. i^ See cases cited note 43, supra. *c Brown v. Foster, 113 Slass. 136, IS Am. Rep. 403. 47 Gibson V. Cranage, 39 Mich. 49, 33 Am. Rep. 351; Zaleski v. Clark, 44 Conn. 218, 26 Am. Rep. 446; Pennington v. Rowland, 21 R. I. 05, 41 Atl. 891, 79 Am. St. Rep. 774. 4 s Seeley v. Welles, 120 Pa. 69, 13 Atl. 736; Adams Radiator & roller Works v. Schnader, 155 Pa. 394, 26 Atl. 745, 35 Am. St. Rep. S!>3; Sllsby Mfg. Co. v. Town of Chlco (C. C.) 24 Fed. 803; Camp- bell Printing Press Co. v. Thorp (C. C.) 36 Ftd. 414, 1 L. R. A. 045; Wood Reaping & Jlowing Mach. Co. v. Smith, 50 Jfich. 505, 15 N. W. 906, 45 Am. Rep. 57; McCormick Harvesting JIach. Co. v. Chesrown. 33 Miim. 32. 21 N. W. 840; Exhaust Ventilator Co. v. Railroad Co., 66 Wis. 218, 28 N. W. 343, 57 Am. Rep. 257; Williams JIfg. Co. T. Brass Co., 173 Mass. 356, .53 N. B. 802. The courts frequently add the qualification that the promisor §§ 70-72) IN GENERAL. 235 however, the subject-matter involves such considerations as salability, operative fitness, and mechanical utility, there is more reason for construing the satisfaction contemplated as that of a reasonable man.*° It seems that the question in such case should be the determination of the intention as evinced by the particular contract, and that no invariable rule of interpretation can be laid down.'" The rules governing the time when the property passes, where goods are thus delivered to the buyer on trial, or on approval or on satisfaction, and the effect of re- taining the goods without giving notice of dissatisfaction, have already been considered. °^ Saute — Goods "to Arrive." A not infrequent contract is one to sell goods "to arrive"; that is, to sell goods conditionally upon their arrival by a desig- nated vessel. A contract to sell goods to arrive by a designated vessel does not import a promise on the part of the seller that the goods shall arrive, but the obligation of the contract is con- ditional upon the arrival of the goods in the vessel designated ; that is, the contract is dependent upon a double condition pre- cedent — that the vessel shall arrive and that the goods shall be on board upon her arrival.^^ The condition may, of course, must act in good faith. Silsby Mfg. Co. v. Town of Chico, supra; Singerly v. Thayer, 108 Pa. 291, 2 Atl. 230, 56 Am. Rep. 207; In re George M. Hill Co., 123 Fed. 866, 59 0. O. A. 354. 19 See Wood Reaping & Mowing Mach. Co. v. Smith, supra; Schliess v. City of Grand Rapids, 131 Mich. 52, 90 N. W. TOO; Du- ' plex Safety Boiler Co, v. Garden, 101 N. Y. 387, 4 N. E. 749, 54 Am. Rep. 709; Hummel v. Stem, 21 App. Div. 544, 48 N. Y. Supp. 528, affirmed 1S4 N. Y. 603, 58 N. E. 1088; Union League Club v. MacTiine Co., 204 111. 117, 68 N. B. 409; Haney-Campbell Co. y. Association, 119 Iowa, 188, 93 N. W. 297. 60 Wood Reaping & Mowing Mach. Co. v. Smith, 50 Mich. 505, 15 N. W. 906, 45 Am. Rep. 57; Hawkins v. Graham, 149 Mass. 284, 21 N. E. 312, 14 Am. St. Rep. 422; Magee v. Lumber Co., 78 Minn. 11, 80 N. W. 781; Electric Lighting Co. of Mobile v. Elder, 115 Ala. 138, 21 South. 983; McNeil v. Armstrong, 81 Fed. 943, 27 C. C. A. 16; City of Elizabeth v. Fitzgerald, 114 Fed. 547, 52 C. 0. A. 321. See Clark, Cont. (2d Ed.) 432. 61 Ante, p. 144. 52 Lovatt V. Hamilton, 5 Mees. & W. 639; Johnson v. McDonald, 9 :Mees. & W. 600; Shields v. Pettie, 4 N. Y. 122 ; Neldon v. Smith, 36 N. J. Law, 148. 236 CONDITIONS AND WARRANTIES. (Ch. 7 be limited to the arrival of the goods, and not to their arrival in a particular vessel.''^ And the seller may warrant that the goods are on board, so that the contract to sell shall be condi- tional on the arrival of the vessel only.°* "WARRANTIES. 73. A contract of sale may be accompanied by one or more warranties, express or implied, given by the seller to the buyer. 74. A ■nrarranty may be either.— (a) Included in the contract of sale, or (b) Given after the contract of sale is completed; but, in the latter case, it must be supported by a fresh con- sideration. 75. EXPRESS -WARRANTIES. According to the weight of authority, any affirmation of fact or any promise by the seller relating to the goods i^ an express ^var- ranty, if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon; . but in many jurisdictions it is necessary, also, that T£e seller shall have intended to w^arrant.^' J In General. A warranty is not one of the necessary elements of a contract of sale. It is usually said to be a collateral engagement or promise ; but, broadly speaking, any promise by the seller with reference to the goods which are the subject of the contract of sale is a warranty. "^^ If the promise or warranty be such that its performance is a condition precedent to the obligation of the seller to perform on his part, it is often called a "condition," as distinguished from a "warranty." °' A promise which forms part of the terms of the description of the goods is of this na- 03 Harrison v. Fortlage, 161 V. S. 57, 16 Sup. Ct. 488, 40 L. Ed. 616; Rogers v. Woodruff, 23 Ohio St. G.^.2, 13 Am. Rep. 276. Si Hale V. Rawson, 4 C. B. N. S. 85, Cf. Dike v. Reitlinger, 23 Hun (N. r.) 242; Abe Stein Co. v. Robertson, 167 N. X. 101, 60 N. B. 6 6 See Sales Act, § 12. o« Ante, p. 226. 57 Ante, p. 226. §§ 73-75) ^ WARRANTIES. 237 ture. The distinction between these two kinds of promises must be borne in mind, but in these pages the term "warranty" is not confined to its narrower meaning. A warranty may be express or implied. An implied war- ranty necessarily forms part of the contract. An express war- ranty, also, must form part of the contract, unless it be given after the contract is entered into and is supported by new con- sideration. '^^ A subsequent warranty, not on a new considera- tion, is void.^° Inasmuch as, by the rules of evidence, when once a contract has been reduced to writing, the entire contract is deemed to be expressed in the instrument, parol evidence is inadmissible to prove a warranty where none is contained in the instrument, or to vary the terms of a warranty therein expressed."" Of course this rule does not exclude such proof if the writing is not the contract, as where it is a mere receipt or bill of par- cels. '"^ Nor does the fact that the contract has been reduced to writing necessarily exclude an implied warranty, if under the circumstances of the case such a warranty would otherwise 68 Oongar v. Chamberlain, 14 Wis. 258; Porter v. Pool, 62 Ga. 238. 59 Eoscorla v. Thomas, 3 Q. B. 234; Hogins v. Plympton, 11 Pick. (Mass.) 97; Summers v. Vaughan, 35 Ind. 323, 9 Am. Kep. 741; More- house y. Comstock, 42 Wis. 626; Aultman v. Kennedy, 33 Minn. 339, 23 N. W. 528 ; Manasquam Gravel Co. v. P. Sandf ord Ross, 73 N. J. Law, 506, 63 Atl. 1091. Cf. Blaess v. Nichols & Shepard Co., 115 Iowa, 373, 88 N. W. 829. 60 Kain v. Old, 2 Bam. & C. 627; Randall v. Rhodes. 1 Curt. (U. S.) 90, Fed. Cas. No. 11,556; Frost v. Blanchard, 97 Mass. 1.55; Merriam V. Field, 24 Wis. 640; Shepherd v. Gilroy, 46 Iowa, 193; Zimmerman Mfg. Co. V. Dolph, 104 Mich. 281, 62 N. W. 339; J. I. Case Plow Works V. Niles, 90 Wis. 590, 63 N. W. 1013; Vierling v. Furnace Co., 170 111. 189, 48 N. E. 1069; Seitz v. Machine Co., 141 U. S. 510, 12 Sup. Ct. 46, 35 L. Ed. 837 ; BuckstafC v. Russell, 79 Fed. 611, 25 0. C. A. 129; Rollins Engine Co. v. Forge Co., 73 N. H. 92, 59 Atl. 3S2, 68 L. R. A. 441; McNaughton v. Wahl, 99 Minn. 92, 108 N. W. 467; post, p. 265. 81 Allen V. Pink, 4 Mees. & W. 140; Atwater v. Clancy, 107 Mass. .369; Filkins v. Whyland, 24 N. Y. 338; Irwin v. Thompson, 27 Kan. IH3; Neal v. Elint, 88 Me. 72, 33 Atl. 669; Nauman v. Ullman, 102 Wis. 92, 78 N. W. 159 (conditional sale note) ; Potter v. Easton, 82 Minn. 247, 84 N. W. lOai. 238 CONDITIONS AND WARRANTIES. (Ch. 7 arise. "^ Neither does an express warranty necessarily exclude an implied warranty.'' Intention to Warrant. No form of words is necessary to create a warranty.'* Nor, by weight of authority, is it necessary that the seller should have intended to warrant. Many decisions, indeed, do so re- quire.'^ Thus it was said in a Pennsylvania case: "" "Though to constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty of itself nor evidence of it. In connection with other circumstances, it cer- tainly may be taken into consideration; but the jury must be satisfied, from the whole, that the vendor actually, and not con- structively, consented to be bound for the truth of his repre- sentation. Should he have used expressions fairly importing a willingness to be bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis ; but a naked affirmation is not to be dealt with as a war- ranty, merely because the vendee had gratuitously relied on it, for not to have exacted a direct engagement, had he desired to 62 Blackmore v. Fairbanks, Jlorse & Co., TO Iowa, 282, 44 N. W. 548; Carletou .y,^ Lombard, 14^_N. Y. 137, 43 N. E. 422; Id., 149 N. Y. 601, 44^. N. B. 1121;~Coope'r' V. Payne, _ 103 App. Div. 118, 93 N. X. Supp. 69 : Elgin Jewelry Co. v. Estes & Dozier, 122 Ga. 807, 50 S. E. 930; Ilooven & Allison Co. y. ^Yirtz (N. D.) 107 N. W. 1078. Cf. Lomliard Water- \^'heel Governor Co. y. Paper Co., 101 Me. 114, 63 Atl. .-1.-,.-,, G L. R. A. (N. S.) 180. «3 Post, p. 2i:;.j. 64 Cbapman v. Murch, 19 Johns. (N. Y.) 290, 10 Am. Dec. 227; Shuinan v. Heator (Neb.) 106 N. W. 1042. In early times the word "warrant" or its equivalent appears to have been necessary. Ohandelor v. Lopus, Cro. Jac. 4; 2 Harv. Law Rev. 9. 66 iicFarland v. Newman, 9 Watts (Pa.) 55, 34 Am. Dec. 497; Holmes V. Tyson, 147 Pa. 305, 23 Atl. 564, 15 L. R. A. 209 ; Mahaffey V. Ferguson, l.jC Pa. 156, 27 Atl. 21; House v. Fort, 4 Blackf. (Ind.) 294; Enger v. Dawley, 62 Vt. ICA, 19 Atl. 478 (but see Hohart v. Young. 63 Vt. 303, 21 Atl. 612, 12 L. R. A. 693) ; Kircher v. Courad, 9 :\ront. 191, 23 Pac. 74, 7 L. R. A. 471, 18 Am. St. Rep. 731. See also, Hopkins v. Tanqueray. 15 C. B. 130 (cf. Bannerman v. White, 10 C. B. N. S. 844); Pemberton v. Dean, 88 Minn. 60, 92 N. W. 478, 60 L. R. A. 331, 97 Am. St. Rep. 508. 60 McFarland v. Newman, supra. §§ 73-75) WARRANTIES. 239 buy on the vendor's judgment, must be counted an instance of folly." But other decisions hold with better reason that the question is, not whether the seller intended his affirmation as a warranty, but whether its natural tendency was to induce the buyer to purchase the goods, and whether he did purchase them in reliance upon it.^' "If the representation as to char- acter or quahty of the article sold be positive, and not mere matter of opinion, and the vendee understands it and relies up- on it as a warranty, the vendor is bound thereby, no matter whether he intended it to be a warranty or not." *^ "He is re- sponsible for the languages he uses, and cannot escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee." «' Fact or Opinion. A statement of opinion or a mere commendatory expression will not amount to a warranty.'" Whether a statement is an af- firmation of fact, or whether it is simply a statement of opinion 87 Hawkins v. Pemberton, 51 N. T. 19S, 10 Am. BeD no." ; Fairbank Canning Co. v. Metzger, 118 N. Y. 2C0', 23 N. E. 272,' 16 Am. St. Rep. 753; Stroud v. Pierce, 6 Allen (Mass.) 413; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693; Kenner v. Harding, 85 111. 204, 268, 28 Am. Rep. 615; Ormsby v. Budd, 72 Iowa, 80, 33 N. W. 457; Mur- phy V. McGraw, 74 Mich. 318, 41 N. W. 917; McCIintock v. Emick, 87 Ky. 160, 7 S. W. 903; Herron v. Dibrell, 87 Va. 289, 12 S. E. 674; Brskine v. Swanson, 45 Neb. 767, 64 N. W. 216 ; Huntington v. Lom- bard, 22 Wash. 202, 60 Pac. 414; Northwestern Lumber Co. v. Cal- lendar, 36 Wash. 402, 79 Pac. 30; Harrigan v. Thresher Co., 81 S. W. 261, 26 Ky. Law Rep. 317. The affirmation must be made in such manner and under such cir- cumstances as to justify the buyer in believing that a warranty was intended. Zimmerman v. Morrow, 28 Minn. 367, 10 N. W. 139; Tor- kelson V. Jorgenson, 28 Minn. 383, 10 N. W. 416. A warranty, if operative in inducing the sale, need not be the sole inducement. Mitchell v. Pinckney, 127 Iowa, 696, 104 N. W. 286. 68 Ingraham v. Raih-oad Co., 19 R. I. 3.56, 33 Atl. 875. e^Hawkins v. Pemberton, 51 N. Y. 198, 10. Am. Rep. 595. 70 Power V. Barham, 4 Adol. & E. 473; Henshaw v. Robins, 9 Mete. (Mass.) 83, 88, 43 Am. Dec. 367; Warren v. Coal Co., 83 Pa. 437, 440; Kenner v. Harding, 85 111. 264, 28 Am. Rep. 615; Robinson v. Harvey, 82 111. 58; Austin v. Nickerson, 21 Wis. 542, 543; Mnson v. Chap- pell, 15 Grat. (Va.) 572, 583; James v. Socage, 45 Ark. 284; Ragsdale V. Shipp, 108 Ga. 817, 34 S. E. 167; Quis v. Halloran, 74 App. Div. 2-10 CONDITIONS AND WARRANTIES. (Ch. 7 or a commendatory expression, often depends on the nature of the sale and the circumstances of the case. "In determining whether there was in fact a warranty," said the court in a lead- ing case, "the decisive test is whether the vendor assumes to as- sert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected, also, to have an opinion and to exercise his judgment. In the former case there is a warranty; in the latter, not." '^ If the language is not unmistakable, the question is for the jury;'^ though, if the warranty is contained in a written contract, the construction of the warranty is for the court.'"' Of course, the question whether the language is unmistakable will be de- cided differently by different courts. Thus in a case where two pictures were sold at auction by a catalogue, in which one was said to be by Claude Lorraine, and the other by Teniers, Lord Kenyon held this no warranty that the pictures were genuine works of those masters, but merely an expression of opinion.''* But where the seller sold, by a bill of parcels, "four pictures, 621, 77 N. Y. Supp. 196; Shiretzki v. Julius Kessler & Co. (Ala.) 37 South. 422. In the absence of fraud, a statement of quality, accompanied by refusal to warrant, is to be deemed an expression of opinion. Lynch V. Curfman, 65 Minn. 170, CS N. W. 5. Where the seller said that a mare was sound to the best of his knowledge, refusing to warrant, and he knew the mare to be unsound, it was held that there was a qualified warranty that she was sound to the best of his knowledge. Wood v. Smith, 5 Man. & R. 124. 71 Kenner v. Harding, 85 111. 204. 2S Am. Rep. 615. See, also, Pas- ley V. Freeman, 3 Term R. .^>7; Roberts v. Applegate, 153 111. 210, 38 N. E. 670 (cf. Eyers v. Haddem [C. C] 70 Fed. G4S). 72 Stucley V. Baily, 1 Hurl. & C. 405, 417, 31 Law J. Esch. 483; Power V. P.arham, 4 Adol. &; E. 473; Edwards v. IMarcy, 2 Allen, (Mass.) 480, 490; Tuttle v. Brown, 4 Gray (Mass.) 457, 64 Am. Dec. SO; Osgood V. Lewis, 2 Har. & G. (Md.) 405, 18 Am. Dec. 317; Kings- ley V. Johnson, 49 Conn. 402; Crenshaw v. Slye, 52 Md. 140; Claghorn V. Lingo, 02 Ala. 230; Thome v. McVeagh, 75 111. 81; McDonald Mfg. Co. V. Thomas, 53 Iowa, 558, 5 N. W. 737; Erskine v. Swanson, 45 Xeb. 707, 64 N. W. 216; Sauerman v. Simmons, 74 Ark. 563, 86 S. W. 429. 73 Osgood V. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317; Rice V. Codman, 1 Allen (Mass.) 377, 380. 74 Jendwine v. Slade (1797) 2 Esp. 572, §§ 73-75) WAUKANTIES. 241 views in Venice, Canaletti," it was left to the Jury to say wliether the seller meant to warrant them as genuine works of Canaletti, and L,ord Denman distinguished the case from the preceding one by the suggestion that Canaletti was a compara- tively modern painter of whose works it would be possible to make proof as a matter of fact, but that in the case of very old masters the assertion was necessarily matter of opinion.'"' It would be beyond the scope of this book to consider in detail particular expressions which have been held to be warranties. Known Defects. As a rule a general warranty is held not to extend to known defects or to defects apparent on a simple inspection." This rule rests on the presumed intention of the parties, who cannot be supposed the one to assert, and the other to rely on, the truth of what they know to be untrue. But the warranty may be so expressed as to protect the buyer against the consequen- ces of patent defects, and an intention to include them will readily be inferred in doubtful cases, where the buyer may nat- urally prefer to rely on the warranty rather than on his own judgment." TB Power V. Barham (1836) 4 Adol. & E. 473. Canaletti died in 1768, Claude Lorraine in 1682, and Teniers (tbe younger) in 1694. And see Lomi v. Tucker, 4 Oar. & P. 15. TsButterfield v. Burroughs, 1 Salk. 211; Margetson v. Wright, 7 Bing. 603, 8 Bing. 454; Schuyler v. Euss, 2 Caines (N. T.) 202; Ben- nett V. Buchan, 76 N. T. 386; Hill v. North, 34 Vt. 604; LeaviT:t v. Fletcffer, 60 N. H. 182; McCormick v. Kelly, 28 Minn. 135, 9 N. W. 675; Ragsdale v. Shipp, 108 Ga. 817, 34 S. B. 167. The rule does not apply if the seller artificially conceals the objects from the buyer. Obadsey v. Greene, 24 Conn. 562 ; Kenner v. Harding, S') 111. 264, 2S Am. Rep. 615; White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. a. r'J2; Scott V. Manufacturing Co., 70 Kan. 498, 78 Pac. 823; Id., 70 Kan. 500, 80 Pac. 955; Moore v. Koger, 113 Mo. App. 423. 87 S. W. 602. T7 Hill v. North, 34 Vt. 604; Brown v. Bigelow, 10 Allen (Mass.) 242; Shewalter v. Ford, 34 Miss. 417; Marshall v. Drawhorn, 27 Ga. 275, 279; McCormick v. Kelly, 28 Minn. 135, 138, 9 N. W. 675; Bran- son Y. Turner. 77 Mo. 489: Watson v. Roode, 30 Neb. 264, 46 N. W. 491 : Fitzgerald v. Evans, 49 Minn. 541, 52 N. W. 143 ; Hansen t. Gaar, Scott & Co., 63 Minn. 9i, 65 N. W. 254. Tiff.Sai.es(2d Ed.) — 16 242 CONDITIONS AND WARRANTIES. (Ch. 7 Failure Events. Blackstone says that "the warranty can only reach to things in being at the time tlie warranty was made, and not to things in futuro; as that a horse is sound at the buying of him, not that he will be sound two years hence." ^' But the law is now different, and the seller may undertake to indemnify the buyer against defects which may arise in the future or future events.^' Thus warranties in respect to machines as to their sufficiency to do the required work are frequent.'" At the same time a warranty in respect to the soundness, condition, or quality of the goods will usually be construed as applying to their sound- ness, condition, or quality at the time of the sale, and not at some future time.*^ IMPLIED VTARRANTY OF TITLE. 76. In u contract to sell or a sale, unless a contrary intention appears, there is an implied Tirarranty (sometimes call- ed a condition) on the part of the seller that in the case of a sale he has title to the goods, and that in the case of a contract to sell he will have title to the goods at the time ivhen the property is to pass; but in some states, in the case of u sale, the \rarranty is confined to cases in trhich the seller is in possession of the goods. There has never been any question that in an executory con- tract the seller warrants by implication the title to the goods which he promises to sell ; or that in the sale of a specific chat- tel an affirmation by the seller that the chattel is his is equiva- 78 3 Bl. Comm. 16G. 'd Eden v. Parkison, 2 Doug. (Mich.) 735; Osbom v. Nicholson, 13 Wall. (U. S.) e."i4, 20 L. Ed. 689; Snow v. Manufacturing Co., 69 Ala. Ill, 44 Am. Eep. 509. 80 Grieb v. Cole, 60 Mich. 397, 27 N. W. 579, 1 Am. St. Rep. 533; Lath.ira v. Shipley, 86 Iowa, 543, 53 N. W. 343; Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254; J. I. Case Threshing-Machine Co. V. JIcKinnon, 82 Minn. 75, 84 N. W. 646. 81 Lord V. Edwards, 148 Mass. 476, 20 N. E. 161, 2 L. R. A. 519, 12 Am. St. Rep. 581; Luthy v. Waterbury, 140 111. 664, 30 N. E. 351; Drews v. Ann River Logging Co., 53 Minn. 199, 54 N. W. 1110; English V. Commission Co., .57 Fed. 451, 6 C. C. A. 416; post, p. 261. § 76) IMPLIED WARRANTY OF TITLE. 243 lent to a warranty of title ; or that such an affirmation, with the consequent warranty, may be implied from the conduct of the seller as well as from his words, and may also result from the nature and circumstances of the sale/^ But it was formerly held that there was no warranty of title implied in the mere act of sale.*' This view was strongly supported in the opinion in Morley v. Attenborough *^ of Parke, B., who, however, recog- nized so many exceptions to the rule, founded upon declarations or conduct equivalent to warranty, that, as Lord Campbell said,"^ the exceptions "well might eat up the rule." The old rule was substantially altered in 186J:_b21,Eichholz.x^ Bannis- ter,'* upon the strength of the opinion of the judges in which case, Benjamin, after reviewing the authorities, argues conclu- sively that the exceptions have become the rule, and that the old rule has dwindled into the exceptions. He states the rule as follows : "A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold." " Rule in America. In the United States a distinction between goods in posses- sion of the seller and goods not in possession has been some- what upheld ; and the rule has been said to be that as to goods in possession there is an implied warranty, but that when the goods are in the possession of a third person there is no war- ranty.** That there is an implied warranty of title when the 8 2 Morley v. Attenborough, 3 Exch. 500, per Parke, B. 83 Noy, Max. v. 42; Co. Litt 102a. Cf. L'Apostre v. L'Plaistrier, cited 1 P. Wms. 318, 1 Ves. Sr. 352, Burdick, Cas. Sales, 678. 84 3 Exch. 500. 8 5 Sims V. Marryat, 17 Q. B. 281, 291, 20 Law J. Q. B. 454. 8 6 17 C. B. (N. S.) 70S, 34 Law J. C. P. 105. See, also, Edwards V. Pearson, 6 Times Law R. 220, Burdick's Cas. Sales, 679. 8T Benj. Sales, § 639. This rule was approved and followed liy Stephen, J., in Raphael v. Burt, 1 Cab. & El. 325. 88 2 Kent Comm. 478. This distinction was upheld by Lord Holt in Medina v. Stoughton, 1 Salk. 210, Ld. Raym. 593, but repudiated by Buller, J., in Pasley v. Freeman, 3 Term R. 51, and by the Judges 244 CONDITIONS AND WAERANTIES. (Ch. 7 seller is in possession of the goods is universally held,'' the implication resting- on the theory that possession is equivalent to an affirmation of title. °° But, though the other branch of the rule has been frequently approved and sometimes applied,"^ the tendency of the later decisions is against the recognition of such a distinction, and favorable to the modern English rule.°^ Thus, in a Massachusetts case,°^ Dewey, J., said : "Possession here must be taken in its broadest sense, and the excepted cases must be substantially cases of sales of the mere naked interest of persons having no possession, actual or con- structive." And, in a later case ""'in the same court, Morton, J., observed : "If the vendor has either actual or constructive possession, and sells the chattels, and not merely his interest in them, such sale is equivalent to an affirmation of title," — a distinction which, as Mr. Corbin observes,'^ differs little from that established in Eichholz v. Bannister. No Warranty in Official Sales. The circumstances of the sale or the agreement may, of course, indicate that the seller is transferring merely such in- ia Morley v. Atteuborough, 3 Exeh. 5QQ,.and in Eicliholz v. Bannister, 17 C. R. (N. S.) 70S. 8 9 Shattuck V. BrsSn, 104 Mass. 42; Maxfield v. Jones, 76 Me. 135, 137; Starr v. Anderson, 10 Conn. 338; Sargent v. Currier, 49 N. H. 311, 6 Am. Rep. 524; Cohn v. Ammidown, 120 N. Y. 398, 24 N. B. 0-14: Gould V. Bourgeois, 51 N. J. Law, 361, 18 Atl. 64; Rice v. Forsyth, 41 Md. .389; Williamson v. Sammons, 34 Ala. 691; Morris v. Tliomp- Kon, S". 111. 16; Marshall v. Duke, 51 Ind. 62; Hunt v. Sackett, 31 Mich. 18: Edgerton v. jrichels, 66 Wis. 124, 26 N. W. 748, and 28 N. W. 408; Davis v. Smith, 7 Minn. 414 (Gil. 328); Gross v. Kierskl, 41 Cal. Ill; Croly v. Pollard, 71 Jlir'h. 612, 39 N. W. S.53; Close v. rrosslnnd, 47 Jlinn. 50i>, 50 N. W. 694; Jarrett v. Goodnow, 39 W. Va. 002. 20 S. E. 575, 32 L. R. A. 321. '■>» Slinttuck V. Green, 104 ?>Iass. 42, per Morton, J. 61 Huntingdon v. Hall, 36 Me. 501, 58 Am. Dec. 765; gcranton v. Clark, 39 N. Y. 220, 100 Am. Dec. 430; Long y. Hickingbottom, 28 Miss. 773, 04 Am. Dec. 118. 9= Gould V. Bourgeois, 51 N. J. Law, 361, 373, 18 Atl. 04, per Depue, J.; 1 Smith, Lead. Cas. (Edson's Ed.) 344; Cogar v. Lumber Co., 46 W. Ya. 2.->n, 33 S. E. 219. The cases are collected in Willist. Cas. Sales, 092. 03 Whitney v. Heywood, 6 Cush. Olass.) 82, 86. 0-1 Shattuck V. Green, 104 Mass. 42, 45. BsBenj. Sales (Corbin's Ed.) § 9G2, note 21. ;4 76) IWrLIED WARKANTT OF TITLE. 24." terest as he may have, and negative the implication of a war- ranty.^* Sales by a judicial officer, sheriff, executor or admin- istrator, mortgagee, or auctioneer fall within the exception, the circumstances in such sales being such as to indicate that the seller sells only such interest as he may have in the goods."'' Nature of Warranty— Remedies of Buyer — Damages. The implied understanding of the seller that he has, or will have, title to or a right to sell the goods, is usually called a "warranty." The performance of the warranty, however, is clearly a condition precedent to the buyer's obligation to ac- cept, and, if the seller tenders goods to which he has not title, the buyer may reject them."' And if, after delivery of the goods, it turns out that the seller had not title, and the buyer has been compelled to surrender the goods to a superior title, he may recover the price, if paid, as on a failure of considera- tion."" In some jurisdictions he may also elect to recover un- liquidated damages for the breach of warranty,^ '"' in which case, upon principle, the measure of damages is the actual loss ; that is, the difference between the value of the goods and their value had the title been as warranted.^"^ In other jurisdictions. 8 6 Gould V. Bourgeois, 51 N. J. Law, 361, 18 Atl. &i; Porter v. Bright, 82 Pa. 441. " Chapman v. Speller, 14 Q. B. 621, 19 Law J. Q. B. 241; The Monte Allegre, 9 Wheat. (U. S.) 616, 6 L. Ed. 174; Mockbee v. Gard- ner, 2 Har. & G. (Mil.) 176; Baker v, Arnot, 67 N. Y. 44S; Corwin V. Benham, 2 Ohio St. 36; Bingham v. Maxcy, 15 111. 295; Cohn v. .immidown, 120 N. Y. 398, 24 N. B. 944; Johnson v. Laybourn, 56 Minn. 332, 57 N. W. 935. See Sales Act, § fJ (4). ' 8 Nevels v. Lumber Co., 108 Ky. 550, 56 S. W. 969. Such Is the effect of Sale of Goods Act, § 12 (1), calling the undertaking a "con- dition." Sales Act, § 13 (1), calls it a "warranty"; but the buyer may treat the fulfillment of the obligation to furnish goods as described and as warranted as a condition of his obligation to accept. Section 11. 8»Eicliholz T. Bannister, 17^C._ B. N. S. 708; Wilkinson v. Ferree, 24"Pari90. ' ^ 100 This was suggested by Benjamin, although there appears to be no English decision in point. Benj. Sales, § 639. The Sale of Goods Act so provides. See sections 11 (1) (a), 53 (1). See, also, Sales Act §§ 13 (1), 69 d) (b). 101 Hoffn/an v. Chamberlain, 40 N. J. Eq. 663, 5 Atl. 150, 53 Am. Rep. 7S3;VGrose v. Hennessey,^ 13 Allen (Mass.) 380; Close v. Cross- 246 CONDITIONS AND WARRANTIES. (Ch. 7 however, following the rule of damages for breach of covenant of title to real property, the measure of damages is held to be the consideration paid, with interest.^"^ In warranting the title to the goods, the seller warrants that they are free from incumbrances.^"* When Action for Breach Accrues. Whether an action for breach of warranty of title will lie upon mere proof that a superior title or an incumbrance exists, or whether proof of eviction or of interference with possession is necessary, is a question on which the decisions conflict. Those which maintain the first alternative adopt the analogy of covenants of right to convey or against incumbrances,^"* while land, 47 Jlinn. 500, 50 N. W. 694; Hendrickson v. Back, 74 Minn. 90, 75 N. W. 1019. "'\"\'liere no special damages are set fortli, the measure of the loss is the value of the property purchased; and, where there is no evi- dence of value but the consideration paid, that will be taken as the standard of value. Where there is failure of title in part, or an in- ferior title is sold, the loss Is the difference between the property as conveyed and its value had the title been as warranted." Hoffman V. Chamberlain, supra. 102 See Crittenden v. Posey, 1 Head. (Tenn.) 311; Noel v. Wheatly, 30 Miss. 181; Goss v. Dysant, 31 Tex. 186; Arthur v. Moss, 1 Or. 193. 103 Close V. Crossland, 47 Minn. 500, 50 N. W. 604; Hall v. Aitkin, 25 Neb. 360, 41 N. W. 192; Hodges v. Wilkinson, 111 N. C. 56, 15 S. E. 941, 17 L. B. A. 545; Mason v. Bohannan, 79 Ark. 435, 96 S. W. 181. It seems that there is no English decision in point Chalm. Sale of Goods Act (6th Ed.) 31. Sale of Goods Act, § 12 (3), so provides, and this is followed by Sales Act § 13 (3). Sale of Goods Act § 12 (2), also provides that there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods. This is followed by Sales Act, § 13 (2), which adds the words "as against any lawful claims existing at the time of the sale." For a discussion of the effect of these two sub- sections/ see Benj. Sales (5th Eng. Ed.) 672-GT4, where the editors submitr "that no warranty in a sale of goods against incumbrances or for quiet possession was part of the common law." V * Grose v. H ennessey. 13 Alle9_(Mass.) 389 ; Perkins v. Whelan, 116 Mass. 542; Payne~vr Rbdlen, 4 Bibb (Ky.) 304, 7 Am. Dec. 739; Chancellor v. Wiggins, 4 B. Mon. (Ky.) 201, 39 Am. Dec. 499; Matheny V. JMason, 73 Mo. 677, 39 Am. Rep. 541; Word v. Gavin, 1 Head (Tenn.) 506. § 77) IJIPLIED WARRANTY IN SALE BT DESCRIPTION. 247 those which maintain the other alternative adopt the analogy of covenants for quiet possession.^"' IMPLIED WARRANTY IN SAI.E BY DESCRIPTION. 77 Wliere there is a contract to sell or a sale of goods by description, there is an implied -warranty (sometimes called an implied "condition") that the goods shall correspond -with the description; and if the contract or sale be by sample, as -nrell as by description, it is not sufficient that the bulk of the goods corresponds Tirith the sample, if the goods do not correspond with the description. los Rule in England. When there is a contract to sell goods by description, the fulfillment by the seller of his obligation to furnish goods as de- scribed is a condition precedent to the obligation of the 9eHei«-|&nySr to perform his promise to accept and pay for the goods. If the seller fails to tender goods answering the description, he fails to perform, not a collateral agreement or "warranty," if the term is used in the narrow sense, but the contract itself. This was pointed out in Chanter v. Hopkins ^"^ by Lord Abinger, who observed : "A good deal of confusion has arisen in many of the cases on this subject from the unfortunate use made of the word warranty. Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract, and, though part of the contract, yet collateral to the express object 10 5 wanser v. Messier, 29 N. J. Law, 256; Krumbhaar v. Bircli, 83 Pa. 426; Linton v. Porter, 31 111. 107; Gross v. Kierski, 41 Gal. Ill; Burt V. Dewey, 40 N. Y. 283, 100 Am. Dec. 482 ; O'Brien v. Jones, 91 N. Y. 19'S; 'Hodges v. Wilkinson, 111 N. G. 56, 15 S. E. 941, 'IT L. E. A. 'B'lTj-'ciose V. Crossland, 47 Minn. 500, 50 N. W. 694; Hull v. Caldwell, 3 S. D. 451, 54 N. W. 100; Barnum v. Cochrane, 143 Cal. 642, 77 Pac. 656. In an action for the price, it is no defense that the title was in a third person at the time of the sale, while the defendant holds pos- session. Johnson v. Oehmig, 95 Ala. 1^, 10 South. 430, 36 Am. St Kep. 204. See, also. The Electron, 79 Fed. 689, 21 C. O. A. 12. 106 See Sales Act, § 14. Cf. Sale of Goods Act, § 13. 107 4 Mees. & W. 399. "iS CONDITIONS AND WARRANTIES. (Oh. 7 of it. But in many of the cases the circumstance of a party sell- ing a particular thing by its proper description has been called a 'warranty,' and the breach of such contract a 'breach of warranty' ; but it would be better to distinguish such cases as a noncompliance with a contract which a party has engaged to fulfill : as if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a warranty. There is no warranty that he should sell him peas. The contract is to sell peas, and, if he sends him anything else in their stead, it is a nonperformance of it." But, whatever the confusion in terms, the law is clear : If the sale is of a de- scribed article, the tender of an article answering the descrip- tion is a condition precedent to the buyer's liability, and, if the condition is not performed, the buyer is entitled to reject the article, and, if he has paid for it, to recover the price as money had and received for his use.^°* And, although the sale is by sample, it is not sufficient that the bulk corresponds with the sample if it does not also correspond with the description.^"" For example, where the sale was of "foreign refined rape oil, warranted only equal to sample," and the oil corresponded with the sample, but the jury found that it was not "foreign refined rape oil," it was held that the buyer was not bound to receive it."" The cases of sale by description are usually cases of contracts to sell unascertained goods by description ; that is, goods of a certain kind or class. And, indeed, there can be no contract to sell unascertained goods, except by description. There may, however, be a contract to sell specific goods by description; for, although in such case the goods are identified, it may be an essential term of the contract, either express or implied, that 108 Josling V. Kingsford, 32 Law J. G. P. 94; Jlody v. Gregson, L. E. 4 Exch., at page 53; Borrowman v. Drayton, 2 Exch. Div. 15; ^ViekT V. Schilizzi, 17 C. B. 619; Benj. Sales, § GOO. "If the description of the article tendered is different in any re- spect, it is not the article bargained for, and the other party is not bound to take it." Bowes v. Sh;uid, 2 App. Gas. 455, per Lord Black- burn. 108 Nichol V. Godts, 10 Exch. 191, 23 Law J. Exch. 314; Azemar v. Casella, L. R. 2 C. P. 677. 110 Nichol V. Godts, 10 Exch. 191, 23 Law J. Exch. 314. § 77) IMPLIED WARRANTY IN SALE BT DESCRIPTION. 249 the goods shall be goods of a certain description.^^^ Thus, where there was a contract to sell turnip seed as "Skirving's Swedes," it was held that it was a sale by description of the article, and that the contract was not satisfied by tender of any other seed than "Skirving's Swedes." ^^^ And in a recent case,^^^ where the plaintiff contracted to sell to the defendant a reaping machine, which the seller said was in his possession in another town, and which he said had been new the previous year, and had only been used to cut 50 or 60 acres, but the statements about the machine were untrue, and the defendant rejected it, it was held that the statements about the machine were not a mere collateral warranty, but an identification of the machine, and that the sale was by description, and the de- fendant was justified in rejecting it. Channell, J., said: "The term 'sale of goods by description' must apply to all cases where the purchaser has not seen the goods, but is relying on the de- scription alone. It applies to a case like the present, where the buyer has never seen the article, but has bought by description. In that case, by Sale of Goods Act 1893, § 13, there is an im- plied condition that the goods shall correspond with the de- scription, which is a different thing from a warranty. The most usual application of that section, no doubt, is to the case of unascertained goods ; but I think it must also be applied to cases such as this, where there is no identification otherwise than by description." 111 See Kennedy v. Mail Co., L. R. 2 Q. B. 5S0, 587. 112 Allan V. Lake, 18 Q. B. 560. 113 Varley v. Whipp (1900) 1 Q. B. 513. Channell, J., observes that "the case turns on a fine point, namely, whether the words used * * * were part of the description, or merely amounted to a collateral warranty." He illustrates: "If a man says he will sell the black horse In the last stall In his stable, and the stall is empty, or there is no horse in it, but only a cow, no property could pass. j\gain, if he says he will sell a four-year old horse in the last stall, and there is a horse in the stall, but he is not a four-year old, the property would not pass. But if he says he will sell a four-year old horse, and there is a four-year old horse in the stall, and he says that the horse is sound, this last statement would only be a collateral warranty." See comments on this case in 16 Harv. Law Kev. 465; Benj. Sales (oth Eng. Ed.) 611 et seq. Under the proposed American Sales Act, §§ 11, 14, the necessity of drawing such fine distinctions would not arise. 250 CONDITIONS AND WAEEANTIES. (Cll. 7 Rule in United States. In the United States the cases generally declare that words of description imply a warranty that the goods shall conform to the description.^^* "There is no doubt," says Shaw, C. J., "that, in a case of sale, words of description are held to consti- tute a warranty that the articles sold are of the species and quality so described." ^^^ Thus, where the article sold was de- scribed in the bill of parcels as "blue paint," it was held that this amounted to a warranty that the article should be blue paint, and not a different article.^^' It seems, however, that the rule of law differs little, if at all, from that prevailing in England ; for, although there is, as we shall see, in considering the buyer's remedies, some disagree- ment as to his remedy for breach of warranty in certain cas- es, ^^'' all the authorities agree that he may decline to accept the goods if they fail to conform to the description.^^* The law 11* Hastings v. Lovering, 2 Rck. (Mass.) 214, 13 Am. Dec. 420; Henshaw v. Robins, 9 Mete. (JIass.) 83, 43 Am. Dec. 367; Borrekins V. Bevan, 3 Rawle (Pa.) 23, 23 Am. Dec. S-j; Holloway v. Jacoby, 120 Pa. 5S3, 15 Atl. 487, 6 Am. St Rep. 737; Osgood v. Lewis, 2 Har. & G. (Md.) 411.5, IS Am. Dec. 317; JHawkins_v. Pemberton, 51 N. Y. _198J^ Am. Rep. .50.".: White v. Miller, 71 N. Y. 118, 27 Aim." Rep. 13; Lewis V. Rounti-ee, 78 N. C. 323 ; Whitaker v. MeCormick, 6 Mo. App. 114; Flint v. Lyon, 4 Cal. 17; Morse v. Stockyard Co., 21 Or, 289, 28 Pac. 2, 14 L. R. A. 137; Miller v. Moore, 83 Ga. 684, 10 S. E. 360, C L. R. A. 374, 20 Am. St. Rep. 329; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298^ 57 Am. St. Rep. 563; Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N. E. 1083; Hoffman V. Dixon, 105 Wis. 315, 81 N. W. 491, 76 Am. St. Rep. 916; Timken Carriage Co. v. C. S. Smith & Co., 123 Iowa, 5.54, 99 N. W. 183. iisHogins v. Plympton, 11 Pick. (Mass.) 97, 99; Winsor v. Ijom- bard, 18 Pick. (Mass.) 57, 60. 116 Borrekins v. Bevan, 3 Rawle (Pa.) 23, 23 Am. Dec. 85. 117 Post, p. 308. 118 Pope V. Allis, 115 TJ. S. 363, 371, 6 Sup. Ct. 69, 29 L. Ed. 393. See, also, Norrington v. Wright, 115 U. S. 188, 203, 6 Sup. Ct 12, 29 L. Ed. 3G(i, per Gray, J. ; Filley v. Pope, 115 U. S. 213, 6 Sup. Ct 19, 2;> L. Ed. 372; Avery v. Miller, 118 Mass, 500; Dailey v. Green, 15 Pa. 118; Woodle v. Whitney, 23 Wis. 55, 99 Am. Dee. 102; Wol- cott v.JUflimt,.j6 N. J. Lawj_262,,]3 Am. Rep. 438 (pointing out that if the buyer has accepted part performance the buyer may treat the lireach nt condition as a breach of warranty); Haase v. Nonnemach- er, 21 ?.Iinn. 486, 490, per GilfiUan, C. J.; Jones v. George, 61 Tex. :; 15, ;^,40, 48 Am. Rep. 280; Bagley v. Rolling Mil) Co. (C. C.) 21 Fed. § 77) IMPLIED WAREANTT IN SALE BT DESCRIPTION. 251 is clearly stated in Pope v. Allis/^' a recent case in the Su- preme Court of the United States. The point decided was that the buyer could recover the price of iron paid for before deliv- ery, and rejected after inspection, for failure to conform to the grade required by the contract. Woods, J., said : "When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, an understanding that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition ; the performance of which is preced- ent to any obhgation upon the vendee under the contract." So also, where specific goods are sold by description, when the goods are not open to inspection or their failure to comply with the description is not discoverable by inspection, a war- ranty is imphed that the goods are of the kind described, as where the buyer asks for goods of a particular kind, and the seller furnishes goods purporting to answer the description.^"" In such case, if the goods fail to conform to the description, the buyer may reject them.^*^ 159, 162; Morse v. Moore, 83 Me. 473, 479, 22 Atl. 362, 13 L. B. A. 224, 23 Am. St. Rep. 783; Columbian Iron Works & Dry Dock Co. v. Douglas, 84 Md. 44, 34 Atl. 1118, 33 D. R. A. 103, 57 Am. St. Rep. 3<;2; Puritan Mfg. Co. v. Westermire, 47 Or. 557, 84 Pac. 797. See, also, Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 Am. St. Rep. 712. ii» 115 V. S. 363, 371, 6 Sup. Ct. 69, 29 L. Ed. 393. 120 Wolcott V. Mount, 36_N^ J..IiaWj_262, 13 Am. Rep. 438 (strap- leaf red-top tumlip seed); White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13 (large Bristol cabbage seed); Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Jones v. George, 61 Tex. 345, 48 Am. Rep. 280 (Paris green, not cbrome green); Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 Am. St. Rep. 916 ("rape seed," not wild mustard seed). In Chandelor v. Lopus, Cro. Jac. 4, where a goldsmith sold a stone which he affirmed to be a bezoar stone. It was held that "the bare affirmation that it was a bezoar stone, without warranting it, is no cause of action." This was followed in New York in Seixas V. Wood, 2 Caines, 48, 2 Am. Dec. 215, and Swett v. Colgate, 20 Johns. 196, 11 Am. Dec. 266 ; but these cases on that point have been practi- cally overruled. Hawkins v. Pemberton 51 N . Y. 198^ 1 Am. Re p. 595; White v. Miller, supra. "" ' ' r2"i Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595 (barrels of what was sold as "blue vitriol," containing 25 per cent, of blue vitriol, and 75 of green vitriol); Fogg's Adm'r v. Rodgers, 84 Ky. 558, 2 S. W. 248 (stacks, sold as "hemp," composed largely of weeds). 232 CONDITIONS AND WAEKANTIES. (Ch. 7 The proposed Sales Act provides : "Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the descrip- tion." ^^^ As a breach of the warranty, under the act, justifies rejection of the goods, and also an action for damages, the ef- fect is the same as under the English act, where the term "con- dition" is used.^^^ IMPLIED ■WARRANTIES OF QUALITY. 78. Subject to the exceptions hereinafter mentioned, there is at comnion lsL^v no implied warranty or condition as to tlie quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale. EXCEPTIONS— (1) ^Vllere the buyer, expressly or by impli- cation, makes know^n to the seller the particular pur- pose for Mtrhich the goods are required, and it appears that the buyer relies on the seller's skill and judg- ment, and the goods are of a. description tirhich it is in the course of the seller's business to supply (TJtrheth- er he be the grower or manufacturer or not), there is an implied Trarranty, sonxetimes called a "condition," that the goods shall be reasonably fit for such pur- pose, 124 (2) W^here goods are bought by description from a seller 'who deals in goods of that description (whether he be the groxrer or manufacturer or not), and the buyer has no opportunity to examine them, there is an implied w^arranty, sometimes called a "condition," that the goods shall be of merchantable quality.i2 6 (3) On a sale of provisions, it is held in some states that there is an implied warranty that they are fit for con- sumption; but in most states the rule is confined to sales by dealers for immediate consumption by the buyer. 122 Section 14. This section, following the Englisli Act (section 13), also provides : "And if tlie contract or sale be by sample, as well as by description, It is not sufficient that the bulk of the goods corres- ponds with the sample if the goods do not correspond with the de- scription." 123 .Vnte, p. 231. 12-* See Sales Act, § 15 (1). As to the effect of the words in paren- thesis, post, p. 258. 125 See Sales Act, § 15 (2). § 78) IMPLIED WARRANTIES OF QUALITY. 253 Caveat Emptor. The maxim of the common law, "caveat emptor," is the gen- eral rule, so far as quality is concerned, applicable to sales. The buyer, in the absence of fraud, purchases at his own risk, unless the seller has given an express warranty, or unless a warranty be implied from the nature and circumstances of the sale.^^'^ The rule of caveat emptor probably had its origin in the fact that in early times nearly all sales of goods took place in market overt.^^'' The tendency of modern cases is to dimin- ish its scope by implying warranties in certain cases, where the circumstances indicate that such was the intention of the par- ties. Whether Warranty may be hnplied from Usage. Benjamin says that an implied warranty may result from usage,^^' but this statement is somewhat misleading. He cites Jones V. Bowden,^^" an action of deceit, in which it appeared that in auction sales of certain drugs, as pimento, it was usual to state in the broker's catalogue whether they were sea dam- aged ; and upon the evidence of the usage, and of the absence in the sale in question of a statement that they were sea dam- aged, it was held that the buyer could maintain an action for fraud. As the writer elsewhere observes, ^^^ the grounds are not very intelligently given, but it may be fairly inferred from the language of Mansfield, C. J., that he considered the verdict as establishing a usage which imposed on the seller the duty of disclosing the defect ; thus bringing the case within the principle that the suppression of that which is true, and which it is the duty of the seller to make known, constitutes fraud. As observed by Davis, J., in the leading case of Barnard v. Kellogg,^^^ in the Supreme Court of the United States, the 120 Miller v. Tiffany, 1 Wall. (U. S.) 298, 17 L. Ed. 540; Barnard V. Kellogg, 10 Wall. (U. S.) 383, 19 L. Ed. 987; Winsor v. Lombard, 18 Pick. (Mass.) 57; Hargons v. Stone, 5_N;,.,Y^73; Moore v. McKin- lay, 5 Cal. 471; Gage v. Carpen?e]r7l07 FecL 886, 47 0. 0. A. 39. See, also, cases cited post, note 140. 1=1 Morley v. Attenborough, 3 Excb., at page 511, per Parke, B. 128 BenJ. ^ffles, '§ 6.55. 12 9 4 Taunt. 847. Cf. Syers v. Jonas, 2 Excli. 111. i30Benj. Sales, § 480. 131 10 Wall. (U. S.) 383, 19 L. Ed. 987. 254 CONDITIONS AND WARRANTIES. (Ch. 7 proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence; but it does not go beyond this, and is used on the theory that the parties knew of its ex- istence, and contracted with reference to it. But evidence of a usage to imply a warranty where none is implied by the com- mon law,^''^ or evidence of a usage against a warranty where a warranty is implied by law,^^^ is inadmissible. Custom can- not be admitted to control the general rules of the law. Thus in Barnard v. Kellogg, '■'■' where the buyer purchased in Boston certain wool, after having examined four bales and declined to examine the rest, and it turned out that some of the bales, un- known to the seller, were falsely packed, it was held that the seller was not bound by warranty against false packing, which by the custom of dealers in wool in New York and Boston was implied from the fact of sale. Davis, J., said : "The usage was inconsistent with the contract which the parties chose to make for themselves, and contrary to the wise rule of law governing the sale of personal property." In concluding, he remarked that it was proper to add that the parties did not know of the custom, and could not, therefore, have dealt with reference to it. Whether the result would have been different if the custom had been known to the parties the opinion does not intimate ; but it seems that something more than mere knowledge of the custom would be necessary to show that they intended to make it a term of the contract. The proposed Sales Act,^'" following the English Sale of Goods Act,^^° provides: "An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by usage of trade." 132 Barnard v. Kellogg, 10 Wall. 383, 19 I/. Ed. 987; Dickinson V. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 650; Dodd v. Farlow, 11 Allen CMass.) 426, 87 Am. Dec. 726; Snelling v. Hall, 107 Mass. 134. See, also, Cose v. Heisley, 19 Pa. 243; Wetherill v. Neilson, 20 Pa. 448, 54 Am. Dee. 741. 133 whitmore v. Iron Co., 2 Allen (Mass.) 52. 134 10 Wall. 383, 19 L. Ed. 987. 135 Section 15 (5). 136 Section 14 (3). § 78) IMPLIED WARRANTIES OF QUALITY. 255 Sale of Specific Chattel. So far as concerns the sale of ascertained goods, which the buyer has inspected or has had an opportunity of inspecting, and of which the seller is not the manufacturer or gprower, the rule caveat emptor admits of no exceptions by implied war- ranty of quality."' Benjamin states the rule without any qual- ification in respect to goods of which the seller is the manu- facturer or grower,"^ but this qualification occurs generally in the statement of the rule in this country/^" and it has some- times been held that in such sales there is an implied warranty that the goods are free from latent defects resulting from the process of manufacture or cultivation which would render them unfit for the use for which they were designed.^*" In the rule of caveat emptor there is no hardship, for, if the buyer mistrusts 137 Parkinson v. Lee, 2 East, 314; Chanter v. Hopkins, 4 Mees. & W. 399 ; Barnard v. Kellogg, 10 Wall. (U. S.) 383, 19 L. Ed. 987 ; Salisbury y. Stainer, 19 Wend. (N. T.) 159, 32 Aiq. Dec. 437; Hight V. Bacon, 120 Mass. 10, 30 Am. Rep. 639; Weimer v. Clement, 37 Pa. 147, 78 Am. Dec. 411 ; Sellers v. Stevenson, 163 Pa. 262, 29 Atl. 715; Rice v. Forsyth, 41 Md. 389; Burnett v. Stanton, 2 Ala. 195; Kohl V. Lindley, 39 111. 195, 89 Am. Dec. 294; Burnett v. Hensley, 118 Iowa, 575, 92 N. W. 678; Telluride Power Transmission Co. v. Crane Co., 208 111. 218, 70 N. E. 319; National Oil Co. v. Rankin, 68 Kan. 679, 75 Pac. 1013; National Cotton Co. v. Young, 74 Ark. 144, 85 S. W. 92, 109 Am. St. Rep. 71. The rule of caveat emptor is probably universal in the United States, except in South Carolina (Barnard v. Yates, 1 Nott & McC. 142), and Louisiana (McLellan v. Williams, 11 La. Ann. 721). 13 8 Benj. Sales, § 644. 13S Barnard v. Kellogg, 10 Wall. (U. S.) 383, 19 L. Ed. 987, and cases cited in note 137. See, also, Jones v. Just, L. R. 3 Q. B. 197, per Mellor, J. 1*0 Kellogg Bridge Co. v. Hamilton. 110 TJ. S. 108, 3 Sup. Ct. 537, 28 L. Ed. 86. See, also, Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; Beers v. Williams, 16 III. 69; White _v. Miller, 71 N. Y. 118, 27 Am. Rep. 13 (latent defects in seeds arising from improper culti- vation);" Landreth v. Wyckoff, 67 App. Div.^145, 73 N. Y. Supp. 388; Prentice v. H'argoT ^3'' App. Div. 60S, 65 N. Y. Supp. 1114, affirmed 173 N. Y. 593, 65 N. E. 1121; post, p. 259. Where the buyer bought a bull for breeding purposes to the knowledge of the seller, paying full ijrice, and the bull proved impotent, no warranty was implied. McQuaid v. Ross, 85 Wis. 492, 55 N. W. 705, 22 L. E, A. 187, 39 Am. St. Rep. 864. 256 CONDITIONS AND WAEEANTIES. (Ch. 7 his judginent, he can require of the seller a warranty. If he inspects or declines to do so, and is satisfied without a war- ranty, he takes upon himself the risk of the goods being un- merchantable, or otherwise failing to possess the qualities which he desires. It must be borne in mind, however, that if specific goods are sold by description, even though the buyer has an opportunity for examination, if the failure to comply with the description is not discoverable by examination, a warranty that they shall correspond with the description is implied.'-*^ Warranty of Fitness for Purpose. Where a buyer orders an article for a particular purpose, which he, expressly or by implication, makes known to the sell- er,^*- and the article is of the kind manufactured by the seller or in which he deals, and the buyer relies on the judgment or skill of the seller to furnish a suitable article, an implied war- 1*1 Ante, p. 251. It would seem, however, that where the sale is by description, but the buyer inspects and accepts the specific article sold, the undertaking of the seller arising from the descrip- tion is an express warranty, such as results from any affirmation of fact the natural tendency of which is to Induce the sale, and on which the buyer relies. It would then be a question for the jm-y whether the description was intended by the parties as a warranty. Thus where the buyer, after examination, bought what the auc- tioneer erroneously stated to be blue vitriol, it was held that it was a question for the jury whether the representation at the sale amounted to a warranty. Hawkins v. Peinberton, 51 N. T. 198, 10 Am. Eep. 595. See Wolcott v. Mount, 30 N. J. Law, 2r,2, 1.3 Am. Eep. 4.".8; Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 7G Am. St. Eep. 916. 142 The purpose "may be gathered from the course pursued hy the parties, and from their conduct and acts and writings ante- cedent, but leading up, to the contract itself." Gillesiiie v. Chen?y (189G) 2 Q. B. 59. Sp" also, Beals v. Olmstead, 24 Vt. 114, 58 Am. Dec. 150. The purpose may appear from the description of the article de- sired. Preist V. Last (1903) 1 K. R. 148 ("hot water bottle") : Little V. a. E. Von Syckle & Co., 115 Mich. 480, 73 N. W. 554 (piano). Where the article is one which may he applied to various pur- IKises, the buyer must particularize the particular purpose. Jones V. Padgett, 24 Q. B. Div. G50; Hight v. Bacon, 126 Mass. ioTso" Am. Eep. 639. § 78) IMPLIED WARRANTIES OF QUALITY. 257 ranty arises that the article shall be reasonably fit for such pur- pose. ^*^ "Where a manufacturer or a dealer," it was said in a leading case,^** "contracts to supply an article which he manu- factures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an impHed term or warranty that it shall be reason- ably fit for the purpose to which it was to be appHed. In such case the buyer trusts to the manufacturer or dealer, and relies upon his judgment, and not upon his own." The rule rests upon the ground that the buyer trusts to the seller to supply a suitable article, and not to his own inspection or instructions as to its character.^*" Therefore, if the buyer orders a specific article, or a known, described, or defined article, although he ,J!iiIones_v^ Bright, 5 Bing. 533; Jones v. Just, L. R. 3 Q. B. 197, 203, 37 Law J. Q. B. 89;"EM,dall v. Newson, 2 Q. B. Div. 102; Kel- logg Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537; 28 L. Ed. 80; Harris v. Waite, 51 Vt 480, 31 Am. Rep. 694; Byers v. Chapin, 2S Ohio St. 300; Gerst t. Jones, 32 Grat. (Va.) 518; Merrill v. Nightingale, 39 Wis. 247; Breen v. Moran, 51 Minn. 525, 53 N. W. 75o; West Michigan Furniture Co. v. Glue Co., 127 Mich. 651, 87 N. W. 92; Alpha Check-Rower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Fitzmaurice v. Puterbaugh, 17 Ind. App. 318, 45 N. E. 524; Cleveland Linseed Oil Co. v. A. F. Buchanan & Sons, 120 Fed. 9061 57 C. C. A. 498; Bell v. Mills, 78 App. Div. 42, 80 N. Y. Supp. 34; Queen City Glass Co. v. Glay Pot Co., 97 Md. 429, 55 Atl. 447; Cleveland Linseed Oil Co. v. A. F. Buchanan & Sons, 120 Fed. 906, 57 C. C. A. 498; Lenz v. Blake-McFall Co., 44 Or. 569, 76 Pac. 356. Where a producer and dealer in horses for breeding purposes sold a horse to one whom he knew desired a horse for such purpose, there was an implied warranty that it was reasonably fit therefor. Jlerchants' & Mechanics' Sav. Bank v. Fraze, 9 Ind. App. 161, 36 N. E. 378, 5Z Am. St. Rep. 341. i*t Jones V. Just, supra, per Mellor, J. i<5 Dodge V. Manufacturing Co., 113 Fed. 218, 51 O. C. A. 175; Gardner v. T. J. Winter & Co., 117 Ky. 382, 78 S. W. 143, 63 L. R, A. 647; H. H. Franklin Mfg. Co. v. Manufacturing Co., 189 Mass. 344, 75 N. E. 624; Troy Grocery Co. v. Potter & Wrightington, 139 Ala. 359, 36 South. 12. If the seller disclaims knowledge of the article or its fitness, the buyer does not rely on his judgment and skill. Englehardt v. Clan- ton, 83 Ala. 336, 3 South. 680; Gage v. Carpenter, 107 Fed. 886, 47 C. C. A. 39. TirF.SALES(2D Ed.) — 17 258 CONDITIONS AND WARRANTIES. (Ch. 7 informs the seller that he wants it for a particular purpose, there is no implied warranty.^*' The rule is generally held to apply to dealers as well as to manufacturers ; ^*' but some courts confine it to manufacturers i*« Chanter v. Hopkins, 4 Mees. & W. 399; Ollivant v. Bayley, 5 Q. B. 288; Seitz v. Refrigerating Co., 141 U. S. 51^ 12 Sup. Ct. 46, 35 L. Ed. 8S7;~Doimce y,.Dpw, 64 N. Y. 411; Port Carbon Iron Co. V. Groves, 68 Pan 49" Mason v. diappell, 15 Grat. (Va.) .572; Thompson v. Libby, 35 Minn. 443, 29 N. W. 150; Goulds v. Brophy, 42 Jlinn. 109, 43 N. W. 834, 6 L. K. A. 392; McCray Refrigerator & G. S. Co. V. Woods, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232, 41 Am. St. Rep. 33; Frederick Mfg. Co. v. Devlin, 127 Fed. 71, 02 C. C. A. 53; Peoria Grape Sugar Co. v. Tumey, 175 111. 631, 51 N. :e;. 587; Day v. Construction Co., 174 Mass. 412, 54 N. E. 878; Gregg v. Belting Co., 69 N. H. 247, 46 Atl. 26; Ivans v. Laury, 1:7 N. J. Law, 103, 50 Atl. 3.j5 ; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332. 69 C. C. A. 662, 69 L. R. A. 973; American Home Sav. Bank Co. v. Trust Co., 210 Pa. 320, 59 Atl. 320; Beggs v. Brewing Co., 27 R. I. 385, 62 Atl. 373; McCormick Lumber Co. v. Winons, 126 Wis. 649, 105 N. W. 945; Cleveland Punch & Shear Works, v. Carbon Co., 75 Ohio St. 153, 78 N. E. 1009. Otherwise where the seller expressly warrants fitness, upon specifications of his own. Iroquois Furnace Co. v. Manufacturing Co., 181 111. 582, 54 N. E. 987. There is no implied vearranty that bricks to be furnished of a spec- ified grade, and of good quality equal to sample, shall be fit for their purpose, though the seller have notice of it. Wisconsin Red Press- ed Brick Co. V. Hood, 54 Minn. 543, 56 N. W. 165; Id., 60 Minn. 401, 62 N. W. 550, 51 Am. St Rep. 539; Id., 67 Minn. 329, 69 N. W. 1091, 64 Am. St. Rep. 418. "In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose." Sales Act, § 15 (4). This follows the proviso in Sale of Groods Act, § 14 (1), which "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 plows or any form of invention which has a known name, and is bought and sold under its known name, riatented or otherwise." Gille.spie v. Cheney (1896) 2 Q. B. 59, per Lord Russell, C. J. (not applicable where buyer buys cargo of coal for bunkering steamers). 14T Dushane v. Benedict, 120 V. S. 630, 7 Sup. Ct. 696, 39 L. Ed. SIO; Shinv v. Smith, 45 Kan. 334, 25 Pac. 886, 11 U R. A. 681; ilorse V. Stockyard Co., 21 Or. 2S9, 28 Pac. 2, 14 L. R. A. 157; Baum- bach Co. V. Gessler, 79 Wis. 567, 48 N. W. 802; Omaha Coal, Coke & Lime Co. v. Fay, 37 Neb. 68, 55 N. W. 211; Coyle t. Baum, 3 Okl. 695, 41 Pac. 389; Little v. G. E. Van Syckle & Oo., 115 Mich, § 78) IMPLIED WARRANTIES OF QUALITY. 259 and growers, and exclude mere dealers.^*' And some courts confine the warranty of the manufacturer or grower to latent defects which result from and could be avoided in the process of manufacture or cultivation, thus excluding liability for la- tent defects in materials purchased by the manufacturer, if the defects were unknown to him, and could not have been ascer- tained by proper examination.^*^ It has been held by other courts, however, that the warranty of fitness for a particular purpose extends even to latent defects in materials undiscover- able by the manufacturer or grower.^^" Thus, where a car- riage builder supplied a carriage pole which broke and injur- ed the buyer's horses, it was held immaterial that the defect could not have been discovered by the exercise of reasonable skill/" 480, 73 N. W. 554. See, also, McCaa v. Drug Co., 114 Ala. 74, 21 Sontb. 479, 62 Am. St. Rep. 88; Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 C. C. A. 662, 69 L. R. R. 973. The rule applies to a quarryman. Rliind v. Preedley (N. J. Sup.) fi4 Atl. 963. See Sales Act, § 15 (1), "whether he be the grower ot manufacturer or not." 1*8 American Forcite Powder Mfg. Co. v. Brady, 4 App. Div. 95, 38 Nrrr^!Suppr-545r-Wliite-v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592. See, alsoJDi)unce_je:_.Dow, 64 N. Y. 411; Healy v. Bran- don, 21 ^T. Y. Supp. 390, 66 Hun, 515, affirmed 142 N. T. 681, 37 N". B. 825; Reynolds V. Electric Co., 141 Fed. 551, 73 C. C. A. 23. 140 Hoe T. Sanhom, 21 N. X. 552, 78 Am. Dec. 163 (not for latent defect in material used which the manufacturer is not shown, and cannot he presumed, to have linown); Carleton v. Lomhard, 149 N. Y. 137, 43 N. B. 422; Bierman v. Mills Co., 151 N. Y. 482, 45 N. B. 856, 37 L. R. A. 799, 56 Am. St. Rep. 635; Howard Iron Works v. Elevating Co., 113 App. Div. 562, 99 N. Y. Supp. 163; Bragg v. Mor- rill, 49 Vt. 45, 24 Am. Rep. 102; McKinnon Mfg. Co. v. Fish Co., 102 Mich. 221, 60 N. W. 472; Wisconsin Red Pressed Brick Co. v. Hood, 67 Minn. 329, 69 N. W. 1001, 64 Am. St. Rep. 418; Tennessee River Compress Co. v. Tweeds, 97 Tenn. 574, 37 S. W. 389; Reynolds V. Electric Co., 141 Fed. 551, 73 C. 0. A. 23. See, also, The Nimrod (D. C.) 141 Fed. 215, affirmed Union Iron Works v. Spottswood, 141 Fed. 884, 72 C. C. A. 300. 150 Randall v. Newson, 2 Q. B. Div. 102; Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290; Frost v. Dairy Co. (1905) 1 K. B. 008 (milk containing typhoid germs); Moore v. Koger, 113 Mo. App. 423, 87 S. W. 602. 161 Randall v. Newson, 2 Q. B. Div. 102. Where the buyer prescribed the materials and dimensions of a 260 CONDITIONS AND WARRANTIES. (Ch. 7 Warranty of Merchantableness. In a sale of goods by description, where the buyer has not had an opportunity to examine them, there is, in addition to the implied condition or warranty that the goods shall answer the description, an implied warranty that they shall be salable or merchantable.^ °^ The rule is usually confined to sales by description, where the buyer had not an opportunity to ex- amine; ^'^^ but under the Enghsh Sale of Goods Act, and the proposed American Sales Act, the condition or warranty of merchantableness is excluded only by an actual examination, and then only as to defects which such on examination ought to have revealed.^"* No accurate definition of the term "mer- chantable" can be given, but it has been said that the goods must be "at least of medium quality or goodness." ^°'' forging to be used for a piston rod, the seller was liable only for ordinary care in selecting the material and forging it, and not for defects not discoverable by such care. Rollins Engine Co. v. Forge Co., 73 N. H. 02, 59 Atl. 382, 68 U K. A. 441. 15 2 Jones V. Just, L. R. 3 Q. B. 19T, 37 Law J. Q. B. 89^ Drunir mond v. Van Ingen, 12 App. Cas. 284, 290; ilurchie v. Cornell, 155 "Mass. 60, 29 N. E. 207, 14 L. R. A. 492, 31 Am. St. Rep. 526; War- ner V. Ice Co., 74 Me. 475; Fitch v. Archibald, 29 N. J. Law, 160; Hood V. Bloch, 29 W. Va. 244, 11 S. E. 910; Babcock v. Trice, 18 111. 420, 68 Am. Dec. 560'; Merriam v. Field, 39 Wis. 578; McClung v. Kelley, 21 lotva, 508; English v. Commission Co., 6 C. C. A. 416, 57 Fed. 451; Alden v. Hart, 161 Mass. 576, 37 N. E. 742; Bunch v. Weil Bros. & Bauer, 72 Ark. 343, 80 S. W. 582, 65 L. R. A. 80; Cam- pion V. Marston, 99 Me. 410-, 59 Atl. 548. See Sales Act, § 15 (2); Sale of Goods Act, § 14 (2). Defendant sold to plaintiff in bulk all the ice stored in certain icehouses, with the understnudiiig that plaintiff purchased it to re- sell In the general course of the ice business in a city. Defendant did not put up the ice, but bought it after it was stored, and hadj never seen it, and so stated to plaintitC, also telling him from whom he purchased It, and that he had no other information as to its' condition or quality than the statements of such seller. Held, that under such circumstances there was no implied warranty by defend- ant that the ieo was all of merchantable quality. Gage v. Carpen- ter, 107 Fed. S-Sil, 47 C. C. A. 39. 153 Cases cited note 152, supra. 1" Sale of Goods Act, § 14 (2); Sales Act, § 15 (3). 166 Howard v. Hoey, 23 Wend. (N. Y.) 350, S-' Am. Dec. 572. See also Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290 ("of medium quality or goodness, free from such defects as would render It un- § 78) IMPLIED WARRANTIES OF QUALITY. 261 When the goods are to be shipped to the buyer, or to be de- livered to him, at a particular place, so that the property does not pass, the goods remain at the seller's risk until delivery.^^" The seller must, therefore, stand the risk of any extraordinary or unusual deterioration;^" but the buyer takes the risk of any deterioration necessarily incident to the transit, and the warranty of merchantableness does not extend to such de- terioration.^"' The goods must, however, be fit for shipment; that is, such that, allowing for necessary deterioration, they will arrive in merchantable condition.^ '^' Warranty in Sale of Provisions. Blackstone says that in contracts for provisions it is always implied that they are wholesome, and that if they are not an action on the case lies against the seller. ^^^ But in England it is now held that they are governed by the same rules as other commodities ; that is, that, in the sale of provisions in which the buyer has an opportunity for inspection, no warranty is im- plied; ^^'^ but that, if the buyer trusts to the seller's judgment merchantable or unfit for the purpose for which it is ordinarily ased"). 166 Ante, p. 156. 167 Bull V. Robinson, 10 Elsch. 342, per Alderson, B. 168 Bull V. Robinson, 10 Exch. 342, 24 Law J. Exch. 165; Leggat V. Brewing Co., 60 111. 158; Mann v. Everston, 32 Ind. 355; English V. Commission Co., 57 Fed. 451, 6 O. C. A. 416; post, p. 293. A fortiori where the property passes on shipment Mobile Fruit & Trading Co. v. McGuire, 81 Minn. 232, 83 N. W. 833; Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891. When defendant, after inspecting plaintiff's orchard, contracted in November for all plaintiff's oranges, to be taken by defendant on or before April 1st, and paid for on delivery, plaintiff to deliver ■when wanted by defendant, and the oranges were ripe in January, but defendant refused to accept them till March, the implied war- ranty, if any, extended only to merchantableness on the trees, and did not entitle defendant to refuse oranges because too ripe. Bill V. Fuller, 146 Cal. 50, 79 Pac. 592. 169 Beer v. Walker, 46 L. J. C. P. 677. See, also, Mann v. Ever- ston, 32 Ind. 355; Carleton v. Lombard, Ayers & Co., 149 N. T. 137, 43 N. E. 422; McHenry v. Bulifant, 207' Par 15, 56 Atl.~226; Tru- schel V. Dean, 77 Ark. 546, 92 S. W. 781 ; Atkins Bros. Co. v. Grain Co., 119 Mo. App. 119, 95 S. W. 949. 160 3 Bl. Comm. 166. 161 Burnby v. Bollett, 16 Mees. & W. 644; Emmerton v, Mathews, 202 CONDITIONS AND WAEEANTIES. (Ch. 7 to select them, there is an implied warranty that they are fit for their purpose, viz., human food.^°^ In the United States it has been held in some cases that on a sale of provisions there is an implied warranty that they are fit for consumption;^"^ but the rule is generally confined to sales by dealers where the goods are bought for domestic use — that is, it does not apply where they are sold as mer- chandise.^'* IMPLIED ■WARRANTIES IN SALE BY SAMPLE. 79. In. the case of a, contract to sell or a sale by sample— (a) There is an implied ivarranty (sometimes called a, "condi- tion") that the bulk shall correspond urith the sample in qnality. 7 Hurl. & N. 586, 31 Law J. Exch. 139; Smith v. Baker, 40 Law T. (N. S.) 261. 162 Bigge V. Parkinson, 7 Hurl. & N. 955, 31 Law J. Exch. 301; Beer v. Walker, 46 Law J. C. P. 677, 25 Wkly. Rep. 880. 163^ Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468,^7 Ana. Dec. 339; ._ Divine v. McCormick, 50 Barb. (N. Y.) 116; Hoover v. Peters, IS Mich. Sir See, Also, Sinclair v. Hathaway, 57 Mich. 60, 23 N. W. 459, 5S Am. Eep. 327; Copas v. Provision Co., 73 Mich. 541, 41 N. W. 690; Craft v. Parker, Webb & Co., 96 }ilich. 245, 55 N. W. 812, 21 L. R. A. 139. Cf. Burch v. Spencer, 15 Hun (N. X.) 504. lai Moses v. Mead, 1 Denio (N. Y.) 378, 43 Am. Dec. 676; Id., 5 Denio (N. Y.) 617; Winsor v. Lombard, 18 Pick. (Mass.) 57, 62, per Shaw, O. J.; Humphreys v. Comline, 8 Blackf. (Ind.) 51G; Ryder V. Xcitge, 21 Minn. 70; Hanson v. Hartse, 70 Minn. 2S2, 73 N. W. 163, 68 Am. St. Rep. 527; Wiedeman v. Keller, 171 111. 93, 49 N. E. 210; Warren v. Buck, 71 Vt. 44, 42 Atl. 979, 76 Am. St. Rep. 754. See, also, Emerson v. Brigham, 10 Mass. 197, 6 Am. Dec. 109; How- ard V. Emerson, 110 Mass. 320, 14 Am. Rep. 608. But see Fairbank Canning Co. v. Metzger, 118 N. Y. 260', 267, 23 N^ E. 372, 16 Am. St. Rep. 753. If a farmer, not a dealer, kills a hog, and sells it, know- in.g that the purchaser intends to eat it, there is no implied war- ranty that the hog is fit for food. Giroux v. Stedman, 145 Mass. 439, 14 N. E. 538, 1 Am. St. Rep. 472. A waterworks company, distributing water for domestic use, does not warrant the purity of the water. Green v. Water Co., 101 V^ns. 2.58, 77 N. W. 722, 43 L. R. A. 117, 70 Am. St. Rep. 911. Under Sales Act, § 15, it seems that there is no implied war- ranty unless the case falls under subsections (1) or (2). Cf. sec- tion 14. § 79) IMPLIED WAKHANTIES IN SALE BT SAMPLE. 2G3 Cb) Tliere is an implied TParranty (sometimes called a "con- dition") that tlie buyer shall have a reasonable oppor- tunity of comparing the bnlh xj^ith the sample. (c) If the seller is a manufacturer, and in some jurisdictions if he is a dealer in goods of that kind, there is an im- plied ivarranty (sometimes called a "condition") that the goods shall be free from any defect rendering them unmerchantable 'trhich uronld not be apparent upon reasonable examination of the sample.^" It is not to be assumed that every sale where a sample is shown is a sale by sample; for the seller may show a sample and refuse to sell by it, requiring the buyer to inspect the bulk and to form his own judgment, or the buyer may decline to rely on the sample and require an express warranty. It must appear that it was a term of the contract, express or implied, that the sale was by sample. ^'^ If the contract is in writing and makes no mention of a sample, evidence is inadmissible to show that the sale was by sample.^"'' Where, however, the sale is by sample, a warranty is im- plied that the bulk shall correspond in quality with the sam- ple.^'' The reason for the implication is that there is no op- portunity for personal examination of the bulk.^" IS 5 See Sales Act, § 16. Cf. Sale of Goods Act, § 15. 166 Walter A. Wood Harvester Co. v. Ramberg, 60 Minn. 219, 61 N. W. 1132; Smitlijv. Coe, 55 App. Div. 585, 67 N. Y. Supp. 350; Buncli v. WeiTBros. & Bauer," 72 Ark. 343, 80 S. W. 582, 65 L. E. A. 80. "To constitute a sale by sample, in the legal sense of tbat term, it must appear that the parties contracted solely in reference to the sample or article exhibited, and that both mutually understood that they were dealing with the sample with an understanding that the bulk was to be like it." Wood v. Michaud, 63 Minn. 478, 65 N. W. 903, per Mitchell, J. 167 Gardiner v. Gray, 4 Camp. 144; Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433, 40 Am. Rep. 775; Harrison v. McCormiek, 89 Cal. 327, 26 Pac. 630, 23 Am. St. Rep. 469; Imperial Portrait Co. v. Bryan, 111 Ga. 99, 36 S. E. 291; ante, p. 237. i6« Parker v. Palmer, 4 Barn. & Aid. 387, 391; Carter v. Crick, 4 Hurl. & N. 412, 28 Law J. Exch. 238; Schuchardt v. Aliens, 11 Wall. (U. S.) 359, 370, 17 L. Ed. 642; Bradford v. Manly, 13 Mass. 139, 7 Am. Dec. 122; Williams v. Spafford, 8 Pick. (Mass.) 260; 16 9 See note 169 on following page. 264 CONDITIONS AND WARRANTIES. (Ch. 7 If the goods do not correspond with the sample, the buyei' may return them, unless he has accepted them, or the contract relates to specific goods the property in which has passed.^'"' Whether the undertaking of the seller be called a condition or a warranty, its performance, if the property has not passed, is a condition precedent to the obligation of the buyer to ac- cept the goods. ^^^ The buyer is entitled to a reasonable opportunity of compar- ing the bulk with the same, and on a refusal of the seller to al- low such comparison the buyer may repudiate the contract.^'^ If the sample contains latent defects, which would render the goods unmerchantable, and which would not be apparent Gould V. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St Rep. 455; Boothby v. Plaisted, 51 N. H. 436, 12 Am. Rep. 140; Merriman v. Chapman, 32 Conn. 146; Waring v. Mason, 18 Wend. (N. X.) 425; Guntlier v. Atwell, 19 Md. 157; ^Hanson v. Busse, 45 111. 496; Hubbard v. George, 49 111. 275; GrafE v. Foster, 67 Mo." 512; Brigham v. Retelsdorf, 73 Iowa, 712, 36 N. W. 715. It seems that in Pennsylvania the warranty implied in a sale by sample, unless there are circumstances to indicate that the sample is to be taken as a standard of quality, is only a guaranty that the bulk shall correspond in kind and be merchantable. Boyd v. Wilson, 83 Pa. 319, 24 Am. Rep. 176, See Benj. Sales (Corbin's Ed.) § 96©, note 26. 16 9 "If the purchaser distrusts his judgment, he can require * ♦ • a warranty that the quality or condition of the goods * * * corresponds with the sample exhibited. If he is satisfied without a warranty, and can inspect, and declines to do It, he takes upon him- self the risk that the article is merchantable ; and he cannot relieve himself and charge the seller on the ground that the ,examinatioii will occupy time and is attended with labor and inconvenience. If it is practicable, no matter how inconvenient, the rule applies. One of the main reasons why the rule does not apply in the case of a sale by sample is because there is no opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent." Barnard v. Kellogg, 10 Wall. (U. S.) 383, 19 L. Ed. '.)S7, per Davis, J. I'o Heilbutt v. Hickson, L. R. 7 C. P. 438; Couston v. Chapman, L. R. 2 Sc. App. 250, at page 254; Azemar v. Casella, L. R. 2 C. P. 431; P.utler v. Northumberland, 50 N. H. 33; Boothby v. Plaisted, n;1 N. H. 4:;G, 438, 12 Am. Rep. 140; ilagee v. Billingsley, 3 Ala. CTO; Hardtv^ Electric Co., 84 App. Div. 249, 82 N. Y. Supp. S35; post, p. "f;5. 1" See Sales Act, §11 (2). "a Lorymer v. Smith, 1 B. & C. 1. See, also. Pope v. Allis, 119 § 79) IMPLIED WARRANTIES IN SALE BT SAMPLE. 265 on reasonable examination of the sample, a further warranty- is implied that goods shall be free from such defects. Such, at least, is the rule where the seller is the manufacturer,"' though it has been held otherwise where he is not the manu- facturer.^'* Warranty that Goods are of Sdle/s Manufacture. Where there is a contract for the sale of goods by a manu- facturer, as such, it seems that it was the law that in England there is, in the absence of any trade usage to the contrary, an implied warranty that the goods are of the seller's own manu- facture."^ This question does not appear to have been raised in the United States. Fulfillment of Warranty a Condition. As has been pointed out, these implied warranties of quality are often termed "conditions." ^'' While the term "warranty" has been retained, it must be borne in mind that they are not mere warranties in the narrow sense of the term, and that, where the property has not passed, the buyer may treat the ful- fillment of the warranty as a condition of his obligation to ac- cept the goods. ^" Whether an Express Excludes an Implied Warranty. Where a warranty arises by implication of law, it may of course be negatived or varied by express agreement.^'* The U. S. 363, 6 Sup. Ct. 69, 29 L,. Ed. 393; Benj. Sales, § 594; Sales Act, § 16 (b). Cf. section 14; post, p. 294. The terms of the contract may negative tlie right of inspection. Polenghi v. Milk Co., 49 Sol. J. 120. 173 Heilbutt V. Hickson, L. R. 7 O. P. 438, 456; Drummond v. Van Ingen, 12 App. _Cas. 284; Nixa Canning Co. v. (5rocer"Co., 70 Kan.~66'C~79~Pac. 141, TO L. "ft. A. 653. 1T4 Parkinson v. Lee, 2 East, 314 (doubted by Brett, J. A., lu Randall v. Newson, 2 Q. B. Div. 102); Dickinson v. Gay, 7 Allen (Mass.) 29, 88 Am. Dec. 656. See Sales Act, § 16 (c), "if the seller is a dealer." Cf. Sale of Goods Act, § 15 (2) (c). 176 Johnson v. Raylton, 7 Q. B. Div. 438, per Brett, L. J., Cotton, L. J., and Bramwell, L. J., dissenting. S. Ct. A clause to this effect in the draft of the Sale of Goods Act was cut out in committee. Chalm. Sale of Goods Act (6th Ed.) 36. IT 6 Ante, p. 230. ITT Ante, p. 226; post, p. 36.5. ITS Burnett v. Hensley, 118 Iowa, 575, 92 N. W. 678; Dowagiae 266 CONDITIONS AND WAERANTIES, (Ch. 7 parties may alter at will the obligations which the law implies from the general nature of the contract. As a rule, upon the principle, "Expressum facit cessare tacitum," an express war- ranty excludes an implied one upon the same subject.^'' Thus, where there is an express warranty of quality, no warranty of fitness for a particular purpose will be ordinarily implied/^" And an express warranty of quality ordinarily excludes an im- plied warranty of merchantableness.^*' It seems, however, that, while an express warranty as a rule excludes an implied warranty on the same subject, it will not be held to have that effect if such does not appear to be the intention of the par- ties. ^^'^ "It is true that, as a general rule, no warranty will be Mfg. Co. T. Mahon, 13 N. D. 516, 101 N. W. 903; Bagley v. Extin- guisher Co., 150 Fed. 284, 80 C. C. A. 172. See Sales Act, § 71. 179 Dickson v. Zizinia, 10 C. B. 602, 20 Law J. C. P. 73; Deming V. Foster, 42 N. H. 165, 175; JIcGraw v. Fletcher, 35 Mich. 104; Johnson v. Latimer, 71 Ga. 470 ; International Pavement Co. v. Ma- chine Co., 17 Mo. App. 264; Bucy v. Agricultural "Works, 89 Iowa, 464, .56 N. W. 541 ; Malsby v. Young, 104 Ga. 205, 30 S. El. S54 ; Moul- trie Repair Co. v. Hill, 120 Ga. 730, 48 S. E. 143. 180 J. I. Case Plow Works v. Xiles & Scott Co., 90 Wis. 590, 63 X. W. 1013; Dwight Bros. Paper Co. v. Paper Co., 114 Wis. 414, 90 N. W. 444; La Crosse Plow Co. v. Helgeson, 127 Wis. 622, 106 N. W. 1094; Reynolds v. Electric Co., 141 Fed. 551, 73 C. C. A. 23 (Cf. Parsons Band-Cutter & Self-Feeder Co. v. Malliujier, 122 Iowa, 703, 98 N. W. 580) ; Reeves & Co. v. Byers, 15.1 Ind. .jS.j, 5S N. E. 713 ; Lombard Water-Wbeel Governor Co. v. Paper Co., 101 Me. 114, 63 Atl. 555, 6 L. R. A. (N. S.) 180; Monroe v. Hickox, Mull. & Hill Co., 144 Mich. 30, 107 N. W. 719. 181 De Witt V. Berry, 134 U. S. 800, 10 Sup. Ct. 536, 33 L. Ed. 896. The contract was for the sale of varnish, and provided: "These goods to be exactly the same quality as we make" for cer- tain third persons, "and as per sample bbl,";. delivered" — and continu- ed: "Turpentine copal varnish at 65 cents per gallon; turpentine japan dryer at 55 cents per gallon." It was held that the latter terms were hut stipulations as to price, and imported no warranty that the goods delivered should be known to the trade by those names and of a certain standard of quality. It is to be observed that the quality of the goods was expressly fixed by reference to certain other goods, and this express warranty might well be con- strued as excluding any implied warranty of quality. Lamar, J., observes, however, "that there are numerous well-considered cases that an express warranty of quality excludes an implied warranty that the articles sold are merchantable or fit for their intended use." 182 See Sales Act, § 15 (6), "unless inconsistent therewith." § T9) IMPLIED WARRANTIES IN SALE BY SAMPLE. 267 implied wliere the parties have expressed in words the war- ranty by which they mean to be bound ; but the rule does not extend to the exclusion of warranties implied by law, where they are not excluded by the terms of the contract." ^'= And it was said in an English case : "The doctrine that an express provision excludes implication * * * does not affect cases in which the express provision appears * * * to have been superadded for the benefit of the buyer." ^^* Thus a warranty that troop stores should pass inspection of the East India Com- pany's officers was held not to exclude an implied warranty that the stores should be reasonably fit for consumption by the troops.^ ^' 183 Blackmore V. Palrbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548. See, also. Alpha Check Rower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Timken Carriage Co. v. O. S. Smith & Co., 123 Iowa, 554, 99 N. W. 183. Wliere plaintiff had no opportunity to inspect the machinery sold, and defendant knew the purposes for which it was required, there is an implied warranty that it shall he fit for such purposes; such implied warranty not being inconsistent with, or excluded by, the express agreement in the contract that the machinery should be of a certain power and in good order, except from exposure to the weather. Blackmore v. Fairbanks, Morse & Co., supra. Where a contract of sale provided that the machine sold must be paid for before delivery in order that an express warranty con- tained in the contract should become effective, and delivery was made by the seller before payment was demanded, and the buyer refused to settle until after a trial of the machine, the seller ac- quiescing, there was a waiver of the express warranty, and the buyer could rely upon the warranty, implied by law, that the ma- chine was adapted to the use intended. Parsons Band-Cutter & Self- Feeder Co. v. Mallinger, 122 Iowa, 708, 98 N. W. 580. 184 Mody V. Gregson, L. R, 4 Exch., at page 53, per Willes, J. See Drummond v. Van Ingen, 12 App. Cas. 284; Merriam v. Field, 24 Wis. 640; Boothby v. Scales, 27 Wis. 626; Wilcox v. Owens, 64 Ga. 601; Austin v. Cox, 60 Ga. 521. iso Bigge V. Parkinson, 7 Hurl. & N. 955, 31 Law J. Exch. 301. 26S PEEFOBMANCE OF CONTEACT. (Ch. 8 CHAPTER vrn. PERFORMANCE OF CONTRACT. 80-81. In General. 82. Delivery. 83-8.5. Pl.ice, Time, and Manner of Delivery, 86-88. Delivery of Wrong Quantity. 89. Delivery by Installments. 90-91. Delivery to Carrier. 92-93. Buyer's Right to Examine Goods. 94. Acceptance. 95-96. Payment. 97-99. Excuses for Nonperformance of Conditions. IN GENi:itAI.. 80. It is tlie duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale.i 81. PAYMENT AND DELIVEBY CONCURRENT CONDI- TIONS. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that ,is to say, the seller most be ready and -willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession, of the goods.^ As we have seen, where specific goods are sold, and nothing is said as to the time of payment, the presumption is that the sale is for cash, and not on credit. The_grQpet%_pass£§jMDUt sttbtec1rtD^th£_sel ler's lien; and neither is the seller bound to3e^ liver possession of the goocTS, nor is the buyer bound to pay the price, except upon performance by the other party.* In 1 Sales Act, § 41; Sale of Goods Act, § 28. 2 Sales Act, § 42; Sale of Goods Act, § 27. 3 Ante, p. 121. » Bloxam v. Sanders, 4 Barn. & C. 941, 948, per Bayley, J.; Leonard V. Davis, 1 Black (TJ. S.) 476, 17 L. Ed. 222; Tipton v. Feitner,^20, N. Y. 423_; Allen v. Hartfleld, 76 111. 3.j8 ; Davis v. Gilliam, 14 Wash. 206, '44'Pac. 119. § 82) DELIVERY. 269 executory contracts of sale, where the parties have not other- wise agreed, the rule as to the concurrent duty of delivery and payment is the same. Neither party can enforce the con- tract agains t the other with out showing readmess and wHling- nesg in .p£.rfaim:L-l Lis noTliecesHarv, in otder to maintain an actioacea-J Jie contract, to show actu al t ender; readiness an d willingness is enoug-h. * WhiJe_the j)resuniption is in favor nf a rash sale, and hence that delivery and payment are concurrent conditions, the par- ties may, of course, make whatever bargain they please ; and, if th e bargain is that the sale is on credit, the buyer is entitled t o t he immediate delivery of the g-ond s ; '' though, as we shall see, ' if he fails to take the goods, and afterwards becomes insolvent, or if the term of credit expires before he exercises his right to take the goods, the seller's lien revives.* DELIVEBY. 83. MEANING. "Delivery" means vol-nntary transfer of pos- session, actual or constructive, from tlie seller to tlie buyer. 5 Morton V. Lamb, 7 Term R. 125; Rawson v. Johnson, 1 Bast, 203; Porter V. Rose, 12 Johns. (N. Y.) 209, 7 Am. Dec. 306; (Dook v. Perral's Adm'rs, IS^WenST. (N; Y.y285; Robison v. Tyson, 46 Pa. 286; Hapgood V. Shaw, 105 Mass. 276; Phelps v. Hubbard, 51 Vt. 4SS; Hough v. Rawson, 17 111. 588 ; Stoolfire v. Royse, 71 111. 223; Posey v. Scales, 55 Ind. 282 ; Simmons v. Green, 35 Ohio St. 104 ; Sousely v. Burns' Adm'r, 10 Bush (Ky.) 87; Walter v. R«ed, 34 Neb. 544, 52 N. W. 682; Sanborn v. Shipherd, 59 Minn. 144, 60 N. W. 1089; Campbell v. Moran Bros. Co., 97 Fed. 477, 38 C. C. A. 293; Catlin v. Jones (Or.) 85 Pac. 515. Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 Bos. & P. 447; Jackson v. AUaway, 6 Man. & G. 942 ; Mitchell v. Le Clair, 165 Mass. 308, 43 N. B. 117; Catlin v. Jones (Or.) 85 Pac. 515. 7 Bloxam v. Sanders, 4 Barn. & O. 941, 948, per Bayley, J.; ante, p. 122; post, p. 314. 8 Post, p. 315. 270 PERFORMANCE OF CONTRACT. (Ch. 8 PLACE, TIME, AND MANNER OF DELIVERY. 83. PLACE. 'Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, bet^peen the parties. ^-poTf, t-nnm a.-n^y fiiinji on ntract, express f^-r iTnml ipfl, tTic ■p^apf. of de- li gerv is the seller's place of busine ss. <-P Tip have one, ^V'^i ^* ■""+, '"'JB rpsjjT^iT^; but, if the. _cmitrant b^ for the- inln of sprrifl[r_^ntii|f|,i_Trbi«'b ttr flip hmngleflge of ttip pqT-tipf^ - nrbpii t.bg nnTit.Tn.p.t is made are in some other place, then that place is t ne place of deli very.^ 84. TIME. Where, under the contract of sale, the seller is 1 bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them Trithin a reasonable time.^o 85. MANNER. As a rule, -where the goods at the time of sale are in the possession of a third person, the seller has 1 not fulfilled his obligation to deliver to the buyer un- less and until such third person ackno\pledges to the buyer that he holds the goods on the buyer's behalf. But the transfer of a bill of lading, and in some ju- risdictions the transfer of a \irarehonse receipt, op- erates as a delivery of the goods. n Meaning of Delivery. "Delivery," in general, may be defined as the voluntary transfer of possession from one person to another.^^ Ben- jamin points out ^' that the word "delivery" is unfortunately Following Sale of Goods Act, § 29 (1); Sales Act, § 43 (1). Referring to the above subsection, Judge Chalmers says that as regards the plnce of delivery there was no authority In point, but it seems substantially to express the American law. Post, p. 275. 10 Sale of Goods Act § 29 (2); Sales Act, § 43 (2). 11 Sale of Goods Act, § 29 (3). See, also, Sales Act, § 43 (3), which adds: "But as against all others than the seller the buyer shall be regarded as having received delivery from the time when such person first has notice of the sale." Cf. section 25; ante, p. 206. In jurisdictions where delivery is essential to transfer the prop- erty against third persons, it has been held sufficient to constitute delivery if notice of the sale be given to the person In possession and he does not dissent. Ante, p. 207. See, also, Freiberg v. Steen- bock, 54 Minn. 509, 56 N. W. 175. But see Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Kep. 433. 12 See Sale of Goods Act, § 62; Sales Act, § 76; Pol. Poss. 43, 46. 18 Benj. Sales, § 674 et seq. §§ 83-85) PLACE, TIME, AND MANNER OF DELIVERT. 271 used in very different senses : (1) In the sense of transfer of title or property; (2) in the sense of delivery of possession, as the correlative of the "actual receipt" required by the statute of frauds; (3) in the sense of delivery of possession in per- formance of the contract; and (4) in the sense of delivery of possession sufficient to destroy the seller's lien, or even his right of stoppage in transitu. Much confusion is caused by the varying senses in v^rhich this term is employed. "But," as Judge Chalmers remarks,^* "it would perhaps be more correct to say that a delivery which is effective for one purpose is in- effectual for other purposes. For instance, delivery to a car- rier generally passes the property to the buyer, but does not de- feat the right of stoppage in transitu, while delivery by the carrier to the consignee does defeat that right." As we have seen, mere delivery does not of itself ever effect a transfer of the title or property ; whether the property passes depends sole- ly upon the intention of the parties.^' Delivery under the stat- ute of frauds has already been considered.^' Delivery as af- fecting the seller's lien ^' and the right of stoppage in tran- situ '^^ will be considered later. The question with which we are here concerned is what delivery is effectual in performance of the contract, so as to enable the seller to defend an action for nondelivery. Constructive Delivery. Delivery by agreement or attornment has already been dis- cussed in considering what delivery is necessary to constitute "actual receipt" under the statute of frauds.^" As we have seen, such delivery may take place in three classes of cases : (1) Where the seller is in possession of the goods, and after the sale attorns to the buyer, and continues to hold the goods as his bailee; (2) when the buyer is in possession of the goods as bailee, and after the sale, with the seller's assent, continues to hold on his own account; (3) where a third person is in pos- 1* Sale of Goods Act (6tli Ed.) p. 122. IB Ante, p. 119. But in some jurisdictions delivery Is essential to transfer the property, under some circumstances, as against third persons. Ante, p. 204. 18 Ante, p. 93 et seq. is post, p. 329 et seq. IT Post, p. 317. 19 Ante, p. 93. 272 PERFORMANCE OF CONTRACT. (Ch. 8 session of the goods as bailee of the seller, and such third per- son, with the consent of the seller, attorns to the buyer, and continues to hold as his bailee. To these classes of constructive delivery may be added a fourth ; that is, where the goods are not in the custody of any person, as timber lying at the disposal of the seller on the prem- ises of a person from whom he bought it, or at a public wharf, or logs floating in a river.^" ' It seems that whatever will constitute such a delivery as to ; sastisfy the statute of frauds will constitute delivery in perform- ance of the contract. Symbolical Delivery. Lord Ellenborough said in Chaplin v. Rogers =^ that i'wherp g""ds ar" pnndpr^iiSi an d incapable nf being handed over from one t o another, there nppH not be an actual deliv erv. but it may be done by what is tantamount, such as the delivery of a key of a warehouse in which the goods are lodged, or by the delivery of other indicia of property." Although delivery_by giving a keyLXif„tIie_ place where the goods are stored i j fre- qiipgtlv^rjppgprl pg gyrnhf^jic^] dpIiyPTyT^^^Fir h'~P"11'-"'k ^h^W" that the key is not the symbol of the goods, but that the trans- action "consists of such a transfer as the nature of the case ad- mits, and as will practically suffice for causing the new posses- sion to be recognized as such." ^^ 'Riif thp hill r^f lapljfig i'g ivm-^ yp^ jally r>? pag. ni7pd n. 'v J-hp s ymbol of the goods, and the tran s- fer nf fhaJ^itfl— f=»j^ ta-d-ing-nppratps p|,p p , symho jir^l rlpliNrpj- y pf thesjr^^ So, also, the transfer of the grand bill of sale of a vessel at sea constitutes a sufficient delivery of the vessel.^* The common law drew a hard and fast line of distinction, says Judge Chalmers,^" between the transfer of the bill of 20 Post, p. 274. 21 1 East. 192. See, also, Ellis v. Hunt, 3 Term R. 464, per Lord Kenyon; Packard v. Dunsmore, 11 Cusb. (Mass.) 282. 22 Vining v. Gilbreth, 39 ile. 496; Barr v. Reitz, 53 Pa. 256. 23 Pol. Poss. 61. 2* Sanders v. MacLean, 11 Q. B. Div. 327, 341; ante, p. 83; post, p. .338. 2 6 Atkinson v. Maling, 2 Term R. 402; Orapo v. Kelly, 16 Wall. (U. S.) 610, 040, 21 L. Ed. 430. See ante, p. 207. 28 Chalmers, Sale of Goods Act (6th Ed.) p. 71. §§ 83-85) PLACE, TIME, AND MANNER OF DELIVEKT. 273 lading and other documents, such as dock and wharf war- rants, and warehouse receipts, tlie transfer of wliich operates only as a token of authority to take possession, and not as a transfer of possession.^^ It is possible, however, that the trans- fer of such a document, making the goods deliverable to order, if the goods represented by the instrument were subject to no liens or charges, would be sufficient in performance of the con- tract, on the ground of an attornment in advance.^* And in some jurisdictions, in accordance with the mercantile understanding, warehouse receipts are treated as standing on the same footing as bills of lading.^' 5!Mpr , finf Enund in Send Cnndx. In t he absence of a rontrar v T i g'r°°"i"n1' il i ^ ^ ' ^y^i - lu nn |-' bound to send or carry the goods to the buyer. He does all 2 7 Ante, p. 96; post, p. 319. In Farina v. Home, 16 Mees. & W. 119, it was held tliat the indorsement by the seller to the buyer of a delivery warrant, signed by a wharfinger, maliing the goods deliv- erable to the seller or his assignee by indorsement on payment of rent and charges, did not constitute an actual receipt imder the stat- ute of frauds. In the absence of attornment by the wharfinger. Cf. Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433, per Holmes, J. Many of the cases which discuss the question of symbolical delivery turn simply upon the transfer of the property from seller to buyer — a fact which must always be carefully borne in mind. See LeonarcJ V. Davis, 1 Black (TJ. S.) 476, 17 L. Ed. 222; Bethel Steam Mill Co. V. Brown, 57 Me. 9, 99 Am. Dec. 572; Shepard v. King, 96 Ga. 81, 23 S. E. 113. Other cases turn on the question whether there was such a retention of possession by the seller as to render the sale fraudulent as against creditors, without involving the question of delivery, pure and simple, ^^l^es v. Ferris, 5 Johns. (N, Y.X-335, 4 Am. Dec. 364; Barr v. Reitz, 53'Ta. 256; Benford v. Schell, 55 Pa. 393; Adams v. Foley, 4 Iowa, 44; Puckett v. Reed, 31 Ark. 131. This seems to be the explanation of Gibson v. Stevens, 8 How. (TJ. S.) 3S4, 12 L. Bd. 1123, In which the title of the transferee of a warehouse receipt (not undertaking to deliver to the order of the bailor) was sustained as against an attaching creditor of the bailor, although the court says that the transfer "passed the title and possession." See Hallgarten v. Oldham, supra, per Holmes, J., commenting on this case. 28 Benj. Sales, f 697; post, pp. 274, 320. Cf. Sales Act, § 43 (3). 2 9 See Davia v. Russell, 52 Cal. 611, 28 Am. Rep. 647; Allen v. Jlaury, 66 Ala. 10; Merchants' Bank of Detroit v. Hibbard, 48 Mich. 118, 11 N. W. 834, 42 Am. Rep. 465; First Nat. Bank v. Bates (D. C.) 1 Fed. 702 ; Gill v. Frank, 12 Or. 507, 8 Pac. 764, 53 Am. Rep. 378. TiFr.SALEs(2D Ed.)— 18 274 PERFORMANCE OF CONTRACT. (Ch. 8 th at he is bound to do by leaving or pla cing tlip gronrit; ^t the, bliypr's rlisprni^l^ en tliaf- 1ip may rPrnnvp tVipm wi>V|r :: 'i?d, th" spH p r mu pt notif y thebuyer ol h iS re adiness to deliver;*" but, if the buyer is to designate the macbinery to the station, as tie would not be justified in leaving it by the wayside. iA Lucas V. Nichols, 5 Gray (Mass.) 311; Hunter v. Wetsell^. SkJSl.. Y. 549j^38 Am. Rep. 544; Lockhart v. Bonsall, 77 Pa. 53; Boyd v. ^Gimnison, 14 W. Va. 1; Weill v. Metal Co., 182 111. 128, 54 N. B. 1050. Where the seller was to deliver a ship at Portland, and the buyer af- ter notice failed to designate a wharf or other place, tender of deliv- ery at a safe and usual anchorage in the harbor was sufBcient. Lin- coln V. Gallagher, 79 Me. 189, 8 Atl. 888. 4 5 McHenry v. Bulifant, 207 Pa. 15, 56 Atl. 226. 4« Ellis V. Thompson, 3 Mees. & W. 445; Blydenburgh v. Welsh, Baldw. (U. S.) 331, Fed. Gas. No. 1,583; Pope v,,,^an_ufacturing Co., 107 N^.Y^_61,_13_N. B. 592; Boyd v. Gunnison, 14 W. Va. 1; Grant v. 'Bank, 35 Michr5i5; Tufts v. McClure, 40 Iowa, 317; McGinnis v. Johnson Co. (Neb.) 104 N. W. 869. *7 Ellis V. Thompson, 3 Mees. & W. 445; Pinney v. Railroad Co., 19 Minn. 251 (Gil. 211); Stange v. Wilson, 17 Mich. 342; Coon v. Spaulding, 47 Mich. 162, 10 N. W. 183. Contra, Echols v. Railroad Co,. 52 Miss. 610; Bagby v. Walker, 78 Md. 239, 27 Atl. 1033; Fisher v. Boynton, 87 Me. 395, 32 Atl. 995; Eppens, Smith & Wiemami-Co^ v. Littlejohn, 164 N. Y. 187, 58 N.JE_19, 52'L3^>. 811. ■IS Bills" v. TEmHpsan7'3 Tiees. & W.~445. But" where the contract is in writing, and does not state the time, evidence of a contempo- raneous parol agreement fixing the time Is inadmissible. Coon v. Spaulding, 47 Mich. 162, 10 N. W. 183. 4 9 Oullum V. Wagstaff, 48 Pa. 300. 278 PEEFOEMANCE OF CONTEACT. (Ch. 8 time, the seller cannot be put in default until it has been desig- nated."" Where the seller is not bound to send the goods, it would seem that the buyer has a reasonable time to come and fetch them.''^ Bu4u44diaiJJie_delivery is to be on demand, or as re- quired, the buyer is not in default until alter the seller has call- ed^hTTilmlio-ACcepf de.1ivery.^_^ _If_the_go ods are t o be manu- factured, it seems that before the buiiL^Ji be pufuTTtefarit the sejleiimust notify him that the gcadsjxe readyr^^ — When Time is Fixed. "In determmmg whether stipulations as to time of perform- ance of a contract of sale are conditions precedent, the court simply seeks to discover what the parties really intended, and Iif dme appears. on_a fair consideration of the l_anguag e and the circumstances, tojbej jf the essence of _ the_coritract.~stipu- lafinnsTn rpgaT^fTn it will he held conditions precedent.'' " °^ In mercantile transactions, however, such as the sale of goods, when the time for performance is fixed by the contract, time is generally held to be of the essence of the contract, at least so far as concerns the time of delivery. Where one of the ^ ter m c..-fvM4tf>-cnn tract provide s for the time of shipment or d e- deliv ery, shipment orjjeliyery at the time fi xed will usually be beld—ajL—a condition precedent. '^'^ , "In Jl£_COntracts_Qljper- charits,^.aid__Mr. Justicejjray,^'' "ti me is of t he_£as£n.ce. The time of shipment is the usual and convenient means of fixing BO Posey V. Scales, 55 Ind. 2S2; Louisville, N. A. & C. Ry. Co. v. Iron Co., 12G 111. 2!M, 18 N. B. 7:_;.j. And see Kingman & Co. v. Wagon Co., ITlj 111. 545, 52 N. B. 32S. " Wowry V. Kirk, 19 Ohio St 375. 6 2 Jones V. Gibbons, 8 Exch. 920; Cameron v. Wells, 30 Vt. 633. 63 Where the seller was to build a vessel, and deliver it at one of several places to be designated by the buyer, it was the seller's duty to give notice when it was finished, so that the buyer might designate the place. Spoonei- v. Baxter, 16 Pick. (JIass.) 400. 64 Benj. Sales, § 5!i", cited vi'ith approval by Folger, J., in IJigg+B^ v.JRailroad^Co., GO N. Y., at page 557. — ' osEllinger v. Comstock, 13 Ind. App. 690, 41 N. E. .351; Lefferts V. Weld, 1C7 Mass. 531, 46 N. E. 107. See, also, Redlands Orange- Growers' Ass'n V. Gorman, 161 ilo. 203, 61 S. W. S20, 54 L. R. A. 71S. Ct. Coyne v. Avery, 1S9 111. 37S. 59 N. E. 7S.S; post, p. 287. 08 Ncrrington v. Wright, 115 U. S. 188, Sup. Ct. 12, 20 L. Ed. 369. §§ 83-85) PLACE, TIME, AND MANNER OF DELIVERY. 279 the probable time of arrival, with a view to providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or of some ma- terial incident, such as the time or place of shipment, is ordi- narily to be regarded as * * * a condition precedent, on the failure of which the party aggrieved may repudiate the whole contract." In t h'" cmmi-xy, stipulations as to the time of pa ^g pent. also-, are gen erall y, nlthnngh nni- uniformly, ^ re- garded as of the essence of the con tract.^^ A dififerent rule has prevailed in England,^* where the Sale of Goods Act now pro- vides that, "unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale." ^° Although at common law "month" generally means "lunar month," in mercantile contracts it is construed as meaning "calendar month." "" ^rhpr, o rprf^jp rmip^'"' '^^ r]?}"^ '"= ^L- lo'iVpd -fnr deli vrry, th"y r i r- r^iint '^ d n r ^"ngg^utive davs , an d i nclude Sundays." ^ tlTn^i f rVi if t1-ip lagt- rl^y f^lk nn gnndmr it is not g v^pprally rnun<'°d °^ — Thp rinv ni tl-|p r ontract is not in« elu ded .i n rr.^^t^t\y^ ^r the Humbcr of day^. "^ I "^When the time and place are fixed, a delivery at such time and place is good though the buyer be absent."* Hoitr of Delivery. A lender of delivery on the last day at the place desi°- nntprl- is g god. even in the absence of the buyer, provi d ed it be rn ade^ "7 See cases cited note 112, infra. 5 8Martindale v. Smith, 1 Q. B. 389, 395; Meorsey Steel & Iron Co. V. Naylor, 9 App. Cas. 434, 444. 59 Section 10 (1). eo Webb v. Fairmaner, 3 Mees. & W. 473; Cliurchill v. Merchants' Banlc, 19 Piclv. (Mass.) 532; Thomas v. Shoemalier, 6 Watts & S. (Pa.) 179. Tbis is sometimes regulated by statute. 61 Brown v. Johnson, 10 Mees. & W. 331. See, also, cases cited In note 02. 82 Salter v. Burl. jO_Wen_d. (N. Y.) 205. 3 2 Am. Dec. 530; Sands v. L^wTTS Conn. IS; BaTretTv. Allen, 10 Ohio, 426. 63 Webb v. Fairmaner, 3 Mees. & W. 473; Bemis v. Leonard, 118 Mass. 502, 19 Am. Kep. 470; Weeks v. Hull, 19 Conn. 376, 50 Am. Dec. 24;j. 6! Barton v. McKelway, 22 N. J. Law, 165; Case v. Green, 5 Watts (Pa.) 262, 30 Am. Dec. 311. 280 PERFORMANCE OF CONTRACT. (Ch. 8 \\i«thm^juchjtinie_be^ _sunse t that the delivery can be com- plpfPfT hy da3'Hgh t.''° A tender at a later hour is good if the -bfi^Jound at t he designited place, or in cases where d e^ ,li vgrv may be made to the buyer wherever he happens _jQ_be, rnyjdfH tVip rlpHvpry r^r i be rnmp l eted befor e midnight; °° though_even in the latter case, if daylight is necessary to en- able the bujer to make a prop er mspectio n, i t seems that theHe- livery-must-be-inade. in time to enable _him to make such ex- j aminationJjy_d ay light. ° ^ ' T3ut^ where the time and place of delivery are fixed, it has been held that the mere transportation of the goods to that place is not a sufficient delivery, without the presence of the seller or his agent to make delivery and receive the price.'^ The English Sale of Goods Act provides that "what is a rea- sonable hour is a question of fact." ** Expenses of Putting into Deliverable State. The English Sale of Goods Act provides: "Unless other- wise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller." '" This provision is said by Judge Chalmers to be declaratory of the law J* 6 5 Startup V. Macdonald, 6 Man. & G. 593, 624, per Parke, B. «8 Startup V. Macdonald, 6 Man. & G. 593; Berry .v. Nail, 54 Ala. 446. 61 Croninger v. Crocker, 62 N. Y. 151, 158. 6 8 Catlin v7 Joii'es (Or.) 85 Pac. 515! 69 Section 29 (4), followed in Sales Act, § 43 (4). Judge Chalmers observes: "This subsection alters the law in so far as it makes what is a reasonable hour a question of fact. It was formerly a question of law, and some highly technical rules for determining it were laid down by Lord Weuslerdale" (in Startup v. Macdonald, su- pra). Chalm. Sale of Goods Act (Cth Ed.) 72. '0 Section 29 (.">). Followed in Sales Act, § 43 (5). 7 1 Chalmers, Sale of Goods Act (6th Ed.) p. 72, citing Story, Sales, § 297a. Cf. Benj. Sales (5th Eng. Ed.) 694. See Playford v. Mercer, 22 Law T. 41; Cole v. Kerr, 20 Vt 21. §§ 86-88) DELIVERY OF WRONG QUANTITY. 281 DELIVERY OF -wmONG QUANTITY. 86. Where the seller delivers to the bnyer a qnantity of goods larger than, he contracted to sell, the buyer may ac- cept the goods included in the contract, and reject the rest, or [if he cannot separate the goods included in the contract from the other goods without incurring trouble or expense] he may reject the -whole. If he accepts the \rhole, he must pay for them at the^OB.- tract^rate^T 2 87. Where the seller delivers to the buyer the goods he con- tracted to sell mixed with goods of a different descrip- tion not included in the contract, the buyer may ac- cept the goods nrhich are in accordance with the con- tract, and reject the rest, or, he may reject the iirhole.^^ 88. W^here the seller delivers to the bnyer a quantity of goods less than he contracted to sell, the buyer may reject them; but, if the buyer accents them, it is generally held that he must pay for them, though some courts hold that he need not pay for them unless he has oth- erwise -waived his right to a performance of the -whole contract.'* Delivery of Too Much. The seller does not comply -with his contract by a tender or delivery of a greater quantity than the contract requires. Thus it was held that, where the contract called for 200 bales, an allegation that the seller shipped 206 bales and that the buyer refused to receive the same or any part thereof was bad, for want of an allegation that the seller was ready to deliver 200 only."* And where the order was for 2 dozen wine, and 4 dozen were sent, it was held that the buyer might return the whole.' ° So where the order was for 10 hogsheads of claret, T2 See Sale of Goods Act, § 30 (2); Sales Act, % 44 (2). Cf. Sale of Goods Act, § 30 (4); Sales Act, § 44 (4). The qualification introduced by the words included in brackets applies only In certain jurisdictions. See post, p. 282. 73 Sale of Goods Act, § 30 (3) ; Sales Act, § 44 (3). 74 See Sale of Goods Act, § 30 (1); Sales Act, S 44 (1). 7 6 Dixon v. Fletcher, 3 Mees. & W. 146. 7 6 Hart V. Mills, 15 Mees. & AV. 85. 282 PEKFOEJIANCK OF OONTEACT. (Ch. 8 and the seller sent 15, it was held that the contract was not per- formed; the court saying that the buyer cannot tell which are the 10 that are to be his, and that it is no answer to the objec- tion to say that he may choose which 10 he likes, for that would be to force a new contract upon him." In this country, while the buyer is, as a general rule, entitled to refuse the whole, if the quantit}' tendered exceeds the quan- tity specified,^* some cases hold that, if no additional trouble or expense is cast upon the buyer by the selection or separation, the delivery of a greater amount, with the request to select or separate from the mass the amount required, is sufficient." Thus where the contract was for 5,000 barrels of oil to be de- livered in cars in bulk, but it was not the seller's duty to pump the oil from the cars, it was held that a tender of 5,891 barrels ) in bulk from which the buyer could take the required amount was good."" If a greater amount is sent in. performance of the contract, and not for the purpose of charging the buyer with the excess, the delivery may be good.^'^ If a greater amount is tendered for the purpose of charging the buyer with the excess, and he accepts the whole, he must pay for the excess at the contract rate, such a delivery operating as a proposal for a new con- 7 7Cunliffe v. Harrison, 6 Exeh. 903. '8 Roramel v. Wingate, lOci Mass. 327; Stevenson v. Burgin, 49 Pa. o(.;; Norrington v. Wright, 115 U. S. 188, 201, 6 Sup. Ct. 12, 20 L. Ed. 3(;6, per (Jray, .T.; Perry v. Iron Co., 16 R. I. 318, 15 Atl. 87; Ciarlf v. Palmer, 11 :Metc. (Mass.) 186, 45 Am. Dec. 199; Crquinser V. CioLkcr, 62 N. Y. 151j_ Hoffman v. King, 58 Wis. 314, 17 N. W. i;ji; (lunilier must be so assui'tsJ and separated from lumber of otlier dimensions or of inferior quaiity as to be capable of Identi- fication); Kalamazoo Corset Co. v. Simon (C. C.) 121.) Fed. 144. See aiile, p. 150. -t> I^dckliart V. Bonsall, 77 Pa. 53; Brownfleld v. Johnson, 128 Pa. 2,-4, 268, 18 Atl. 543, 6 L. K. A. 48; Iron Cliffs Co. v. Buhl, 42 Mich. 86, 3 N. W. 2i;9 (deposit of greater amount of ore from ■u4iich buyer could talie contract quantity); Ganson v. INIadigan, !» Wis. 146; Id., 13 Wis. 67. See, also, Croninger v. Crociier, 62 N. Y. 151. ~"' 80 Ix)clihart v. Bonsall, 77 Pa. 53. 81 Downer v. a'h^ojaipsonj6_Hil]J.X._jr4_2£6,__,Cf. Williamson v. Lumber Co., 42 Or. 1537toT^c. 387, 532. §§ 86-88) DELIVERY OF WRONG QUANTITY. 283 tract,^^ but it seems that he may accept the part contracted for and reject the residue.*' Delivery of Goods Mixed with Other Goods. If the goods ordered are sent mixed with other goods, the same principles govern. Where Ruabon coals were ordered, and a certain quantity of Ruabon coals were shot into a heap with coals of a different sort, the delivery was held bad.'*'' And where crockery was sent packed in a crate with other crockery, although the crockery ordered was perfectly dis- tinguishable, the same rule was applied, upon the ground that the seller had no right to impose on the buyer the onus of un- packing and separating.*^ The rule applies where damaged goods or goods of an inferior quality are mixed with the bulk.*" Delivery of Too Little. It is universally conceded that the buyer need not accept less than the entire quantity of the goods contracted for, and that if the seller delivers a smaller quantity the buyer may reject them.^^ But it is held in most jurisdictions that, if the buyer accepts a partial delivery, he must pay for the goods accepted, 82 CimliEfe v. Harrison, 6 Exch. 903, 906, per Parke, B. See, also, Levinp v. Moore Cfl^tjT App. Div. 109, S9 N. Y^^UEP-- 5T3. 8 3 SaTe'~or^?oo(ls Act, § 30 (2j; Sales" Act, § 44 (2); Larkin t. Lumber Co., 42 Mich. 29a, 3 N. W. 904. But see Ormond v. Hen- derson, 77 Miss. 34, 24 South. 170. 84 Nicholson v. Bradfield Union, L. E. 1 Q. B. 620, 35 Law J. Q. B. 176. 8 5 Levy V. Green, 8 El. & BL 575, 27 Law J. Q. B. Ill, 28 Law J. Q. B. 319. SB Clai-k V. Baker, 11 Mete. (Mass.) 186, 45 Am. Dec. 199; Hoftman V. King, 58 Wis. 314, 17 N. W. 136. See, also,_ Walker v. Davis, 05 N. H. 170, 172, 18 Atl. 196. ' 8T Cleveland Rolling Mill v. Rhodes, 121 XJ. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 020; Salmon v. Boykin, 66 Md. 541, 7 Atl. 701; Rock- ford, R. I. & St. L. R. Co. V. Lent, 63 111. 288; Smith v. Lewis, 40 Ind. 98; Hill y^eller, 27 Hun (N. Y.) 416; Growl v. Gooden- berger, n2"MlcEn3S37 71 K. W. 4S5VPrice^ vC Engelke, 68 X. J. Law, 567, 53 Atl. 698; Newell v. New Holstein Canning Co., 119 Wis. 635, 97 N. W. 487. See, also, cases cited in note 88. "Unless otherwise agreed, the buyer of goods is not bound to accept delivery tJiereof by installments." Sale of Goods Act, § 31 (1) ; Sales Act, § 45 (1). See Renter v. Sala, 4 O. P. Div. 239 ; ante, P- 57. 2Si PERFOKMANCE OF CONTEACT. (Ch. 8 although the seller fails to deliver the rest of the goods.*' The seller may not sue for the price of the portion of the goods delivered before the time fixed for the delivery of the rest/' but after the expiration of such time he may sue."" In such case, however, the buyer may reduce the amount of the seller's recovery by way of recoupment, by showing that he has sus- tained damages by the seller's failure fully to perform the con- tract." ^ Some courts, however, deny the seller's right to recover for a partial delivery. This was held in an early case "^ in New York, in which the contract was for 100 tons of hay, to be de- livered between certain dates, and to be paid for at a certain price per ton, part in advance, and the residue when the whole 8 8 Shipton v. Casson, 5 Barn. & C. 378, 382, per Lord Tenterden; Oxendale v. Wetherell, 9 Barn. & 0. 386; Morgan v. Gath, 3 Hurl. & C. 748, 34 Law J. Exch. 165; Bowker v. Hoyt, 18 Pick. (Mass.) .555; Hedden v. Roberts, 134 Mass. 40, 45 Am. Rep. 276; Roberts v. Beatty, 2 Pen. & TV. (Pa.) 63, 21 Am. Dec. 410; Clark v. Moore, 3 Mich. 55; Booth v. Tyson, 15 Vt 515; Richards v. Shaw, 07 III. 222; Polhemns v. Heiman, 45 Cal. 573; Churchill v. Holton, 38 Minn. 519, 38 N. W. 611; Saunders v. Short, 86 Fed. 225, 30 0. C. A. 4(J2; Pittsburgh Plate Glass Co. v. Kerlin Bros. Co., 122 Fed. 414, .58 C. C. A. 048; Briggs v. Morgan, 104 Mo. App. 62, 7S S. AV. 2'J5; Gibbony v. R. W. Wayne Co., 141 Ala. 30O, 37 Sauth. 426 ; Mead v. Rat Portage Lumber Co., 93 Jilinn. 343, 101 N. W. 299. "He must pay for them at the contract rate." Sale of Goods Act, § 30 (1). Cf . Sales Act, § 44 (1). See Brady v. Cassidy, J45Jvf. Y. J.71iJJ9' N. E. 814. The price agreed, in the absence of other evi- dence, may be taken as the l;asis for apportioning the seller's damages. Churchill v. Holton, supra. 8 9 Waddington v. Oliver, 2 Bos. & P. (N. B.) 61. 8 Colonial Ins. Co. v. Adelaide M. Ins. Co., 12 App. Cas. 128, at page 138. "Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of the part de- livered, because the purchaser may, if the vendor fails to complete the contract, return the part delivered. But, if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods, which he has so deliver- ed." Oxendale v. Wetherell, 9 Barn. & C. 380. per Parke, J. 01 Bowker v. Hoyt, 18 Pick. 5.j5; Richards v. Shaw, 67 111. 222. 02 Ghamplin v. Rowley, 18 Wend. (N. Y.) 1S7; Id., H Wend. (N. Y.) 258. §§ 86-88) DELIVERY OF WRONG QUANTITY. 285 should be delivered. The seller delivered only 52 tons, and after the expiration of the time fixed for the delivery of the whole brought action to recover for the quantity delivered at the stipulated price, but it was held that there could be no re- covery, the buyer not having waived or prevented a full per- formance. ] This case has been followed in New York and in some other jurisdictions.*^ ( A limitation of the doctrine enunciated in that case has, however, been introduced in a later New York case,** in which the contract was for the de- livery of 699 boxes of glass at one time, and the buyer accept- ed the delivery of a part, without knowledge that the rest was not to be delivered, but without any reservation. It was held that the seller could recover for the glass delivered. The case was distinguished on the ground that in the earlier case, the hay being deliverable in parcels, the buyer could not reject a partial delivery, and hence there was no waiver of the condi- tion that the whole must be delivered; but that in the case at bar, the delivery of the whole being required to be made at one time, the buyer could decline to receive a partial delivery, and that consequently acceptance of a partial delivery operated as a waiver of the condition. "More or Less"— "About." When the contract states the amount to be delivered with the qualification of the words "more or less," "about," or words of similar import, the seller is allowed a certain latitude in respect to the quantity. The following rules have been laid down by the supreme court of the United States: "'* (1) When the goods are identified by reference to independent circum- stances, such as an entire lot in a certain warehouse, or all that may be manufactured in a certain establishment, or that may be shipped in a certain vessel, and the quantity is named with such words of qualification, the contract applies to the specific 8 342atlin_je.jrobias, 26 N. Y^2ii_8£,Am. Dec. 183; Kein v. Tup-__ per, 52 .K Y. A50; jSIgEHngale v. Eiseman, 121 N. Y. 288, '"24 N. E. 475. Haslack v. Mayers, 26 N. J. Law, 284; Witherow v. Witherow, 16 Ohio, 238. See Holden Steam Mill v. Westervelt, 67 Me. 446. _ 04 Avery v. Willson, 81 N. Y. 341, 37 Am. Rep. 503;. See Brady v. Cas§iiix,J4;5_N-JL_171, 39 N. B. 814; Chm-chill v. Holton, 38 Mimi. 519, 38 N. W. 611. 8 6 Brawley t. U. S., 96 U. S. 168, 24 L. Ed. 622. 286 PERFORMANCE OF CONTRACT. (Ch. 8 lot, and the naming of the quantity is not regarded as a war- rant}', but only as an estimate of the probable amount, in ref- erence to which good faith is all that is required by the party making it.^" (2) Where no such independent circumstances are referred to, and the agreement is to furnish goods to a cer- tain amount, the quantity specified is material, and governs the amount; and the words of qualification are only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies."^ (3) In the last case, however, if the words of qualification are supple- mented by other stipulations or conditions which give them a broader scope, or more extensive significance, the contract is governed by such added stipulations or conditions. The case in which these rules were stated fell under the last rule."' The contract was with the government for 880 cords of wood, ■'more or less," as should be determined to be necessary by the post commander for the regular supply, in accordance with army regvtlations, of the garrison of a certain post for one year, and the post commander at once notified the seller that only 40 cords would be required, and it was held that the gov- ernment was liable for only 40 cords. osMcConnel v. Murphy, L. Tl. 5 P. C. '20?,; McLay v. Perry, 44 Law T. (N. S.) 152; Pembroke Iron Co. v. Parsons, 5 Gray (Mass.) 580; Nava^isa Guano" Co. v. Guano Co., 93 Ga. 92, 18 N. E. 1000; Morris v. Wiliaux, 159 111. G27, 43 N. E. 837. 7 Norrington v. Wright, 115 U. S. 188, Ci Sup. Ct. 12, 29 L. Ed. Sm; Creighton v. Comstock, 27 Ohio St. 548; Clapp v. Thayer, 112 Mass. 200; Cockerell v. Aucompte, 2(3 Law J. C. P. 194; United States V. Pine River L. & I. Co., SO Fed. 007, 32 C. C. A. 406. The delivery and receipt of 4.0.^4 tons of coal, under a contract for the delivery and acceptance of "about 5,000 tons," does not so complete the contract as to entitle the vendee for that reason to re- fuse a tender of the remaining :-'.(.;ij tons. Moore v. United States, lor, U. S. 157, 25 Sup. Ct. 202, 49 L. Ed. 428. »8Brawley v. U. S., 9& U. S. 108, 24 L. Ed. 022; See, also, Call- raeyer v. Ma.yor, etc., S3 N. Y. 110; Tancred v. Steel Co., 15 App. Ct. 125. § 89) DELIVERY BY INSTALLMENTS. 287 DELIVERY BY INSTALLMENTS. 89. Where there is a. contract for the sale of goods to be de- livered in installments, -which are to he separately paid for, and the seller mahes defective deliveries in respect to one or more installments, or the buyer neglects or refuses to take delivery or to pay for one or more in- stallments, the authorities differ. (a) According to the more recent English decisions and to some decisions in this country, it is a question, in each case depending on the terms of the contract and the circumstances of the case, ivhether the breach of con- tract is a repudiation of the ^vhole contract, or ivheth- er it is a, severable breach, giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated.^^ (b) According to the ■weight of authority in the United States, a material breach in respect to the delivery of any installment, or in respect to taking delivery or paying for any installment, gives the other party a \ right to repudiate the -whole eontraot.ioo Rule in England. It is impossible to reconcile the English decisions on this sub- ject,^°^ some of -which have held that the refusal to deliver or to accept a particular installment is a breach going to the root of the contract,^"^ and others of -which have held the con- trary.'^"' The leading case in the affirmative is Hoare v. Ren- os Sale of Goods Act, § 31 (2). See Benj. Sales (5th Eng. Ed.) 723. 100 Sales Act, § 45 (2), provides: "It depends in eacli case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or -whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the -whole contract as broken." Prof. Williston says that this is in accord -with the weight of American authority, citing Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct 12, 29 L. Ed. 366 ; 14 Harv. L. Rev. 323. 101 Benj. Sales, §§ 593, 593a; Chalm. Sale of Goods Act (6th Ed.) p. 74. 102 Withers v. Reynolds, 2 Barn. & Adol. 882; Hoare v. Rennie, 5 Hurl. & N. 19, 29 Law J. Exch. 73; Honck v. MuUer, 7 Q. B. Div. 92. 103 jonassohB v. Young, 4 Best & S. 296, 32 Law J. Q. B. 385; 288 PERFORMANCE OF CONTRACT. (Ch. 8 nie.^°* In that case the defendant agreed to buy from the plain- tiff 667 tons of iron, to be shipped from Sweden in about equal portions in each of the months of June, July, August, and Sep- tember, and the plaintiff shipped only 20 tons in June, which the defendant refused to accept. It was held that delivery at the time specified was a condition precedent, and that the plain- tiff could not maintain an action against the defendant for not accepting. The leading case in the negative is Simpson v. Crippin.^"" In that case the defendant had agreed to supply the plaintiff with 6,000 or 8,000 tons of coal, to be dehvered in the plaintiff's wagons at the defendant's colliery in equal monthly quantities during the period of 12 months from July 1st. During July the plaintiff sent wagons for 158 tons only, and on the 1st of August the defendant wrote that the contract was canceled on account of the plaintiff's failure to send for the full monthly quantity in the preceding month. It was held, in an action on the defendant's refusal to go on with the con- tract, that the breach in failing to send wagons in sufficient numbers in the first month, though a ground for compensa- tion, did not justify the defendant in rescinding the contract. The rule has been finally settled in England as above stated by Mersey Steel & Iron Co. v. Naylor,^"" in which the point decided was that failure of the buyer to pay for the first in- stallment upon delivery, unless the circumstances evince an intention on his part to be bound no longer by the contract, does not entitle the seller to rescind. Rule in the United States. In this country the same conflict of authority has existed, some cases substantially following Hoare v. Rennie,^"' and Simpson v. Crippin, L. R. 8 Q. B. 14; Freeth v. Burr, L. R. 9 0. P. 208. 104 5 Hurl. & N. 19, 29 Law J. Exch. 73. 105 L. R. 8 Q. B. 14. 106 9 App. Cas. 434, affirming 9 Q. B. Div. 648. 107 Norrington v. AA'rlglit, 115 V. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Cleveland Rolling Mill v. Rhodes, 121 tf. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; Pope v. .Porter, 102 N. Y. 366, 7 N. B. 30i; Clark v. Wheeling Steel Works, 3 C. C. aT~S0o7 53 Fed. 494; Peace River Phosphate Co. v. Grafflln (C. O.) 58 Fed. 5.50; King Philip Mills V. Slater, 12 R. I. 82, 34 Am. Rep. 603; Rugg v. Moore, 110 Pa. § 89) DELIVERY BY INSTALLMENTS. 289 Others Simpson v. Crippin.^"' The case of Norrington v. Wright,^"" in the Supreme Court of the United States, how- ever, has gone far to establish the rule in this country in con- formity with the first of these cases. In Norrington v. Wright the contract was for the sale of "5,000 tons of iron rails, for shipment from European port or ports, at the rate of about 1,- 000 tons per month, beginning February, 1880, but whole con- tract to be shipped before August, 1880, at $45 per ton, ex ship Philadelphia, settlement cash on presentation of bills," etc. It was held that the seller was bound to ship 1,000 tons in each month, and that only 400 tons having been shipped in February, and 885 tons in March, the buyer, although he had paid for the February shipment in ignorance of the defective shipments in that month and in March, had the right to rescind the whole contract for the defective deliveries in respect to the first installments. The decision rests on the ground that in con- tracts of merchants time is of the essence, and that the ship- ment at the time specified in the contract was a condition pre- cedent, on failure of which the buyer might rescind the whole contract. The court reviews the later English cases, and pre- fers the doctrine of Hoare v. Rennie to that of Simpson v. Crippin, both on principle and authority. It is to be noted that Gray, J., in commenting on Mersey Steel & Iron Co. v. Naylor, distinguishes the case, pointing out that the ground of 236, 1 Atl. 320; Reybold v. Voorhees, 30 Pa. 116; Robson v. Bohn, 27 Minn. 333, 7 N. W. 357; Providence Coal Co. v. Coxe, 19 R. I. 380, 582, 35 Atl. 210; Creswell Ranch & C. Co. v. Martindale, 63 Fed. 84, 11 C. G. A. 33. See, also, Dwinel v. Howard, 30 Me. 25S; Walton v. Black, 5 Houst (Del.) 149; Bradley v. King, 44 111. 339; Stokes v. Baars, 18 Fla. 656; Higgins v. Delawarej^L. & W. R. Co., 60 N^ Y. 553 . roi~Bollman v. Burt, 61 Md. 415; Blackburn v. Reilly, 47 N. J. Law, 290, 1 Atl. 27, 54 Am. Rep. 159; Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. 83; Myer v. Wheeler, 65 Iowa, 390, 21 N. W. 692; Hansen v. Consumers' Steam-Heating Co., 73 Iowa, 77, 34 N. W. 495 ; Gerll v. Manufacturing Co., 57 N. J. Law, 482, 31 Atl. 401, 30 L. R. A. 61, 51 Am. St. Rep. 611; Mayor v. Schaub Bros., 96 Md. 534, 54 Atl. 106. And see West v. Beehtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791. See, also, an article by Mr. Landreth, 21 Am. Law Reg. 398, in which he concludes that the weight of Amer- ican authority supports the English rule. loB 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. TrFr.SAi,Es(2D Ed.) — 19 290 PERFORMANCE OF CONTRACT. (Ch. 8 the decision, as stated by the Lord Chancellor, are applicable only to the case of failure of the buyer to pay for, and not to failure of the seller to deliver, the first installment ; that is, that, since delivery must precede payment, no particular payment can be a condition precedent to the entire contract, and hence payment cannot be a condition precedent to a subsequent ful- fillment of the unfulfilled part, by delivery of the subsequent installments.^^" In a later case ^^^ in the Supreme Court the same rule was applied where the first installment had been de- livered and paid for, and the default consisted in failure to de- liver the rest of the quantity within the time specified. It has been held, however, in numerous cases, that neglect or refusal to pay for an installment is such a default as gives the seller the right to repudiate the contract.^^* DELIVERY TO CARRIEH. 90. Where, in pursnance of a contract of sale, the seller Is anthorized or required to send tlie goods to tlie buyer, delivery of the goods to a carrier, -whether named by the buyer or not, for the purpose of transmission to the buyer, is deemed to be a delivery to the buyer, ex- cept \rhere the contract requires the seller to deliver 110 The Englisli editor of Benjamin on Sales, commenting on Nor- rington v. Wright, says that "this appears to be an entire misap- prehension of the ratio decidendi of that case [Mersey Steel & Iron Co. V. Naylor, 9 App. Cas. 434] both in the House of Lords and in the Court of Appeal, which lies in the application of a general principle equally applicable whether the breach of contract is com- mitted by one or other of the parties to the contract." Benj. Sales (Bennett's 7th Am. Ed.) § 593a. 111 Cleveland Rolling Mill v. Rhodes, 121 TJ. S. 255, 7 Sup. Ct. 8S2, 30 L. Ed. 920. 112 Rr.bson V. Bohn, 27 Minn. 333, 7 N. W. 357 (cf. Beatty v. Lumber Co., 77 Minn. 272, 79 N. W. 1013); Rugg v. Moore, 110 Fa. 230, 1 Atl. 320; McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. Rep. -115; Hull Coal & C. Co. v. Coke Co., 113 Fed. 256, 51 C. C. A. 213; George H. Hess Co. v. Dawson, 149 111. 138, 36 N; B. 5."7. And see Faber v. Houghtham, 36 Or. 428, ."^9 Pac. 547, 1111 ; National Machine & T. Co. v. Machine Co., 181 :Mass. 275, 63 N. E. 90O; Eastern Forge Co. v. Corbin, 182 Mass. 590, 66 N. B. 419; National Contracting Co. v. Cement Co., 192 Mass. 247, 78 N. E. 414. Mere failure to pay, not evincing a purpose to renounce, held not §§ 90-91) DELIVEET TO CAERIEK. 291 the goods to the buyer, or at a particnlar place, or nnless a contrary intention appears.^^^ 91. DUTY TO INSURE SAFE ARRIVAI/. Unless otherwise authorized by the buyer, the seller must make such contract -with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or dam- aged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to him- self, or may hold the seller responsible in damages. n* As we have already seen,^^"* when the seller is bound to send the goods to the buyer, a delivery to a common carrier is de- livery to the buyer himself, the carrier becoming the bailee of the person to whom the goods are sent.^^° If, however, the seller is bound to deliver at the buyer's residence or at a dis- tant place, the carrier is the seller's bailee for the purpose of to justify the seller in treating the contract as abandoned. Monarch Cycle Jlfg. Co. v. Wheel Co., 105 Fed. 324, 44 C. 0. A. 523; West V. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. K. A. 791. lis See Sales Act, § 46 (1). 11* Sale of Goods Act, § 32 (2), followed in Sales Act, 5 46 (1), which is said to be declaratory of the common law. Benj. Sales (5th Eng. Ed.) 739. 115 Ante, pp.94, 155. 118 Wait V. Baker, 2 Exch. 1; Dunlop v. Lambert, 6 Clark & F. 60O; WJlcox Silver Plate Co. y^Green , 72 N. Y. 17; Strong v. Dodds, 47 Vt. 348; Stafford v. Walter, 67 111. 83; Pennsylvania Co. v. Hold- erman, 69 Ind. IS; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Kep. 624; Kelsea v. Manufacturing Co., 55 N. J. Law, 320, 26 Atl. 907, 22 L. R. A. 415; Kessler v. Smith, 42 Minn. 494, 44 N. W. 794; Mann v. Glauber, 96 Ga. 795, 22 S. E. 405; McKee v. Bain- ter, 52 Neb. 604, 72 N. W. 1044; Dr. A. P. Sawyer Medicine Co. v. Johnson, 17S Mass. 374, 59 N. B. 1022; McCullough Bros. v. Arm- strong, 118 Ga. 424, 45 S. E. 379. Cars of coal which were loaded by the seller at the mines and billed to the buyer in the seller's shipping orders to the railroad company in compliance with the contract, but which the company appropriated to its own use imder a plea of necessily, are to be considered, as between the parties, as having been delivered to the buyer in pursuance of the contract. Luhrig Coal Co. v. Jones & Adams Co., 141 Fed. 617, 72 C. O. A. 311. But though the carrier is the buyer's agent to receive, he Is not his agent to accept Ante. p. 89. "92 PERFORMANCE OF CONTRACT. (Ch. 8 carriage, and delivery to the carrier is not delivery to the buy- er.^^' And, although the seller may be authorized to deliver to a carrier, he may reserve the right of possession or property, and, if he does so, delivery to the carrier is not delivery to the buyer.^^' If the buyer designates a particular carrier or a par- ticular route, delivery to a different carrier or to a carrier for shipment by a different route is not delivery to the buyer.^^* Duty to Insure Safe Arrival. "Delivery of goods to a carrier or wharfinger, with due care and diligence, is sufficient to charge the purchaser, but he has a right to require that in making the delivery due care and diligence shall be exercised by the seller." ^^° The seller must use the usual precaution to insure delivery. '^''^ Thus where the seller neglected to apprise the carrier that the value of the iiT Dunlop V. Lambert, 6 Clark & F. 600; Thompson v. Rail- road Co., 1 Bond (U. S.) 152, Fed. Cas. No. 13,950; Bloyd v. Pollock, 27 W. Va. 75; Devine v. Edwards, 101 111. 138; Braddock Glass Co. V. Irwin, 153 Pa. 440, 2.5 Atl. 490; Herring-Marvin Co. v. Smith, 43 Or. 315, 72 Pac. 704, 73 Pac. 340; ante, p. 156. 118 Ante, p. 162. iisFilley v. Pope, 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372; Wheelhouse y. Parr, 141 Mass. 593, 6 N. B. 787; lasiji v. Rosen- stein, 65 Hun^591, 20 N. Y. Supp^ 491. 7 ^rATcoutfact foFTKB" saTF ot~gugaf~3escribed it as shipping or to be shipped « * • per steamer E.," the price to be so much per pound "ex ship." There were also clauses, "Sea damaged, if any, to be taken at a fair allowance," and "No arrival, no sale." Held that, the sugar having been put on hoard the E., the purchaser's duty to receive it was not affected by the fact that during the voy- age, owing to an accident to the vessel, part of the sugar was trans- ferred to another vessel for transportation. Harrison v. Fortlage, 161 U. S. 57, 16 Sup. Ct. 488, 40 Jj. Ed. 616. isoBuckman v. Levi, 3 Camp. 414, per Lord Ellenhorongh. In an action on an accepted draft on the consignment of a oar load of fruit, it appeared that the consignor shipped the fruit dur- ing the cold season in a common box car, and the fruit was frozen in transit; that consignor could have shipped the fruit in a refrigerator car, so as to prevent freezing; and tliat consignee did not know the condition of the fruit when he accepted the draft. Held, that the consignor was negligent in so shipping the fruit, and could not recover Its value. Wilson v. Fruit Co., 11 Ind. App. 89, 38 N. B. 827. 121 Clarke v. Hutchins, 14 East, 475; Ward v. Taylor, 56 111. 494. Where the order was to ship by rail immediately, and the §§ 90-91) DELIVEKT TO OAREIER. 293 goods exceeded £5, although the carriers had published, and it was notorious in the place of shipment, that they would not be responsible for a package above that value unless entered and paid for as such, and the package was lost, it was held, in an action for goods sold and delivered, that there had been no delivery.^^^ If the goods are misdirected by the seller, so as to prevent their receipt by the buyer, the delivery is bad.^^' But the buyer must take any risks of deterioration necessarily incident to the transit.^^* Duty to Insure. As a rule the seller is not bound to insure.^*" But if the dealings of the parties show that the seller is bound under the contract to insure when requested, and he fails on request to insure, and the goods are lost, he cannot recover payment.^^" The English Sale of Goods Act provides: "Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit." ^" railroad company refused to transport 'without a release of liability, a delivery on these terms was good. Stafford v. "Walter, 67 111. 83. 122 Clarke v. Hutchins, 14 East, 475. 123 Finn v. Olark, 10 Allen (Mass.) 479; Id., 12 Allen (Mass.) 522; Garretson v. Selby, 37 Iowa, 529, 18 Am. Rep. 14. 124 Bull V. Robinson, 10 Exch. 342, 24 Law J. Exch. 165; Leggat V. Brewing Co., 60 111. 158; Mobile Fruit & Trading Co. v. McGuire, 81 Minn. 232, 83 N. W. 833; McHenry v. Bulifant, 207 Pa. 15, 56 Atl. 226; Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891. See Sale of Goods Act, § 33. And see ante, p. 261. 126 Bartlett v. Jewett, 98 tnd. 206. 126 New York Tartar Co. v. French, 154 Pa. 273, 26 Atl. 425. 127 Section 32 (3). The rule is borrowed from the Scotch law. Chalm. Sale of Goods Act (6th Ed.) 76; Benj. Sales (5th Bug. Ed.) 739. It is followed with modification in Sales Act, § 46 (3). Prof. Willistou says It is probably in accord with business usage. 294 PEKFOKMANCE OF CONTRACT. (Ch. 8 BTTYEK'S BIGHT TO EXAMINE GOODS. 92. Where goods are delivered to tie buyer, -which he has mot previously examined, he is not deemed to have ac- cepted them unless and until he has had a reasonable opportunity of examining them for the purpose of as- certaining xphether they are in conformity with the contract.12 8 93. TTnless otherw^ise agreed, vsrhen the seller tenders delivery of goods to the buyer, he is bound, on request, to af- ford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity -with the contract. i^^ An offer of delivery, accompanied with refusal to permit ex- amination, or without reasonable opportunity to inspect, is in- valid."" The buyer is not deemed to have accepted until he has had a reasonable opportunity to inspect. He may, however, waive inspection.^^^ And if he fails to inspect within a reasonable 128 Sale of Goods Act, § 34 (1); Sales Act, § 47 (1). See, also, Sale of Goods Act, § 15 (2) (b) ; Sales Act, § 16 (b) ; ante, p. 263. 128 Sales Act, § 47 (2). 130 Isherwood v. Wliitmore, 11 Mees. & W. 347, 10 Mees. & W. 757; Lorymer v. Smith, 1 Barn. & C. 1; Croninger v. Rocker, 02 N.^ 151^ Pope v. Allis, 115 U. S. 303, 6 SupTXC" 09, 2"."Lr'Ed. 393; Charles v. Carter, 96 Tenn. 007, 36 S. W. 396; Sun Pub. Co. V. Foundry Co., 22 Or. 49, 29 Pac. 6. Where delivery of bides was to he on payment of draft, an offer to allow examination at the railway station was sufficient. Sawyer v. Dean, 114 N. Y. _469,_ 21 N. E. 1012. A purchaser of lumTser, sent to his yard in box cars in which it cannot be examined, may unload, inspect, and exam- ine before acceptance. Holmes v. Gregg, 66 N. H. 021, 28 Atl. 17. Where by the contract the seller was to deliver iron of specified quality f. o. b. at Liverpool, and the buyer was to pay by bills of exchange at 60 days on delivery of shipping documents at New York, his right of inspection continued till the iron arrived in New Yorli, and payment after receipt of the documents, but before op- portunity to inspect, did not conclude the buyer from denying on acceptance. Pierson v. CrookSj^llO.N. Y. 5o9_22 N. E. 349, 12 Am. St. Rep. 831. Although the place of delivery is ordinarily the place of inspection, the seller may consent to inspection at another place. Cefalu v. Fitzsimmons-Derrig Co., 05 Minn. 4S0, 07 N. W. 1018. 131 Castle V. Sworder, 30 Law J. Exch. 310, 312, per Cockburn, C. J. The circumstances of the sale may be such that the law will §§ 92-93) buyer's uighx to examine goods. 295 time he cannot afterwards reject the goods. ^^^ The right of in- spection carries with it the right, if necessary' for the purpose of testing, to use a reasonable quantity of the goods. ^'' As we have seen, where the seller delivers goods according to order for transportation to the buyer, as a rule, if the goods conform to the description, the property passes upon ship- ment.^^* Nevertheless the buyer has the right of inspection be- fore acceptance, and if they do not correspond with the con- tract the property does not pass, and upon inspection the buyer may refuse to accept them.^^° Where goods are shipped C. O. not imply the right to inspect before delivery and payment. Pettitt V. Mitchell, 4 Man. & G. 819. If the buyer does not malie a sufficient inspection, he cannot de- fend an action for the price on the ground that it would have taken several hours. Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891. 132 Toulmin v. Hedley, 2 Car. & K. 157; Lincoln v. Gallagher, 79 Me. 189, 8 Atl. 883; Doane v. Dunham, 79 111. 131; Brownlee v. Bolton, 44 Mich. 218, 6 N. W. 657; Boothby v. Scales, 27 Wis. 628; McClure v. Jefferson, 85 Wis. 208, 54 N. W. 777; Knoblauch v. Kronschnabel, 18 Minn. 300 (Gil. 272); Maxwell v. Lee, 34 Minn. 511, 27 N. W. 196. Where iron was shipped from Liverpool to New York in three shipments, and each lot was inspected within 10 days of its arrival, and the buyer notified his rejection within a month after arrival of the first shipment, the delay was not so great as to be held un- reasonable as matter of law. Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831— " - What is a reasonable time depends on the circumstances. Includ- ing the fact of their being perishable or nonperishable. Jones v. Bloomgarden, 143 Mich. 326, 106 N. W. 891. 133 Philadelphia Whiting Co. v. White-Lead Works, 58 Mich. 29, 24 N. W. 8S1. Cf. Nelson v. Overman, 38 S. W. 882, 19 Ky. Law Rep. 161 ; Zipp Mfg. Co. v. Pastorino, 120 Wis. 176, 97 N. W. 904. But, where the buyer has notified the seller of his rejection, he can- not use a portion of the goods in making a test, for the purpose of determining the question of their fitness, or of providing evidence of their unfitness, and still insist on his right to reject them. Cream City Glass Co. v. Friedlander, 84 Wis. 53, 54 N. W. 28, 21 D. R. A. 135, 36 Am. St. Rep. 895. 134 Smith V. Edwards, 156 Mass. 221, 30 N. B. 1017; ante, p. 155. 13 5 Ante. p. 159. Weil v. Stone, 33 Ind. App. 112, 69 N. B. 698, 104 Am. St. Rep. 243. "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 296 PERFOEMANCE OF CONTRACT. (Ch. 8 D., according to the weight of authority, the property passes ; the condition merely having the effect of reserving the seller's lien for the price.^" Whether the right of inspection exists in such cases is a question on which the authorities are not in accord.^'' the alleged right of Inspection and rejection 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 immediately vest in the purchasers, 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 precedent to the vesting of the title in the vendee. * * ♦ But, assuming that the title to the iron for some purposes vested in the plaintiffs on de- livery 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." Pierson v. Crooks, supra. Although under the circumstances of the case the property passes, the buyer may reject if on examination the goods do not fulflll the conditions. Alden v. Hart, 161 Mass. 57G, 37_N. E. 742. Where the goods fulflll the conditions and the property has passed, but the goods are destroyed, so that an examination is impossible, the buyer is not relieved from liability to pay the price. Wadhams & Co. v. Balfour, 32 Or. 313, 51 Pac. 642. Where the terms are cash, and the goods are to be delivered f. 0. b. at the place of manufacture, the inspection, if any, must be made at that place. Lawder & Sons Co. v. Grocery Co., 97 Md. 1, 54 Atl. 634, 62 L. B. A. 7U5. 181 Ante, p. 157. 187 That the right exists, see Lyons v. Hill, 46 N. H. 49, 88 Am. Dec. ISO; Thick v. Railway Co., 137 Mich. 708, 101 N. W. 64, 109 Am. St. Rep. 694. That it does not exist, see Wiltse v. Barnes, 46i Iowa, 210. A question for the jury: Louisville Lithographic Co. V. Schedler, 23 Ky. Law Eep. 465, 63 S. W. 8. The question is dis- cussed 18 Harv. Law Rev. 386. Sales Act, § 47 (3), provides that the buyer is not entitled to ex- amine the goods in the absence of agreement permitting it. Prof. Williston says that this subsection states the actual practice of large express companies, and probably states the existing law, cit- ing Wiltse T. Barnes, supra. § 94) ACCEPTANCE. 297 ACCEPTANCE. 94. Tlie bnyer is deemed to have accepted the goods — (a) When he intimates to the seller that he has accepted them, or Cb) When the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the OTvership of the seller, or (c) When, after the lapse of a reasonable time, he retains the goods -nrithout intimating to the seller that he has rejected them.ia* Duty to Accept. Acceptance and delivery being concurrent conditions, the duty to accept does not arise unless the delivery or offer of de- livery is sufficient. Therefore the buyer is not bound to ac- cept unless he has had an opportunity to inspect/'" or, on a sale by sample, unless he has had an opportunity to com- pare the bulk vi^ith the sample,^*" or unless the offer of de- livery is made at a proper time,^*^ or if the delivery is of too great or too small a quantity.'-*^ On the other hand, if the delivery or offer of delivery is good, the buyer is bound to accept. If the contract of sale is such that the seller need not send the goods, the buyer is bound to accept if the seller af- fords him reasonable facilities to remove the goods.^*' Meaning of "Acceptance." "Acceptance" in performance of the contract is an assent by the buyer that the goods are to be taken by him under and in performance of the contract.^** Acceptance may, however, be implied from the buyer's conduct, in which case he is deemed to have assented. Acceptance in performance of the contract appears to be generally identical with the acceptance necessary to satisfy the statute of frauds, as the statute is construed in the United States.^*' But in England, where any dealing with 138 Sales Act, § 48. 139 Ante, par. 92. 1*0 Lorymer v. Smith, 1 Bam. & O. 1; Toulmln v. Hedley, 2 Car. & K. 15T. Ante, p. 264. Ki Ante, p. 277 et seq. 142 Ante, p. 281 et seq. i«* Ante, p. 85. 143 Ante, p. 273. i*' Ante, p. 91. 298 PERFORMANCE OF CONTRACT. (Ch. 8 the goods which recognizes a pre-existing contract of sale is now held to constitute an acceptance under the statute/*' an acceptance in performance of the contract is, of course, quite different from a statutory acceptance. Same — -Express Acceptance. Of express acceptance- — that is, acceptance where the buyer intimates to the seller that he accepts the goods — little need be said. Any form of words that expresses assent is enough.^ *^ As we have seen, acceptance may precede delivery; and where the sale is of a specific chattel in a deliverable state, in which the property passes at once, the acceptance is ex- pressed by the contract itself.^** Same — Implied Acceptance — Acts of Ownership. Acceptance is implied from a resale or from any act on the part of the buyer which he would not have a right to perform if he were not the owner of the goods.'-*" The rule in this respect is the same as under the statute of frauds.'^" Thus where the bulk was inferior to the sample, but the buyer of- fered the goods on sale at a limited price at auction, although the limit was not reached, it was held that he could not after- wards reject.^"^ A sale of a part constitutes an acceptance of the whole.1" i, 55 N. E. 941, 48 L. R. A. 085. 200 Ex parte Chalmers, 8 Ch. 289; Pardee v. Kanaday, supra; Rapple.ve v. Seeder Co., supra; Florence Min. Co. v. Brown, supra; Diom V. Koblitz, 40 Ohio St. 41, 29 N. B. 1124, 34 Am. St. Rep. 531; Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644. 201 Ex parte Chalmers, supra; Morgan v. Bain, 10 C. P. 15. Where the buyer makes an assignment for benefit of creditors, the seller may refuse to complete the contract. Rappleye v. Seeder Co., supra. 202 Ante, p. 45. 203 Clark, Cont (2d Ed.) 472. 204 Ashmore y. Cox & Co. (1890) 1 Q. B. 436 (shipment between dates fixed prevented by outbreak of war); Summers v. Hibbard, Spencer Bartlett & Co., 153 III. 102, 38 N. E. 899, 46 Am. St. Rep. 872; Middlesex Water Co. v. Knappmann Whiting Co., 64 N. .1. Law, 240, 45 Atl. 693, 49 L. E. A. 572, 81 Am. St Rep. 467; Adams T. Ames, 19 Wash. 425, 53 Pac. 546. §§ 97-99) EXCUSES FOK NONPEEFORMANCE. 309 tion,^"^ or by pestilence,^"" or by the destruction of the seller's factory by fire,^"' or by droughts stopping his mill.^"* Same — Desfniction of Thing Sold. An exception to the general rule arises when the impossibility is caused by the destruction of the subject-matter of the con- tract before breach, and without default of the contractor. The contract is said to be subject to an implied condition to this effect. Where the continued existence of a specific thing is es- sential to the performance of a contract, the destruction from no fault of either party operates as a discharge.^"* Therefore, where the contract is for the sale of specific goods which perish without the fault of the seller or the buyer before the day ap- pointed for delivery, the seller is excused from the obligation to deliver, and the buyer from obligation to pay.^^° If, however, the property has already passed, although the goods are still in the possession of the seller, the buyer must pay the price. ^^' So where goods are to be manufactured in a particular factory, which is destroyed,^^^ or grown in a particular field, and the crop fails,' ^^ the seller and the buyer are excused. 206 Kearon v. Pearson, 7 Hurl. & N. 3S6, 31 Law J. Exch. 1; ^lar- mony v. Bingham, ,12 N. Y. 99, 62 Am. Dec. 142; Bacon v. Cobb, 45 ~Tll. 47 Tseizure of raliroad by government to transport troops). 206 Barker v. Hodgson, 3 Maule & S. 267. 207 Jones V. U. S., 96 V. S. 24, 24 L. Ed. 644; Booth v. Mill Co., 60 N. Y. 487. ^^oTlddy V. Clement, 38 Vt. 486. 209 Olark, Cont. (2d Ed.) 475. 210 Rugg V. Minett, 11 Bast, 210; Howell v. Oonpland, L. R. 9 Q. B. 462, 1 Q. B. Div. 258; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Thompson v. GotUd, 20-Pick. (Mass.) 134, 139; Wells v. Calnan, 107 JIass. 514, 9 Am. Rep. 65 ; Gould v. Murch, 70 Me. 288, 35 Am. Rep. 325. See Sale of Goods Act, § 7; Sales Act, § 8. The latter act adds a subsection to cover the case of deterioration or partial destruction, which Prof. Williston says is believed to express the existing law. See McMillan v. Pox, 90 Wis. 173, 62 N. W. 1052. 211 Taylor v. Caldwell, 3 Best & S. 826, 32 Law J. Q. B. 164, per Blackburn, J. Ajite, p. 141. So if by agreeuient the risk has pass- ed to the buyer. Ante, p. 142. 212 See Stewy^ v^Stonfi,_12IJ5,,_Y^5()0,-28_N"- E. 595, 14 L. R. A. 215. Where defendant contracted to sell a cargo of cotton seed to 213 Howell V. Coupland, 1 Q. B. Div. 258. Cf. Anderson v. May, 50 Minn. 280, 52 N. W. 630, 17 L. R. A. 555, 36 Am. St. Rep. 642. 310 PERFORMANCE OF CONTRACT. (Ch. 8 The distinction between cases in which the destruction of the thing sold is held to be an excuse, and those in which the per- formance is prevented by other causes beyond the promisor's control, is also sometimes placed upon the ground that in "the former cases the performance is physically impossible, "quod natura fieri non concedit," and that in the latter cases perform- ance is in its nature possible, notwithstanding that the promisor is unable to perform it.^^* Same — Legal Impossibility. A second exception arises where the impossibility resulting is created by the law. If, after the contract is entered into, a statute is passed rendering it illegal, the promisor is no longer bound.*" be shipped at A. during January per ship O., and the ship stranded In December, so that shipment in January became impossible, the seller was not liable for failure to ship. Nickoll v. Ashton & Co. (1901) 2 K. B. 126. 214 Jones V. U. S., 96 U. S. 2t, 24 L. Ed. 644, per ClitEord, J.; Eenj. Sales, § 570. 210 Bally V. De Crespigny, L. R. 4 Q. B. 180; Brick Presbyterian Ohurch V. City of New York, 5 Cow. (N. Y.) 538;""Oordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; Mississippi & T. R. Co. v. Green, 9 Heisk. (Tenn.) r,SS; Clark, Cont. (2d Ed.) 474. As to impossibility arising from the action of the courts, see Malcomson v. Mills (C. C.) 88 Fed. 680; Clark, Cont (2d Ed.) 475. Where defendants sold certain coffee to plaintiff, to be delivered at New York at a certain time, the refusal of the board of health to allow the coffee to land rendered the contract impossible of per- formance according to Its terms, so as to excuse defendants from such performance. J. H. Labaree v. Grossman, 100 App. Div._499, 92 N. Y. Supp. 565, affirmed 184 N. Y. 586, 77 N. E. 1189. § 100) lilGUTS OF UNPAID SELLEK AGAINST THE GOODS. 311 CHAPTER IX. RIGfHTS OF UNPAID SELLER AGAINST THE GOODS. lOO. In General. 101-105. Seller's Lien. lOe-lOOVa. Stoppage in Transitu, 110. Riglat of Resale. 111. Right to Rescind. IN GENERAL. 100. Notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller, as such, may have certain rights against the goods, viz.: (a) A lien on the goods or right to retain them for the price ivhile he is in possession of them. (b) In case of the insolvency of the buyer, a right of stop- ping the goods in transitu after he has parted ivith the possession of them. (c) A right of resale. ^-^ (d) A right, in some jurisdictions, to rescind the sale.l When the property in goods passes by a sale, it does not follow necessarily that the right of possession also passes. So long as the goods remain in the seller's possession he has, un- less he has waived it, a lien for the payment of the price. Even if they have passed out of his actual possession into the hands of a carrier for delivery to the buyer, he has the right, in case of the latter's insolvency, to intercept the goods, and to prevent them from coming into his actual possession.'' .When he has exercised his right of lien or of stoppage in transitu, he has, under certain circumstances, the right to resell the goods ; ' and in many jurisdictions he has the right, under certain circum- stances, to rescind the sale and resume the property in the goods.* 1 See Sales Act, J 53. » Post, p. .339. 2 Post, p. 322. * Post, p. 342. 312 EIGHTS or UNPAID SELLER AGAINST THE GOODS. (Ch. 9 SELLER'S LIEN. 101. The unpaid seller of goods, who is in possession of them, is entitled to a lien for the price, unless he has, ex- pressly or by implication, xraived it; that is, he is en- titled to retain possession of the goods until payment or tender of the price. 102. ViTAIVER BY GIVING CREDIT. The seller waives his lien by implication, unless there is an agreement to the contrary: (a) If he sells the goods on credit. (b) If he takes a bill of exchange or other negotiable in- strument in conditional payment. 103. REVIVAL. The lien of a seller who is still in possession of the goods revives: (a) AVhen the goods have been sold on credit, but the term of credit has expired. (b) When the seller has taken a bill of exchange or other negotiable instrument in conditional payment, and the condition on ^vhich it was received has been brok- en by the dishonor of the instrument or otherwise. (c) When the goods have been sold on credit, or the seller has taken a, negotiable instrument in conditional pay- ment, and the buyer becomes insolvent, although the term of credit has not expired or the instrument re- ceived in conditional payment has not matured, and not\(rithstanding that the seller is in possession of the goods as agent or bailee for the buyer.^ 104. TERMINATION. The seller loses his lien: (a) When he unconditionally delivers the goods to the buy- er or his agent; subject, hoTvever, to the revival of the lien if he continues in possession of the goods as agent or bailee for the buyer and the buyer becomes insolvent, as stated in the last section (c). (b) Wrhen he assents to a subsale. 105. DELIVERY OF PART. W^hen the seller has made part delivery of the goods, he may exercise his right of lien on the remainder, unless such delivery has been made under such circumstances as to shovr an intention of waiving his lien.° B For statutory changes in respect to the seller's I'igbt to exercise his lien when in possession as agent or bailee of the buyer, post, p. .818. Sales Act, § 55. §§ 101-105) seller's lien. 313 A "lien," in general, may be defined as a right to retain the possession of a thing until a debt due to the person retaining possession is satisfied.' The origin of the seller's lien is doubt- ful, but it is probably founded on the custom of merchants.' It has been said that "the term 'lien' is unfortunate, because the seller's rights, arising out of his original ownership, in all cases exceed a mere lien." ° That his rights exceed a mere lien will appear from a consideration of the peculiar rights which arise in case of the buyer's insolvency ^° and of the seller's right to resell. ^^ But as the rule is that when there is no agreement, express or implied, to the contrary, the seller has a right to re- tain the goods until the payment or tender of the price, he has in all cases, at least, a lien, unless he has waived it.^^ The lien extends only to the price. If, by reason of the buyer's default in payment, the seller incurs warehouse charges or other expenses in keeping the goods, his lien does not extend to such charges, which are incurred for his own benefit, and not for the benefit of the buyer ; and his remedy, if any, is a per- sonal one against the buyer.^* ^ Benj. Sales, § 796. 8 BlacRb. Sales, 453. 8 Chalm. Sale of Goods Act (fith Ed.) 83. 10 Post, p. 315. 11 Post, p. 339. ^ee Tuthill v. Skidmore, 124 N. T. 148, 26 N. E. 348; Arnold v. CarpentefT 16 R. I. 560, 18 Atl. 174, 5 L. R. A. 357. 12 Miles V. Gorton, 2 Cromp. & M. 504; Arnold v. Delano, 4 Gush. (JIass.) 33, 39, 50 Am. Dec. 754; Ware River R. Co. v. Vibbard, 114 Btass. 447; "Cornwall v. Haight, SBaub. (N. T.) 327; Owens v. Weed- man, 82 III. 409;' Bradley v. Michael, 1 Ind. 551; Southwestern Freight & Cotton Press Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Conrad v. Fisher, 37 Mo. App. 352, 8 L. R. A. 147. A tender of the price terminates the lien. Crug v. Gorham, 74 Conn. 541, 51 Atl. 519. See Sales Act, § 54 (1) (a). IS See British Empire Shipping Co. v. Somes, El., Bl. & El. ?>~>?<. 27 Law J. Q. B. 397; in exchequer chamber, El., Bl. & El. 307, 28 Law .T. Q. B. 220; in house of lords, 8 H. L. Cas. 338, 30 Law .J. Q. B. 229: Crommelin v. Railroad Co., *43 N. Y. 90; Burke v. Dunn, 117 Mich. 430, 75 N. W. 931. If the buyer refiises to accept the goods sold until the seller recovers judgment for the price, the buyer cannot recover for the care of the goods between the sale and the delivery, since the care of them in the meantime is for his own benofit Putnam v. Glidden, 159 Mass. 47, 34 N. E. 81, 38 Am. St Rep. 394. 314 EIGHTS OF UNPAID SELLER AGAINST THE GOODS. (Ch. 9 A special interest in the goods may continue to exist in tlie seller by agreement, even after delivery ; but such an interest is not strictly a hen, which is always determinable on the loss of possession.^* Waiver of Lien. "Lien is not the result of an express contract; it is given by implication of law." ^^ The lien may, of course, be waived ex- pressly. It may also be waived by implication,^" as by reserv- ing an express lien for the price, which excludes an implied Dne.^' The lien is waived by implication when time is given for pay- ment, and nothing is said as to delivery, — in other words, when the sale is on credit; ^^ although the parties may, of course, agree that notwithstanding the credit the goods are not to be delivered until payment, and the same term may be introduced into the contract by a usage to that effect.^* The seller also waives his lien by taking a bill or note payable at a distant day,^" though the lien revives on its dishonor or on the insol- vency of the buyer. ^^ KDodsIey v. Varley, 12 Adol. & E. 632; Gregory v. Morris, 96 U. S. 619, 24 L. Ed. 740; Sawyer v. Fisher, 32 Jle. 28. See Wood- land Co. T. Mendenhall, 82 Minn. 483, 85 N. W. 164, S3 Am. St. Rep. 445. 16 Chambers v. Davidson, L. R. 1 P. C. 296, 4 Moore, P. C. (N. S.) 158, per Lord TVestbury. 16 When the seller of standing wood permitted the buyer to cut It, he waived his lien. Douglas v. Shumway, 13 Gray (Mass.i 49'J. See, also, Allen v. Rushford, 72 Neb. 'JOT. 101 N. W. 102S. See Sales Act, § 56 (1) (c). 1' In re Leith's Estate, L. R. 1 P. 0., at page 305. An agreement Inconsistent with the existence of the lien is a waiver of it. Pickett V. Bullock, 52 N. H. 354. 18 Spartan v. Benecke, 10 C. B. 212, 19 Law J. C. P. 293; Leonard v. Davis, 1 Black. (N. S.) 476, 17 L. Ed. 222; Arnold t. Delano, 4 Cush. (Mass.) 33, 39, 50 Am. Dec. 754; McCraw v. Gilmer, S3 N. C. 162; Crummey t. Raudenbush, 5.5 Minn. 420, 56 N. W. 1113; McElwee v. Lumber Co., 69 Fed. 302, 16 C. C. A. 232; ante, p. 209. 18 Field V. Lelean, 6 Hurl. & N. 617, 30 Law J. Exch. 168. 20 Valpy V. Oakeley, 16 Q. B. 941, 951; Griffiths v. Perry, 2S Law J. Q. B. 204, 207; McElwee v. Lumber Co., 69 B'ed. 302, 10 C. C. A. 232. See, also, Hewison v. Guthrie, 2 Bing. N. C. 755; Horncastle 21 Post, p. 335. §§•101-105) seller's lien. 315 Revival of Lien— Expiration of Credit. Although the sale is on credit, if the buyer permits the goods to remain in the seller's possession till the credit has expired, the lien which was waived by the giving of credit revives, even though the buyer may not be insolvent." And the rule is the same where bills or notes are given for the price, which are dis- honored while the goods are still in the seller's possession.*' Insolvency of Buyer. If the buyer becomes insolvent ^* while the goods are in pos- session of the seller, the lien revives notwithstanding that the goods were sold on credit, and that the credit has not expired.^" The lien also revives on insolvency, when conditional payment was made by bill or note, although the instrument has not yet matured.^* This right to revive the lien is analogous to the V. Fairan, 3 Barn. & Aid. 497. Giving a promissory note, payable on demand, for the price, does not divest the lien. Clark v. Draper, 19 N. H. 419. 22 New v. Swain, 1 Dan. & L. 193; Bunney v. Poyntz, 4 Bam. & Adol. 568; Martindale v. Smith, 1 Q. B., at page 395; Owens t. ■Weedman, 82 III. 409; Benj. Sales, § 825. See Sales Act, § 54 (1) (h). 2 3 Valpy v. Oakeley, 16 Q. B. 941, 20 Law J. Q. B. 380; Griffiths V. Perry, 1 El. & El. 680, 28 Law J. Q. B. 204. See Sales Act, § 52 m (b). 24 Meaning of insolvency, post, p. 325. See Sales Act, § 76 (3). JsBioxam v. SandeES,-4-Barn. & C. 941; Bloxam v. Morley, Id. 951; Griffiths v.^Perry, 1 El. & El. 680, 28 Law J. Q. B. 204; Gunn V. Bolckow, 10 Ch. App. 491; Arnold v. Delano, 4 Cush. (JIass.) 33, 50 Am. Dec. 754; Parks v. Hall, 2 Pick. (Mass.) 206, 212; Parker V. Byrnes, 1 Low. (TJ. S.) 539, B'ed. Gas. No. 10,728, per Lowell, J.; Haskell v. Eice, 11 Gray (Mass.) 240, per Thomas, J.; Wanamaker V. Yerkes, 70 Pa. 443; Tuthill_v. Skidmore, 124 N. Y. 148, 26 N. E. 348; Southwestern Freight & Cotton Press Co. v. Stanard, 44 Mo. 71, 100 Am. Dec 255; Conrad v. Fisher, 37 Mo. App. 352, 8 L. R. A. 147; Crummey v. Eaudenbush, 55 Minn. 426(, 56 N. W. 1113; Eobinson v. Morgan, 65 Vt 37, 25 Atl. 899; Bohn Mfg. Co. v. Hynes, 83 Wis. 388, 53 N. W. 684. See, also, Akeley v. Boom Co., 64 Minn. lOS, 113, 67 N. W. 208, Contra, Barrett v. Goddard, 3 Mason (N. S.) 107, Fed. Cas. No. 1,406. It is immaterial whether the sale is of specific chattels or whether the contract is executory. Griffiths V. Perry, 1 El. & El. 680, 28 Law J. Q. B. 204. See Sales Act, § 54 (1) (c). 26 Valpy y. Oakeley, 16 Q. B. 941, 20 Law J. Q. B. 380; Griffiths V. Perry, 1 El. & El. 680, 28 Law J. Q. B. 204; Arnold v. Delano, 4 Gush. (Mass.) 33, 41, 50 Am. Dec. 754; Parker v. Byrnes, 1 Low. 316 EIGHTS OF UNPAID SELLER AGAINST THE GOODS. (Ch. 9 right of stoppage in transitu, and has sometimes been called the right of "stoppage ante transitum." ^' "The vendor's right in respect of his price," said Bailey, J., in the leading case of Bloxam V. Sanders,^ ^ "is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion. If the goods are sold on credit, and nothing is agreed on as to the time of delivering the goods, the vendee is immediately entitled to the possession ; and the right of possession and the right of property vest at once in him; but his right of possession is not absolute ; it is liable to be de- feated if he becomes insolvent before he obtains possession. If the seller has dispatched the goods to the buyer, and insol- vency occurs, he has a right, in virtue of his original ownership, to stop them in transitu. Why ? Because the property vested in the buyer so as to subject him to the risk of any accident; but he has not an indefeasible right to the possession, and his insolvency, without payment of the price, defeats that right." The same principle was clearly stated in a Pennsylvania case : '" "Judges do not ordinarily distinguish between the retainer of goods by a vendor and their stoppage in transitu on account of the insolvency of the vendee ; because these terms refer to the same right, only at different stages of performance and execu- tion of the contract of sale. If the vendor has a right to stop in transitu, a fortiori he has a right of retainer before any transit has commenced." (U. S.) 539, Fed. Cas. No. 10,728, per Lowell, J.; MlUiken t. War- ren, .57 Me. 46. It is immaterial whether the notes are taken in payment or as security. In re Batchelder, 2 Low. ("U. S.) 245, Fed. Cas. No. 1,009; Hunter v. Talbot, 3 Smedes & M. (Miss.) 754. Where payment is to be on delivery in notes of a third person, who be- comes insolvent, the seller need not deliver on tender of such notes. Benedict v. Field, 16 N. Y. 595^„ "This revesting of fliell^iTTi not affected by the fact that * • • such notes or bills have been negotiated so that they were out- standing when they matured, or unmatured and outstanding when tlie insolvency occurved." ^McElwee v. Lumber Co., 09 Fed. 302, 308, 16 C. C. A. 2.?2. Sec, also, Brewer Lumber Co. v. Railroad Co., 179 Mass. 22,8, 60 N. E. 548, .54 L. R. A. 435, 88 Am. St. Rep. 375. 2' Benj. Sales, § 767. 28 4 Barn. & C. 941. 20 White V. Welsh, 38 Va. 39G. per Lowrie, C. J. §§ 101-105) seller's lien. 317 Even if the seller has broken his contract to deliver while the buyer is solvent, the lien revives on the buyer becoming in- solvent.'" It follows naturally, from the principle on which this right rests, that the seller does not lose his right to revive the lien on the insolvency of the buyer, although he may have agreed to hold the goods as the buyer's bailee.''^ As in the case of stop- page in transitu, the right is not lost by a technical delivery, so long as the seller is in a position to prevent the goods from coming into the buyer's actual possession. Termination of Lien — Delivery. Inasmuch as the right of lien is a right incident to possession, the seller loses his lien when he unconditionally delivers the goods to the buyer.'^ But if the delivery be upon the under- standing, express or implied, that the seller is to receive im- mediate payment, he does not lose his lien, but may reclaim the so Valpy V. Oakeley, 16 Q. B. 941, 20 Law J. Q. B. 380; Griffitlis V. Perry, 1 El. & El. 680, 28 Law J. Q. B. 204. 31 Townley v. Crump, 4 Adol. & E. 58; Grice v. Richardson, 3 App. Cas. 319; Arnold v. Delano, 4 Gush. (Mass.) 33, 38, 50 Am. Dec. 754; Thompson v. Railroad Co., 28 Md. 396; Conrad v. Fisher, 37 Mo. App. 353, 8 L. R. A. 147; Hamburger v. Rodman, 9 Daly (N. Y.) 93, 96. By Sales Act, § 54 (2), following Sale of Goods Act, § 41 (2), the right of the seller holding as bailee to exercise his right of lien is not confined to eases where the buyer is insolvent. Post, p. 318. 32 Gregory v. Morris, 96 U. S. 619, 623, 24 L. Ed. 740; Arnold v. Delano, 4 Cush. (Mass.) 33, 39, 50 Am. Dec. 754; Haskins v. Warren, 115 Mass. 514, 533; Lupin v. Marie, 6 Wend. (N. Y.) 77, 21 Am. Dec. 256; Bowen v. Burk, 13 Pa. 146; Johnson v. Farnum, 56 Ga. 144; Cook v. Perry, 43 Mich. 629, 5 N. W. 1054; Thompson v. Wedge, 50 Wis. 642, 7 N. W. 560; Slack v. Collins, 145 Ind. 568, 42 N. E. 910; Mej'ers v. McAllister, 94 Minn. 510, 103 N. W. 564. Delivery is not effected by merely marking the goods with the buyer's name or setting them aside. Goodall v. Skelton, 2 H. Bl. 316; Dixon v. Yates, 5 Barn. & Adol. 313; Townley v. Crump, 4 Adol. & E. 58. Or by boxing them by the buyer's orders, so long as the seller holds them as his, and has not given credit. Boulter V. Arnott, 1 Cromp. & M. 333. See, also, Perrine v. Barnard, 142 Ind. 448, 41 N. E. 820. "When the buyer or his agent lawfully obtains possession of the goods." Sales Act, § 56 (1) (b). Of. section 76 (1) ("delivery"). 318 RIGHTS OF UNPAID SELLER AGAINST THE GOODS. (Ch. 9 goods if paj'ment be not made.^^ The seller may also lose his lien by a constructive delivery. "When the buyer is solvent, the cases as to what constitutes an 'actual receipt,' within the mean- ing of the statute of frauds, appear to furnish the test whether the seller's lien xj gone or not." ^* "The principle," says Black- burn, J.,^'' "is that there cannot be an actual receipt by the ven- dee so long as the goods continue in the possession of the seller, so as to preserve his lien. But though the goods remain in the personal possession of the vendor, yet if it is agreed between the vendor and the vendee that the possession shall henceforth be kept, not as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is sufficient receipt to satisfy the statute." When the buyer is insolvent, since the lien re- vives notwithstanding that the seller holds the goods as bailee for the buyer, the cases as to what constitutes an actual receipt no longer furnish a test. If the goods are in possession of the seller, it seems that a delivery takes place, and the seller's lien is divested, whenever the parties agree that the seller shall thenceforth hold as the bailee of the buyer.^^ In England, however, this has been changed by the Sale of Goods Act,^' following which the pro- posed American Sales Act provides : "The seller may exercise his right of lien, notwithstanding that he is in possession of the goods as agent or bailee of the buyer." ^' If the goods are in the possession of the buyer, the effect of the contract being to transfer the right of possession as well as that of property, the delivery becomes complete, by necessity, without further act on either side.'* 3 3 Ante, p. 124. See McGill v. Lumber Co., Ill Tenn. 552, 82 S. W. 210. 34 Chalm. Sales, 62. 3s Cusack V. Robinson, 30 Law J. Q. B., at page 264; ante, p. 94. "But this proposition must now be tal^en subject to the provisions of section 41 (2)" Sale of Goods Act Chalm. Sale of Goods Act (6th Ed.) 8;). 3 6 Cusack V. Robinson, supra. But see Conrad v. Fisher, 37 Mo. App. :i52, 8 L. R. A. 147; ante, p. 95. 3 7 Section 41 (2). 8 8 Section 54 (2). 3 9 In re Batchelder, 2 Low. (U. S.) 245, Fed. Cas. No. 1,099; War- den V. Marshall, 99 Mass. 305; Martin v. Adams, 104 Mass. 262; Ben]. Sales, § 802; ante, p. 97. §§ 101-105) seller's lien. 319 If the goods are in the possession of a third person as bailee of the seller, a delivery takes place whenever such third person, with the seller's assent, attorns to the buyer, and not before.^" Thus the transfer of a delivery order, dock warrant, or other document, which operates only as a token of authority to take possession, and not as a transfer of possession, does not divest the seller's lien, but the person in whose custody the goods are must first accept the order, or in some way attorn to the buyer, and until such attornment the seller may countermand his au- thority ; and, even though the seller may have waived his lien by a sale on credit or by accepting conditional payment, he may nevertheless, upon the occurrence of the buyer's insolvency be- fore such attornment, countermand the authority, and revive his lien.*^ Under the factors' acts and other enactments, how- ever, certain other documents are in many jurisdictions put on the same footing as bills of lading,*^ and a transfer of such documents excludes the lien, if the documents get into the hands of a holder for value.*' Same — Delivery to Carrier. Delivery to a common carrier or other bailee for convey- ance to the buyer is prima facie such a delivery of possession loMcEwan v. Smith, 2 H. L. Cas. 309; Farina v. Home, 16 Mees. & W. 119; Keeler v. Goodwin, 111 Mass. 490; In re Batclielder, 2 Tx)w. (U. S.) 245, Fed. Cas. No. 1,099; ante, p. 96. , (1) U). 4 6 Post, p. 3^2. 40 Ante, p. 162. McDonald Cotton Co. v. Mayo (Miss.) 38 South. 372. See Sales Act, § .'i3 (2). 47 Dixon V. Yates, 5 Barn. & Adol. 313; Palmer v. Hand, 13 Johns. (N. Y.) 4:54, 7 Am. Dec. ;;;J2; JMilliken v. Warren, 57 Me. 46: Haskell V. liice, 11 Gray (JIass.) 240, 241; JIcEhvee v. Lumber Co., 69 Fed. .302, 16 C. C. A. 232; Perrine v. Barnard, 142 Ind. 448, 41 N. E. 820. See' Sales Act, § 62. 4 8 Ante, p. 27. 48 Dixon y. Yates, 5 Barn. & Adol. 313. 60 McEwan v. Smith, 2 H. L. Gas. 3^Y. 549; Holland v. Rea, 48 Mich. 218, 12 N. W. 167; UirmanxTv. Kent, '60 111. 271; Pratt v. Manufacturing Co., 115 Wis. 648, 92 N. W. 363. It is not "essential that notice of the time and place of sale should be given to the vendee. Still as the sale must be fair, and such as is most likely to produce most nearly the full and fair value of the article, it is always wisest for the vendor to give notice of his intention to resell, and quite unsafe to omit it" Van Brocklen v. Smeallie, 140 N. Y. 70, 75, 35 N. E. 415, per Finch, J. 342 EIGHTS OF UNPAID SELLER AGAINST THE GOODS. (Ch. 9 Where a resale is made, the buyer acquires a good title as against the original buyer, if the seller had a right to make the sale and the sale is properly made.^'* RIGHT TO BJESCIND. 111. By the mie generally prevailing in this conn try, 1>at not in England, trhere the bnyer has been in default an nnreasonable time, the unpaid seller, ivho has a right of lien or has exercised his right of stoppage in trans- itu, may keep the goods as his ovrn, and recover as damages the difference betiveen the market price at the time and place of delivery and the contract price. Choice of Remedies — Right to Rescind. It is held in England that the seller has no right to rescind the sale because the buyer is in default for the price/" his choice of remedies, except for the right of lien, being either to sue for the price or to resell. In some cases in this country, it is said that the seller has a third remedy. The vendor of per- 219, 59 Pae. 879. See, also, Van Brocklen v. Smeallie, 140 X. Y. 70, 35 N. E. 415. See Sales Act, § 60 (3). Prof. Willlston, in hie note to this section, says: "It seems undesirable to make a resale in- valid under all circumstances for lack of notice. The lapse of time or other circumstances might make it highly imjust to allow the buyer later, when, perhaps, market prices had risen, to make such a claim. On the other hand, it seems desirable that notice should generally be given. The provision suggested will have the effect, it is hoped, of making notice necessary, unless the default of the buyer is very clear and long continued." 164 "In the absence if an express power, the lienor usually can- not transfer the title to the property on which the lien exists by a sale of it; * * * but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu, or retains them before transitus has begun, he can by a sale * * • yest a purchaser with a good title. His right is very nearly that of a pledgee with power to sell at private sale in case of default." TutbilL v. .Skid- more, 124 N. Y. 148, 153,^.26 N. E._34S. See Milgate^vTKebble. 3 Man. & G. 100; Arnold v. Carpenter, 16 R. I. 560, 18 Atl. 174, 5 L. K. A. 357; Bowser v. Birdsell, 49 Mich. 5, 12 N. AY. 888. See, also. Sales Act, § 60 (2). Cf. Sale of Goods Act, § 48 (2). 15B Martindale v. Smith, 1 Q. B. 389; Page v. Cowasjee Efluljee. L. R. 1 P. C. 127. Cf. Lmirfort v. Tiler, 1 Salk. 113. See Sale of Goods Act, § 48; post, p. 345, § 111) KIGHT TO RESCIND. 343 sonal property, says the court, in the leading case of Dustan V. McAndrew,^^" in a suit against the vendee for not tal recover back the price, if it have been paid to him. * ♦ * In 1816, when the case of Biivdfflrd_s^ Manly, 13 Mass. 130, 7_Am. Dec. 122, was before this court, and afterwardsT lihtiT 1S31, the law' of Eng- land on the point raised in the present case was supposed to be as we now hold it to be here. Lord Eldon had said in Curtis v. Han- nay, 3 Esp. 82, that he took it to be 'clear law,' and so it was laid down in 2 Selw. N. P. (1st Ed.) 586, in 1807, and in Long, Sales, 125, 126, in 1821, and in 2 Starkie, Ev. (1st Ed.) 645, in 1825. In 1831, in Str£et V. Blay, 2 jBa,rn._ & Adol. 461, Lord Eldon's opinion was first denied, and a contrary opinion expressed by the court of king's bench. Yet our court subsequently (in 1839) decided the case of Tifp.Sales(2d Ed.) — 24 370 ACTIONS FOE BREACH OF THE CONTRACT. (Ch. 10 that, although the warranty be collateral in form, it is an induce- ment to the sale and a material element of the consideration, and that what the buyer has in mind is the performance of the warranty, and not damages for its breach. '■"^ This rule is ■adopted by the proposed Sale of Goods Act,^"^ which pro- vides that, where there is a breach of warranty by the seller, the buyer may, at his election, as one of his alternative reme- dies, "rescind the contract to sell, or the sale, and refuse to re- ceive the goods, or, if the goods have already been received, return them, or offer to return them, to the seller, and recover the price, or any part thereof, which has been paid." Action for Damages. That the buyer, after receiving or accepting the goods, may still bring an action for damages in case the goods are inferior in quality to that warranted, follows, as Benjamin says,^"* from the general rule that an action for damages lies in every case of a breach of contract. Where the warranty is express, the courts are substantially unanimous in holding that the warranty survives acceptance Perley v. Balch, 23 Pick. 2S3, 34 Am. Dec. 56. Tbe doctrine of ttiat decision prevents circuity of action and multiplicity of suits, and at tbe same time accomplishes all tlie ends of justice." Bryant v. Is- burgh, supra, per Metcalf, J. 102 "It is obvious that when a buyer buys a horse, warranted sound, tbe real thing be is after is a sound horse. It is tbe perform- ance of tbe warranty, not damages for tbe breach of it, which is in his mind. He does not want an unsound horse, worth half the money, and tbe difference in damages. He wants to be perfectly sure that he is getting a sound horse, and, if the one transferred to him is not sound, he is as truly forced to perform a bargain which he never intended to make as is any defendant, if compelled to perform his part of a contract when the plaintiff is materially in default." 10 Harv. I-,aw Rev. 472. 103 Section 00 (1) (d). See, also, section 69 (3), (4) and (5). Cf. section 49. The remedy by rescission is defended by Prof. Williston against the theoretical objections that rescission is not allowable in the case of an executed contract in any event, and that a warranty is a col- lateral obligation, and on account of the practical advantages of allowing the remedy. 16 Harv. Law Rev. 465. This led to a dis- cussion with Prof. Burdick, who supported tbe English doctrine. See 4 Columbia Law Itev. 1, 195, 2U5; 17 Harv. Law Eev. 50a 104 Benj. Sales, § 897. §§ 120-121) BEEACH OF WARKANTT. 371 of the goods notwithstanding that the buyer has notice of de- fects which constitute a breach of the warranty.^"" An action for breach of warranty may be maintained by the buyer with- out giving notice to the seller of the defects, and without offer to return/"* though failure to give notice or to return raises a strong presumption or inference that the goods were not ac- tually defective.^"^ Some courts, however, hold that a differ- ent rule applies in the case of an implied warranty. loB Poulton V. Lattimore, 9 Bam. & C. 259; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. T19; Scott v. Kaymond, 31 Minn. 437, 18 N. W. 274; Cox v. Long, 69 N. C. 7; Polhemus v. Heiman, 45 Cal. 573; Fairbank Canning Co. v. Metzger, 118 N. T. 26£l,. 23 N. E. 372, 16 XiiJTSt.^Rep. 753; Minnesota Threslier Mfg. Co. v. Hanson, 3 N. D. 81, 54 N. W. 311; Underwood v. Wolf, 131 111. 42.5, J3 N. B. 598, 19 Am. St. Bep. 40; Iroquois Furnace Co. v. Manufacturing Co., 181 111. 5S2, 54 N. K. 987; Crook v. Railroad Co., 80 Md. 338, 30 Atl. 701; Laporte Improvement Co. v. Brock, 99 Iowa, 4S.5, 68 N. W. 810, 61 Am. St. Rep. 245; Miamisburg Twine & 0. Co. v. Wohlhuter, 71 Jlinn. 484, 74 N. W. 175; Stillwell, etc., Co. v. Canning Co., 78 Miss. 779, 29 South. 513. 106 Poulton V. Lattimore, 9 Bam. & C. 259; Fielder v. Starkin, 1 H. Bl. 17; Pateshall v. Tranter, 3 Adol. & E. 103; Douglass Ase Manuf'g Co. v. Gardner, 10 Cush. (Mass.) 88; Vincent v. Leland, 100 Mass. 432; Richardson v. Grandy, 49 Vt. 22; Best v. Flint, 58 Vt. 543, 5 Atl. 192, 56 Am. Rep. 570; Babcock v. Trice, 18 111. 42C\ 68 Am. Dec. 500; Ferguson v. Hosier, 58 Ind. 438; English v. Commission Co. (C. C.) 48 Fed. 190; Id., 6 C. C. A. 416, 57 Fed. 451; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 13 L. B. A. 224, 23 Am. St. Rep. 783. 107 Poulton V. Lattimore, 9 Barn. & C. 259, 265; Babcock v. Trice, IS 111. 42U, 68 Am. Dec. 560; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 800; Northwest- ern Cqr_dage_Co.jv^ Kicei 5 N. D. 432, 67 N. W. 298, 57 Am. St. Rep. 5(J3; 'Hodge v. Tufts," 115 Ala. 366, 22 South. 422; Benj. Sales, § 9O0 Cf. Oakland Sugar Mill Co. t. Fred W. Wolf Co., 118 Fed. 239, 55 C. C. A. 93. Some courts, however, draw a distinction between patent and latent defects, and hold that, if the defects are so visible that it is apparent the buyer knew of them when he received the goods, the buyer, by accepting the goods in fulfillment of the con- tract, waives his right to avail himself of the warranty. See Buf- falo Barb-Wire Co. v. Phillips, 67 Wis. 129, 30 N. W. 295; Locke v. Williamson, 40 Wis. .377; Morehouse v. Comstock, 42 Wis. 626; Nye V. Alcohol Works, 51 Iowa, 12U, 50 N. W. 9S8, 33 Am. Rep. 121- Cf. Larson v. Aultman & Taylor Co., 86 Wis. 281, 06 N. W. 915, 39 Am. St. Rep. 893. See Sales Act, § 49; ante, p. 301. 372 ACTIONS FOR BREACH OF THE CONTRACT. (Ch. 10 Same — Breach of Implied Warranty. The distinction between a "warranty" in the narrower sense ■ — that is, a promise with reference to the goods when it is collateral to the main purpose of the contract — and a promise the performance of which by the seller is a condition precedent to the obligation of the buyer to accept the goods, and which is often itself termed a "condition," has been pointed out.^°* In England, where the seller's implied promises of quality, as well as the implied promises in sales by description and by sample are termed "conditions," the rule nevertheless prevails that the buyer may waive performance of the condition and may elect to treat the breach of the condition as a breach of warranty, and he may, therefore, if the goods do not fulfill the condition, accept them and set up the breach of warranty in diminution or extinction of the price, or maintain an action for damages for the breach.'^"" In the United States, although these implied promises of the seller are usually termed "warranties," by weight of au- thority the rule is substantially the same ; that is, the warranty survives acceptance of the goods, notwithstanding that the buyer has notice of defects which constitute a breach of the warranty, unless it appears that he accepted the goods in full satisfaction of the contract, and he may seek redress in an action or counterclaim for damages, or in recoupment when sued for the price. ^^° Thus, in a leading case,'-^^ where there 10 8 Ante, p. 226. 109 Sales ot Goods Act, §§ 11 (1) (a), 53 (1). See Benj. Sales, § 564, citing Ellen v. Topp, 6 Esch. 424 ; Behn v. Burners, 3 Best & S. 751, 32 Law J. Q. B. 204. iioBagley v. Mill Co. (G. C.) 21 Fed. 159; English v. Commis- sion Co. (C. C.) 48 Fed. 197; Id., 6 C. C. A. 416, 57 Fed. 451; Reynolds V. Palmer (O. C.) 21 Fed. 433; Cleveland Linseed Oil Co. t. A. F. Buchanan & Sons, 120 Fed. 906, 57 G. C. A. 498; Wolcott v. Mount, 36 N. J. Law, 202, 13 Am. Ecp. 438; Holloway v. Jacoby, 120 Pa. 5S:;, 15 Atl. 4S7, 6 Am. St. Rep. 737; Lewis v. Rountree, 78 N. C. .323; Ea^an Co. v. Johnson, 82 Ala. 233, 2 South. 302; Dayton v. 1-Iooglund, 30 Ohio St. 671 ; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783; Tacoma Coal Co. v. Bradley, 2 Wash. St. 600, 27 Pac. 454, 26 Am. St. Rep. 890; Morse v. .Stock- yard Co., 21 Or. 289, 28 Pac. 2, 14 L. R. A. 157; _Northw'estern 111 English V. Commission Co., 57 Fed. 451, 6 C. C. A. 416. §§ 120-121) BREACH OF WAERANTT. 373 was an implied warranty that the goods should be of mer- chantable quality, it was said : "There has been some con- troversy in the courts as to the right of the purchaser to ac- cept the goods and rely upon the warranty; some of the au- thorities holding that where the sale is executory, and the goods, upon arrival at the place of delivery, are found upon examination to be unsound, the purchaser must immediately return them to the vendor, or give him notice to take them back, and thereby rescind the contract, or he will be presumed to have acquiesced in the quality of the goods. But the great weight of authority, as well as reason, is now, we think, well settled that in cases of this kind and character, if the goods upon arrival at the place of delivery are found to be unmer- chantable in whole or in part, the vendee has the option either to reject them, or receive them and rely upon the warranty; and, if there has been no waiver of the right, he may bring an action against the vendor to recover the damages for a breach of the warranty, or set up a counterclaim for such damages in an action brought by the vendor for the purchase price of the goods.'' This rule, which is supported by the weight of authority, is adopted by the proposed American Sales Act.^^' In some states, however, a distinction is drawn between "con- ditions" and warranties; and it is held that while a collateral promise survives acceptance, even as to known defects, a promise that the goods shall be of a certain kind or quality, forming part of the description, does not survive acceptance, so far as concerns visible defects, when the buyer has had an opportunity to inspect, but that if, after opportunity for in- spection, the buyer accents the goods, he is precluded from re- covering damages for any variation between the goods de- livered and the goods described in the contract.^^^ CordageOo. v._Rice, 5 N.JD ^_432, 67 N ^. 29S, 57 Am. St. Rep. 563; Gra5vn5rjM. Osbome&Co., 56 Kan.'T6271E Pac. 704; Campion V. Marston, 99 Me. 410, 59 Atl. 548; Alabama Steel & Wire Co. y. Symons, 110 Mo. App. 41, 83 S. W. 78. See, also, Marsli v. Mcr Pberson, 105 U. S. 709, 26 L. Ed. 1139. 112 See sections 49, 69 (1) (a), (b). Cf. section 15 (3). iiaHaase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511, 27 N. W. 196; Thompson v. Libby, 35 Minn. 443, 29 N. W. 150 (implied condition of mercbantableness does not survive ac- 374 ACTIONS FOR BKEACH OF THE CONTRACT. (Ch. 10 Diminution of damages — Recoupment. Instead of bringing an action for damages, the bu)"er may wait till he is sued for the price, and then set up the breach ceptance in respect to visible defects); Lee v. Bangs, 43 Minn. 23, 44 N. W. 671 (sale by sample) ; EosenSeld v. Swenson, 45 Minn. 190, 47 N. W. 718 (cf. Breen v. Moran, 51 Minn. 52.J, 53 N. W. 755, hold- ing that an implied warranty of fitness for pm'rose survives); Com- stocli V. Sanger, 51 :\[ich. 497, 16 N. W. 872; Williams v. Eobb, 104 Mich. 242, 02 N. W. 352; W. K. Henderson Lumber Co. v. Stil- well & Co., 130 Mich. 124, 89 N. W. 718; 3^]bot Paving_Co. v. Gor^ man, 103 Mich. 403, 61 N. W. G.jS, 27 L. R. A. 9iJ; Jones v. McEwan, 91 Ky. 373, 16 S. W. 81, 12 L. R. A. 390 (cf. Munford v. Kevil, 106 Ky. 240, 58 S. W. 703) ; Hazen v. Wilhelmie, 68 Neb. 79, 93 N. W. 920; Neff v. McNeeley, 1 Neb. (Unof.) 416, 96 N. W. 150. And see Day V. Const. Co., 174 Mass. 412, 54 N. E. 87S. It is difficult to reconcile all the New Yorli cases on this point, but the result of the later decisions may be gathered from the following extracts and citations: "An acceptance by the vendee of personal property man- ufactured under an executory contract of sale, after a full and fair opportunity of inspection, in the absence of fraud, estops him from thereafter raising any objection to visible defects and imperfections, whether discovered or not, unless such delivery and acceptance is accompanied by some warranty of quality manifestly intended to survive acceptance. Reed v. Itandall, 29 N. Y. 358, 86 Am. Dec. 305; Gaylord Mfg. Co. v. Allen, .53 N. Y. _515; Gurney v. Railroad Co., 58 N. Y. 358; Norton v. Dreyfuss, 106^N. Y. 00, 12 N. B. 4JS; Cop- lay Iron Co. v. Pope, 108 N..Y. 232, 15 N. E. 335; Brown v. Foster, "iOSTSr." Y. 387, 15 N. B. 608." Studer v. Bleistein, 115 N. Y. 310, 325, 22 N. E. 243, 5 L. R. A. 702, per Ruger, C. J. "Upon an execu- tory sale of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claim- ing and recovering damages for breach of warranty, although he has accepted the goods after an opportunity for inspection. Kent V. Friedman, 101 N. Y. 016, 3 N. E. 905; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 03; Gurney v. Railroad Co., 53 N. Y. 358. * « * The cases of Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335; Studer v. Bleistein, 115 N. Y. 316, 22' N. E. 243, 5 L. R. A. 702; Piersnn v. Crooks, 115 N. Y. 539, 22 N. E. 349, ]2 Am. St. Rep. 831, and other cases of like character — are clearly distin- guishable, inasmuch as one is a contract concerning a sale by sample, and the others were executory contracts for the manufacture and sale or delivery of goods of a particular description. In cases of the latter character, where the quality of the goods is capable of discovery upon inspection, and where, after full opportunity for such inspection, the goods are accepted, and no warranty attends the sale, the veP'iee is precluded from recovering damages for any variation between the goods delivered and those described in the §§ 120-121) BREACH OF WAREANTT. 375 of warranty in diminution pro tanto of the damages.^ '^^ And at common law this was his only way of availing himself of a breach of warranty as a defense. The rule was stated by Parke, B., in the leading case of Mondel v. Steel,^^^ as fol- lows : "Formerly it was the practice, when an action was brought for an agreed price of a specific chattel sold with a warranty, to allow the plaintiff to recover the stipulated sum, leaving the defendant to a cross action for breach of the war- ranty ; in which action as well the difference between the price contracted for and the real value of the articles as any conse- quential damage might have been recovered. * * * The performance of the warranty not being a condition precedent to the payment of the price, the defendant who received the contract." ^Zabriskie v. Railroad Co., 131 N. Y. 72, 29 N. E. 1006, per Euger, O. J. See, also, Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719; Parks v. Tool Co., 54 N. Y. 586; Gentilli v. Staraee, 1.33 N. Y. 140, 30 N. a OGO; Carleton v. Lombard, 149 N. Y. 137, 43 N. B. 422; Bierman v. Mills Co., 151 N. Y. 482, 45 N. B. 856, 37 L. R. A. 799, 56 Am. St. Rep. 635; AVaeber v. Talbot, 167 N. Y. 48, 60 N. B. 288, 82 Am. St. Rep. 72 ; TBelT v." Mills, 78 App. Div. 42, 80 N. Y. Supp. 34; Lifshitz v. McConnell, 80 App. Div. 289, 80 N. Y. Supp. 253; Licbtenstein v. Rabolinsky, 98 App. Div. 516, 90 N. Y. Supp. 247, affirmed 184 N. Y. 520, 76 N. B. 1099. '-Where tbe purchaser of goods delivered on an executory contract, with full knowledge, or with full opportunity for examination and knowledge, of their defects, which are open and apparent upon mere inspection, takes them into his possession, and appropriates them to his own use, without notifying the vendor at the time of receiving them, or within a reasonable time thereafter, that they are not accepted as fulfilling the contract, he cannot recoup damages for such defects or failures in an action for the contract price." McClure v. Jeffer- son, 85 Wis. 208, 54 N. W. 777. per Cassidy, J. Cf. Northern Sup- ply Co. V. Wangard, 117 Wis. 624, 94 N. W. 785, 98 Am. St. Rep. 963. 114 Mondel v. Steel, 8 Mees. & W. 858; Withers v. Greene, 9 How. (U. S.) 213, 13 L. Ed. 109; Lyon v. Bertram, 20 How. (U. S.) 149, 154, 15 L. Ed. 847; Bradley v. Eea, 14 Allen (Mass.) 20; Dailey V. Green, 15 Pa. 118, 126; Dayton v. Hooglund, 39 Ohio St. 671; Underwood v. Wolf, 131 111. 425, 23 N. B. 598, 19 Am. St. Rep. 40; Morehouse" vTCoriistock, '42 Wis. 626; Polhemus v. Heiman, 45 Cal. 573; Breen v. Moran, 51 Minn. 525, 53 N. W. 755; Central Trust Co. V. Manufactm-ing Co., 77 Md. 202, 26 Atl. 493; Avery v. Burrall, 118 Mich. 672, 77 N. W. 272; Parry Mfg. Co. y. Tobin, 106 Wis. 286, 82 N. W. 154. 115 8 Mees. & W. 858. 376 ACTIONS FOE BREACH OF THE CONTEACT. (Ch. 10 chattel warranted has thereby the property vested in him in- defeasibly, and is incapable of returning it back. He has all that he stipulated for as the condition of paying the price, and therefore it was held that he ought to pay it, and seek his rem- edy on the plaintiff's contract of warranty. * * * But, after the case of Basten v. Butter (7 East, 479), a different practice began to prevail, and, being attended with much prac- tical convenience, has since been generally followed ; and the defendant is now permitted to show that the chattels, by rea- son of the noncompliance with the warranty, were diminish- ed in value. * * * fhe rule is that it is competent for the defendant, not to set off by a procedure in the nature of a cross action the amount of damages which he has sustained by breach of the contract, but simply to defend himself by show- ing how much less the subject-matter of the action was worth, by reason of the breach of contract ; and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satis- faction for the breach of contract, and is precluded from re- covering in another action to that extent, but no more." This case also detenuined that the buyer must bring a cross action if he desired to claim consequential or special damages ; but, under the changed procedure now generally prevailing, the buyer may recover such damages by way of counter- claim.^^" And to-day in most states such damages may be set up by way of defense or counterclaim in an action on a note given for the price.^"-^ 110 See Zabrislde v. Railroad Co., 131 N. T. 72, 29 N. E. 1009; Kester v. Jliller, 119 N. C. 475, 26 S. B. 115. Sale of Goods Act, § 53 (4), following ilondel v. Steel, supra, al- lows the buyer to recoup bis damages in an action for tbe price and tbereafter to bring an action for damages. "This seems erroneous," says Prof. Williston in his note to Sales Act, § (19, "and has been changed in this draft" — citing Watkins v. Banli, 134 Fed. 36, 07 C. C. A. 110. 117 Withers v. Greene, 9 How. (U. S.) 213, 13 L. Ed. 109; Ruff v. Jarrett, 94 111. 475; Wentworth v. Dows, 117 ilass. 14, per Colt, J.; Wright V. Davenport, 44 Tes. 164; Schurmeier v. English, 46 Minn.- 306, 48 N. W. 1112. §§ 120-121) BREACH or WAEKANTX. 377 Measure of Damages. In accordance with the general rule of damages in cases of breach of contract, the measure of damages for breach of warranty is the loss directly and naturally resulting from the breach, in the ordinary course of events. ^^* In case of a breach of warranty of quality or condition, prima facie— that is, in the absence of special circumstances showing proximate loss of a greater amount — this loss is the difference between the value of the goods as they in fact were at the time of delivery^!" and the value of the goods as it would have been if they had been as warranted.^ ^° Thus the lis Frobreigh v. Gammon, 28 Minn. 476, 11 N. W. 88, and cases cited in note 120, infra. See Sales Act, § 69 (6) ; ante, p. 357. 119 Eagle Iron Works v. Railway Co., 101 Iowa, 289, 70 N. W. 193. M'here goods, such as fruit trees, are sold by description or their kind or quality is otherwise warranted, and it cannot be as^ certained until they come into bearing whether they conform to the warranty, the damages may be calculated as of that time. Shearer V. Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 Am. St. Rep. 125. ^'here plaintiff bought an orchid described as of a certain white variety for 20 guineas, and after cultivation it produced a purple flower and was worth only 7 s. 6 d., but if of the described variety It would have been worth £50, he was entitled to wait till the plant flowered, and to recover the difference between its value as a purple orchid and as that described. Ashworth v. Wells, 78 Law T. 136, C. A. 14 Times Law Rep. 227. 120 Jones v. Just, L. R. 3 Q. B. 197; Dingle v. Hare, 7 C. B. (N. S.) 145, 29 Law J. C. P. 144; Reggio v. Braggiotti, 7 Cush. (Mass.) 166 ; Case v. Stevens, 137 Mass. 551 ; Thorns v. Dingley, 70 Me. 100, 35 Am. Rep. 310; Rutan v. Ludlam, 29 N. J. Law, 398; Frey- man v. Knecht, 78 Pa. 141; Porter v. Pool, 62 Ga. 238; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4; Ferguson v. Hosier, 58 Ind. 438 ; Case Threshing Mach. Co. v. Haven, 65 Iowa, 3.j9, 21 N. W. 677 ; Aultman & Taylor Co. v. Hetherington, 42 Wis. 622 ; Merrick v. Wiltse, 37 Minn. 41, 33 N. W. 3; Wheeler & W. Mfg. Co. V. Thompson, 33 Kan. 491, 6 Pac. 902; E. A. Moore Furni- ture Co. V. W. J. Sloane, 166 111. 457, 46 N. B. 1128; Hooper v. Story, 155 N. Y. 171, 49 N. E. 773; J. I. Case Plow Works v. Niles & Scott Co., 90 Wis. 590. 63 N. W. 1013; Park v. Richardson & Boynton Co., 91 Wis. 189, 64 N. W. 859; Maimisburg Twine & Cordage Co. v. Wohlhuter, 71 Minn. 484, 74 N. W. 175; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942, 44 L. R. A. 438; Crane Co. v. Construction Co., 73 Fed. 984, 20 C. C. A. 233; Still- well, Bierce & Smith-Vaile Co. v. Canning Co., 78 Miss. 779, 29 South. 513. See Sales Act, § 69 (7). 378 ACTIONS FOR BREACH OF THE CONTRACT. (Ch. 10 fact that the value of the goods equaled or exceeded the price does not prevent the buyer from recovering damages, if the value of the goods as warranted would have been greater. ^^'■ The rules in respect to special damages which have been stated are applicable.'-- The question is what a reasonable man, with the knowledge of the parties, would have contem- plated as the probable result of the breach of warranty had he applied his mind to it. Thus, where seed is sold for planting, warranted to be of a particular description, and different seed is delivered and sown, the seller is liable for the loss of the crop, 121 Douglas v. Moses (Iowa) G5 N. W. 1004. Evidence is not ad- missible in defense to show that a profit was realized by the buyer. Andrews v. Schreiber (C. C.) 0.3 Fed. 307. 122 Ante, p. 357. See Sales Act, § 70. See Thorns v. Dingley, 70 Me. 100, 35 Am. Rep. 310; ParliS v. Too! Co., 54 X. T. 586; Thorne v. }.IcVeagh, 75 111. 81: Herring v. Skaggs, 02 .\la. ISO, 34 Am. Rep. 4 (seller not liable for valuables stolen from safe warranted burglar proof); McCormick v. Vanatta, 43 Iowa, 389; Aultman v. Stout, 15 Xeb. .580, 19 N. W. 404; English v. Commission Co., 6 C. C. A. 416, 57 Fed. 451; Coyle v. Baum, 3 Okl. 005, 41'Pac. 389; Snowden v. Waterman, 105 Ga. 384, 31 S. E. 110; Johnston v. Faxon, 172 Mass. 4G6, 52 N. E. 539. Buyer reselling with warranty may recover costs of defense against subpurchaser, where seller declines to defend. Lewis V. Peake, 7 Taunt. 153; Hammond v. Bussey, 20 Q. B. Div. 79. Where the seller sold a refrigerator to a poultry dealer with knowled.ge that he intended to use it to preserve chickens for the May market, and warranted that it would keep them in perfect condition, which it failed to do, and many chickens were lost, the Iniyer was entitled to recover, in addition to the difference between the value of the refrigerator as constructed and as warranted, the market value of the chickens lost, less expenses of sale. Beeman V. Banta, 118 N. Y. 538, 23 N. E. SS7, 16 Am. St. Rep. 779. Where a manufacturer of ice cream bought coloring matter, which the sel- ler, knowing its purpose, represented to be pure and harmless, but whicli in fact was poisonous, and the buyer's customers who ate ice cream containing the matter were made sick, and the buyer de- stroyed the ice cream, held, that the buyer could recover the value of the gooils so destroyed, and the damage caused by the resulting loss of customers. Swain v. Schieffelin, 134 N. T. 471, 31 N. E. 1025. 18 L. R. A. 385. The buyer, suing for breach of warranty of a tackle block, cannot recover a sum paid by him without suit, and without communication with the defendant, to a servant for personal in.inries caused by the breaking of the block, unless the servant might have recovered from the plaintiff. Roughan v. Block Co., 101 JIass. 24, 30 N. E. 461. §§ 120-121) BREACH OF WARRANTY. 379 or the difference in value between the crop raised and such a crop as would ordinarily have been raised had the seed been as warranted, according to the circumstances of the case.^^' So, "where one sells and warrants a thing for a particular use, upon reasonable ground for believing that, if put to such use, a certain loss to the buyer will probably result if the warranty is untrue, * * * the seller is, under the war- ranty, chargeable with the loss, as one which may reasonably be supposed to have been in contemplation of the parties when making the contract/' ^^* 123 Wolcott V. Mount, 38 N. J. Law, 496, 20 Am. Kep. 425, affirm- ing Id., 36 N. J. Law, 262, 13 Am. Rep. 438; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Id., 78 N. Y. 393, 34 Am. Rep. 544. See, also, Passenger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753 ; Van Wyck t. Allen, 69 N. Y. 61, 25 Am. Rep. 136; Edgar v. Breck & Sons Corp., 172 Mass. 581, 52 N. E. 1083. Cf. Randall v. Raper, El., Bl. & EI, 84, 27 Law .1. Q. B. 26G. Contra, Butler v. Moore, 68 Ga. 789, 45 Am. Rep. 508. Where a druggist sold Paris green to a planter for the known purpose of killing cotton worms, but the article was not Paris green, and failed to kill the worms on being applied to the buyer's crop, the measure of damages for the breach of the contract, if it resulted in the loss of the crop, was the value of the crop as It stood, with the cost of the article, the expense of applying it, and Interest. Jones v. George, 56 Tex. 149, 42 Am. Rep. 689; Id., 61 Tex. 345, 48 Am. Rep. 280. Where fruit trees were bought to be set out on an agreement that they should be of certain varieties, or others equally desirable, and on commencing to bear they were found to be of inferior variety, the measure of damages was the value they would have added to the premises had they been of the varieties agreed. Heilman v. Pruyor, 122 Mich. 301, 81 N. W. 97, 80 Am. St. Rep. 570. 124 Frohreich v. Gammon, 28 Minn. 476, 11 N. W. 88, per Berry, J. See, also, Wilson v. Reedy, 32 .Minn. 256, 20 N. W. 153. APPENDIX. THE SALES ACT Following the example of Great Britain, which in 1893 enacted the Sale of Goods Act,^ several states of the Union have already enacted the so-called Sales Act.^ The English act was drafted by Mr. M. D. Chalmers, who prepared the English Bills of Exchange Act, which is the foundation of the Negotiable Instruments Law, now in force in a large part of the Union. The Sales Act is based on the English Sale of Goods Act. The original draft was prepared in 1902-3 by Prof. Samuel Williston of Harvard University, at the re- quest of the Commissioners on Uniform State Laws, and was presented to the conference of the Commissioners and discussed at its meeting in 1904. The draft was then re- committed to the Committee on Commercial Law, and a re- vised draft was presented at the meeting of the conference in 1905. This draft included for the first time a number of sections on the transfer of property by means of document of title,' which are not contained in the English act, and be- cause of these sections it was thought best again to recommit the draft. At the meeting of the conference in 1906 the draft in its present form was adopted and recommended to the Legislatures of the several states for passage.* The act is in the main declaratory in its effect; but it makes some changes, and necessarily changes the law in some jurisdictions on points concerning which a conflict of laws has existed. 1 St. 55 & 57 Vict. c. 71 ; post, p. 413. 2 Connecticut, Pub. Acts 1907, e. 212 ; New Jersey, Laws 1907, c. 132; Arizona, Sess. Laws 1907, c. 99. 3 Sections 27^0. * For the history of the act, see preface in pamphlet containing the draft printed by the Commissioners. This pamphlet contains notes to the several sections, prepared by Prof. Williston. The annotated draft is published in the Report of the American Bar Association, Vol. 30, 1906, part 2, p. 343 et seq. Tiit.Sai,es(2d Ed.) (381) 3S2 APPENDIX. (Pt. 1 DRAFT OF AN ACT TO MAKE UNIFORM THE LAW RELATING TO THE SALE OF GOODS. PART I. Formation of the Contract. Section 1. — [Contracts to Sell and Sales.] (1.) A con- tract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. (2.) A sale of goods is an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price. (3.) A contract to sell or a sale may be absolute or condi- tional. (4.) There may be a contract to sell or a sale between one part owner and another. Section 2. — [Capacity — Liability for Necessaries.] Capac- ity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price there- for. Necessaries in this section mean goods suitable to the condi- tion in life of such infant or other person, and to his actual re- quirements at the time of delivery. Formalities of the Contract. Section 3. — [Form of Contract or Sale.] Subject to the provisions of this act and of any statute in that behalf, a con- tract to sell or a sale may be made in writing (either with or without seal), or by word of month, or partly in writing and g§ i-5) THE SALES ACT. 383 partly by word of mouth, or may be inferred from the conduct of the parties. Section 4. — [Statute of Frauds.] (1.) A contract to sell or a sale of any goods or choses in action of the value of five hun- dred dollars or upwards shall not be enforceable by action un- less the buyer shall accept part of the goods or choses in ac- tion so contracted to he sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writ- ing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such con- tract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery ; but if the goods are to be manufactured by the sell- er especially for the buyer and are not stiitable for sale to others in the ordinary course of the seller's business, the pro- visions of this section shall not apply. (3.) Tli^y? is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to be- coming the owner of those specific goods. Subject-Matter of Contract. Section 5. — [Existing and Future Goods.] (1.) The goods which form. the subject of a contract to sell may be either ex- isting goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract to sell, in this act called "future goods." (2.) There may be a contract to sell goods, the acquisi- tion of which by the seller depends upon a contingency which may or may not happen. (3.) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods. •;S4: APPENDIX. (Pt. 1 Section 6. — [Undivided Shares.] (1.) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares. (2.) In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller pur- ports to sell and the buyer to buy a definite number, weight, or measure of the goods in the mass, and though the number, weight, or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight, or measure bought bears to the number, weight, or measure of the mass. If the mass contains less than the number, weight, or measure bought, the bu}-er becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears. Section 7. — [Destruction of Goods Sold.] (1.) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void. (2.) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale — (a.) As avoided, or (b.) As transferring the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisi- ble or to pay the agreed price for the goods in which the prop- erty passes if the sale was divisible. Section 8. — [Destruction of Goods Contracted to be Sold.] (1.) Where' there is a contract to sell specific goods, and sub- sequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided. (2.) Where there is a contract to sell specific goods, and sub- sequently, but before the risk passes to the buyer, without any §§ 8-10) THE SALES ACT. 385 fault of the seller or the buyer, part of the goods perish or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract — (a.) As avoided, or (b.) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deterio- rated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible. The Price. Section 9. — [Definition and Ascertainment of Price.] (1.) The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties. (2.) The price may be made payable in any personal prop- erty. (3.) Where transferring or promising to transfer any in- terest in real estate constitutes the whole or part of the con- sideration for transferring or for promising to transfer the property in goods, this act shall not apply. (4.) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. Section 10. — [Sale at a Valuation.] (1.) Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third person, and such third person, without fault of the seller or the buyer, can not or does not fix the price or terms, the contract or the sale is thereby avoided ; but if the goods or any part thereof have been delivered to and appro- priated by the buyer he must pay a reasonable price therefor. (2.) Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have such remedies against the party in fault as are allowed by Parts IV and V of this act. Tift'.Sai.es(2d Ed.) — 2.5 386 APPENDIX. (Pt 1 Conditions and Warranties. Section 11.— [Effect of Conditions.] (1.) Where the obli- gation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may re- fuse to proceed with the contract or sale or he may waive per- formance of the condition. If the other party has promised that the condition should happen or be performed, such first- mentioned party may also treat the non-performance of the condition as a breach of warranty. (2.) Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to furnish goods as described and as warranted expressly or by implication in the contract to sell as a condition of the ob- ligation of the buyer to perform his promise to accept and pay for the goods. Section 12. — [Definition of Express Warranty.] Any af- firmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller's opinion only shall be construed as a warranty. Section 13. — [Implied Warranties of Title.] In a con- tract to sell or a sale, unless a contrary intention appears, there is — (1.) An implied warranty 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 a contract to sell he will have a right to sell the goods at the time when the property is to pass. (2.) An implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of sale. (3.) An implied warranty that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made. §.§ 13-15) THE SALES ACT. 387 (4.) This section shall not, however, be held to render liable a sheriff, auctioneer, mortgagee, or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. Section 14. — [Implied Warranty in Sale by Description.] Where there is a contract to sell or a sale of goods by descrip- tion, there is an implied warranty that the goods shall cor- respond with the description and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. Section 15. — [Implied Warranties of Quality.] Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows : (1.) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whethc- he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. (2.) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied war- ranty that the goods shall be of merchantable quality. (3.) If the buyer has examined the goods, there is no im- plied warranty as regards defects which such examination ought to have revealed. (4.) In the case of a contract to sell or a sale of a speci- fied article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. (5.) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (6.) An express warranty or condition does not negative a warranty or condition implied under this act unless incon- sistent therewith. 388 APPENDIX. (Pt. 2 Sale by Sample. Secticm 16. — [Implied Warranties in Sale by Sample.] In the case of a contract to sell or a sale by sample — (a.) There is an implied warranty that the bulk shall cor- respond with the sample in quality. (b.) There is an implied warranty that the buyer shall have a reasonable opportunity of comparing the bulk with the sample, except so far as otherwise provided in section 47 (3). (c.) If the seller is a dealer in goods of that kind, there is an implied warranty that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. PART II. Transfer of Property as Between Seller and Buyer. Section 17. — [No Property Passes Until Goods are Ascer- tained.] Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer un- less and until the goods are ascertained, but property in an un- divided share of ascertained goods may be transferred as pro- vided in section 6. Section 18. — [Property in Specific Goods Passes When Parties so Intend.] (1.) Where there is a contract to sell specific or ascertained goods, the property in them is trans- ferred to the buyer at such time as the parties to the contract intend it to be transferred. (3.) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract:, the conduct of the parties, usages of trade, and the circumstances of the case. Section 19. — [Rules for Ascertaining Intention.] Unless a different intention appears, the following are rules for ascer- taining the intention of the parties as to the time at which the property in the goods is to pass to the buyer : Rule 1. — Where there is an unconditional contract to sell § 19) THE SALES ACT. 389 Specific goods, in a deliverable state, the property in the g-oods passes to the buyer when the contract is made, and it is im- material whether the time of payment, or the time of delivery, or both, be postponed. Rule 2. — Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the pur- pose of putting them into a deliverable state, the property does not pass until such thing be done. Rule 3. — (1.) When goods are delivered to the buyer "on sale or return," or on other terms indicating an intention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fix- ed in the contract, or, if no time has been fixed, within a rea- sonable time. (3.) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the prop- erty therein passes to the buyer — - (a.) When he signifies his approval or acceptance to the sell- er or does any other act adopting the transaction. (b.) If he does not signify this approval or acceptance to the seller, but retains the goods without giving notice of re- jection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. When is a rea- sonable time is a question of fact. Rule 4. — (1.) Where there is a contract to sell unascertain- ed or future goods by description, and goods of that descrip- tion and in a deliverable state are unconditionally appropriat- ed to the contract, eitTier by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the prop- erty in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. (2.) Where, in pursuance of a contract to sell, the seller de- Hvers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not) for the purpose of trans- mission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except 390 APPENDIX. (Pt. 2 in the cases provided for in the next rule and in section 20. This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving deliv- ery of the goods, and the goods are marked with the words Collect on Delivery or their equivalents. Rule 5. — If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight of cost of transportation to the buyer, or to a particu- lar place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon. Section 20. — [Reservation of Right of Possession or Prop- erty When Goods are Shipped.] (1.) Where there is a con- tract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buy- er, or to a carrier or other bailee for the purpose of transmis- sion to the buyer. (2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order pf the seller or of his agent, the seller thereby resen'cs the prop- j erty in the goods. But if, except for the form of the bill of ! lading, the property would have passed to the buyer on ship- ment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract. (3.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the pos- session of the goods, as against the buyer. (4.) Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lad- ing if he does not honor the bill of exchange, and if he wrong- fully retains the bill of lading he acquires no added right there- §§ 21-22) THE SALES ACT. 391 by. If, however, the bill of lading provides that the goods are deliverable to the buyer or to the order of the buyer, or is en- dorsed in blank, or to the buyer by the consignee named there- in, one who purchases in good faith, for value, the bill of lading, or goods from the buyer will obtain the property in the goods, although the bill of exchange has not been honored, provided that such purchaser has received delivery of the bill of lading indorsed by the consignee named therein, or of the goods, without notice of the facts making the transfer wrong- ful. Section 21. — [Sale by Auction.] In the case of a sale by auction — (1.) Where goods are put up for sale by auction in lots, each lot is the subject of a separate contract of sale. (8.) A sale by auction is complete when the auctioneer an- nounces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve. (3.) A right to bid may be reserved expressly by or on be- half of the seller. (4.) Where notice has not been given that a sale by auction is subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ or induce any person to bid at such sale on his behalf, or for the auc- tioneer to employ or induce any person to bid at such sale on behalf of the seller or knowingly to take any bid from the seller or any person employed by him. Any sale contraven- ing this rule may be treated as fraudulent by the buyer. Section 22. — [Risk of Loss.] Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is trans- ferred to the buyer the goods are at the buyer's risk whether delivery has been made or not, except that — (a.) Where delivery of the goods has been made to the buy- er, or to a bailee for the buyer, in pursuance of the contract, and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations 392 APPKXDix. (Pt. 2 under the contract, the goods are at the buyer's risk from the time of such deHvery, (b.) Where delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault. Transfer of Title. Section 23. — [Sale by a Person Not the Owner.] (1.) Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. (8.) Nothing in this act, however, shall affect — (a.) The provisions of any factors' acts, recording acts, or any enactment enabling the apparent owner of goods to dis- ppse of them as if he were the true owner thereof. (b.) The validity of any contract to sell or sale under any special common-law or statutory power of sale or under the order of a court of competent jurisdiction. Section 24. — [Sale by One Having a Voidable Title.] Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer ac- quires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title. Section 25. — [Sale by Seller in Possession of Goods Al- ready Sold.] Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, the deHvery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person re- ceiving and paying value for 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 author- ized by the owner of the goods to make the same. §§ 26-29)- THE SALES ACT. 393 Section 26. — [Creditors' Rights Against Sold Goods in Seller's Possession.]. Where a person having sold goods con- tinues in possession of the goods, or of negotiable documents of title to the goods, and such retention of possession is fraudu- lent in fact or is deemed fraudulent under any rule of law, a creditor or creditors of the seller may treat the sale as void. Section 27. — [Definition of Negotiable Document of Ti- tle.] A document of title in which it is stated that the goods referred to therein will be delivered to the bearer, or to the order of any person named in such document, is a negotiable document of title. Section 28. — [Negotiation of Negotiable Documents by Delivery.] A negotiable document of title may be negotiated by delivery — (a.) Where by the terms of the document the carrier, ware- houseman, or other bailee issuing the same undertakes to de- liver the goods to the bearer, or (b.) Where by the terms of the document the carrier, ware- houseman, or other bailee issuing the same undertakes to de- liver the goods to the order of a specified person, and such per- son or a subsequent indorsee of the document has indorsed it in blank or to bearer. Where by the terms of a negotiable document of title the goods are deliverable to bearer or where a negotiable document of title has been indorsed in blank or to bearer, any holder may indorse the same to himself or to any other specified person, and in such case the document shall thereafter be negotiated only by the indorsement of such indorsee. Section 29. — [Negotiation of Negotiable Documents by Indorsement.] A negotiable document of title may be ne- gotiated by the indorsement of the person to whose order the goods are by the terms of the document deliverable. Such in- dorsement may be in blank, to bearer, or to a specified person. If indorsed to a specified person it may be again negotiated by the indorsement of such person in blank, to bearer or to another specified person. Subsequent negotiation may be made in like Mianner. 394 APPENDIX. (Ft. 2 Section 30. — [Negotiable Documents of Title Marked "Not Negotiable."] If a document of title which contains an undertaking by a carrier, warehouseman, or other bailee to de- liver the goods to the bearer, to a specified person or order, or to the order of a specified person, or which contains words of like import, has placed upon it the words "not negotiable," "non-negotiable," or the like, such a document may neverthe- less be negotiated by the holder and is a negotiable document of title within the meaning of this act. But nothing in this act contained shall be construed as limiting or defining the effect upon the obligations of the carrier, warehouseman, or other bailee issuing a document of title of placing thereon the words "not negotiable," "non-negotiable," or the like. Section 31. — [Transfer of Non-Negotiable Documents.] A document of title which is not in such form that it can be negotiated by delivery may be transferred by the holder by de- Hvery to a purchaser or donee. A non-negotiable receipt can not be negotiated and the indorsement of such a receipt gives the transferee no additional right. Section 32. — [Who may Negotiate a Document.] A negotiable document of title may be negotiated — (a.) By the owner thereof, or (b.) By any person to whom the possession or custody of the document has been entrusted by the owner, if, by the terms of the document, the bailee issuing the document undertakes to deliver the goods to the order of the person to whom the pos- session or custody of the document has been entrusted, or if at the time of such entrusting the document is in such form that it may be negotiated by delivery. Section 33. — [Rights of Person to Whom Document has been Negotiated.] A person to whom a negotiable docu- ment of title has been duly negotiated acquires thereby, (a.) Such title to the goods as the person negotiating the document to him had or had ability to convey to a purchaser in good faith for value, and also such title to the goods as the person to whose order the goods were to be delivered by the terms of the document had or had ability to convey to a pur- chaser in good faith for value, and (b.) The direct obligation of the bailee issuing the document §§ 34-36) THE SALES ACT, 395 to hold possession of the goods for him according to the terms of the document as fully as if such bailee had contracted di- rectly with him. Section 34. — [Rights of Person to Whom Document has been Transferred.] A person to whom a document of title has been transferred, but not negotiated, acquires thereby, as against the transferor, the title to the goods, subject to the terms of any agreement with the transferor. If the document is non-negotiable such person also acquires the right to notify the bailee who issued the document of the transfer thereof, and thereby to acquire the direct obligation of such bailee to hold possession of the goods for him according to the terms of the document. Prior to the notification of such bailee by the transferor or transferee of a non-negotiable document of title, the title of the transferee to the goods and the right to acquire the obligation of such bailee may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferor, or by a notification to such bailee by the transferor or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor. Section 35. — [Transfer of Negotiable Document Without Indorsement.] Where a negotiable document of title is trans- ferred for value by delivery, and the indorsement of the trans- feror is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the docu- ment unless a contrary intention appears. The negotiation shall take efifect as of the time when the indorsement is actual- ly made. Section 36. — [Warranties on Sale of Document.] A per- son who for value negotiates or transfers a document of title by indorsement or delivery, including one who assigns for value a claim secured by a document of title, unless a contrary inten- tion appears, warrants : (a.) That the document is genuine. (b.) That he has a legal right to negotiate or transfer it. (c.) That he has knowledge of no fact which would impair the validity or worth of the document, and (d.) That he has a right to transfer the title to the goods 396 APPENDIX. (Pt. 2 and that the goods are merchantable or fit for a particular pur- pose, whenever such warranties would have been implied if the contract of the parties had been to transfer without a docu- ment of title the goods represented thereby. Section 37. — [Indorser not a Guarantor.] The indorse- ment of a document of title shall not make the indorser hable for any failure on the part of the bailee who issued the docu- ment or previous indorsers thereof to fulfill their respective obligations. Section 38. — [When Negotiation Not Impaired by Fraud, Mistake, or Duress.] The validity of the negotiation of a negotiable document of title is not impaired by the fact that the negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the document was induced by fraud, mistake, or duress to entrust the possession or custody thereof to such person, if the person to whom the document was negotiated or a person to whom the document was subsequently negotiated paid value therefor, without notice of the breach of duty, or fraud, mistake, or duress. Section 39. — [Attachment or Levy upon Goods for Which a Negotiable Document has been Issued.] If goods are de- livered to a bailee by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for val- ue would bind the owner and a negotiable document of title is issued for them they can not thereafter, while in the posses- sion of such bailee, be attached by garnishment or otherwise or be levied upon under an execution unless the document be first surrendered to the bailee or its negotiation enjoined. The bailee shall in no case be compelled to deliver up the actual possession of the goods until the document is surrendered to him or impounded by the court. Section 40. — [Creditors' Remedies to Reach Negotiable Documents.] A creditor whose debtor is the owner of a ne- gotiable document of title shall be entitled to such aid from courts of appropriate jurisdiction by injunction and otherwise in attaching such document or in satisfying the claim by means §§ 41-43) THE SALES ACT. 397 thereof as is allowed at law or in equity in regard to property which can not readily be attached or levied upon by ordinary legal process. PART III. Performance of the Contract. Section 41. — [Seller must Deliver and Buyer Accepti Goods.] It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale. Section 42. — [Delivery and Pa3mient are Concurrent Con- ditions.] Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for pos- session of the goods. Section 43. — [Place, Time, and Manner of Delivery.] (1.) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer, is a question de- pending in each case on the contract, express or implied, be- tween the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business, if he have one, and if not his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery. (2.) Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable^ time. (3.) Where the goods at the time of sale are in the possession^, of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person ac- knowledges to the buyer that he holds the goods on the buy- er's behalf; but as against all others than the seller the buyer shall be regarded as having received delivery from the time §§ 46-47) THE SALES ACT. 399 of or pay for one or more instalments, it depends in each case on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for dam- ages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken. Section 46. — [Delivery to a Carrier on Behalf of the Buy- er.] (1.) Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is deemed to be a delivery of the goods to the buyer, except in the cases provided for in section 19, rule 5, or unless a contrary intent appears. (2.) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buy- er as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit to do so, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the car- rier as a delivery to himself, or may hold the seller responsible in damages. (3.) Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such transit. Section 47. — [Right to Examine the Goods.] (1.) Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (3.) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the 400 ' APPENDIX. (Pt.3 purpose of ascertaining whether they are in conformity with the contract. (3.) Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words Col- lect on Delivery, or otherwise, the buyer is not entitled to ex- amine the goods before payment of the price in the absence of agreement permitting such examination. Section 48. — [What Constitutes Acceptance.] The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been ; delivered to him, and he does any act in relation to them which ""is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Section 49. — [Acceptance does Not Bar Action for Dam- ages.] In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor. Section 50. — [Buyer is Not Bound to Return Goods Wrongly Delivered.] Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, hav- ing the right so to do, he is not bound to return them to the seller, but it is sufficient if he notifies the seller that he refuses to accept them. Section 51. — [Buyer's Liability for Failing to Accept De- livery.] When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the buj^er does not within a reasonable time after such request take deliv- ery of the goods, he is liable to the seller for any loss occasion- §§ 52-53) THE SALES ACT. 401 ed by his neglect or refusal to take delivery, and also for a rea- sonable charge for the care and custody of the goods. If the neglect or refusal of the buyer to take delivery amounts to a repudiation or breach of the entire contract, the seller shall have the rights against the goods and on the contract herein- after provided in favor of the seller when the buyer is in de- fault PART IV. Rights of Unpaid Seller Against the Goods. Section 52.— [Definition of Unpaid Seller.] (1.) The seller of goods is deemed to be an unpaid seller within the meaning of this act — (a.) When the whole of the price has not been paid or ten- dered. (b.) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has been broken by reason of the dis- honor of the instrument, the insolvency of the buyer, or other- wise. (2.) In this part of this act the term "seller" includes an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price, or any other person who is in the position of a seller. Section 53. — [Remedies of an Unpaid Seller.] (1.) Sub- ject to the provisions of this act, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has — (a.) A lien on the goods or right to retain them for the price while he is in possession of them. (b.) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them. (c.) A right of resale as limited by this act. (d.) A right to rescind the sale as limited by this act. (2.) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right TiFr.SALEs(2D Ed.) — 26 402 APPENDIX. (Pt. 4: of withholding- delivery similar to and co-extensive with his rights of lien and stoppage "in transitu" where the property has passed to buyer. Unpaid Seller's Lien. Section 54. — [When Right of Lien may be Exercised.] (1.) Subject to the provisions of this act, the unpaid seller of goods who is in possession of them is entitled to retain pos- session of them until payment or tender of the price in the fol- lowing cases, namely : (a.) Where the goods have been sold without any stipula- tion as to credit. (b.) Where the goods have been sold on credit, but the term of credit has expired. (c.) Where the buyer becomes insolvent. (2.) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee for the buyer. Section 55. — [Lien After Part Delivery.] Where an un- paid seller has made part delivery of the goods, he may ex- ercise his right of lien on the remainder, unless such part de- livery has been made under such circumstances as to show an intent to waive the lien or right of retention. Section 56. — [When Lien is Lost.] (1.) The unpaid sell- er of goods loses his Hen thereon — (a.) When he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the possession thereof. (b.) When the buyer or his agent lawfully obtains possession of the goods. (c.) By waiver thereof. (2.) The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained judg- ment or decree for the price of the goods. Stoppage in Transitu. Section 57. — [Seller may Stop Goods on Buyer's Insol- vency.] Subject to the provisions of this act, when the buy- §§ 58-59) THE SALES ACT. 403 er of goods is or becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stop- ping them in transitu, that is to say, he may resume possession of the goods at any time while they are in transit, and he will then become entitled to the same rights in regard to the goods as he would have had if he had never parted with the pos- session. Section 58. — [When Goods are in Transit.] (1.) Goods are in transit within the meaning of section 57 : (a.) From the time when they are delivered to a carrier by land or water, or other bailee for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes de- livery of them from such carrier or other bailee; (b.) If the goods are rejected by the buyer and the carrier or other bailee continues in possession of them, even if the sell- er has refused to receive them back. (2.) Goods are no longer in transit within the meaning of section 57 : (a.) If the buyer, or his agent in that behalf, obtains deliv- ery of the goods before their arrival at the appointed destina- tion; (b.) If, after the arrival of the goods at the appointed desti- nation, the carrier or other bailee acknowledges to the buyer or his agent, that he holds the goods on his behalf and continues in possession of them as bailee for the buyer, or his agent ; and it is immaterial that a further destination for the goods may have been indicated by the buyer ; (c.) If the carrier or other bailee wrongfully refuses to de- liver the goods to the buyer, or his agent in that behalf. (3.) If goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent of the buyer. (4.) If part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement with the buyer to give up possession of the whole of the goods. Section 59. — [Ways of Exercising the Right to Stop.] (1.) The unpaid seller may exercise his right of stoppage in 404 APPENDIX. (Pt. 4 transitu either by obtaining actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may prevent a delivery to the buyer. (2.) When notice of stoppage in transitu is given by the sell- er to the carrier, or other bailee in possession of the goods, he must redeliver the goods to, or according to the directions of, the seller. The expenses of such redelivery must be borne by the seller. If, however, a negotiable document of title repre- senting the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver or justified in delivering the goods to the seller unless such document is first surrendered for cancellation. Resale by the Seller. Section 60. — [When and How Resale may be Made.] (1.) Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having a right of lien or having stopped the goods in transitu may resell the goods. He shall not there- after be liable to the original buyer upon the contract to sell or the sale or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. (2.) Where a resale is made, as authorized in this section, the buyer acquires a good title as against the original buyer. (3.) It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where the right to resell is not based on the perishable nature of the goods or upon an express pro- vision of the contract or the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer had been in default an unreason- able time before the resale was made. §§ 60-62) THE SALES ACT. 405 (4.) It is not essential to tlie validity of a resale that notice of the time and place of such resale should be given by the seller to the original buyer. (5.) The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or private sale. Rescission by the Seller. Section 61. — [When and How the Seller may Rescind the Sale.] (1.) An unpaid seller having a right of lien or having stopped the , goods in transitu, may rescind the trans- fer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make default, or where the buyer has been in default in the payment of the price an unreasonable time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. (2.) The transfer of title shall not be held to have been rescinded by an unpaid seller until he has manifested by no- tice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer, but the giving or failure to give notice to the buyer of the intention to rescind shall be rel- evant in any issue involving the question whether the buyer had been in default an unreasonable time before the right of rescission was asserted. Section 62. — [Effect of Sale of Goods Subject to Lien or Stoppage in Transitu.] Subject to the provisions of this act, the unpaid seller's right of lien or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. If, however, a negotiable document of title has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the right of any purchaser for value in good faith to whom such document has been negotiated, whether such negotiation be prior or subsequent to the notification to the 406 APPENDIX. (Pt. 5 carrier or other bailee who issued such document, of the seller's claim to a lien or right of stoppage in transitu. PART V. Actions for Breach op the Contract. Remedies of the Seller. Section 63. — [Action for the Price.] (1) Where, under a contract to sell or a sale, the property in the goods has passed to the buyer, and the buyer wrongfully neglects or re- fuses to pay for the goods according to the terms of the con- tract or the sale, the seller may maintain an action against him for the price of the goods. (2.) Where, under a contract to sell or a sale, the price is payable on a day certain, irrespective of delivery or of trans- fer of title, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. But it shall be a defense to such an action that the seller at any time before judgment in such action has manifested an in- ability to perform the contract or the sale on his part or an intention not to perform it. (3.) Although the property in the goods has not passed, if they can not readily be resold for a reasonable price, and if the provisions of section 64 (4) are not applicable, the seller may offer to deliver the goods to the buyer, and, if the buyer refuses to receive them, may notify the buyer that the goods are thereafter held by the seller as bailee for the buyer. Thereafter the seller may treat the goods as the buyer's and may maintain an action for the price. Section 64. — Action for Damages for Non-Acceptance of the Goods.] (1.) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-accept- ance. §§ 64-67) THE SALES ACT, 407 (2.) The measure of damages is the estimated loss direct- ly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3.) Where there is an available market for the goods in question the measure of damages is, in the absence of special circumstances, showring proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. (4.) If, while labor or expense of material amount are nec- essary on the part of the seller to enable him to fulfill his obligations under the contract to sell or the sale, the buyer repudiates the contract or the sale, or notifies the seller to proceed no further therewith, the buyer shall be liable to the seller for no greater damages than the seller would have suf- fered if he did nothing towards carrying out the contract or the sale after receiving notice of the buyer's repudiation or countermand. The profit the seller would have made if the contract or the sale had been fully performed shall be consid- ered in estimating such damages. Section 65. — [When Seller may Rescind Contract or Sale.] Where the goods have not been delivered to the buyer, and the buyer has repudiated the contract to sell or sale, or has manifested his inability to perform his obligations there- under, or has committed a material breach thereof, the sell- er may totally rescind the contract or the sale by giving notice of his election so to do to the buyer. Remedies of the Buyer. Section 66. — [Action for Converting or Detaining Goods.] Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully con- verted or withheld. Section 67. — [Action for Failing to Deliver Goods.] (1.) Where the property in the goods has not passed to the -108 APPENDIX. (Pt. 5 buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery. (2.) The measure of damages is the loss directly and naturally resulting in the ordinary course of events, from the seller's breach of contract. (3.) Where there is an available market for the goods in question, the measure of damages, in the absence of special cir- cumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. Section 68. — [Specific Performance.] Where the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages. .The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price and otherwise, as to the court may seem just. Section 69. — [Remedies for Breach of Warranty.] (1.) Where there is a breach of warranty by the seller, the buyer may, at his election — (a.) Accept or keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution or extinction of the price; (b.) Accept or keep the goods and maintain an action aganist the seller for damages for the breach of warranty ; (c.) Refuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty ; (d.) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. (2.) When the buyer has claimed and been granted a rem- edy in any one of these ways, no other remedy can thereafter be granted. §§ 69-70) THE SALES ACT. 409 (3.) Where the goods have been delivered to the buyer, he can not rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in sub- stantially as good condition as they were in at the time the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from re- turning or offering to return the goods to the seller and re- scinding the sale. (4.) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrent- ly with the return of the goods, or immediately after an offer to return the goods in, exchange for repayment of the price. (5.) Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deem- ed to hold the goods as bailee for the seller, but subject to a lien to secure the repayment of any portion of the price which has been paid, and with the remedies for the enforcement of such lien allowed to an unpaid seller by section 53. (6.) The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty. (7.) In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proxi- mate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. Section 70. — [Interest and Special Damages.] Nothing in this act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed. 410 APPENDIX. (Pt. 6 PART VI. Interpretation. Section 71. — [Variation of Implied Obligations.] Where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale. Section 72. — [Rights may be Enforced by Action.] Where any right, duty, or liability is declared by this act, it may, unless otherwise by this act provided, be enforced by action. Section 73. — [Rule for Cases Not Provided for by This Act.] In any case not provided for in this act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agent and to the effect of fraud, misrepresentation, duress, or coercion, mistake, bankruptcy, or other invalidating cause, shall continue to apply to contracts to sell and to sales of goods. Section 74. — [Interpretation shall Give Effect to Pur- pose of Uniformity.] This act shall be so interpreted and construed, if possible, as to effectuate its general purpose to make uniform the law of those states which enact it. Section 75. — [Provisions Not Applicable to Mortgages.] The provisions of this act relating to contracts to sell and to sales do not apply, unless so stated, to any transaction in the form of a contract to sell or a sale which is intended to op- erate by way of mortgage, pledge, charge, or other security. Section 76. — [Definitions.] (1.) In this act, unless the context or subject-matter otherwise requires — "Action" includes counterclaim, set-off, and suit in equity. "Buyer" means a person who buj's or agrees to buy goods or any legal successor in interest of such person. "Defendant" includes a plaintiff against whom a right of set-off or counterclaim is asserted. § 76) THE SALES ACT. 411 "Delivery" means voluntary transfer of possession from one person to another. "Divisible contract to sell or sale" means a contract to sell or a sale in which by its terms the price for a portion or portions of the goods less than the whole is fixed or ascer- tainable by computation. "Document of title to goods" includes any bill of lading, dock warrant, warehouse receipt, or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the pos- session or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or re- ceive, either by endorsement or by delivery, goods represented by such document. "Fault" means wrongful act or default. "Fungible goods" mean goods of which any unit is from its nature or by mercantile usage treated as the equivalent of any other unit. "Future goods" mean goods to be manufactured or acquired by the seller after the making of the contract of sale. "Goods" include all chattels personal other than things in action and money. The term includes 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. "Order" in sections of this act relating to documents of title means an order by indorsement on the document. "Person" includes a corporation or partnership or two or more persons having a joint or common interest. "Plaintiff" includes defendant asserting a right of set-off or counterclaim. "Property" means the general property in goods, and not merely a special property. "Purchaser" includes mortgagee and pledgee. "Purchases" include taking as a mortgagee or as a pledgee. "Quality of goods" includes their state or condition. "Sale" includes a bargain and sale as well as a sale and delivery. "Seller" means a person who sells or agrees to sell goods, or any legal successor in interest of such person. 412 APPENDIX. (Pt. 6 "Specific goods" mean goods identified and agreed upon a.t the time a contract to sell or a sale is made. "Value" is any consideration sufficient to support a simple contract. An antecedent or pre-existing claim, whetlier for money or not, constitutes value where goods or documents of title are taken either in satisfaction thereof or as security therefor. (2.) A thing is done "in good faith" within the meaning of this act when it is in fact done honestly, whether it be done negligently or not. (3.) A person is insolvent within the meaning of this act who either has ceased to pay his debts in the ordinary course of business or can not pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is insolvent within the meaning of the federal bankruptcy law or not. (4.) Goods are in a "deliverable state" within the meaning of this act when they are in such a state that the buyer would, under the contract, be bound to take delivery of them. Section 77. — [Inconsistent Legislation Repealed.] All acts or parts of acts inconsistent with this act are hereby re- pealed. Section 78.— [Time When the Act Takes Effect.] This act shall take effect on the day of one thousand nine hundred and . Section 79.— [Name of Act] This act may be cited as the Sales Act. SALE OF GOODS ACT. AN ACT FOR CODIFYING THE LAW RELATING TO THE SALE OF GOODS. (St. 56 & 57 Vict. o. 71, Febeuaby 20, 1894.) PART I. Formation of the Contract. Contract of Sale. 1. — (1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part-owner and another. (3) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some con- dition thereafter to be fulfilled, the contract is called an agree- ment to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. 2. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Provided that where necessaries are sold and delivered to an infant, or minor, or to a person who by reason of mental in- Tiff.Sai,es(2d Ed.) (413) 414 APPENDIX. (Pt. 1 capacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor. Necessaries in this section mean goods suitable to the condi- tion in life of such infant or minor or other person, and to his actual requirements at the time of the sale and delivery. Formalities of the Contract. 3. Subject to the provisions of this act and of any statute in that behalf, a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties. Provided that nothing in this section shall affect the law re- lating to corporations. 4. — (1) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action un- less the buyer shall accept part of the goods so sold, and ac- tually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or mem- orandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf. (2) The provisions of this section apply to every such con- tract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or iit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. (3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale whether there be an acceptance in performance of the contract or not. (4) The provisions of this section do not apply to Scotland. Subject-Matter of Contract. 5. — (1) The goods which form the subject of a contract of sale may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller §§ 5-9) ENGLISH SALE OF GOODS ACT. 415 after the making of the contract of sale, in this act called "future goods." (2) There may be a contract for the sale of goods, the ac- quisition of which by the seller depends upon a contingency which may or may not happen. (3) Where by a contract of sale the seller purports to ef- fect a present sale of future goods, the contract operates as an agreement to sell the goods. 6. Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void. 7. Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided. The Price. 8. — (1) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. 9. — (1) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valu- ation, the agreement is avoided ; provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor. (2) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault. 416 APPENDIX. (Pt. 1 Conditions and Warranties. 10. — (1) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract. (2) In a contract of sale ''month'' means prima facie calendar month. 11. — (1) In England or Ireland — (a) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated. (b) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the con- tract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract. (c) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect. (3) In Scotland, failure by the seller to perform any material part of a contract of sale is a breach of contract, which entitles the buyer either within a reasonable time after delivery to re- ject the goods and treat the contract as repudiated, or to re- tain the goods and treat the failure to perform such material part as a breach which may give rise to a claim for compensa- tion or damages. §§ 11-14) ENGLISH SALE OF GOODS ACT. 417 (3) Nothing in this section shall affect the case of any con- dition or warranty, fulfillment of which is excused by law by reason of impossibility or otherwise. 12. In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is — (1) 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 a right to sell the goods at the time when the property is to pas's. (2) An implied warranty that the buyer shall have and enjoy quiet possession of the goods. (3) An implied warranty that the goods shall be free from any charge or encumbrance in favor of any third party, not de- clared or known to the buyer before or at the time when the contract is made. 13. Where there is a contract for the sale of goods by de- scription, there is an implied condition that the goods shall cor- respond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also cor- respond with the description. 14. Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods sup- plied under a contract of sale, except as follows : — (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. (2) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manu- facturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has TrFF.SALEs(2D Ed.) — 27 il8 APPENDIX. (Pt. 3 examined the goods, there shall be no implied condition as re- gards defects which such examination ought to have revealed. (3) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. (4) An express warranty or condition does not negative a warranty or condition implied by this act unless inconsistent therewith. Sale by Sample. 15. — (1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2) In the case of a contract for sale by sample — (a) There is an implied condition that the bulk shall corre- spond with the sample in quality. (b) There is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sam- ple. (c) There is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. PART II. Effects of the Contract. Transfer of Property as Behueen Seller and Buyer. 16. Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer un- less and until the goods are ascertained. 17. — (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the par- ties regard shall be had to the terms of the contract, the con- duct of the parties, and the circumstances of the case. § 18) ENGLISH SALE OF GOODS ACT. 419 18. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Rule 1. — Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed. Rule 2. — Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done, and the buyer has notice thereof. Rule 3. — Where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done, and the buyer has notice thereof. Rule 4.- — When goods are delivered to the buyer on approval or "on sale or return" or other similar terms the property therein passes to the buyer : — (a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction. (b) If he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact. Rule 5. — ^(1) Where there is a contract for the sale of unas- certained or future goods by description, and goods of that de- scription and in a deliverable state are unconditionally appro- priated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be express or implied, and may be given either be- fore or after the appropriation is made : (2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or cus- •120 APPENDIX. (Pt. 2 todier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of dis- posal, he is deemed to have unconditionally appropriated the goods to the contract. 19. — (1) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appro- priation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the de- livery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the con- ditions imposed by the seller are fulfilled. (2) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve the right of disposal. (3) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of ex- change, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully re- tains the bill of lading the property in the goods does not pass to him. 20. Unless otherwise agreed, the goods remain at the seller's risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer's risk whether delivery has been made or not. Provided that where delivery has been delaj-ed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have oc- curred but for such fault. Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee or cus- todier of the goods of the other party. Transfer of Title. 21. — (1) Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who §§ 21-25) ENGLISH SALE OF GOODS ACT. 421 does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct pre- cluded from denying the seller's authority to sell. (2) Provided also that nothing in this Act shall affect — • (a) The provisions of the Factors Acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof ; (b) The vahdity of any contract of sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction. 23. — (1) Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller. (2) Nothing in this section shall affect the law relating to the sale of horses. (3) The provisions of this section do not apply to Scotland. 23. When the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title. 24. — (1) Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate deal- ing with them, whether by sale in market overt, or otherwise. (2) Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender. (3) The provisions of this section do not apply to Scotland. 25. — (1) 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 mer- cantile agent acting for him, of the goods or documents of i22 APrENDix. (Pt. 2 title under any sale, pledge, or 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 authorized by the owner of the goods to make the same. (8) 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 mercantile agent acting for him, of the goods or documents of title, under any 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 orig- inal 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. (3) In this section the term "mercantile agent" has the same meaning as in the Factors Acts. 36. — (1) A writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the execu- tion debtor as from the time when the writ is delivered to the sheriff to be executed ; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same. Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unex- ecuted in the hands of the sheriff. (2) In this section the term "sheriff" includes any officer charged with the enforcement of a writ of execution. (3) The provisions of this section do not apply to Scotland. §§ 27-30) ENGLISH SALE OF GOODS ACT. 423 PART III. Performance of the Contract. 27. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale. 28. Unless otherwise agreed, delivery of the goods and pay- ment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. 29. — (1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, be- tween the parties. Apart from any such contract, express 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 be for the sale of specific goods, which to the knowl- edge of the parties when the contract is made are in some other place, then that place is the place of delivery. (2) Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. (3) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf; provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods. (4) Demand or tender of delivery may be treated as ineffect- ual unless made at a reasonable hour. What is a reasonable hour is a question of fact. (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. 30. — (1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them. 424 APPENDIX. (Pt. 3 but if the buyer accepts the goods so 'delivered he must pay for them at the contract rate. (2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so deliv- ered he must pay for them at the contract rate. (3) Where the seller delivers to the buyer the goods he con- tracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. (4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the par- ties. 31. — (1) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. (2) Where there is a contract for the sale of goods to be de- livered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on tlie terms of the contract, and the cir- cumstances of the case, whether the breach of contract is a re- pudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated. 32. — (1) Where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, de- livery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is prima facie deemed to be a delivery of the goods to the buyer. (2) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a §§ 32-37) ENGLISH SALE OF GOODS ACT. 425 delivery to himself, or may hold the seller responsible in dam- ages. (3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under cir- cumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them dur- ing their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit. 33. Where the seller of goods agrees to deliver them, at his own risk, at a place other than that where they are when sold, the buyer, must, nevertheless, unless otherwise agreed, take any risk of deterioration in the. goods necessarily incident to the course of transit. 34. — (1) Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 35. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in re- lation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. 36. Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is suffi- cient if he intimates to the seller that he refuses to accept them. 37. When the seller is ready and willing to dehver the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned 426 APi'EXDix. (Pt. 4 by his neglect or refusal to take delivery, and also for a rea- sonable charge for the care and custody of the goods. Pro- vided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract. PART IV. Rights of Unpaid Seller Against the Goods. 38. — (1) The seller of goods is deemed to be an "unpaid seller" within the meaning of this act — (a) When the whole of the price has not been paid or ten- dered ; (b) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise. (2) In this part of this act the term "seller" includes any per- son who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly re- sponsible for, the price. 39. — (1) Subject to the provisions of this act, and of any statute in that behalf, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law — (a) A lien oh the goods or right to retain them for the price while he is in possession of them ; (b) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them ; (c) A right of re-sale as limited by this act. (2) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. §§ 40-43) ENGLISH SALE OF GOODS ACT. 427 40. In Scotland a seller of goods may attach the same while in his own hands or possession by arrestment or poinding; and such arrestment or poinding shall have the same operation and effect in a competition or otherwise as aji arrestment or poind- ing by a third party. Unpaid Seller's Lien. 41. — (1) Subject to the provisions of this act, the unpaid sell- er of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely : — (a) Where the goods have been sold without any stipulation as to credit; (b) Where the goods have been sold on credit, but the term of credit has expired ; (c) Where the buyer becomes insolvent. (2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer. 42. Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the re- mainder, unless such part delivery has been made under such circumstances as to shew an agreement to waive the lien or right of retention. 43. — (1) The unpaid seller of goods loses his lien or right of retention thereon — (a) When he delivers the goods to a carrier or other bailee or custodier for the purpose of transmission to the buyer with- out reserving the right of disposal of the goods ; (b) When the buyer or his agent lawfully claims possession of the goods; (c) By waiver thereof. (2) The unpaid seller of goods, having a lien or right of re- tention thereon, does not lose his lien or right of retention by reason only that he has obtained judgment or decree for the price of the goods. 428 APPENDIX, (Pt. 4 Stoppage in Transitu. 44. Subject to the provisions of this act, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price. 45. — (1) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee or custodier, for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee or custodier. (2) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. (3) If, after the arrival of the goods at the appointed desti- nation, the carrier or other bailee or custodier acknowledges to_the buyer, or his agent, that he holds the goods on his behalf, and continues in possession of them as bailee or custodier for the buyer, or his agent, the transit is at an end, and it is im- material that a further destination for the goods may have been indicated by the buyer. (4) If the goods are rejected by the buyer, and the carrier or other bailee or custodier continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. (5) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether they are in the possession of the mas- ter as a carrier, or as agent to the bu3rer. (6) Where the carrier or other bailee or custodier wrong- fully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. (7) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods. §§ 46^8) ENGLISH SALE OF GOODS ACT. 429 46. — (1) The unpaid seller may exercise his right of stop- page in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circum- stances that the principal, by the exercise of reasonable dili- gence, may communicate it to his servant or agent in time to prevent a delivery to the buyer. (2) When notice of stoppage in transitu is given by the sell- er to the carrier, or other bailee or custodier in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller. The expenses of such re-delivery must be borne by the seller. Re-Sale by Buyer or Seller. 47. Subject to the provisions of this act, the unpaid sell- er's right of lien or retention or stoppage in transitu is not af- fected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. Provided that where a document of title to goods has been lawfully transferred to any person as 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 con- sideration, then, if such last-mentioned transfer was by way of sale, the unpaid seller's right of lien or retention or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. 48. — (1) Subject to the provisions of this section, a con- tract of sale is not rescinded by the mere exercise by an un- paid seller of his right of lien or retention or stoppage in transitu. (3) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu re-sells the goods, 430 APPENDIX. (Pt. 5 the buyer acquires a good title thereto as against the original buyer. (3) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. (4) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and, on the buyer mak- ing default, re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages. PART V. Actions for Breach of the Contract. Remedies of the Seller. 49.— (1) Where, under a contract of sale, the property in the goods has passed to the buyer, and the^ buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. (3) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrong- fully neglects or refuses to pay such price, the seller may main- tain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. (3) Nothing in this section shall prejudice the right of the seller in Scr.tland to recover interest on the price from the date of tender of the goods, or from the date on which the price was payable, as the case may be. 50. — (1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance. §§ 50-53) ENGLISH SALE OF GOODS ACT. 431 (3) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie to be as- certained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for ac- ceptance, then at the time of the refusal to accept. Remedies of the Buyer. 51. — (1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery. (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of contract. (3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascer- tained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. 52. In an action for breach of contract to deliver specific or ascertained goods the Court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct that the contract shall be performed specifically, without giv- ing the defendant the option of retaining the goods on payment of damages. The judgment or decree may be unconditional, or upon such terms and conditions as to damages, payment of the price, and otherwise, as to the Court may seem just, and the application by the plaintiff may be made at any time before judgment or decree. The provisions of this section shall be deemed to be sup- plementary to, and not in derogation of, the right of specific implement in Scotland. 53. — (1) Where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach 432 APPENDIX. (Pt. 6 of a condition on the part of the seller as a breach of war- ranty, the buyer is not by reason only of such breach of war- ranty entitled to reject the goods; but he may (a) set up against the seller the breach of warranty in dim- inution or extinction of the price; or (b) maintain an action against the seller for damages for the breach of warranty. (2) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting in the ordi- nary course of events, from the breach of warranty. (3) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. (4) The fact that the buyer has set up the breach of war- ranty in diminution or extinction of the price does not prevent him from maintaining an action for the same breach of war- ranty if he has suffered further damage. (5) Nothing in this section shall prejudice or affect the buyer's right of rejection in Scotland as declared by this act. 54. Nothing in this act shall affect the right of the buyer or the seller to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover money paid where the consideration for the pay- ment of it has failed. PART VI. Supplementary, 55. Where any right, duty, or liability would arise under a contract of sale, by implication of law, it may be negatived or varied by express agreement or by the course of dealing be- tween the parties, or by usage, if the usage be such as to bind both parties to the contract. 56. Where, by this act, any reference is made to a reason- able time, the question what is a reasonable time is a question of fact. §§ 57-60) ENGLISH SALE OF GOODS ACT. 433 57. Where any right, duty, or liability is declared by this act, it may, unless otherwise by this act provided, be enforced by action. 58. In the case of a sale by auction — ■ (1) Where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate con- tract of sale. (2) A sale by auction is complete when the auctioneer an- nounces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid. (3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person : Any sale contravening this rule may be treated as fraudulent by the buyer. (4) A sale by auction may be notified to be subject to a re- served or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller. Where a right to bid is expressly reserved, but not other- wise, the seller, or any one person on his behalf, may bid at the auction. 59. In Scotland where a buyer has elected to accept goods which he might have rejected, and to treat a breach of contract as only giving rise to a claim for damages, he may, in an ac- tion by the seller for the price, be required, in the discretion of the Court before which the action depends, to consign or pay into Court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof. 60. The enactments mentioned in the schedule to this act are hereby repealed as from the commencement of this act to the extent in that schedule mentioned. Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued be- fore the commencement of this act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. TirF.SAi,Es(2D Ed.)— 28 434 APPENDIX. (Pt. 6 Gl. — (1) The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything in this act contained. (2) The rules of the common law, including the law mer- chant, save in so far as they are inconsistent with the express provisions of this act, and in particular the rules relating to the law of principal and agent and the effect of fraud, misrepre- sentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods. (3) Nothing in this act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enact- ment relating to the sale of goods which is not expressly re- pealed by this act. (4) The provisions of this act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security. (5) Nothing in this act shall prejudice or affect the land- lord's right of hypothec or sequestration for rent in Scotland. 62.- — (1) In this act, unless the context or subject-matter otherwise requires — "Action" includes counterclaim and set-off, and in Scotland condescendence and claim and compensation. "Bailee" in Scotland includes custodier. "Buyer" means a person who buys or agrees to buy goods. "Contract of sale" includes an agreement to sell as well as a sale. "Defendant" includes in Scotland defender, respondent, and claimant in a multiple-poinding. "Delivery" means voluntary transfer of possession from one person to another. "Document of title to goods" has the same meaning as it has in the Factors Acts. "Factors Acts" mean the Factors Act, 1889; the Factors (Scotland) Act, 1890, and any enactment amending or substi- tuted for the same. "Fault" means wrongful act or default. "Future goods" mean goods to be manufactured or acquired by the seller after the making of the contract of sale. "Goods"' include all chattels personal other than things in ac- §§ 62-64) ENGLISH SALE OF GOODS ACT. 435 tion and money, and in Scotland all corporeal movables ex- cept money. The term also includes 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. "Lien" in Scotland includes right of retention. "Plaintiff" includes pursuer, complainer, claimant in a mul- tiple-poinding, and defendant or defender counterclaiming. "Property" means the general property in goods, and not merely a special property. "Quality of goods" includes their state or condition. "Sale" includes a bargain and sale as well as a sale and de- livery. "Seller" means a person who sells or agrees to sell goods. "Specific goods" means goods identified and agreed upon at the time a contract of sale is made. "Warranty," as regards England and Ireland, means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such con- tract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated. As regards Scotland, a breach of warranty shall be deemed to be a failure to perform a material part of the contract. (2) A thing is deemed to be done "in good faith" within the meaning of this act when it is in fact done honestly, whether it be done negligently or not. (3) A person is deemed to be insolvent within the meaning of this act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not and whether he has become a notour bankrupt or not. (4) Goods are in a "deliverable state" within the meaning of this act when they are in such a state that the buyer would un- der the contract be bound to take delivery of them. 63. This act shall come into operation on the first day of January, one thousand eight hundred and ninety-four. 64. This act may be cited as the Sale of Goods Act, 1893. TABLE OF CASES CITED. [THE FIGUBES EEFBE TO PAGES.] Abbot T. Bayley, 25. ibbott V. Creal, 23. V. Gilchrist, 69. V. Marshall, 182. V. Wolsey, 91. Abe Stein Co. v. Robertson, 236. Acebal V. Levy, 60, 61, 91, 105. Ackerman v. Morris, 343. V. Rubens, 341, 347, 350. ;Vcme Electrical Illustrating & Ad- vertising Co. V. Van Derbeck, 217. Acraman v. Morrlce, 126. Adam, Meldrum & Anderson Co. V. Stewart, 195. Adams v. Ames, 308. V. Beall, 16. V. Coulliard, 212. V. Field, 112. V. Foley, 273. V. Gay, 215, 216. V. Lumber Co., 124. V. Messinger, 360. V. O'Connor, 125. Adams Exp. Co. v. Reno, 222. Adams Radiator & Boiler Works V. Schnader, 234. Adler V. Penton, 188. A. D. Puffer & Sons Mfg. Co. v. Lucas, 141. ^tna Life Ins. Co. v. Sellers, 22. JEtna Powder Co. v. Hildebrand, 11. Agnew V. Dumas, 89, 94. Aguirre v. Parmelee, 331. A. H. Andrews & Co. v. Bank, 135. Aiken v. Blaisdell, 211, 214, 215. Ajello V. Worsley, 49. Akeley v. Boom Co., 315. Alabama G. S. R. Co. v. Mt. Ver- non Co., 165, 171. Alabama Nat Bank v. Parker & Co., 157. Alabama Steel & Wire Co. v. Sy- mons, 373. Albermarle Lumber Co. t. Wilcox, 60. Albright V. Meredith, 138, 140. Alden V. Hart, 260, 296. V. W. J. Dyer & Bro., 140. Alden Speare's Sons Co. v. Hub- inger, 350. Alderman v. Railroad, 169. Aldrich v. Jackson, 362. Aldridge v. Johnson, 158. Alexander v. Gardner, 153, 159. V. Haskins, 23. Alfred Shrimpton & Son v. Briee, 55. v. Dworslty, 68. Alger-Powler Co. v. Tracy, 355. Allan V. Gripper, 333. V. Lake, 249. Allard v. Greasert, 81, 89. Allatt V. Carr, 46, 47. Allen V. Aguirre, 73. V. Anderson, 368. V. Bank, 38, 41, 42. V. Bennet, 110. T. Berryhill, 22. TrFP.SAI,ES(2DED.) (437) 438 CASES CITED. tThe figures refer to pages.] Allen V. Elmore, 129, 130. V. Gardiner, 216. V. Goodnow, 47. V. Hammond, 45. V. Hartfleld, 123,. 124, 179, 268. V. Jarvis, 69, 305, 349. V. Maury, 273, 319. V. Pearce, 224. V. Pink, 237. V. Railroad Co., 337, 338. V. Rushford, 129, 314. V. Vv'beeler, 200. V. Woods, 275. AUis V. Billings, 22. Alpha Check-Rower Co. v. Brad- ley, 11, 257, 267. Alt V. Graff, 10. Althouse V. McMillan, 156. American Forcite Powder Itlfg. Co. V. Brady, 259. American Hide & Leather Co. v. Chalkley & Co., 153, 347, 350. American Home Sav. Bank Co. v. Trust Co., 258. American Iron & Steel Co. v. Steel Co., 103, 105. American Oak Leather Co. v. Por- ter, 105. American Soda Fountain Co. v. Blue, 142. V. Vaughn, 142. American Sugar Refining Co. v. Fancher, 195. Ames V. Moir, 343, 347. V. Quimby, 60. Amis V. Kyle, 216. Amsinck v. Insurance Co., 118. Anchor Mill Co. v. Railroad Co., 34. Anderson v. Crisp, 149. V. Harold, 112. V. May, 309. V. Mfg. Co., 112. V. Morice, 160. V. Read, 30, .■520. V. Roberts, 203. Andrew v. Babcock, 106. Andrews v. Cheney, 153, 155. Andrews v. Durant, 162. V. Jackson, 177. V. Schreiber, 378. Angler v. Mfg. Co., 141. Anglo-Egyptian Nav. Co. v. Ren- nie, 71. Anheuser-Busch Brewing Ass'n t. Mason, 211. Anonymous, 75. Anschutz V. Miller, 187. Appelman v. Fisher, 49. Apperson v. Moore, 49. Arbuckle v. Gates, 11. V. Kirkpatrick, 11. Archer v. Baynes, 106. Ardinger v. Wright, 7. Argentina, The, 37. Argus Co. V. Albany, 102, 105. Arkansas Valley Land & Cattle Co. V. Mann, 364. Armington v. Houston, 135. Armitage v. Insole, 276. Armstrong v. HufEstutler, 175. V. Lewis, 180. V. Turner, 345. Arnold v. Carpenter, 313, 342. V. Delano, 313, 314, 315, 317, 319, 32.J. V. Iron Works, 22. V. Prout, 155. V. Richardson, 184. Arnot V. Coal Co., 211. Arnott V. Railroad Co., 6. Artcher v. Zeh, 73, 99. Arthur v. Moss, 246. Ash V. Aldrich, 71. V. Putnam, 331. Ashcroft V. Butterwortti, 105. V. Morrin, 105. Ashley's Case. 190. Ashmore v. Cox & Co., 308. Ashworth Y. Weils, 377. Askey v. Williams, 18. Aspell V. Hnsliein, 217. Astey V. Emery, 80. Atchison v. Bruff, 19. Atherton v. Newhall, 93. Atkin V. Barwick, 331. CASES CITED. [The figures refer to pages.] 43!) Atkins Bros. Co. v. Grain Co., 261. Atlvinson v. Bell, 66, 161, 346. V. College, 114. V. Deuby, 223. V. ilaling, 272. Atlas Glass Co. v. Mfg. Co., 11. Atwater v, Clancy, 237. V. Hough, 64, 69. V. Manville, 218. Atwood V. Cobb, 105. V. Lucas, 340, 349. Auerbacb v. Wunderlich, 299. Augustine \-. McDowell, 153. Ault V. Dustin, 307. Aultman v. Kennedy, 237. V. Lee, 304. V. Stout, 378. V. Theirer, 144. Aultman, Miller & Co. v. Clifford, 159. V. Nilson, 56. Aultman & Taylor Co. v. Hether- ington, 377. Austen v. Craven, 148. Austin V. Cox, 267. V. Niekerson, 239. Austrian & Co. v. Springer, 355. Avery v. Bowden, 306. V. Burrall, 375. V. Miller, 250. V. Ryan, 361. V. Willson, 285. Avery Mfg. Co. y. Emsweller, 274. Ayers v. Burns, 21. Azemar v. Oasella, 264. Azemater v. Casella, 365. B Baals V. Stewart, 136. Babcock v. Bonnell, 338. V. Case, 191. V. Lawson, 193. V. Trice. 260, 371. Bach V. Smith, 215. V. Tuck, 185. Backenstoss v. Stabler, 77. Backes v. Black, 346. Backhaus v. Buells, 126. Uacon V. Cobb, 30!J. V. Eecles, 87, 91, 102, 115. V. Lee, 213. Baehr v. Clark, 196. Bagby v. Walker, 69, 277, 300. Bagley v. Extinguisher Co., 266. V. Findlay, 340, 343. V. Mill Co., 250, 372. Bagster v. Earl of Portsmouth, 24. Bailey v. Hervey, 140. V. Mogg, 225. V. Ogden, 88, 96, 103. V. Pardridge, 304. V. Railroad Co., 155. V. Smith, 159. V. Sweeting, 101, 102, 118. Bally V. De Crespigny, 310. Bainbridge v. Pickering, 19. Baird v. New York, 186. Baker v. Arnot, 245. V. Bourcicault, 157. V. Burton, 214. V. Dening, 111. V. McDonald, 123. V. Railroad Co., 169. V. Taylor, 31. Baldey v. Parker, 81, 83, 94. Baldwin v. Crow, 135. V. Doubleday, 129. V. Williams, 72. Ballantyne v. Appleton, 124, 133. Ballard v. Burgett, 136. V. McKeuna, 23. Ballentine v. Robinson, 161, 348. Ballou V. Billings, 353. Baltimore & O. R. Co. v. Brydon, Bamber v. Savage, 113, 114. Banchor v. Mansel, 211, 225. Bancroft v. Dumas, 213. Banfield v. Whipple, 199. Bangor Electric Light & Power Co. V. Robinson, 31. Bangs V. Hornlck, 219. Bank of Atchison County v. By- ers, 183. 4:40 CASES CITED. [The figures refer to pages.] Bank of Litcbfleld v. Elliott, 169. Bank of Little Koek v. Collins, 138. Bank of Montreal v. Thayer, 184. Bank of New Orleans v. Math- ews, 212. Bank of Rochester v. Jones, 171. Bank of U. S. v. Bank, 30. Banks v. Mfg. Co., 105. V. Werts, 216. Banner, Ex parte, 168. Bannerman v. White, 238. Banta v. Chicago, 73. Banton v. Shorey, 74. Barbe v. Parker, 12. Barber v. Harper, 365. V. Meyerstein, 34. V. Thomas, 126. Barclay v. Pearson, 222. Barcus v. Dorries, ."i2. Baring v. Corrie, 304. V. Galpln, 11. Barkalow v. Pfeiffer, 87. Barker v. Dinsmore, 53, 196. V. Hibbard, 18. V. Hodgson, 309. Barnard v. Campbell, 193, 194. V. Kellogg, 253, 254, 255, 264. V. Poor, 12,8. V. Railroad Co., 49. V. Tates, 2.">5. Barnes v. Freeland, 331. V. Hathaway, 24 V. McCrea, 8. V, Shoemaker, 52, 56, 57. V. Smith, 218. V. Toye, 19. Barnett v. Barnett, 184. Barnum v. Cochrane, 247. Barr v. Gibson. 45, 122. V. Logan, 343. 361, 367. V. Myers, 275. V. Reitz, 272, 27.3. Barrett v. Allen, 279. V. Delano, 224. V. Goddard, 315. V. Warren, 28. Barrie v. Jerome, 176. Barron v. Alexander, 175. V. Mullin, 345. Barrow, Ex parte, 333. V. Arnaud, 349, 334. V. Window, 123. Barry v. Cavanagh, 349. V. Coombe, 106. V. Croskey, 184. Bartlett v. Bailey, 16, 17. V. Blanchard, 358. V. Jewett, 293. V. Purnell, 114. Barton v. Groseclose, 133. V. Kane, 1-59. V. McKelway, 279. Bassett V. Brown, 191, 197. V. Camp, 96. P.iissinger v. Spangler, 201. Basten v. Butler, 376. Batchelder, In re, 316, 318, 319. Bates V. Chesebro, 99. V. Clifford, 217. V. Smith, 48. Batsford v. Every, 216. Battle Creek Valley Bank v. Bank, 48. Batturs v. Sellers, 112. Baum V. Holton, 177. Baumnun v. James, 109. Baumbacb Co. v. Gessler, 258. Baxter v. Earl of Portsmouth, 24. Bayard v. Shunk, 303. Bayne v. Hard, 15-5. V. Wiggins, 109. Bayonne Knife Co. v. Umben- hauer, 320. Beall V. White. 4S. Beals V. Olmstead. 23r,. V. See, 23. Bean v. Smith, 2on, 203. Beardsley v. Smith, 60. Beard v. Webb, 26. Beatty v. Lumber Co., 290. Beauehamp v. Archer, 123. Beaumont v. Brengeri, 87, 95. Beavan v. McDonnell, 22. CASES CITED. [The figures refer to pages. 1 441 Becker v. Hallgarten, 332. Beckwlth v. Talbot, 109. Beebe v. Hatfield, 180. Beeler v. Young, 18, 20, 21, Beeinan v. Banta, 378. Beer v. Walker, 261, 262. Beers v. Crowell, 72. V. Williams, 255. Beetle v. Anderson, 183. Begble v. Sewage Co., 363. Beggs V. Brewing Co., 258. Behn v. Burness, 228, 306, 372 Beidler v. Crane, 9. Belcher v. Costello, 176, 177. V. Sellards, 300. Belding v. Frankland, 179. Bell V. Cafferty, 194. V. Campbell, 223. V. Dagg, 382. V. Ellis, ISO. V. Greenwood, 59. V. Kaufman, 181. V. Mills, 257, 375. V. Moss, 325. V. Offutt, 340. V. Reynolds, 356. Belleville Pump & Skein Works V. Samuelson, 195. Belt V. Stetson, 299. Bement v. Smith, 161. Bemls V. Leonard, 279. Bench v. Sheldon, 176. Benedict v. Field, 316. V. Schaettle, 325, 326. Benesch v. Weil, 194. Benford v. Schell, 273. Beninger v. Corwin, 175. Benjamin v. Railroad Co., 49. Bennett v. Adams, 61. V. Buchan, 241. V. Hull, 64. Bent V. Cobb, 113, 114. V. Manning, 20. Bentall v. Burn, 96. Bergan v. Magnus, 123. Berger v. State, 156. Bergman v. Railroad Co., 165. Berkson v. Heldman, 185. Berndtson v. Strang, 327, 328, 321_>, 336. Bernhardt v. Walls, 73. Berolles v. Ramsay, 18. Berry v. Nail, 280. Bertelson v. Bower, 123. Berthold v. Mfg. Co., 299. Bessemer Steel Co., In re, 307. Best V. Flint, 371. Bethell v. Clark, 331. Bethel Steam-Mill Co. v. Brown, 127, 273. Bettini v. Gye, 228. Beurmann v. Van Buren, 199. Bianchi v. Nash, 9. Bibb V. Allen, 103, 115. Bickel V. Sheets, 211. Bicking v. Stevens, 56. Bioknall v. Waterman, 303. Biddlecombe v. Bond, 325. Bierce v. Hutchins, 140. Bierman v. Mills Co., 259, 375. Bigge V. Parkinson, 262, 267. Bigger v. Bovard, 305. Biggs V. Barry, 180, 332. V. Evans, 32, 40. Bigler V. Flickinger, 182. Bigley V. Risher, 59, 61. Bill V. Bament, S3, 86, 94, 102. V. Fuller, 142, 2G1. Billin V. Henkel, SO. Billmeyer v. Wagner, 358. Bingham v. Blaxcy, 245. Bird V. Brown, 325, 326, 333. V. Muhlinbrink, 69. V. Munroe, 101, 102, 118. V. Poulter, 114. Birks V. French, 216. Bisbee v. JIcAllen, 214. Bish V. Beatty, 177. Bishop V. Minderhout, 142. V. Shillito, 132. Bissell V. Balcom, 123. Black V. Delbridge, Brooks & Fish- er Co., 299. V. Henry G. Allen Co., 4. 442 Black V. Webb, 11. Blackburn v. Reilly, 2S9. Blackman v. Pierce, S31. V. Fairbanks, Morse & Co., 238, 'n;l. Black River Lumber Co. v. War- ner, 161, 34S, 351. Blaess v. Nichols & Sbepard Co., 2:j7. Blaisdell v. Holmes, 24. Blaisdell & Co. v. White & C!o., 17:j. Blake v. Sawin, 200. Elakeney v. Goode, 73. Blanchard v. Cocke, 49. Blattenherger v. H' ilman, 362. Blenkinsop v. Clayton, 98. Bliss Co. V. Light Co., -IT) Bliss V. Sickles, 181, 185. Block V. McMurry, 221, 223. Blood V. Goodrich, 108. Bloom V. Richards, 215. Bloomingdale v. Chittenden, 15. V. Railroad Co., 326, 338. Bloxam v. Morley, 315. V. Sanders, 268, 200, 301, 315, 310. Bloxsome v. Williams, 216. Eloyd V. Pollock, 154, 150, 292. Blumenthal v. Stable, 359. Blunt V. Little, 123. BIydenburgh v. Welsh, 175, 277. BIythe v. Speake, 179. Boardman v. Cutter, 72. V. Spooner, 107. Boaz X. MfL'. Co., 184. V. Schneider, 129. Bog Lead Min. Co. v. Jlontague 85. Bohn Mfg. Co. r. Hynes, 315. B.jhtlingk v. Inglis, .^28. l;i)les V. .Merrill, 177, 178, 197. Bui In T. Huffnagle, 328. Bollinger v. Wilson, 225. Boll in V. Hooper, 217. BoUman v. Burt, 2S9. Bolton V. Railroad Co., 3.30. CASES CITED. [The Dgurea refer to pages.] Bolton V. Riddle, 276. Bond V. Greenwald, 120. Conham v. Hamilton, 124. Bonito V. Mo<^quera, 41, 43, Boody V. McKenney, 17. Boorman v. Xa.sh, Z'A>. Booth V. Mill Co., :ji.r;j, 359, 360. V. Tyson, 57_ 2S4. Boothby v. Plaisted, 204. V. Scales, 207. 205. 369. Borden v. Borden, 305. Borland v. Bank, 50. Borrekins v. Bevan, 250. Borrowman v. Drayton, 248. V. Free, 150. iMorrowscale v. Bosworth, S.8. Boston Ice Co. v. Potter, 52. Tjston & M. R. Co. V. Bartlett, 51. Bostwick V. Leach, 76, 70. Boswell V. Greru, 128, 129. V. Kilborn, 120. Eouchell V. Clary, 21. Boughton V. Standisb, 209. Boulter v. Arnott, 317. Boulton V. .Jones, 52. Boutelle V. Meleudv, 217, 222. P.owdell T. Parsons, 307. Bowditch V. Insurance Co., 213, 22.3. Bo wen V. Burk, 132, 317. V. Sullivan, 58. Bower v. Fenn, 1S2. Bowers V. Anderson, 96. Bowes V. Sband, 248. Bowker v. Hoyt, 57, 284. Bowman v. Conn, S2. Bowry v. Bennet, 210. Bowser V. Birdsell, .342. Boyce v. Washburn, 74. I ;oyd V. Eaton, 224. V. Gunnison, 277. V. Wilson, 2(U. Boydell v. Drummond, 109. Boyden v. Boyden, 17. Boyer v. Eerryman. 23. Boynton v. Page. 210. V. Veazie, 274. CASES CITED. [The figures refer to pages.] 443 Brabin v. Hyde, 100. Braddock Glass Co. v. Irwin, 156, 292. Bradford v. Manly, 263, 369. Bradley v. Holdswortb, 72. V. King, 289. V. Michael, 313. V. Pratt, 21. V. Rea, 217, 375. V. Wheeler, 129. Brady v. Cassidy, 284, 285. V. Whitney, 58. V. Tost, 361. Bragg V. Beers, 275. V. Morrill, 259. Braitch v. Guelick, 224. Braley v. Powers, 183. Branan v. Railroad Co., 333. Brand v. Focht, 84. V. Henderson, 349. Brandon v. Nesbitt, 212. Brandt v. Bowlby, 165. Branigan v. Hendrickson, 120. Branson v. Turner, 241, 369. Brantley v. Wolf, 15. I'raunn v. Keally, 225. Braun v. Rendering Co., 9. Brawley v. U. S., 285, 286. Brayshaw v. Baton, 19. Breed v. Cook, 303. Breen v. Moran, 257, 374, 375. Brett V. Carter, 48. Bretz V. Diehl, 7. Brewer v. Arantz, 186. V. Horst-Lachmund Co., 106, 110. Brewer Lumber Co. v. Railroad Co., 316, 325, 329. Brewster v. Banta, 222. V. Burnett, 191. V. Leith, 97. Bricker t. Hughes, 77. Brick Presbyterian Church v. New York, 310. Bridgeford v. Adams, 189. V. Crocker, 340, 343. Brigg V. Hilton, 374. Briggs V. Light Boat, 162. Briggs V. McEwen, 135. V. Morgan, 2S4. V. Munchon, 104. V. Weston, 201. Brigham v. Fayerweather, 23. V. Hibbard, 154. V. Retelsdorf, 204. Brindley v. Slate Co., 328. Brinsmead v. Harrison, 58. I'.ristol V. Mente, 105. Britain v. Rossiter, 118. British Columbia & V. I. Spar Lumber & Sawmill Co. v. Net- tleship, 358, 359. British Empire Shipping Co. t. Somes, 313. Brittain v. McKay, 77. Broadwater v. Darne, 24. Brock V. Knower, 84. V. O'Donnell, 123. Brockway v. Jewell, 24. Brodhead v. Reinbald, 104. Brogden v. Marriott, 233. Bronson v. Wiman, 68. Brooke Iron Co. v. O'Brien, 332, 336. Brooker v. Scott, 18, 19. Brooks V. Blarbury, 199. V. Paper Co., 180. V. Powers, 200, 204. Brower v. Peabody, 35. Brown v. Bellows, 59, 60. V. Berry, 159. V. Bigelow, 241. V. Billington, 8. V. Blunt, 187. V. Browning, 215. V. Duncan, 214. V. Poster, 234, 298, 374. V. Johnson, 279. V. Leach, 187. V. Roland, 79. V. Sanborn, 70, 82. V. Sharkey, 355. V. Warren, 97. V. Whipple, 109. Browne v. Hare, 155, 165, 166, 168. Brownfleld v. Johnson, 150, 282. 444 CASES CITED. [The figures refer to pages.] Browning v. Magill, 29. V. Morris, 223. Brownlee v. Bolton, 295, 340. Brown & Haywood Co. T. Wun- der, 69. Brua's Appeal, 218. Bruner y. Strong, 178. Bryan v. Lewis, 40. Bryant v. Isburgh, 369, 370. V. Pember, 362. V. Richardson, 18. V. Thesing, :jG'!, :jG3. V. Wljitcher, 2S, 30. Buckeye-Bnggy Co. v. Montana Stables, 208. Buckley v. Furniss, 321, 326, 330. V. Humason, 215. Buckman v. Levi, 292. Buokstaff V. Russell, 237. Buey V. Agricultural Works, 266. Buddie V. Green, 50. Buel V. Miller, 108. Buffalo Barb- Wire Co. v. Phillips, 371. Bufflngton v. Gerrish, 194. Buffum V. Deane, 30. Bugg V. Shoe Co.. 181. V. Wwtheimer-Schwartz Co., 179. Bufrhman v. Bank, 179. Bulkley v. Jlorgan, ISS. Bull V. Griswold, 77. V. Robinson, 201, 293. Bullitt V. Farrar, 183. Bullock V. Tschergi, 94. Bunch Y. Lumber Co., 77. V. Weil Bros. & Bauer, 260, 203. Bunday v. Machine Co., 135. Bunge V. Koop, 307. Bunney v. Poyntz, 315. Burchfield v. Moore, 362. Burehinell v. Hirsh. 180, 184 Burcli V. Spencer, 2i;2. Burdick v. Sewell, 5. Burgess Sulphite Fibre Co. v. Broomfleld, 106. Burghall V. Howard, 323. Burghart v. Hall, 20. Burke v. Dunn, 313. V. Shannon, 128. Burke & Co., In re, 331. Burnby v. Bollett, 261. Burnell v. Marvin, l.'JS. V. Robertson, 20.j. Burnett v. Hensley, 176, 255, 265. V. Stanton, 255. Burnham v. Kidwell, 23. Burnley v. Tufts, 142. Burns v. Mahannah, 177. V. Real Estate Co., 108. Burrell v. Highleyman, 70. Burrill v. Stevens, 180. Burroughs v. Guano Co., 187. Burrows v. Whitaker, 129. Burt V. Dewey, 247. V. Myer, 218. Burton v. Baird, 156. V. Gage, 00. V. Stewart, 191, 197. Burwell & Dunn Co. v. Chapman, 56. Buschman v. Codd, 176, 183. Bushel V. Wheeler, aS. Bush V. Holmes, 84. Busk V. Davis, 148. Buss.jy V. Barnett, 122. Bussing V. Rice, 194. Buswell V. Bicknell, 146. Butler V. Butler, ?/)'j, 351. V. Dodson, 140. V. Dorman, 304. V. Haight, 303. V. Hlldreth, ISS. V. Lee, 217. V. Moore, 108. 203, 379. V. NortliumberlScUd, 2'>4. V. School Dist., 144. y. Thomson, 115. V. White, 199. Butterfield v. Burroughs, 241. V. Lathrop, 7. Butterick Pub Co. v. Bailey, 11. Butters v. Haughwout, 195. Butterworth v. McKiniy, IGl. CASES CITED. [The figures refer to pages.] 44.' Button y. Trader, 140. Byassee v. Reese, 70. Byers v. Chapin, 257, 303. Byles V. Colier, 120. Byrd v. Hall, 179. V. Rautman, 107. Byrnes v. Volz, 198, 203. Byrne v. Van Tienhoven, 51. Cabaness V. Holland, ISO. Cabeen v. Campbell, 331. Cable Co. v. "Wasegizig, 139. Cabot V. Cbristle, 183. Cadogan v. Kennett, 198. Caerleon Tin Plate Co. v. Hughes, 117. Caben v. Piatt, 354, 350. Cahn V. Pockett's, etc., Co., 41, 170. Cain V. McGuire, 76. Cairns v. Page, 41, 43. Calaban v. Babcock, 326. Calais Steamboat Co. v. Van Pelt, 32. Calcutta & B. S. Nav. Co. v. De Mattos, 122, 127, 155, 156, 345. Caldwell v. Ball, 336. V. Walters, 30. California Canneries Co. v. Sca- tena. 111. Calkins v. Falk, 103, 110. Callaghan v. Myers, 4, 120. Callanan v. Chapin, 106. Callmeyer v. Mayor, 286. Call V. Seymour, 130. Camden Consol. Oil Co. v. Schlens, 355. Cameron v. Wells, 278. Camp V. Hamlin, 340, 350. V. Wood, 30. Campbell v. Atberton, 135. V. Board, 153. V. Fleming, 190. V. Moran Bros. Co., 269. V. Segars, 214. V. Young, 217. Campbell Printing Press Co. v. Thorp, 2.34. Campbell Pointing Press & Mfg. Co. V. Marsh, 192. V. Publishing Co., 140. V. Walker, 135. Campion v. Marston, 260, 373. Canada v. Canada, 192. Cauda v. Wick, 307. Cannan v. Bryce, 210. Cantine v. Phillips, 19. Capehart v. Improvement Co., 157. Cardwell v. McClelland, 175. Carleton v. Jenks, 298. V. Lombard, 238, 259, 201, 375. V. Woods, 224. Carlos F. Roses, The, 37. Carman v. Smick, 04. Carnahan v. Bailey, 180. Carondelet Iron Works y. Moore, 299. Carpenter y. Carpenter, 15. y. Galloway, .82, 108. y. Graham, 149. y. McClure, 203. V. Rodgers, 24. y. Scott, 138. Carr v. Briggs, 199. y. Clough, 15. y. Duvall, 51. Carrier v. Sears, 22. Carroll-Porter Boiler & Tank Co. V. Machine Co., 350. Carter, In re, 162. V. Crick, 2c;.':!. V. Harden, 18.3. y. Toussaint, 95. y. Wallace, 142. y. Willard, 207. Cartwright y. Wilmerding, 41, 42, 43. Carver y. Lane, 84. Case V. Green, 279. V. Hall, 182. v. Stevens, 377. Case Threshing Mach. Co. y. Ha- ven, 377. 446 CASES CITED. [The figures refer to pages.] Cason V. Cbeely, 64, 69. Cassidy v. Le Fevre, 3.58. Castauola v. Railroad Co., 336. Castle V. Sworder, 83, 90, 94, 95, 2SI4. Caswell V. Hunton, 177. Cathcart v. Keirnaglian, 114, 113. Catlin V. Haddos, 17. V. Jones, 2G0, 280. V. Tobias, 2S.5. Catling V. King, 103. Caton V. Caton, 112. Catterall v. Hindle, 304. Caulldns v. Hellman, S3, 89, 91, 92. C. Aultman & Co. v. Olson, 140. V. Silha, 13.5. . Emanuel v. Dane, 12. I'.iuevsou V. Brigham, 262. V. Railroad Co., 46. V. Spring Co., 184. Emery v. Bank, 169. Emma Silver Min. Co. v. Mining Co., 188, 189. CASES CITED. CThe figures refer to pages.] 453 242, Emmerson v. Heelis, 81, 114. Emmerton v. Mathews, 261. Emmett v. Thorn, 30. Empire State Type Pounding Co, V. Grant, 124, 125. Enger v. Dawley, 238 Englebert v. Troxell, 15, 19. Englehardt v. Clan ton, 257. English V. Commission Co. 260, 261, 371, 372, 378. Enlow V. Klein, 8. Ensley Lumber Co. v. Lewis, 136. Eppens, Smith & Wlemann Co. v. Littlejohn, 277. Epperson v. Nugent, 18. Epstein, In re, 184. Equitable Gaslight Co. v. Mfg. Co., 360. Ernst V. Cohn, 184. Erskine v. Swanson, 239, 240. Erwln V. Clark, 7. V. Harris, 165. Eskrldge v. Glover, 51. Esson V. Tarbell, 365. Eureka Co. v. Edwards, 15. Evans v. Davies, 72. V. Hoare, 112. V. Montgomery, 189, 197. V. Roberts, 77, 78. Evansville & T. H. R. Co. v. Er- win, 124. Everett v. Hall, 138. Everson v. Granite Co., 54. B. W. Bliss Co. V. Can Co., 357, 359. Excelsior Coal Min. Co. v. Coal Co., 56. Exhaust Ventilator Co. v. Rail- road Co., 234, 300. Eyers v. Haddem, 240, 369. Faber v. Houghtham, 290. Fairbank Canning Co. v. Metzgar, 239, 262, 368, 371. Fairbanks v. Drug Co., 13. V. Eureka Co., 136. Fairchild v. McMahon, 178. Fairfield Bridge Co. v. Nye, 205. Palcke V. Gray, 360. Palk, Ex parte, .336, 337. Palke V. Fletcher, 165. Falls V. Gaither, 51. Farrant v. Thompson, 30. Farrar v. Smith, 207. Farebrother v. Simmons, 113, 114. Fargo Gas & Coke Co. v. Electric Co., 187. Farina v. Home, 88, 96, 273, 319. Farlow V. Ellis, 132. Farmeloe v. Bain, 320. Farmer v. Btheridge, 36. V. Gray, 84. V. Robinson, 113. Farmers' & Mechanics' Nat. Bank V. Logan, 165, 169, 171. Farmers' Phosphate Co. v. Gill, 129. Farquarson v. King, 31. Farrant v. Thompson, 30. Farrar v. Smith, 207. Farrell v. R. Co., 329. Farrer v. Nightingal, 46. Farris v. Ware, 192. Farwell v. Hanchett, 179, 191. V. Kloman, 195. V. Lowther, 105. T. Myers, 190. V. Solomon, 307. Faulkner v. Hebard, 51. V. Klamp, 192. Fay V. Burditt, 23. V. Wheeler, 71. Fechheimer v. Baum, 184. Felse V. Wray, 324, 325. Felix V. Brandstetter Co., 330. Felthouse v. Bindley, 51. Penelon v. Hogoboom, 123, 124. Fennell v. Bidler, 216. Fercheimer v. Stewart, 165. Ferguson v. Bank, 149. v. Carrington, 179, 188. V. Hosier, 371, 377. V. Spear, 199. 454 CASES CITED. [The figures refer to pages.] Ferguson v. Trovaten, 112. Fessenden v. JIussey, 111. Fessler v. Love, .354, 355, 358. Fielder v. Starkin, 371. Field V. Lelean, 314. V. Runk, 84. Fifth Nat. Bank of Chicago v. Bayley, 171. Filkins v. Whyland, 237. Filley v. Pope, 250, 292, 367. Filson V. Himes, 223. Finch V. Barclay, 214^ V. Gregg, 172. V. Mansfield, 155, 211. Fine v. Homsby, 73. Finley v. Quirk, 221. Finn v. Clark, 293. Finney v. Apgar, 64, 69. First Nat. Bank v. Bates, 273. V. Boyce, 35. V. Crocker, 171. V. Ege, 34, 172. V. Railroad Co., 33. V. Reno, 12. V. Schmidt, 334, 335 T. Schween, 10. T. Shaw, 41, 42, 43. V. Tootle, 189. Firestone v. Werner, 176. Fishback v. Van Dusen, 124, 125, 132. Fish V. Cleland, 181. V. Kempton, 304. Fisher v. Andrews, 106, 107. V. Boynton, 277. V. Kuhn, 109. V. Lord, 225. V. Mellen, 182. V. Seltzer, 51. Fitch V. Archibald, 20n. Fitchard v. Doheny, 181. Fitt V. Cas.sanet, 339. Fitzgerald v. Evans, 241. Fitzmaurice v. Puterbaugh, 257. Flach V. Gottschalk Co., 23. Flagg V. Gilpin, 218. Flanders v. Putney, 57. Fleck V. Warner, 141, Fleet V. Hertz, 10. Fleming v. tianley, 189. Fletcher v. Bartlett, 176. V. Livingston, 74, V. Packing Co., 50. Flinn v. St. John, 216. Flint V. Lyon, 250. V. Valpey, 22. Florence Jlin. Co. v. Brown, 308, Floyd V. Browne, 58. Fluharty v. Mills, 75. Flynn v, Columbus Club, 217. V. Dougherty, 69, 70. Foard v, MeConib, 183, Foerster v. Gallinger, 180. Fogg's Adm'r v. Rodgers, 251. Foley v. Felrath, 142. Follett Wool Co. V. Deposit Co., 97. Fontaine v. Bush, 89. Foos V. Sabin, 350. Foot V. Marsh, 150. Forbes v. Marsh, 135. V. Railroad Co., 33, 168, 171. Fordice v. Gibson, 161. Ford v. Phillips, 17, Foreman v. Ahl, 217, 220. Fores v. Johnes, 209. Forster v. Taylor, 214. Forsyth v. Jervis, 12. V. Mann, 70. Forsyth Mfg. Co. v, Castlen, 50. Fortesque v. Crawford, 106. Ft. Payne Coal & Iron Co. v. Web- ster, 307. Forty Sacks of Wool, 171. Foss-Sehneider Brewing Co. v. Bullock, 299. Foster v, Adams, 345. V, Mabe, 76, V. Magill, 129. V. Mining Co., 59, 61. V. Ropes, 126. V. Thurston, 220. Foster's Case, 47. Foulk V. Eckert, 189. CASES CITED. [The figures reler to pages.] 455 Fowler v. McTaggnrt, 329. Pox V. Harding, 350. V. Mackretli, 175. V. Webster, 170. Frame v. Liquor Co., 331. France v. Gaudet, 36i. Frangao v. Long, 155. Franli v. Hoey, 155. V. Miller, 107, 109. Franklin v. Long, 45. V. Neate, 9. Franklin Sugar Eeflning Co. v. Collier, 181. Frazier v. Simmons, 345. Frederick Jlfg. Co. v. Devlin, 258. Freed Furniture & Carpet Co. v. Sorensen, 134, 136. Freeland v. Rltz, 109. Freelove v. Freelove, 365. Freeman v. Cooke, 30. V. Kraemer, 137, 169. Freeport Stone Co. v. Carey, 132. Freeth v. Burr, 288. Freiberg v. Steenbock, 270. French v. Schoonmaker, 73. French & American Importing Co. V. Drug Co., 186. Frenzel v. Miller, 183. Freyman v. Knecht, 368, 377. Friend Bros. Clothing Co. v. Hurl- burt, 191, 193. Frisbee v. Chlckering, 179, 184. Frohreich v. Gammon, 377, 379. Frolich v. Glass Co., 355. Frost V. Blanchard, 237. V. Dairy Co., 259, V. Hill, 114. V. Knight, 306. V. Woodruff, 128. Frostburg Min. Co. v. Glass Co., 89. Frye v. Burdick, 8. Fuentes v. Montis, 40. Fuller V. Bean, 60. V. Duren, 12. V. Eames, 140. Fulton V. Gibian, 180. Funke v. Allen, 346, 349. Furlong v. Polleys, 350, 358. Furman v. Railroad Co., 33. Furry v. O'Connor, 184. F. W. Kavanaugh iUfg. Co. T. Rosen, 356. Gaar, Scott & Co. v. Pleshman, 347. Gabarron v. Kreeft, 148, 163, 166. Gadsden v. Lance, 73. Gaff V. Homeyer, 88, 299. Gage V. Carpenter, 253, 257, 260. V. Chesebro, 199. Gainesville Nat. Bank v. Bam- berger, 184. Galbraith v. Holmes, 99. Gale V. Burnell, 46. Gale Sulky-Harrow Mfg. Co. T. Stark, 369. Galvin v. Bacon, 28. V. MacKenzie, 89. Gambs v. Sutherland's Estate 211. Ganson v. Madigan, 282, 343, 345, 349. Garberino v. Roberts, 307. Garbutt v. Watson, 64, 65, 66, 67. Gardet v. Belknap, 04. Gardiner v. Gray, 2G3. Gardner v. Grout, 84. V. Joy, 67. V. Lane, 59, 159. V. McEwen, 46. T. T. J. Winter & Co., 257. Garfield v. Paris, 84. 87, 88, 91, 92. Garfield & Proctor Coal Co. v. R. Co., 300. Garland v. Keeler, 234. Garretson v. Selby, 156, 293. Garrison v. Electrical Works, 186. Garth v. Davis, 114. Garvin Mach. Co. v. Hutchinson, 13. Gary v. Jacobson, 203. Gassett v. Glazier, 177. 456 Gates V. Bliss, 190. T. Raymond, 192. Gatiss V. Cyr, S9. Catling V. Newell, 187, 192. Gault V. Bro\Yn, 81, 84. Gavin v. Armistead, 180. Gay V. Dare, 145. V. D. M. Osborne & Co., 192. Gaylord v. Soragen, 211, 225. Gaylord Mfg. Co. v. Allen, 299, 374. Gentilli v. Starace, 299, 375. George v. Matonni, 201. George D. Mashbum & Co. v. Dannenberg Co., 184, 185. George D. Si son Lumber & Shin- gle Co. T. Haak, 298. George H. Hess Co. v. Dawson, 290. George M. Hill Co., In re, 144, 235. George W. Merrill Furniture Co. V. Hill, 132. Gerli v. U[g. Co.. 289. Gemdt v. Conradt, 97. Gerrish v. Clark. 135. Gerst V. Jones, 257. Gibbes, Ex parte, 332. Gibbons v. Bente, 351. Gibbony v. R. W. Wayne Co., 284. Gibbs V. Benjamin, 128. V. Merrill, 14. Gibson v. Carrutbers, 323, 327. V. Cranage, 234. V. Holland, 102. V. Pelkie, 45. T. Soper, 22, 23. V. Stevens. 273. Gilbert v. Register Co., 134. Giles V. Edwards, 361, 363. Gill V. Benjamin. 130, 154. V. Blcknell, 114. V. De Armant, 136. V. Frank, 207, 273. T. Hetvett, 114. V. McDowell, 56. Gillespie v. Cheney, 256, 258. CASES CITED, rrhe figures refer to pages.l Gillett V. Hill, 148. Gillis Y. Goodwin, 15, 16. Gilman v. Hill, 69, 81. Gilman Linseed Oil Co. v. Norton, 32. Gilmore v. Newton, 2S. Gilmour v. Sujiple, 122. Gindre v. Kean, 11. Gipns Brewing Co. v. De France, 225. Girard v. Taggart, 350. Giroux V. Stedman, 202. Gittings V. Nelson, 46. Glass V. Blazer, 365. Glasscock v. Hazell, 144. Gleason v. Beers, 6. Glisson V. Geggie, 142. Globe Refining Co. v. Oil Co., 359. Gloucester Isinglass & Glue Co. v. Cement Co.. 363. Glover v. Ott, 20. Glyn V. Dock Co., 336, 338. Glynn Mills & Co. v. West India Docks, 34. Goddard v. Binney. 67, 123, 275. Godts V. Rose, 153, 163. Godwin v. Francis, 115. Colder v. Ogden, 149. Golding, Ex parte. 336. Goldsmith v. Stern. 1S5. Gompertz v. Bartlett, 362. V. Denton. 308. Gooch v. Holmes, 72. Goodall V. Skelton, 317. Goodell V. Fairbrother, 136. Goodman v. Alexander, 20. V. Griffiths, 105. Goodrich v. Van Nortwick, 234. Goodwin v. Goodwin, 201. V. Railroad Co., 123, 124. V. Trust Co., 41, 183, 195. Goom v. Affalo, 117. Gordon v. Butler. 177. V. Norris. 161. 348, 349, 350. V. Ritenour, 203. Gore V. Gibson, 24. Gornam v. Fisher, 91. CASES CITED. [The figures refer to pages.] 457 Gorman v. Brossard, 71, 86, 88, 96, 97, 100. (lOsbell V. Archer, 115. Goss V. Dysant, 246. V. Lord Nugent, 108. Gossler v. Schepeler, 324, 327. Goss Printing Press Co. v. Jor- dan, 8, 137. Gould V. Bourgeois, 244, 245. V. Murch, 309. V. Stein, 2G4. Goulds V. Brophy, 258. Gowen v. Klous, 103, 104. Grabfelder v. Vosburg, 144, 145. Grace v. Hale, 20. Gradle v. Warner, 105. Graff V. D. M. Osborne Co., 150, 373. V. Fitch, 77. V. Foster, 264. Grafton v. Armitage, 66. V. Cummings, 103, 109. Graham v. Fretwell, 113. V. Musson, 113. Grand Tower Co. v. Phillips, 356. Grant v. Banli, 277. V. Cole, 57. V. Fletcher, 117. V. Johnson, 228. V. McGrath, 217. Grantham v. Hawley, 47. Graves v. Heplie, 127. V. Johnson, 211, 212, 225. V. Legg, 228. V. Weld, 78. Gray v. Booth, 139. V. Davis, 87. V. Ice-Mach. Co., 299. V. Walton, 276. Grayson County Nat. Bank v. Railway, 171. Greaves v. Ashlin, 301. Grebert-Borgnis v. Nugent, 360. Green v. Armstrong, 75. V. Brooliins, 73. V. Collins, 211. V. Green, 15. Green v. Hall, 162. V. Iron Co., 80. V. Lewis, 118. y. Merriam, 94, 95. v. Railroad Co., 74. V. Rowland, 204. V. Stuart, 3G2. v. Tanner, 203. V. Water Co., 262. Greenbaum v. Megibben, 35, 36. Greene v. Bateman, 54. V. Godfrey, 221. v. Lewis, 60. v. Societe Anonyme, 176. Greenleaf v. Gallagher, 346. V. Gerald, 185. V. Hamilton, 346. Greenwood v. Curtis, 225. V. Law, 72. Greenwood Grocery Co. v. Eleva- tor Co., 169. Greer v. Bank, 59. V. Church, 137. Gregg V. Belting Co., 258. V. Wells, 30. Gregory v. Lee, 21. V. Morris, 314, 317. v. Paul, 25. V. Schoenell, 182, 186. V. Wendell, 218, 219. Gregson v. Ruck, 117. Greve v. Dunham, 327, 330. Grey v. Gary, 94. Gribben v. Maxwell, 23. Grice v. Richardson, 317. Grieb v. Cole, 242. Griffin v. Coiver, 58. V. O'Neil, 54. Griffith V. Fowler, 30. V. Strand, 187. V. Wells, 214, 215. Griffiths V. Owen, 99. V. Perry, 314, 315, 317, 322. Grigsby v. Stapleton, 175. Grimoldby v. Wells, 299. Grizewood v. Blane, 218. Grofl V. Belche, 126. 458 CASES CITED. [Tlie figures refer to pages.l Grose v. Hennessey, 245, 246. Gross V. Gross, 203. V. Heckert, 70. V. Kierski, 244. 247. Grotenkemper v. Achtermeyer, 51. Grout V. Hill, 331. Grover v. Grover, 12. Groves v. Buck, 63, 65. Grymes v. Sanders, 189, 191, 197. Guckenheimer v. Augevine, 192. Guilford v. McKinley, 141. V. Smith, 332. Guinzburg v. H. W. Downs Co., 29. Gunby y. Sluter, 186. Gunderson v. Richardson, 221. Gunn V. Bolckow, 315, 320. Gunter v. Lechey, 13. Gunther v. Atwell, 204. Gurney v. Behrend, 35. V. Railroad Co., 374. V. "Womersley, 3C2. Guthrie v. Morris, 21. V. Murphy, 19. Gwathney v. Cason, 114. Gwinn v. Simes, 217. Gwyn V. Railroad Co., 324. H Haacke v. Literary Club, 222. Haak v. Linderman, 137. Haas V. Bank, 172. Haase v. Mitchell, 191. V. Nonnemacher. 250, 373. Habeler v. Rogers, 347. Hackley v. Cooksey, 59. Hadcock V. Osmer, 133. Hadden v. Dooley, 201. Hadley v. Baxendale, 357. Hadley Dean Plate Glass Co. v. Glass Co., 351. Hngee v. Crossman, 186. Hagey v. Schroeder, 8. Hagins v. Combs. fiO, 127. Hague V. Porter, 159. Hahlo V. Grabt, 185. Hahn v. Fredericks, 148. Haines v. Tucker, 307. Halby v. Matthews, 41. Haldeman v. Duncan, 149. Hale V. Philbriek, 182, 187. V. Rawson, 50, 23G. Haley v. Manning, 186. Hall V. Aitkin, 246. V. Butterfleld, 16, 17. V. Corcoran, 221. V. Dimond, 332, 333. V. Fullerton, 197. V. Glass, 48. V. Green, 162. V. Hinks, 194. V. Keller, 173. V. Pillsbury, 8. Hallacher v. Henlein, 180. Hallas V. Robinson, 49. Hallenbeck v. Cochran, 96. Hallen v. Runder, 79. Hallett V. Novoin, 213. V. Oakes, 24. Halley v. Troester, 22. Hallgarten v. Oldham, 205, 207, 270, 273. Halliday v. Holgate, 9. Halsell V. Musgrave, 182. Hal.sey v. Warden, 171. I-Ialstead v. Jessup, 77. Halterline v. Rice, 127. Hamburger v. Rodman, 317, 321. Hamet v. Letcher, 53, 196. Hamilton v. Bank, 49. V. Brewing Co., 166. T. Calhoun, 275. V. Ganyard, 367. V. Park & McKay Co., 45. V. Ro.2;ers, 46. V. Russel, 198. Hamilton-Brown Shoe Co. v. Mil- liken, 184. Hamlin v. Abell, 183. Hammer v. Scboenfelder, 359. Hammond v. Anderson, 127. V. Buckmaster, 191. V. Bussey, 378. CASES CITED. [The figures refer to pages.] 450 Hammond v. Pennock, 182, 183, 190, 191, 192. Hanauer v. Doane, 212. Hands v. Burton, 12. V. Slaney, 18. Handy t. Publishing Co., 225. Haney-Campbell Co. v. Ass'n, 235. Hanlis V. Palling, 50. Hanna v. Mills, M5. Hannan v. Raybum, 186. Hansen v. Cold Storage Co., 176, 177. V. Gaar, Scott & Co., 241, 242. V. Steam-Heating Co., 289. Hanson v. Armitage, 89, 91. V. Busse, 264. V. Edgerly, 175. V. Hartse, 262. V. Marsh, 105. V. Meyer, 128. Hapgood V. Rosenstock, 360. V. Shaw, 269, 275. Harden v. McClure, 69. Harden v. Lang, 3G3. Harding Paper Co. v. Allen, 332. Hardman v. Booth, 44, 52, 196. Hardt v. Electric Co., 264, 300. Hardy v. Potter, 206. Hargous v. Stone, 253. Hargrove v. Adcock, 113. Harkness v. Russell, 134, 136. Harlow v. LaBrum, 178. V. Putnam, 362. Harman v. Reeve, 64, 80. Harmony v. Bingham, 309. Harnor v. Groves, 298, 363, 364. Harper v. Grain, 217. V. Godsell, 9. v. Terry, 191. Harran v. Foley, 54. Harrigan v. Thresher Co., 239. Harrington v. King, 138. V. Stratton, 189. Harris v. Goe, 11. V. Powle, 12. V. Pratt, 331. V. Runnels, 213. V. Smith, 125. Harris v. Sumner, 200. V. Waite, 257. Harrison v. Golton, 217, 222. V. Fane, 18. V. Fortlage, 236, 292. V. Luke, 12. V. McCormick, 263. v. Otley, 23. Hart V. Carpenter, 8. V. Mills, 57, 281. V. Prater, 18. V. Sattley, 89. Harvey v. Dale, 302. V. Graham, 108. v. Harris, 53. V. Merrill, 218, 219. T. Stevens, 103, 114. T. Varney, 203. Haskell v. Greely, 206. V. Hunter, 351. v. Rice, 315, 320, 321. Haskins v. Warren, 123, 124, 317. Haslaek v. Mayers, 285. Hassell Iron Works v. Cohen, 349. Hastie v. Couturier, 45. Hastings v. Levering, 250. V. Pearson, 43. Hatch V. Bayley, 165. V. Douglas, 218. V. McBrien, 11. Hatch V. Oil Co., 120, 153, 275. Hatfield v. Phillips, 39. Hatstat V. Blakeslee, 201, 205. Hauk V. Brownell, 177. Havens v. Fuel Co., 157. Hawes v. Forster, 116, 117. Hawley v. Keeler, 307. Hawkins v. Chase, 106, 112. V. Davis, 194. V. Graham, 234, 235. V. Hersey, 141. V. Pemberton, 239, 250, 251, 256, 366. Haxall V. Willis, 128. 129. Hayden v. Deraets, 124, 343, 345. Hayes v. Jackson, 104. V. Nashville, 341. Haynes v. Quay, 161. 460 CASES CITED. [Tlie figures refer to pages.! Hays V. Jordan, 135. V. MoulUe, 32.5, 326. V. Packet Co., 160. Hazard v. Day, 216. V. Irwin, ITS. Hazen v. Wilhelmie, STi, Head v. Diggon, 51. V. Goodwin, 46. V. Tattersall, 145. Healy v. Brandon, 259. Heath v. Stevens, 15. Heaver v. Lanahan, 351. Hecht V. Batcheller, 55. Hedden v. Roberts, 2S4. Heilbronn v. Herzog, 188. Heilbutt V. Hickson, 264, 265, 306, 3G5. Heilman v. Pruyor, 379. Heintz v. Burkbard, 69. Heiser v. Mears, 161. Heisley v. Swanstrom, 108, Hellings v. Russell, 40. Hemmer v. Cooper, 177. Hendrle & BoIthofE Mfg. Co. v. Collin.?, 59. Hendrickson v. Back, 246. Henderson v. Gibbs, 194. Henderson & Co. v. Williams. 30. Hennessey v. Daunourette, 179. Henry Bill Pub. Co. v. Durgln, 11. Henry v. Vliet, 179. Henshaw v. Robins, 239, 250. Hentz V. Miller, 53. Hepburn v. Sewell. 58. Herman v. HafEenegcrer, 191. Herrick v. Carter, 12. Herrin v. Libbey, 197. Herring v. Hoppock, 136. V, Skaggs, S77, 378. Herring-Marvin Co. v. Smitli, 292. Herron v. Dibrell, 239. Herryford v. Davis, 134. 135. Hersey v. Benedict, 190. Hershey Lumber Co. v. Lumber Co.. 91, 99. Hervey v. Diamond. 138. V. Locomotive Works, 58, 134, 137. Herzog v. Heyman, 362. Hessing v. McCloskey, 199. Hewes v. Jordan, .S6. 91, 92. Hewison v. Gutbrie, 314. Hewson-Herzog Supply Co. v. Brick Co., 354. Heyman v. Xeale, 113, 116. Heysham v. Dettre, 79. Heywortb v. Hutchinson, 366. V. Knight, 116, 117. H. H. Franklin Mfg. Co. V. Mfg. Co., 257. H. Hirschberg Optical Co. t. Michaelson, 178. Hibblewhlte v. McMorine, 49. Hickman v. Haynes, 108, 355. v. Richburg, 140. Hicks V. Stevens, 1.S6. Hieskell v. Bank, 171. Higbee v. Trumbauer, 186. Higgins V. Burton, 52. V. Kusterer, 80. V. Moore, 304. V. Murray, 157, 161. V. Railroad Co., 27.S, 289. T. Senior, 104. V. Spahr, 201. Higgons V. Burton, 44, 196. Hight V. Bacon, 255, 256. V. Harris, 201. V. Ripley. 64, 69. Hilby V. Mathews, 9. Hill V. Bl.-ike, lOS. V. Freeman, 139. V. Heller, 2.S;3. V. McDonald, .SS. 208. V. North, 241. V. Rewee. 361, 3G3. V. Smith, 355. V. Spear, 211, 22.5. Hiller v. Ellis, l.S.5. Hillestad v. Hostetter, 274. Hilmer v. Hiils. V;9. Hilton V. Shepherd, 17. Hinchman v. Lincoln, 88. 94. Hinckley v. Steel Co., 35L Hinde v. Liddell, 357. CASES CITED. [The figures refer to pages.] Hinde y. WiitehOTise, 71, 84, 100, 113. HiDds V. Kellogg. 6S. Hine v. Roberts, 141. Hlrsch V. Lumber Co., 132, 137. V. Richardson, 199. Hirschti^rg Optical Co. v. Rich- ards, 177. Hirschom v. Canney, 125. Hirth V, Graham, ~'j. Hitchcock T. Giddings, 50. H. ^IcCormick Lmnber Co. v. Wlnans, ^.JO. H. M. Tyler Lumber Co. v. Charl- ton, 128. Hoadly v. McLaine, 57, 61, IQa. Hoag V. Place, 80. Hoare v. Rennle, 2S7, 2SS, 289. Hobart v. Littlefield, 15.5, 165. T. Young, 23.S. 239. Hobbs V. Carr, 207. V. Whip Co., 57, 88, 299. Hochster v. De la Tour, 306. Hockersmith v. Hanley, 359. Hocking v. Hamilton, 276. Hodge y. Tiifts, 369, 371. Hodges V. Kowing, 110. V. Wilkinson, 240. 247. Hodgson V. Le Bret, SO. V. Loy, .329. V, Temple, 210. Hoe V. Sanborn, 255, 259. Hoffman v. Carow, 28, 29. V. Chamberlain, 245, 246, V. Dixon, 2.50. 251, 256. V. King, 2S2, 283. V. Noble, 194. Hogins V. Plympton, 2.37. 250. Hogue V, Mac-key, .54. Holbird Y. Ander.son, 199. Holbrook t, Burt ISO, V. Connor, 170, 177. V. Setchel, .59. Holcomb V. Xoble, 1S2, Holden v. O'Brien, 216. Holden Steam Mill v. Westervelt, 285. 461 Ho;jom T. Ayer, ISO. Holland t, Rea, 341. T. .S^ain, 194. Holleman t. Fertilizer Co,, 10. Hollins V. Hubbard, oil, Holloway t, Jacoby, 2,5';i, 37Z Holman v, Johnson, 220. Holmes t, Blogg, 16. V. Gregg, 2f:i4, V. Hoskias, 94. V. Tyson, 23 S, Holroyd v. Marshall, 48. Holt V. Clarencieux, 14, 15. V. O'Brien, 223. V, Sims, 1n4, Holt Mfg, Co, V, Ewlng, 140. Holtz V, Peterson, 275, Home Ins, Co. t. Heck, 153. Homer v. Perkins, 170, 178, Honck V. Muller, 2S7, Honeditch v, Desanges, 322. Hood V. Bloch, 120, 260. V. Todd, 5-5, Hooker v, Kjiab, 99. HiX)k v. Mowre, 2i'i3. Hooper v. .Story, 377. Hooven & Allison Co. v. Wlrtz, 2:38. Hoover v. Maher. 159. V. Peters, 262, T. SMener, 3C-S. Hope T. Hayley, 46, 47. Hopkins v. Bishop, 20L V. Cowen, I'jO, V, Stefan, 217. V. Tanqueray, 2,38. Hornby v. Lacy, 3C4, Horncastle v. F.arran, 315. Home T, Railroad Co., 359. Horr V, Barker, 149, Horsfall v, Thomas, 1S7. Horton v, Euf3:iton, 221. V. McCarty, 114. Hosack V. Weaver, 2ri, Hosraer v, Wilson, 305, 307, 351. Hotchkiss V. Higgins, 145, 146, Hotham v. E, India Co., 305. 462 CASES CITED. [The figures refer to pages.] Hough T. Rawson, 269. Houghtaling v. Ball, 118. Houghton V. Furbush, 349. Housding v. Solomon, 2.34. House y. Alexander, 15, 18, 19. V. Beak, 14.5. V. Fort, 238. Houser v. Kemp, 9. Hovey v. Gow, 120. V. Hob.son, 23. Howard v. Daly, 306. V. DwiRht, 20]. V. Emerson, 262. V. Harris, 13. V. Hoey, 260. Howard Iron Works v. Elevating Co., 2.59. Howe r. Batchelder, 75. V. Hayward, 98. V. Palmer, 91. V. Smith, 98. Howe Maeh. Co. v. Willie, 361. Howell y. Berger, 185. V. Biddlecom, 186. V. Boudar, 11. V. Coupland, 309. V. Stewart, 232. How^land v. Woodruff, 42, 48. Howley V. Whipple, 115. Hoyt V. Casey, 19. Hubbard, Ex parte, 10. V. Bliss, i:». V. Oeorse, 204. Hubbell Y. Flint, 212. V. Meigs, 190. Hudson V. Weir, 72. Hudson Furniture Co. v. Carpet Co., 89. Huff T. McCauley, 76. Iluggins V. Cement Co., 359. Hughes v. Harlam, 134. V. Kelly, 139. Huguenot ilills v. Jempson & Co., 349. Hulet V. Achey, 178. V. Stratton, 220. Hull V. Caldwell, 247. Hull V. Hull, 48. V. Pitrat, 360. Hull Coal & C. Co. V. Coke Co., 290. Hull's Assignees v. Connolly, 19. Humaston v. Telegraph Co., 60. Humble V. Mitchell, 72. Hummel v. Stern, 235. Humphrey v. Merriam, 183. V. Smith, 185. V. Tatman, 49. Humphreys v. Comline, 262. Humphreysville Copper Co. v. Jlining Co., 355. Humphries t. Carvalho, 144. Hunn V. Bowne, 321. Hunt V. Hecht, 87, 89, 90. V. Massey, 14. V. Sack, 244. V. Wyman, 144, 145. Hunter v. Bosworth, 46, 49. V. State. 158. V. Talbot, 316. V. Tolbard, 24. T. Wetsell, 99, 277. Hunter Bros. Jlilling Co. v. Kram- er Bros., 157. Hunting v. Downer, 362. Huntington v. Plall, 244. V. Lombard, 239. Hurd V. Bickford. 104. V. Fleming, 138. V. Hall, 362. Hurff V. Hires, 149. Hurst V. Mfg. Co., 157. Huschle V. Morris, 205. Ilussey V. Horne-Payne, 107. V. Thornton, 135. Hutche.son v. Blakeman, 51. Hutchings v. Mun^jer, 1:J9. T. Nunes, 325. Hutchins r. Gilchrist, 274. V. Sprague, 203. Hutchinson v. Bowker, 51. T. F(jrd, 48. V. Hunter, 149. CASES CITED. [The figures refer to pages.] 463 Huthmacher v. Harris' Adm'rs, 58. Hutton V. Moore, 60. H. W. Williams Transp. Line v. Transportation Co., 368. Hyde v. CJookson, 7. V. Lathrop, 154. V. Wrench, 51. Hydraulic Engineering Co. v. Mc- Haffie, 360. Hyndfl V. Hays, 224. I laslgl V. Rosenstein, 292. Ideal Wrench Co. v. Machine Co., 356. Ide V. Stanton, 64, 105. Ijams V. Hoffman, 118. Illinois Leather Co. v. Flyrm, 180. Ilsley V. Stubbs, 328. Imperial Bank v. Docks Co., 324. Imperial Loan Co. v. Stone, 23. Imperial Portrait Co. v. Bryan, 263. Indiana Mfg. Co. v. Hayes, 56, 57. Industrial Works v. Mitchell, 300. Ingalls V. Herrick, 202, 206, 207. Inglis V. Stock, 142. V. Usherwood, 330. Ingraham v. Baldwin, 22. V. Railroad Co., 239. Inhabitants of Westfield v. Mayo, 160. Insurance Co. v. Kiger, 36. International Pav. Co. v. Machine Co., 266. Iron Cliffs Co. v. Buhl, 282. Irons V. Kentner, 6. V. Webb, 77. Iroquois Furnace Co. v. Mfg. Co., 258, 371. Irvine v. Stone, 81. Irwin V. McDowell, 9. V. Thompson, 237. V. Willlar, 217, 218. V. Wilson, 55. Isherwood v. Whitmore, 294. Ivans V. Laury, 258. J Jackson v. All away, 269. V. Cadwell, 30. T. Collins, 178, 186. V. Covert's Adm'r, 64. V. Lowe, 109. V. Myers, 203. V. Stanfleld, 118. V. Tupper, 99. J. A. Coates & Sons v. Buck, 55. V. Early, 55. Jacob V. Kirk, 109. Jacob Strauss Saddlery Co. v. Kingman, 142. Jaffrey v. Brown, 180. V. Wolf, 188. James v. Adams, 306. V. Bocage, 239. V. Com., 158. V. Griffin, 330, 332. V. Muir, 61, 105, 106. V. Patten, 111. V. Plank, 7. V. Vane, 302. James Smith Woolen Mach. Co. v. Holden, 120. Jamison v. Simon, 91. Janney v. Sleeper, 275. Janvrin v. Maxwell, 95. Jarrett v. Goodnow, 244. Jaullery v. Britten, 40. Jeffrey v. Bigelow, 175. Jeffris V. R. Co., 326, 329. Jendwine v. Slade, 240. Jenks V. Pnlmer, 330. Jenkins v. Elchelberger, 7. V. Jarrett, 123. Jenkyns v. Brown, 9, 167, 171. V. Usborne, 40, 324. Jenner v. Smith, 153, 154. Jenness v. Iron Co., 107. V. Wendell, 81. Jeraulds v. Brown, 149. Jetton v. Tobey, 30. -I6i CASES CITED. [The flguros refer to pngos.l .lewell V. Knislit. liiO. Jew ott V. Lincoln, 'JOri. V. W:\i'V;>n. L'T I. ,1. H. l.;ili;iroc \. c'vossnian. "10. J. I. Case now \YorUs v. Ml03 & St^ott Co., 237. L\U!. :;7T. J. I. Case Thivshiim-Machlne Co. V. JIfKinuon, '2['2. J. M. Arthur & Co. v. BUu'kmau. 142. .1. M. Bi-unswick & BalUe Co. v. Valloau, -Jll. Jolm Deere I'Unv Co. v. Gorman, 34G. John Gi-iffltli's Corp. v. number, 11 -J. JoLmson v. ApiMculturnl Co., 30',). T. .\iien, ;;ri(;. V. Buek, 71. IOC. 100, 113. 114. V. Credit I.yonnais, 31, 40. V. Cuttle, 80. V. I>cHii-i(l,u'e, 105. V. Pod.ssou, 111. V. lsl\voo. V. l'>ank, 80. V. Bloonmarden, 201, 203, 205, 21'! I. V. 1 'row or. li'.O. V. I'.riulit, 2.".7. V. Clark, 137. V. Pow, lo:'.. V. K.irl, :;37, .3,33. V. Flint, 77. V. CiMM-'ie. 250, 251, 370. v. Cililums, 278. V. .lenniu-s Itvus. & Co.. 340 V. Just, 2,".5. 257, 200, 377. y. Kemp, 8. V. Kin-. 20,3. V. Mel^wan. 3.7 t. V. Pail-elt, 2."i(;. V. Ualiiliy, 10. V. Kex nolOs, 73, 87. y. liii'Iiardson. 10. V. K.N.Ie. 302. V. Seluieiili'r, 150. \. Snider, 110. ■\. '[\ r. mc. T. r. s , .-'.ii'.). 310. y. \VniU\ 223. •loplin W.iler Co. v. Batlie, 175. Jordan v. Norton. 51. y. I'arker, 101. V. rallers(ni, .350. ,",00. .losi'|)li y. l.\ ons. -10. .loslln V. ('o«('e. I.SO. .loslins: y. Kin,i;sl'ord. 218. Journal I'rintini; Co. y. Maxwell, 187. Joyee \. .\danis, 120, 142. V. Sxvann, 50, 50, 105. J. T. Stew art & Son v. Cook, 106. Judd V. Weber, 181. Julius AVinlvolnieyer Brewing .Vss'n y. Nlpp, 225. Jusllee V. Lan,^', 105, 110. CASES CITED. [The figures refer to pages.] 465 K Kadish v. Young, 306, 350. Kaiiii V. Klabunde, 145, 146. V. Walton, 218. Kain v. Old, 237. Kalamazoo Corset Co. v. Simon, 2S2. Kalkhofif V. Nelson, 306. Kaye v. Brett, 304. Kearley v. Thompson, 222. Kearney Milling & E. Co. v. Eall- road Co., y.j8. Kearon v. Pearsons, 309. Kearslake v. Morgan, 99. Keck V. State, 138. Keeler v. Goodwin, 149, 151, 319, S20. Y. Vandervere, 126. Kein v. Tnpper, 57, 129, 141, 285. Keiwert v. Meyer, 89. Keller v. State, 158. V. Strasberger, 345. Kelley, Maus & Co. v. Carriage Co., 355, 3.59. Kelly V. Oil Co., 80. Kellogg V. Frohlick, 349. V. Turpie, 188. V. Witherhead, 88. Kellogg Bridge Co. v. Hamilton, 255, 257. Kelsea v. Mfg. Co., 156, 291. Kelsey v. Harrison, 180. Kemp V. Falk, 329, .330, 332, 338, 336, 337, .338. y. Freeman, 368. T. Watt, 303. Kempson v. Saunders, 361. Kendal v. Marshall, 332. Kendall v. May, 24. V. Wilson, 186. Kennedy v. Duncklee, 30. V. Mail Co., 249. V. Richardson, 177. V. Whitwell, 364. Kenner v. Harding, 239, 240, 241. Kenniston v. Ham, 60. Kent V. Bomstein, 191. Tut. Sales(2dEd.)— 30 Kent V. Friedman, 374. V. Huskinson, 87. Kent Iron & Hardware Co. v. Norbeck, :20. Kentucky Refining Co. v. Refining Co., 170. Kenworthy v. Schofield, 71, 109. Kerkhof v. Paper Co., 99. Kern v. Thurber, 194. Kerr v. Henderson, 124. V. Shrader, 81. Kessler v. Smith, 105, 291. Kester v. Miller, 376. Keswick v. Rafter, 11. Ketchum v. Catlin, -iiS. Key V. Cotesworth, 165. Keystone Mfg. Co. v. Casselllus, 140. I^eystone Watch Case Co. t. Bank. 10. Kibble V. Gough, 90. Kidder v. Blake, 224. Kileen v. Kennedy, 7.5. Kllgore V. Bruce, 177. Killmore v. Howlett, 74. Kimball v. Bangs, 178. V. Cunningham, 189, 191. V. Hildreth, 9. Kimbell v. Moreland, 182. Klmberly v. Patchln, 149, 150, 160. King V. Eagle Mills, 182. V. Faist, 353. V. Inhabitants of Chillesford, 14. V. Jarman, 128, 129. V. Merriman, 77. V. Waterman, 306. Kingman v. Davis, 105. V. Denison, 326. V. Holmquist, 149. Kingman & Co. v. Denison, 326, V. Mfg. Co., 351, 3.-2. V. Wagon Co., 278, 351. King Philip Mills v. Slater, 288. Kingsbury v. Kirwan, 218. V. Smith, 194. iG6 CASES rrhe figures re Kinu-sford v. Merry. 4A. King-ley r. Holbrook, 75. T. JohBson, 24:0. V. Sie:_.rechr, ICM, HO. V. White, i'74. Kinkead v. Lyach. 34a Kinlocli T. Craig, .3-.;i. Kinney v. McDermot, 221. T. Railroad Co., 56. Kinsey v. Leggett. 43, 196. Ki^tzing T. Mcliilrath, 1T5. Kipp V. Lamoreaux, 2iJl, Kir by v. Jolmsoii, SS. 96. KiroLer t, Conrad, 23S, Kirkeby v, Erict.son, 75. Kirtland v. Moore, 233, Kirven t. Pinjknev, 20.5. Kitchen v. ?pear, 32^?. Kitson T, Farwell, liu, Kitson ITach. Co. y. Hoiden, 127. Kleeman v. Collins, 102, Kline y. I/'Amoureux, 19. Klinltz V. Surry, S4. 103. Knapp Electrical Works y. Wire Co., 1.:.7. Kneeland v. Eonner, 120. Knight T. Barber, 72, T, Mana, S-'i. 91. V. Worsted Co,, 225. Knights V. Wiflen, 30. 321. Kyji'l lauch v. Kronschnabel, 295, -■j'j. Knowlton v. Spring Co., 222. Kn:'X T. American Co., 31, 32. Kohl >. Llndley, 2.5,0. Kohn T. Melcher, 211. Kountz v. Klrkpatriok. 3.54. T, Price, 217, 222. Kramer v. Mes^ner, 345. Krans v, Thompson, ISO, Ivri'js V. Jones, 3-54. Kriete t. Myer. 106. Krohn v. Eantz. OS, 09. Krul.ler v. Ellison. 1.5.5. Krmnbhaar t. Birch. 24T. Kunkle v. Mitchell, 276. CITED. to pages.I KuppeiLheimer t. Werthelmer, 154. Kyle V. Kavanagh, 53. La Crosse Plow Co. t. Helgeson, 266. Ladd T. Dillingbam, 22.3. V. King. lOS. V. Sogers. 220. 221. Laidlaw v. Organ, 17-5. Laidler v. Burlinson, 16iL. Ealng T. McCall, 22:3. Laird v. Pun, 346, a49. Late Shore & M. S, R. Co. v. iRichards, 306, 351. Lamb V. Attenborongh, 40. T. Crafts, 67. Lambert v. Heath, S'j2. Lamberton v. Dvmham, 1.S3, T /I Trim T. A =='n, 1S2. Lamond v. Davall, 339. Lamprey v, Sargent. 1Z<0. Lanoasier Co. iXat. Bank v. Moore, Landa v. Lattln Bros., 173. Landigan \. Mayer. i:3-S. Landreth v. Wyckoff. 255. Lane t. Chadfrick, 157. La iXeuvUle v. Nourse. 12. Lanfear t. Sumner, 2ii'7. Langdon t. Clayson, 17. Langlort V. Tiler. 342. Lang V. iHenry, li_i7. Langridge t. Lery, 1S4. LangstafE t. StIx, .3.32. Langton v, Higgins. 47. 153. Lansing Iron & Engine Works 7. Wilbur, 126. Laporte Imp. Co. v. Brock, 371 L'Ap.jstre T, L'PIalstrier, 243. Larkin v. Johnson. 126. y. Lumter Co., 2S3. Larmon v, Jordan, 51. Lamed v. Andrews, 214, Larson y. Aultman & Taylor Co., 371. CASES CITED. [The figures refer to pages.] 467 La Rue v. Gllkyson, 24. Lassing v. James, 129. Latham v. Sbipley, 242. V. Summer, 141. Lathrop v. Clayton, 201. Laughton v. Harden, 200. La Valley v. Ravenna, 143. Lavery v. Pursell, 79. Law V. I-Iodson, 214. V. Stokes, 304. Lawder & Sons Co. v. Grocery Co., 296. Lawes v. Purser, 363. Lawler v. Nichol, 7. Lawrence v. Burnham, 201. V. Porter, 350. Lawrence Canning Co. v. Mercan- tile Co., 349. Lawson v. Lovejoy, 17. Lawton V. Blitch, 218. Lawyer v. Post, 108. Laythoarp v. Bryant, 118. Leadbetter v. Ins. Co., 233. Leask v. Scott, 335. Leather Cloth Co. v. Hieronlmus, 102, 108. Leavitt v. Piles, 23. V. Fletcher, 241. Ledyard v. Hibbard, 8. Lee V. Bangs, 374. V. Bayes, 28. V. Butler, 9, 41. V. Cherry, 102. V. Gaskell, 79. V. ririffin, 65, 66, 67, 69. V. Hills, 107. T. Kimball, 335. V. Muggeridge, 25. Leedom v. Slayer, 180. Lefferts v. Wold, 278. Lefurgy v. Stewart, 61. Legg V. Willard, 207. Lepgat V. Brewing Co., 261, 293. Lpggott & Jleyer Tobacco Co. v. Collier, 89. Lehr v. Brodbeck, 201, 202. Leigh y. Railroad Co., 31. Leith's Estate, In re, 314. Lemmon v. Beeman, 15. Lennox v. Murphy, 308. Lenox v. Fuller, 190. Lenz V. Blake-McFall Co., 257, 298. V. Harrison, 10. Leonard v. Clough, 78. V. Cox, 60. V. Davis, 97, 123, 129, 268, 273, 274, 302, 314. V. Medford, 76, 88. V. Portier, 341. Lerned v. Wannemacher, 101, 109. Leroux v. Brown, 118. Lesassier v. The Southwestern, 335. Lester v. McDowell, 125. Levasseur v. Cary, 123. Leven v. Smith, 124. Levi V. Booth, 32. Levino v. Moore Co., 283. Levy V. Green, 159, 2S3. Lewenberg v. Hayes, 132. Lewis V. Bank, 36. v. Brass, 116. V. Evans, 70. V. Greider, 340. V. Peake, 378. V. Rountree, 250, 365, 372. V. Welch, 215. Lewter v. Lindley, 59. Libby v. Downey, 214. V. Haley, 369. Llchtenstein v. Rabolinsky, 375. Lickbarrow v. INIason, 333, 334. Lifshitz v. McConnell, 375. Lightburn v. Cooper, 368. Lighthouse v. Bank, 148. Light V. Jacobs, 186. Lightman v. Boyd, 194. Lilienthal v. Brewing Co., 186. Lillie V. Dunbar, 75. Lilly V. Lilly, Bogardus & Co., 360. Lillywhite v. Devereui, 97. 468 CASES CITED. ETho figures refer to pages.] Lincoln v. Buckmaster, 22. V. Gallagher, 277, 295. V. Quynn, 137. Lindon v. Eldred, 341. Lingham v. Eggleston, 120, 127, 128, 141. Linton v. Porter, 247. Lippineott v. Rich, 139. Litchfield v. Hutchinson, 183. Littauer v. Goldman, 362. Litt V. Cowley, 337. Little V. G. B. Van Syckle & (jo., 256, 258. Livermore v. Boutelle, 203. Livingston y. Wagner, 61. Load V. Green, 179. Lobdell V. Hopkins, 275. V. Horton, 129. Lock V. Sellwood, 30. Locke V. Smith, 21. V. Williamson, 371. Lockhart v. Bonsall, 277, 282. Lockwood Mfg. Co. v. Regulator Co., 234. Loeb V. Peters, 325, 326, 334, 335. Loetfel V. Pohlman, 196. Loeschman v. Machin, 40. Logan V. Le Mesurier, 128. Lombard Water-Wheel Governor Co. v. Paper Co., 156, 238, 266. Lomi V. Tucker, 241. London & N. W. Ry. Co. v. Bart- lett, 330. Lonergan v. Stewart, 8. Long V. Hartwell, 108. V. Hicklngbottom, 244. v. Miliar, 109. V. White, 79. v. Woodman, 179. Loomis v. Bragg, 135. Lorain Steel Co. v. Railroad Co., 136, 141. Lord V. Buchanan, 138. v. Edwards, 242. V. Goddard, 182. V. Thomas, 351. Lorymer v. Smith, 264, 294, 297. Losecco v. Gregory, 50. Louis Cook Jlfg. Co. v. Randall, 56. Louis P. Fromer & Co. v. Stanley, 181. Louisville Asphalt Varnish Co. v. Lorick, 102, 110. Louisville Lithographic Co. v. Schedler, 296. Louisville, N. A. & C. R. Co. v. Iron Co., 278. Lovatt V. Hamilton, 235. Lovejoy v. Michels, 61. V. Murray, 58. Lowe V. Harris, 106. Low V. Pew, 50. Luhrig Coal Co. v. Jones & Adams Co., 291. Lucas V. Dixon, 102. V. Nichols, 277. Lucile Jlin. Co. v. Fairbanks, Morse & Co., 300. Lucy V. Monflict, 299. Ludlum V. Rothschild, 49. Ludwig V. Fuller, 206. Lukens v. Aiken, 189. Lund V. McCutchen, 60. Lundy Furniture Co. v. White, 135. Lunn V. Thornton, 46. Lupin V. Marie, 317. Luthy V. Waterbury, 242. Lydig V. Braman, 105. Lynch v. Curfman, 240, 368. V. Daggett, 127. v. O'Donnell, 127. V. Scott, 225. v. Willford, 145. Lyon V. Bertram, 369, 375. V. Lenon, 8. Lyons v. Britrgs, 176. V. Hill, 296. M Maberley v. Sheppard, 87. McAleer v. Horsey, 185. McArthur v. Bloom, 25. CASES CITED. [The figures refer to pages.] 469 McArthur Co. v. Bank, 169. McBee v. Ceasar, 8. McBride v. Silverthorne, 60. Media V. Drug Co., 259. McCaffrey v. Woodin, 47, 49. McCarren v. JMcNulty, 234. McCarthy v. Henderson, 15. V. Mash, 84. McCarty v. Blevins, 48. McClain v. Davis, 22. MeClintock v. Emlck, 239. McClintock's Appeal, 76. McClung V. Kelley, 128, 260. McClure v. Briggs, 234. V. Jefferson, 29.3, 375. McComb V. Donald's Adm'r, 136. V. Wright, 114. McConnel v. Murphy, 286. McConnell v. Brlllhart, 103, 112. V. Hughes, 60. V. Kitchens, 214. McCorkell v. KarhofC, 178. McCormick v. Basal, 306. V. Hamilton, 349. V. Kelly, 241. V. Littler, 24. V. Vanatta, 378. McCormick Harvesting Mach. Co. V. Balfany, 346. V. Chesrown, 234, 300. V. Cochran, 300. V. Knoll, 369. V. Koch, 141. V. Markert, 348. McCormick Lumber Co. v. Win- ons, 258. McCraw v. Gilmer, 314. McCray Refrigerator & 0. S. Co. V. Woods, 258. MeCrea v. Purmort, 110. McCrillis v. Allen, 52, 196. McCulloch V. McKee, 304. McCullough Bros. v. Armstrong, 291. McDermid v. Redpath, 355. Macdonald v. Longbottom, 106. McDonald Cotton Co. t. Mayo, 320. JXcDonald Mfg. Co. v. Thomas, 240. McElroy v. Seery, 103, 330. JIcElwee v. Lumber Co., 127, 314, 316, 320, 321. McEwan v. Smith, 40, 319, 320. McEwen v. Morey, 61. JIcFarland v. Newman, 233. McFetridge v. Piper, 332. McGill V. Lumber Co., 318, 338. ilcGinnls v. Johnson Co., 277. ilcGrath v. Cannon, 363. V. Gegner, 290, 354. McGraw v. Fletcher, 266. V. Solomon, 194. MacGreal v. Taylor, 15. McGrew v. Produce Ex., 218. McHenry v. Bulifant, 261. 277. 293. JIcHose V. Fulmer, 356. Mcintosh V Brill, 51. Mclntyre v. Parks, 211. Mack v. Story, 135. V. Tobacco Co., 11. Mackaness v. Long, 132. McKanna v. Merry, 18, 19, 20. Mackay v. Dick, 305. McKee v. Bainter, 291. v. Garcelon, 206. Mackellar v. Pillsbury, 149, 201. McKenzie v. Donnell, 23. V. Rothschild, 181. V. Seeberger, 178. V. Weineman, ISl, 185. McKercher v. Curtis, 354. Mackey v. Swartz, 299. McKibbin v. JIartin, 202. McKindly v. Dunham, 304. McKinnell v. Robinson, 210. McKinney v. Andrews, 211. V. Bank, 181. V. Bradlee, 146. McKinnon Mfg. Co. v. Fish Co., 2.50. McKnight v. Dunlop, 84. 470 CASES CITED. [The figures refer to pages.] 141. McLane v. Johnson, 203. McLaughlin v. Marston, 156. V. Plattl, 149. Maclay v. Harvey, 51. V. Perry, 286. Maclean v. Dunn, 112, 339. V. Nicoll, 106, 107. McLellan v. Williams, 253. McMillan v. Fox, 309. T. Larned, 138. MoMinn v. Richmonds, 21. McMuUen v. Helberg, 107. V. Riley, 81. McNaughton v. Wahl, 237. JlcXeal V. Braun, 156. McNeil V. Armstrong, 235. V. Bank, .32. Macomber v. Parker, 128, 129, V. Railroad Co., 77. McPherson v. Lumber Co., V. Walker, .307. McQuaid v. Ross, 255, ^Macullar v. McKlnley, 185. MaddisoQ v. Alderson, 118. Magee v. Billingsley, 204. V. Lumber Co., 235. V. Scott, 221. Magne6. Meineke v. Falk, 69. Melchoir v. MeCarty, 215, 217, 222. Meldrum v. Snow, 146. Mellon V. Davison, 106. Memphis c& L. R. Co. v. Freed, 324. Menken v. Baker, 201. Mentz V. Newwitter, 103. Meorsey Steel & Iron Co. v. Nay- lor, 279. Merchant Banking Co. v. Steel Co., 321, 322. Merchants' Bank of Detroit v. Hibbard, 273, 319. Merchants' Exch. Bank v. Mc- Graw, 120, 169. Merchants' Nat. Bank v. Bangs, 154, 155, 165. Merchants' & Mechanics' Say. Bank v. Fraze, 257. V. Holdredge, 48, 49. Meredith v. Meigh, 88, 89. Merriam v. Cunningham, 19, 20. V. Field, 237, 260, 207. V. Lumber Co., 182. V. Wolcott, 362. Merrick v. Wiltse, 368, 377. Merrick's Estate, In re, 58. Merrill v. Meachum, 203. V. Nightingale, 257. Merrill Furniture Co. v. Hill, 132. .Merriman v. Chapman, 264. V. Machine Co., 355. Merritt v. Clason, 110, 111, 115. V. Robinson, 182. Slerry v. Green, 58. Mersey Steel & Iron Co. v. Nay- lor, 288, 280, 290. Mershon v. Wheeler, 172. Merwin v. Arbuckle, 183. Messer v. Woodman, 149. Messmore v. Lead Co., 360. Metropolitan Nat. Bank v. Bene- dict Co., 10. Mews V. Carr, 114. Meyer v. Amidon, 182. V. Richards, 302. V. Thompson, 91. Meyers v. McAllister, 317. V. Schemp, 79. Meyerstein v. Barber, 205, 336. Miamisburg Twine & 0. Co. v. Wohlhuter, 371, 377. Jlichael v. Bacon, 211. V. Curtis, 79. Jlichaud v. Lumber Co., 170. Jlichigan C. R. Co. v. Phillips, 123. Middlebury College v. Chandler, 18. Middlesex Co. v. Osgood, 274, 275. CASES CITED. lTii<= figures refer to p^g&s.] Middlesex Water Co. v. Kiiapji- mann Wt.t.^g Co., SOS. Migbell T. D J :^'ijerty. T'J. Mihills Mi'L'. Co. V. Day, i'i. MUbum Mfg. Co. v. Peak, 10. Miles, Ex parte, -^1.2. T. ijoiroi.. S13, S21, .32.0. V. MUler, 3 -"4. Mil gate T. Iveliljle. 342. Millard t. AS^i.ster. .i.2^j. 330. Mili-DaiQ F'ju;.lr/ v. Hovey, 22b. Miller T. AmiLoii, 213, 220. T. Barber, 190. V. Ei^cLanan, 175. T. Hyde, J^. V. Moore, 2-50. V. Post. 213. 21i v. I;.:<.ee, 2-. T. .^ ::,JIiail, 127. 157. T. Smith, IS. V. iiz-z"eii~. 7fj. V. Tifiany. 2.>3. Miller Brewing Co. v. De France, 225. Milliken v. Ea^'iall. 369. V. Warreii. 316. 320. Mills V. Hunt, ii. V. W;lI:i:-'=. 216. Mllnes V. Gery, OCi. Milwaukee B-i'er Co. v. D'inc:.:i. 2."'.. Jllnn&.Vita Thresher Mfg. Co. v. Hanson, 371. Mr cr V. Bradley, 361. 363. Ml'.:: T. V^-o-lrolk. IS-i. M -,: esro'is Threshing Mach. Co. V. Hutchlngs. 301. M:r.:.eE;'-lls & .St. L. R. Co. v. Mill Co.. ."1. Minock T. SLortriage. 17. Mlrr.'.ita V. Bf'.nk. 1^J4. IGo, 1€6. 100. 17n. 171. Mis.sissippi River Lagging Co. v, M''Ier. ]?■"■.. M.-- -sippi i T. R. Co. V. GreeiL 3 111. Ml?=- Tiri Pac Pw. Co. t. Helden- heimer, 336. MitcLfell T. Baker, 105. V. Glle, 12. V. LeClalr, l.'o. 209, 345. T. Plnckiiey, 239. T. .--.th, 213. T. ■\V:i.,low. 4S. Mixer T. Hov.arth. 07. Moa'jes t. XichcN-ii. 168. Mollis Fruit & Tr ;.r..g Co. v. Mc- Guire. 150. 2-::. 27'. ■-■:^.i. Mockbee v. Garlner. 245. Mody V. Greg-SoiL 24S. 207. M-fnt-West Drag Co. v. Eyrd, 359. MoLney v. EvaiLS. 19. 20. Mohr T. Miesf^ti, 2:S. V. Railroad Co., 3-30. Mollne-MUbum Co. t. Franklin, 1S5. Mollne Plow Co. v. Carson. 17S. MolTon V. CaLaroux. 22, 24. Moller T. Tuska, ISS. Monarch Cycle M:.-. Co. t. VTLeel Co., LIJl. Mondel t. S:m1. 375. 370. M'-.ii V. Vi'Lltienliury. 40. Monroe v. Hl.lrox. MulL & HDl Co., 206. V. Hoe. 3o3. Monte Allegr-r. The. 24.5. Al'jntgoiaery Fumlt'ire Co. v. Harda->vaT. 123. M'.ntreil v. Thayer. 1S4. Montreal Kiver Lun^t-rr Co. v. Mi- bill?, 1S3. Moody T. Blake, 52. 196. V. Erov,-ii. 101. 346. V. Wrights 40. 49. Mooney t. D-aTls. 1.S4. Moore t. Campbell, lO'S, 117. V. Her-hey, 22. y. Ke:-J.ll. 221. V. K.-.ger. 241. 259. V. L've. S4. V. AIcKinlay. 2-53. T. Mountca>.->. 1(1. T. Potter. 340, 343. T. U. S.. 2S6. CASES CITED. [The figures refer to pages.] 473 Moors V. Dniry, 37, 172. V. Kidder, 11, 43, 107, 171, 172. V. Wyman, 171, 172. Morehouse v. Comstock, 237, 371, 375. Morey v. Medbury, 124. Morgan v. Bain, 308. V. Dod, 10. V. Gath, 284. V. Kidder, 141. Morison v. Gray, .324. Morley v. Attenborough, 243, 244, 2.13. Morrill V. Blaclvman, 180. V. Noyes, 49. Morris v. Supplee, 356. V. Talcott, 185. V. Ti.'legraph Co., 218. V. Thompson, 175, 244. V. Wibaux, 286. V. Winn, 127. Morrison v. Dingley, 149. V. Koch, 176. V. Woodley, 149. Morrissey v. Brooma), 218. Morritt, In re, 10. Morrow v. Reed, 127, 129. Morse v. Bracliett, 191, 364. V. Ely, 1.5. V. Moore, 251, 371, 372. V. Shaw, 178. V. Sherman, 123, 345. V. Stockyard Ck)., 250, 258, 372. Mortimer v. Mr-Callan, 49. Morton v. Dean, 71, 109, 114. V. Lamb, 209. V. Tibbett, 87, 89, 02. Mosby V. Goff, 130. Moses V. Mead, 202. V. Rasin, 325, 355. Moss V. Sweet, 145, 146. Mottram v. Heyer, 337. Moulton V. Mfg. Co., .361. Moultrie Repair Co. v. Hill, 266. Mount Hope Iron Co. v. Buffinton, 127. Mowbray v. Cady, 144. Mowry v. Kirk, 278. Mottram v. Heyer, 337. Mueldow V. Mangles, 161. Muller V. Bno, 308. V. Pondir, 324. -Mummenford v. Randall, 54. Munford v. Kevil, 374. Munroe v. Warehouse Co., .37. Munson v. Washburn, 18. Murch V. Wright, 135, 137 Murchie v. Cornell, 200. Murphy v. Boese, 113. V. McGraw, 239. Murray v. Tolman, 177. Musjvegon Curtain-Roll Co. v. Mfg. Co., 351. Mutual Life Ins. Co. v. Hunt, 23. Myer v. Wheeler, 2S0. Myers v. Meinrath, 221. V. Knabe, 23. V. Smith, 51. N Nash V. Brewster, 149. V. Lull, 302. V. Stevens, 199. V. Towne, 104, 301. National Bank v. Dayton, 154. V. Railroad Co., 37. National Bank of Bristol v. Rail- road Co., .3.34. National Bank of Commerce v. Bank, 170. V. Railroad Co., 35, 125, 133. National Cash Register Co. v. Dehu, 56. V. Petsas, 139. National Coal Tar Co. v. Gaslight Co., 350. National Commercial Bank v. Transportation Co., 34. National Contracting Co. v. Ce- ment Co., 200. National Cotton Co. v. Young, 255. 474 CASES CITED. [The figures refer to pages.] National Jlach. & T. Co. v. Ma- chine Co., 200. Xational Oil Co. v. Rankin, 2.>5. National School Furnishing Co. V. Cole, 11. Nattin v. Riley, 139. Nauman v. Ullman, 237. Xavassa Guano Co. v. Guano Co., 2S0. Xavulshaw v. Brownrigg, 42. Neal V. Boggan, 345. V. Flint, 237. V. Hardware Co., 3.59. V. Williams, 2ij3. XeMott V. Macfarland, 192. Nefe V. JlcXeeley, 374. Xegley t. Jeffers, lOs. Xeidefer v. Chastain, 3G2. Neimeyer Lumber Co. v. Railroad Co., 37, 151 ;, 1.57. -324. Xeis r. O'Brien, 343. Xeldon v. Smith, 235. Nellls V. Clark, 2(:i3. Xelson T. Brown, 8. V. Duncomhe, 24. V. Martin, 17S. V. Overman, 2D5. X. Rail Co., .3.50. Xesliit V. Burry, 128. Xettleton v. BeT-li, 1S2. V. Sikes. 74. Xevels V. Lumber Co., 245. X'eviU, In re, 11. X^ewljerry v. Railroad Co., o2. V. Wall, 115. Newcomb t. Bamer, 77. V. Brackett, 3ii7. V. Railroad i.'o.. 105. Newell V. Cannin;: Co., 283. V. Rndf-ril, ]03. V. R.-iutl.ill, 170. Xew EnL'land Dressed Meat & ■Wood ("v. V. Worsted Co., 106, 112, HO. 1.50. New England Iron Co. v. Rail- road Co., 345. Xew England Trust Co. v. Abbott, GO. 233. 361. Newhall v. Kingsbury, 1.38. V. Langdon, 149. V. Railroad Co., 334. V. Yarga.s. 324. 32S, 337. 338. X'ew Hampshire Mut. Fire Ins. Co. V. X'oyes, 17. X'CTv Haven Wire Co., In re, 172. Xew Home Sewing-Mach. Co. v. Bothane, 130. X'ewman v. ilorris, 64. X^ewson V. Thornton, 325. X'ew V. Swain, 315. X'evrton v. Bronson, 100. V. Fay, 9. Xew York Security & Trust Co. v. Lipman, 42. Xew York Tartar Co. v. French, 293. Xibert v. Baghurst, 215. Xicbol v. Gndt = , 248. Xieholls V. McShane, 185. Xichols V. Ashton, 134, 136, 138. V. Bancroft, 199. V. Johnson, 103. V. Michael, 191. Xicholson v. Bower, 87. V. Bradfleld Union, 283. v. Taylor, 128. V. Wilborn, 19. 20. 21. Xirkerson v. Darrow, 41. XickoU V. Ashton, 310, 355. Xiell V. Morley. 22. Xiemeyer v. Wright, 213. 214. Xightingale v. Eiseman, 285. Ximrod. The, 250. Xixa Canning Co. v. Grocer Co., Xixon v. Brown, 32. X'oah V. Pierce, 123. Xoakes v. Morey. 98. Xoble V. Bosworth, 78. V. Smith, 12. V. Ward, 108. Xoel V. JIurray. 303. V. Wheatly, 240. CASES CITED. tThe figures refer to pages.] Norfolk S. R. Co. v. Barnes, 158. Norfolk & New Brunswick Ho- siery Co. V. Arnold, 186. Norman v. Phillips, 89, 91. Norrington v. Wriglat, 250, 278, 282, 286, 287, 288, 289, 290, 367. Norris v. Blair, 106. V. Harris, 3(i3. North V. Forest, 73. V. Mallory, 305. V. Mendel, 100. Northern Cent. E. Co. v. Wal- worth, 361. Northern Pac. Lumbering Co. v. Kerron, 126, 127. Northern Supply Co. y. Wangard, 375. Northern Trust Co. v. Markell, 361. Northington-Munger-Pratt Co. v. Warehouse Co., 50. North Pac. Lumbering & Mfg. Co. V. Kerron, 126. North Pennsylvania R. Co. v. Bank, 33. Northrup v. Cook, 88. V. Foot, 215, 220. Northwestern Cordage Co. v. Rice, 250, 371, 373. Northwestern Lumber Co. v. Cal- endar, 239. Northwestern Mut. Fire Ins. Co. V. Blankenship, 23. Norton v. Davison, 99. V. Dreyfuss, 374. V. Gale, 105. V. Melick, 10. Norwegian Plow Co. v. Clark, 11. V. Hanthorn, 99. Nottingham Coal & Ice Co. v. Preas, 356. Nutter V. Wheeler, 11. Nutting V. Nutting, 138. Nye V. Alcohol Works, 371. V. Daniels, 138. 475 Oakes v. Merrifield, 224. Oakland Sugar Mill Co. v. Fred W. Wolf Co., 371. Oberdorfer v. Meyer, 104. Ober V. Smith, 56. O'Brien v. Jones, 247. V. Norris, 326. O'Bryan v. Fitzpatrick, 215. O'Connor's Adm'x v. Clark, 32. Odell v. Leyda, 8. V. Railroad Co., 129, 155. Odessa Tramways Co. v. Mendel, 223. O'Donnell v. Leeman, 106, 109. V. Sweeney, 220. V. Wing & Son, 144. O'Donnell & Duer Brewing Co. v. Farrar, 176. O'Farrel v. McClure, 120. O'Gara v. Ellsworth, 354. Ogg V. Shuter, 158, 164, 1G5, 169. Ogle V. Atkinson, 165. V. Earl Vane, 355. Oglesby Grocer Co. v. BIfg. Co., 103. O'Herron v. Gray, 31. O'Keefe v. Leistikow, 149. Olcese V. Fruit & Trading Co., 345. Olcott V. Bolton, 183, 186. Old Colony R. Corp. v. Evans, 110. Oliver v. Hunting, 110. V. Oliver, 175. Ollivant v. Bayley, 55, 258. Olmstead v. Niles, 75. Olson V. Sharpless, 109, 354. Olyphant v. Baker, 123. Omaha Coal, Coke & Lime Co. v. Fay, 258. O'Neil V. Grain, 105. V. Garrett, 333. V. Mining Co.. 69. V. Vermont, 157. Oppenheim v. Russell, 327. Orcutt V. Nelson, 212, 225. V. Rickenbrodt, 140. 476 CASES CITED. [The figures refer to pages.] Oriental Bank v. Haskins, 203. Orruun v. Hager, 69. Ormond v. Henderson, 2S3. Ormrod v. Huth, 182. Ormsby v. Budd, 2;jf). O'Rourke v. Hadcock, 139. Osborn v. Lumber Co., 142. V. Nicholson, 242. Osborne v. JIoss, 203. Osgood V. Lewis, 240, 250. V. Skinner, 347. Osterhout v. Roberts, 58. Oswego Starch Factory v. Lend- rum, 179, 194. Otis V. Cullum, 362. Ott V. Sweatman. 137. Owens T. Lewis, 74, 75. V. Sturges, 368. V. Weedman, 313, 315. Oxendale v. Wetherell, 57, 284. Pacific Iron Works v. Railroad Co., 1.-5. Pacific Lounge & Mattress Co. v. Rndebeck, 120. Packard v. Dunsmore, 207, 272. V. Richardson, 104. Paddock v. Strobridge, 175. Paddon v. Taylor, 194. Page V. Cpi-penter, 150. V. Cowasjee Eduljee, 339, 342. V. Mo]-,c:iu, 90. Pagley v. Findlny, 343. Paine v. Cave, 51. V. Sherwood, 3r,7, 358. Palmer v. Banf5eld, 145. V. Hand, 124, 320. V. Howard, 135. V. Stephens, 111. Pancake v. George Campbell Co., 300. Pangborn v. Westlake, 213. Pardee v. Kanaday, 307, 308, 345. Park V. Darling, 30. V. Richardson & Boynton Co., Parker v. Baxter, 132, 193. V. Byrnes, 179, 315, 319. V. Marco, 22. V. Marvell, 201. V. Palmer, 263, 298. V. Parker, 102. V. Pettit, 307. V. Russell, 307. V. Schenck, 68. V. Staniland, 74. V. Wallis, 87. Parkinson v. Lee, 255, 265. Parks V. Hall, 315, 321. V. Tool Co., 375, 378. Parman v. Marshall, 128. Parmlee v. Adolph, 182, 183, 197. Parry v. Libbey, 207. Parry Mfg. Co. v. Tobin, 369, 375. Parshall v. Eggart, 10. Parsons v. Loucks, 68. V. Sutton, 356, 358. V. Webb, 28. Parsons Band-Cutter & Self-Feed- er Co. V. Mallinger, 266, 267. Parton v. Crofts, 101, 117. Pasley v. Freeman, 187, 240, 243. Passenger v. Thorburn, 379. Patorson v. Task, 38. Pateshall v. Tranter, 371- Pattee v. Greely, 215. Patten v. Glatz, 178. V. Thompson, :y2o. Patten's Appeal, 33S. Pattison v. Culton, 336. Pattison's Appeal, 70. Patton V. Gardiner, 50. Paul V. Dod. 345. V. Hadley, 175. V. Kenosha, 362. V. Reed, 122, 12-4, 125, 132. Pawelski v. Hargreaves, 69 Payne v. Rodden, 246. V. Whale, ."CS. P. Cos Shoe Mfg. v. Adams, 184, 185. Peabody v. BIoGulre, 1.3.3. V. Maguire, 125, 132. CASES CITED. [TTie figures reler to pages.] 477 Peabody v. Speyers, 72, 73, 101. Peace River Phosphate Co. y. Bradstreet, 358. V. Graffln, 288, 35.8. Pearce v. Brooks, 210. V. Gardner, 110. Pearson v. Dawson, 320. Pease Car & Locomotive Works, In re, 206. Pease v. Gloahec, 194. Peck V. Jenison, 177. Peck & Co. V. Corrugating Co., 351. Peek V. Gurney, 176, 183, 184. Peer v. Humphrey, 27. Peerless Glass Co. v. Tinware Co., 54. Peltier v. Collins, 107, 115. Pemberton v. Dean, 238. Pembroke Iron Co. v. Parsons, 286. Pence v. Langdon, 189, 197. Penhallow v. Dwight, 77. Penley v. Bessey, 127. Penn v. Bornman, 214, 220. V. Smith, 340. Penniman v. Hartshorn, 112. Pennington v. Howland, 234. Pennock v. Coe, 48. Pennsylvania Co. v. Holderman, 291. Pennsylvania R. Co. v. Oil Works, 327, 338. Pennypacker v. Umberger, 302. People's Bank v. Bogart, 175. People's Furniture & Carpet Co. V. Crosby, 139. People's Ice Co. v. The Excelsior, 80. People V. Sup'rs, 181. Peoria Grape Sugar Co. v. Bab- cock Co., 103, 105. V. Turney, 258. Peoria Mfg. Co. v. Lyons, 11. Perkins v. Bell, 298. v. Grobben, 140. V. Whelan, 246. Perley v. Balch, 189, 370. Per)i):an v. Sartorius, 276. Perrin v. Reed, 201. V. Wilson, 19. Perrine v. Barnard, 317, 320. Perry v. Bank, 172. V. Iron Co., 282. V. Pearson, 197. Persse, In re, 24. Petch V. Tutin, 47. Peters v. Cooper, 349. V. Elliott, 170. V. Fleming, 17, 18, 20. V. Grim, 222. Peters Box & Lumber Co. v. Lesh, 53, 196. Petersen v. Lumber Co., 361. Pettigrew v. Chellis, 182. Pettitt V. Mitchell, 295. Phelps V. Comber, 337. V. Hubbard, 269, 274, 340. V. Stillings, 105. V. Worcester, 18. Phelps, Dodge & Palmer Co. v. Samson, 195. Phenix Iron Works Co. v. Mc- Evony, 192. 193, 195'. Phifer v. Erwin, 59, 60. Philadelphia Whiting Co. v. White Lead Works, 295. Philadelphia, W. & B. R. Co. v. Woelpper, 49. Philadelphia & R. Ry. v. Wire- man, 156, 165. Philbrook v. Eaton, 364. Philips v. Reitz, 201. Phillips V. Bistolli, 54, 91, 92, 94. V. Huth, 39. V. Lloyd, 18. V. Mills, 8S, 102, 149. V. Moor, 123. Phillpotts V. Evans, 350. Philpot V. Mfg. Co., 17. Phippen v. Hyland, 110. Phlpps V. Buckman, 186. V. McFarlane, 70. Picard v. McCormick, 12, 177. 478 CASES CITED. [The figures refer to pages.! Pickard v. Sears, 30. Pickering v. Bardwell, 340. V. Busk, 32. V. Railroad Co., 224. Pickett V. Bullock, 814. V. Cloud, 123. Pierce v. Cooley, 144. V. Corf, 109, 115. V. Wilson, 190. Plerson v. Crooks, 294, 295, 296, 374. Pike V. Balch, 71, 114. V. King, 220. Pike Electric Co. v. Drug Co., 70. Pilgreen v. State, 156, 158. Pinney v. Railroad Co., 277. Pitkin V. Noyes, 69. Pitney v. Insurance Co., 99. Pitts V. Beckett, 106, 107. Pittsburgh, C. & St. L. R. Co. v. Heck, 350. Pittsburgh Plate Glass Co. v. Ker- lin Bros. Co., 2S4. Pitts' Sons JIfg. Co. V. Poor, 144. Pixiey V. Coynton, 219. P. J. Bowliu Jjiquor Co. v. Beau- doln, 156. Plaisted v. Palmer, 217, 221. Piatt V. Brand, 306. Playford v. Mercer, 280. Pleasants v. Pendleton, 149, 150. Plunkett V. Plunkett, 203. Plymouth Stove Foundry Co. v. Fee, 137. Poland V. Brownell, 177, 187. Polenghi v. Milk Co., 265. Polhemus v. Heiman, 2S4, 365, 371, 375. I'olhill V. Walter, 183. I'ollard V. Reardon, 37. Pollen V. Le Roy, 341. IN.nder v. Cotton Co., 218. Poole V. Railroad Co., 330. Poor V. Woodburn, 194. Pope V. Allls, 230, 250, 251, 264, 294, 366, 367. V. Mfg. Co., 277. Pope V. Porter, 2.88. Poplett V. Stockdale, 209. Port Carbon Iron Co. v. Groves, 258. Porter v. Bridgers, 142. V. Bright, 245. V. Pool, 237, 377. V. Rose, 269. Portland Flouring Mills Co. T. Insurance Co., 160. Posey V. Scales, 209, 278. Post V. Corbin, 49. Potomac Bottling Works v. Bar- ber & Co., 354. Potsdamer v. Kruse, 363. Potter V. Easton, 237. V. Lee, 209. V. Mill Co., 7. V. Taggart, 190. Potts V. Bell, 212. V. Railroad Co., 321, 326. V. Whitehead, 51. Poulton V. Lattimore, 371. Powder River Live Stock Co. v. Lamb, 84. Powell v. Bradlee, 179. V. McAsham, 79. Power V. Barham, 239, 240, 241. Powers V. Benedict, 190. V. Dellinger, 123. Prairie Farmer Co. v. Taylor, 144. Prater v. Campbell, 76. Pratt V. JIfg. Co., 341, 347, 350. V. Miller, 70. V. Parkman, 207. V. Peck, 161. V. Philbrook, 190. Pray v. Burbank, 213, 214. V. Jlitchell, 72, 73. Preist V. Last, 250. Prentice Co. v. Page, 41. Prentice v. Fargo, 2,i5. Prescott V. Locke, 69. Presnahan v. Nugent, 199. Preston v. Crofut, 203. V. Foellinger, 52. V. Smith, 60. CASES CITED. [The figures refer to pages.] 479 Price V. Engelke, 283. V. Fui-man, 15. V. Insurance Co., 36, 42. V. Sanders, 19. Priehett v. Cook, 7. Prideaux v. Bunnett, 55. Prime v. Cobb, 28. Pritcliett V. Jones, 127. Proctor V. Jones, 86. V. Sears, 17. V. Tilton, 139. Providence Coal Co. v. Coxe, 289. Prussia, The, 169. Puckett V. Reed, 273. Puget Sound Mach. Depot v. Eig- by, 69. Puiiock V. Tschergi, 94. Puritan Coke Co. v. Clark, 346, 348. Puritan Mfg. Co. v. Westermire, 251. Pumer v. Piercy, 76, 78. Putnam v. Glidden, 301, 313, 343. Putney v. Day, 75. Pyne v. Wood, 18. Q Queen City Glass Co. v. Clay Pot Co., 257. Quinn v. Machinery Co., 135. Quintard v. Bacon, 88. Quis V. Halloran, 239. Raffles V. Wichelhaus, 53. Ragsdale v. Shipp, 239, 241. Rahilly v. Wilson, 7. Rahter v. Bank, 214. Rail V. Lumber Co., 123, 127. Rainsford v. Fenwick, 19. Rainwater v. Durham, 19. Rand v. Mather, 224. Randall v. Newson, 257, 259, 265. V. Raper, 379. V. Rhodes, 237. Randle v. Stone & Co., 142. Randolph Iron Co. v. Elliott, 52. Raudon v. Toby, 220. Ranney v. Higby, 156. Raphael v. Burt, 243. Rappleye v. Adee, 86, 96. V. Seeder Co., 308. Rastetter v. Rej-nolds, 347. Ratzer v. Railroad Co., 35. Rawlins v. Wickham, 188. Rawson v. Harger, 182. V. Johnson, 269. Ray V. Light, 59. V. Thompson, 145, 146. Read v. Hutchinson, 12. Reager v. Kendall, 179. Redgrave v. Hurd, 186. Redhead Bros. v. Investment Co., 347. Redlands Orange-Growers' Ass'n V. Gorman, 278, 300. Redmond v. Smock, 341. liedus V. Holcomb, 106. Reed v. Brewer, 211. V. Jewett, 204. V. Randall, 374. V. Reed, 205. Reeder v. Jlachen, 149, 153. Reese River Silver Min. Co. v. Smith, 182, 190. Reeve v. Dennett, 187. Reeves v. Sebern, 9. Reeves & Co. v. Byers, 266. Reggio V. Braggiottl, 377. rteherd's Adm'r v. Clem, 8. Reid V. Glass Co., 105, 108. V. Kentworthy, 106. V. Lloyd, 181. V. MacBeth, 161. Reid, Murdoch & Co. v. Bird, 195. V. Kempe, 184. Remick v. Sandford, 92, 107, 115. Rentch v. Long, 69. Renz, In re, 24. Restad V. Engemoen, 126. Reuss v. Picksley, 105, 111. Reuter v. Sala, 283. Reybold v. Voorhees, 289. 480 CASES CITED. [The figures refer to pages,] Reynell y. Sprye, 223. Reynolds v. Electric Co., 259, 2GG. V. Miller, 59. V. Palmer, .572. V. Railroad, 325, 326, 337. V. Stevenson, 216. Rheinstrom v. Steiner, 300. Rhind v. Freedley, 2.'9. Rhoades v. Castner, 109. Rhodes, In re, 14, 24. V. Mooney, 319. Rice V. Butler, 10. V. Churchill, 27.5. V. Codman, 210. V. Forsyth, 2.j5. V. mil;. Co., 45. V. Nixon, 7. V. Stone, 46. Richards v. Schreiber, Conchar & Westphal Co., 140. V. Shaw, 57, 284. Richardson v. Cooper, 108. V. Dunn, 57. V. Goddard, 215. V. Grandy, 371. V. Insurance Co., 123. V. Olmstead, 8. V. Strong, 24. Richardson Drug Co. v. Teasdall, 139. Richmond v. Moore, 215, 216. Richter v. Stock Co., 361. Rickard v. Moore, 90. Rickey v. Tenbroeck, 84, 340. Riddle v. Keller, 217. V. Varnum, 128, 129. Rider V. Kelley, 161. Ridgeway v. Herbert, 15. Ridgley v. Mooney, 341, 349. Ridgway v. Ingram, 109. V. Wharton, 109. Riford V. Montgomery, 28. Riggan v. Green, 23. Riggs V. Magruder, 72. Rlghtor V. Roller, 182. Riley V. Bank, 10. V. Farnsworth, 106. Riley t. Mallory, 15, 16. V. Water-Power Co., 28. V. Wheeler, 123, 125. Rindskopf v. Myers, 100. Rinehart v. Olwine, 345. Ripley V. Chase, 178. Ritchie v. Smith, 214. Rivers v. Gregg, 20. Uoalswick, In re, 38.5. Robbins v. Clark, 233. Roberts v. Anderson, 203. V. Applegate, 240. V. Boatty, 284. v. Benjamin, 3.55. Robertson v. Vaughn, 68. Robeson v. French, 220. Robinson v. Fairbanks, 145, 146. V. Green, 81. V. Harvey, 239. V. Hoskins, 17. V. Hyer, SCO. V. Levi, 181. V. MacDonnell, 47. V. Jlorgan, 315, 321. V. ATeeks, 15. V. Weller, 51. Robison v. Tyson, 200. Robson V. Bohn, 289. 200. Roby V. We.st, 220, 225. Rochester Distilling Co. v. Rasey, 48. Rochester & O. Oil Co. v. Hughey, 160. Rockford R. I. & St. L. R. Co. v. Lent, 283. Rock Island Plow Co. v. Meredith, 208. Rodger v. Comptoir d'Escompte, .335. Rodgers v. Bachman, 136. V. Jones, 94, 95. V. Niles, 259, 260. v. Phillips, .88. Rodliff V. Dallinger, 53, 196. Rodman v. Thalheimer, 179. Rodwell V. Phillips, 75. CASES CITED. [The figures reter to pages.] Roebling's Sona' Co. v. Fence Co., 340, 351. Roehl V. Haumesser, 113. Roehm v. Horst, 306, 351. Rogers v. Burr, 73. V. Dutton, 196. V. Hanson, 369. V. Thomas, 326. V. Whitehouse, 135. V. Woodruff, 236. Rohde V. Thwaites, 153. Roland v. Gundy, 29. Rollins Engine Co. v. Forge Co., 237, 260. Rommel v. Wingate, 159, 282. Rondeau v. Wyatt, 63, 65. Roosevelt v. Nusbaum, 11. Roots V. Dormer, 81. Roper V. Johnson, 306, 355. Ropes V. Lane, 149. Roscorla v. Thomas, 237. Roseman v. Canovan, 176. Rosenbaums v. Weeden, 340. Rosenfield v. Swenson, 374. Rosenthal v. Kahn, 128, 129. Rosevear China Clay Co., Ex parte, 328, 331. Ross-Meehan Brake-Shoe Co. v. Ice Co., 138. Ross V. Welch, 78. Roth V. Palmer, 188. V. Taysen, 351. Roughan v. Block Co., 378. Routledge v. Grant, 51. Rovegno v. Defferari, 54. Rowan v. Jlfg. Co., 47. Rowe V. Osborne, 117. V. Sharp, 8, 137. Rowley v. BIgelow, 194, 324, 327, 329, 332, 338. V. Rice, 47. Rubin V. Sturtevant, 368, S65, 366, 367. Rucker v. Donovan, 326, 337, 338. Ruckman v. Bergholz, 214. Ruff V. Jarrett, 185, 376. Rugg V. Minett, 81, 126, 309. Tiff. Sales(2dEd.)— 31 481 Rugg V. Moore, 288, 290. Rumpf V. Barto, 31. Rupley V. Daggett, 54. Rusk V. Fenton, 23. Russell V. Carrington, 149. V. O'Brien, 207. V. Post, 212. V. Railroad Co., 70. Rutan V. Ludlam, 377. Ruthrauff v. Hagenbuc, 6. Ryan v. Railroad Co., 35. V. Smith, 19. V. U. S., 109. V. Wayson, 141. Ryder v. Neitge, 262. V. Wombwell, 17, 18, 20. Safford, Es parte, 86, 87, 94, 95. V. Grout, 185. V. McDonough, 94, 95. Sage V. Lumber Co., 43. Sainsbury v. Matthews, 74. St Louis Fair Ass'n v. Carmody, 211. St. Paul Harvester Co. v. Nicolin, 10. St. Paul Roller Mill Co. v. Dis- patch Co., 335. St. Paul & Minneapolis Trust Co. V. Howell, 96. Saladin v. Mitchell, 340. Salamons v. Nissen, 334. Sale V. Darragh, 115. Salisbury v. Stainer, 255. Salmon v. Boykin, 283. Salmon Falls Mfg. Co. v. God- dard, 103, 106, 109, 111. Salomon v. Hathaway, 139. V. King, 89. Salte V. Field, 331. Salter v. Burt, 279. V. Woollams, 274. Saltus V. Everett, 28, 31. Sample v. Bridgforth, 55. Samples v. Guyer, 189, 191. 482 CASES CITED. [The figures refer to pages.] Sams V. Stockton, 18. Samuel Bowman Distilling Co. v. Nutt, 225. Samuel M. Lawder & Sons Co. v. Grocery Co., 156, 157. Sanborn v. Benedict, 350. V. Flagler, 103, 105, 111. V. Shipherd, 269. Sanderlin v. Trustees, 71, Sanders v. Jameson, 299. V. Johnson, 216. V. Keber, 136. V. »IcLean, 33, 272. Sandford v. Ferry Co., 162. V. Handy, ITS. Sands v. Lyon, 279. V. Taylor, 340. Sanger t. Waterbury, 129. Sarbecker v. State, 156, 291. Sargent v. Currier, 244. V. Gile, 8. V. Sturm, 194. Sari V. Bourdillon, 104. Sattler v. Hallock, 10. Sauerman v. Simmons, 240. Saunderson v. Jackson, 101, 109, 111. Saunders v. Short, 284. V. Topp, 83, 86, 94, 298. Sawyer v. Dean, 294, 340. V. Fisher, 314. V. Lufkin, 24. V. Ware, 71. Saxe V. Lumber Co., 354. Sayles v. Wellman, 216. S. Blaisdell, Jr., Co. v. Bank, 173. Scales V. Wiley, 71, 79. Scammon v. Bowers, 49. Scarfe v. Morgan, 216. Scarnes v. Spencer, 112. S. C. Forsaith lUach. Co. t. Men- gel, 145. Schaps V. Lehner, 23. Scharff v. Meyer, 133, 169. Schenek v. Saunders, 7. Scheuer v. Goetter, 194. Schlesinger v. Stratton, 145, 146. Schliess v. Grand Rapids, 235. Schloss T. Feltus, 195. Schmertz v. Dwyer, 156. Schmidt v. Thomas, 89, 9L Schneider v. Norris, 111. Schofield V. Shifter, 102. Schotsmans v. Railroad Co., 327, 328, 338. Schramm v. O'Connor, 177. V. Sugar-Refining Co., 350. Schram v. Strouse, 185. Schreyer v. Lumber Co., 154. Schuchardt v. Aliens, 263. Schurmeier v. English, 376. Schutz V. Jordan, 57, 58. Schuyler v. Russ, 241. Scofield v. Elevator Co., 10. Scoggin V. Slater, 76. Scollans v. Rollins, 28, 31. Scorell V. Boxall, 75. Scott V. England, 345. V. Mfg. Co., 241. V. Perrin, 178. V. Railroad Co., 64, 85. V. Raymond, 371. V. Wells, 129. Scotten V. Sutter, 91. Scott Mining & Smelting Co. t. Shultz, 7. Scranton y. Clark, 244. Scrivener v. Railroad Co., 322. Scroggin v. Wood, 183. Scudder v. Bradbury, 123. v. Steamboat Co., 161. V. Worster, 149. Seanor v. McLaughlin, 140. Searles Bros. v. Grain Co., 172. Seath V. Moore, 120, 122, 126, 158, 161. Seaver v. Dingley, 187. V. Phelps, 22, 23. Seavey v. Walker, 201. Seavy v. Potter, 189. Sebastian May Co. v. Codd, 12. Secomb v. Nutt, 326. Second Nat, Bank v. Cummings, 170. CASES CITED. [The figures refer to pages.] 483 Security Bank v. Luttgen, 170, 171. V. Storage Co., 36. Sedgwick V. Cottinghain, 129, 130, 154. Seed V. Lord, 125. Seeley v. Welles, 234. Seeligson v. Pbilbrick, 169. Segrlst V. Crabtree, 135. Seidenbender v. Charles, 214. Seiple V. Irwin, 304. Seisel v. Wells, 179. Seitz V. Machine Co., 287. V. Refrigerating Co., 258. Seixas v. Wood, 251. Selby V. Selby, 111. Sellers v. Stevenson, 255. Sentell v. Mitchell, 57. Senter v. Mitchell, 48. Sewall V. Pitch, 68, 113. Sewell V. Burdick, 36, 172. Sexton V. Anderson, 199. Seymour v. Cushway, 75. V. Newton, 324, 329. Shafer v. Russell, 141. Sharman v. Brandt, 113. Sharp V. Carroll, 99. Shattuck V. Green, 244. Shaul V. Harrington, 201. Shaw V. Carpenter, 224. V. Nudd, 354. V. Railroad Co., 33, 35, 36. V. Smith, 60, 161, 258. Shawhan v. Van Nest, 161. Shealy v. Edwards, 61, 129. Shearer v. Nursery Co., 377. Shearick v. Huber, 30. Sheffield Furnace Co. v. Coke Co., 157. Sheffield v. Mitchell, 195. Sheldon v. Capron, 53. V. Cox, 12. Shepard v. King, 273. Shepard & Morse Lumber Co. v. Burroughs, 334, 335. Shepherd v. Gilroy, 237. V. Harrison, 120, 165, 169, 170. Shepherd v. Jenkins, 362. V. Pressey, 88, 89, 91. Shepley v. Davis, 148. Sheppard v. Bank, 40. Sherburne v. Shaw, 103. Sherman Nursery Co. v. Aughen- buagh, 346. Sherry v. Picken, 78. Sherwin v. Mudge, 128. Sherwood v. Walker, 55. Shewalter v. Ford, 241. Shields v. Pettie, 235. Shindler v. Houston, 86, 88, 96, 97. Shipman v. Horton, 15. Shipton V. Casson, 284. Shipway v. Broadwood, 233. Shiretzkl v. Kessler & Co., 240. Shirk V. Shultz, 15. Shufeldt V. Pease, 195. Sbuman v. Heator, 238. Shumway v. Rutter, 206. Shurtleff v. Willard, 204. Sievewright v. Archibald, 101, 116, 117. Siffken v. Wray, 325. Silberman v. Munroe, 185. Sillers v. Lester, 49. Silsby Mfg. Co. v. Chico, 234, 235. Silsby V. Railroad Co., 131. Simmonds v. Humble, 96. Simmons v. Green, 269. V. Swift, 122, 123, 128. Simon v. Metivier, 113. V. Motivos, 71. V. Shoe Co., 183. Simonds v. Fisher, 84. Simpson V. Crippin, 288, 289. V. Krumdick, 86, 91. V. Nicholls, 216. V. Wiggin, 182. Sims V. Marryat, 243. Sinclair v. Hathaway, 262. V. Healy, 194. Singerly v. Thayer, 235. Singer v. Match Co., 54. V. Schilling, 194. 484 CASES CITED. [The figures refer to pages.] Singer Mfg. Co. v. Cheney, 3i7, 350. V. Cole, 134, 135. V. Draper, 221. V. Ellington, 7, 141. V. Summons, 194. V. Smith, 13.5. Sinnott v. Bank, ISO. Sisson V. Hill, 192. Skidmore v. Romaine, 24. Skiff V. Johnson, 211. Skinner v. Hoop Co., ISO, 181, 191. Slack V. Collins, 317. Slade V. Lee, 142. Slagle & Co. V. Goodnow, 180. Slaughter v. Gerson, 187. Slayton v. McDonald, 12. Sledge V. Scott, 178, 186. Sleeper v. Chapman, 44. V. Davis, 190, 194. Sloane v. Shiffer, 192, 193. Sloan V. Railroad Co., 172. S locum V. Seymour, 75. Smalley v. Hamblin, 67. Smart v. Batchelder, 128, 129. Smeed v. Foord, 3.5S. Smethurst v. Woolston, 355. Smiley v. Barker, 108. Smith Y. Aldrich, 135, 139. V. Arnold, 113, 114. V. Baker, 202. V. Bank, 107. V. Banking Co., 306. V. Barber, 140. V. Bean, 221. V. Briggs, 233. V. Bryan, 76. V. Case, 217. V. Chadwick, 185, 186. V. Chance, 274. V. Clews, 32. V. Coe, 263. T. Coimtryman, 176. V. Cuff, 223. V. Dennie, ]32. V. Easton, 115. V. Edwards, 153, 155, 295. V. Fisher, 91. Smith V. Gillett, 274, 276. y. Goss, 320, 331. V. Gowdy, 51. V. Guftord, 138. V. Hale, 369. v. Howell, 112. V. Hudson, 51, 83, 87, 90. V. Hughes, 56, 175. V. Ide, 104. V. Investment Co., 120. V. Jones, 201, 205. V. Jordan, 307. V. Kelley, 17. V. Lewis, 283, 363. V. Lime Co., 354. V. Lynes, 132. V. Newton, 183, 186. V. Pettee, 340, 341. V. Railroad Co., 68. V. Shell, 106. V. Skeary, 199. V. Smith, 179. V. Sparrow, 216. V. Surman, 66, 74, 91, 110. V. Sweeney, 175. V. Thomas, 358. Y. Wheeler, 276, 348. Sraithurst v. Edmunds, 49. Smith, Kline & French Co. T. Smith, 177. Smithpeters y. Griffin, 18. Smith Premier Typewriter Co. v. Stidger, 196. Smith's Adm'r y. Smith, 191. Smoot's Case, 306. Smyth Y. Craig, 60. Sneathen v. Grubbs, 127. Snee y. Prescot, .337. Snelling v. Hall, 2.54. Snider y. Thrall, 97. Snook V. Raglan. 141. Snowilen v. Waterman, 378. Snow V. Jlfg. Co., 242. Y. Terrett, 274. Snydacker v. StubbleJield, 8. Snyder v. Hegan, 198. v. Wolford, 113. Soffe Y. Gallagher, 304. CASES CITED. [The figures refer to pages.l 485 Soltau T. Gerdau, 43. Somerby v. Buntin, 4, 73, 360. Soper Lumber Co. v. Halsted & Harmount Co., 184. Sortwell V. Hughes, 211. Soubegan Nat. Bank v. Wallace, 222. Sousely v. Burns' Adm'r, 269, 275. South Australia Ins. Co. v. Ran- dall, 7. South Baltimore Co. v. Muhlbach, 79. Southern Cotton Oil Co. v. Heflin, 352. Southern Life Ins. & Trust Co. v. Cole, 73. South Gardiner Lumber Co. v. Bradstreet, 356, 358. Southwestern Freight & Cotton Exp. Co. V. Plant, 321. Southwestern Freight & Cotton Press Co. y. Stanard, 123, 313, 315. Spalding v. Ruding, 336. Sparkes v. Marshall, 153. Sparling y. Marks, 368. Spartali y. Benecke, 314. Spauldlng v. Hanscom, 179. Spear y. Bach, 73. Spencer y. Cone, 67. V. Hale, 88, 89. Spickler v. Marsh, 144, 146. Spoon y. Frambach, 138. Spooner v. Baxter, 278. y. Cummings, 136. Sprague, Warner & Co. v. Kempe, 180. Springer y. Drosch, 203. Springfield Engine Stop Co. y. Sharp, 14.5. Stack V. Cavenaugh, 16. Stafford v. Roof, 15. Y. Walter, 291, 293. Standard Furniture Co. v. Van Alstine, 211. Standard Horseshoe Co. V. O'Bri- en, 176. Standard Implement Co. v. Parlln & Orendorff Co., 136. Standard Steam Laundry y. Dole, 138. Standard Wall Paper Co. T. Towns, 92. Stanford v. McGill, 306. Stange v. Wilson, 277. Stanley v. Coke Co., 201. y. Gaylord, 2.8. Stannard v. Burns, 24. Stansfield v. Kunz, 222. Stanton v. Eager, 334, 336. y. Small, 49. y. Willson, 20. Star Brewery Co. v. Horst, 346. Starr v. Anderson, 244. V. Bennett, 181. V. Stevenson^ 180, 194, 195. Startup V. Cortazzi, 355. V. Macdonald, 280. State y. Carl, 158. y. Cowdery, 8. y. Flanagon, 158. y. Goetz, 201. V. Intoxicating Liquors, 158. V. O'Neil, 157. y. Peters, 158. y. Rieger, 8. V. Stockman, 8. V. Weiss, 216. y. Wharton, 120. Staver & Abbott Jlfg. Co. y. Coe, 183. Stead V. Dawber, 107. Stearns v. Hall, 108. V. Washburn, 34-5. Steaubll v. Bank, 148. Stedman y. Gooch, 303. Steel y. Fife, 102. Stein V. Hill, 180. Stephens v. Gifford, 201. Sterling y. Baldwin, 7.5. Stevens v. Brennan, 194 V. Hertzler, 145. V. Kelley, 80. y. Shippen, 162. 486 CASES CITED. IThe figures refer to pages.] Stevens v. Wheeler, 330. V. Wilson, 41, 42. Stevenson v. Burain, 2S2. V. Marble, 182. V. McLean, 51. V. Newnliam, 194. V. State, 13. Stewart v. Emerson, 179, 188. V. Ranche Co., 175. V. Stearns, 186. V. Stone, 309. . Still V. Cannon, 59. Stillwell, Bierce & Smith-Valle Co. V. Canning Co., 371, 377. Stillwell & Bierce Mfg. Co. v. Phelps, 354. Stinson v. Clark, 206. V. Ross, 30. Stockdale v. Dunlop, 119. Stoddard v. Ham, 196. Stokes V. Baars, 289. V. Mackay, 306. Stollenwerck v. Thacher, 41, 165. Stone V. Browning, 88, S9, 91, 94, 105, 106. v. Dennison, 21. V. Marsh, 28. V. Peacock, 149. v. Perry, 12.j, 139. v. Waite, 142. Stoolfire V. Royse, 2G9. Stoppleman v. Paetz, 177. Storz V. Finklestein, 220. StoutenbourgtL v. Konkle, 179, 188. Stoudenmire v. Harper, 56. Stoveld v. Hughes, 320, 321. St. Paul Harvester Co. v. Nicolin, 10. St. Paul Roller-Mill Co. v. Dis- patch Co., 3.j5. St. Paul & Minneapolis Trust Co. v. Howell, 96. Strain v. Mfg. Co., 300. Strand v. Griffith, 177, 178, 187. Straus V. Wessel, 166. Street v. Blay, 365, 368, 369. Strickland v. Graybill, 178. Strickland v. Turner, 45. V. Willis, 180, 184. Strong V. Dodds, 89, 291. V. Doyle, 79. V. Taylor, 136. Stroud V. Pierce, 239. Strouse v. Elting, 109. Stuart V. Pennis, 7.5. Stubbs V. Lund, 328. Stucley V. Baily, 240. Studebaker Bros. Co. v. Man, 136. Studer v. Bleistein, 374. Sturm V. Boker, 10, 145. Sturtevant v. Ballard, 198. V. Orser, 328, 331. Suit V. Woodhall, 127, 156, 211. Sullivan v. Sullivan, 88. Summers v. Hibbard, Spencer, Bartlett & Co., 3u8. V. Vaughan, 237. Sumner v. Cottey, 136. V. Hamlet, 12G. v. Woods, 136. Sun Pub. Co. V. Foundry Co., 294. Sunny South Lumber Co. v. Lum- ber Co., 138. Sutton V. Baker, 11. Sutro V. Rhodes, 362. Suydam v. Clark, 11.5. Swafford v. Spratt, 77. Swain v. Schieffelin, 378. V. Seamens, 107, 108. V. Shepherd, 144. Swallow V. Emery, 142. V. Strong, 109. Swann v. Swann, 216. Swasey v. Vanderheyden's Adm'r, 21. Sweeney v. Owsley, 123. Sweetman v. Prince, 182. Swett V. Colgate, 2.51. Swift V. Bennett, 19. Syers v. Jonas, 2.53, 365. Symns v. Schotten, .330. Symonds v. Hall, 30. Syracuse Knitting Co. v. Blaneh- ard, ISO, 181. CASES CITED. [The figures refer to pages.] 487 Tacoma Coal Co. v. Bradley, 371, 372. Taft V. Chureh, 50. V. Travis, 61. Tailby v. Official Receiver, 48. Talbot Pav. Co. v. GormaD, 374. Talcott V. Henderson, 179. Tallman v. Franklin, 106. Talver v. West, 84. Tancred v. Steel Co., 286. Tanner & De Lancy Engine Co. v. Hall, 140. Tansley v. Tui-ner, 97, 126, 129. Tarling v. Baxter, 122. Tasker v. Crane Co., 299. Tatman v. Humphrey, 49. Tatum V. Kelley, 212. Taylor, Ex parte, 16. V. Bowers, 222. V. Caldwell, 309. V. Fleet, 55. V. Ford, 55. V. Hare, 363. V. Slills, 184. V. Railway, 91, 117, 302. V. Saxe, 307. V. Smith, 90. V. Wakefield, 84. T. B. Townsend Brick: & O. Co. V. Allen, 48. Teague v. Bass, 201. V. Irwin, 178. Teal V. Auty, 75. Telford v. Adams, 203. Telluride Power Transmission Co. V. Crane Co., 255. Tempest v. Fitzgerald, 95. Tennent Shoe Co. v. Stovel' & Brand, 184. Tennent-Stribling Shoe Co. v. Ro- per, 217. Tennessee Coal, I. & R. Co. v. Sargent, 176. Tennessee River Compress Co. v. Leeds, 259. Terhune v. Coker, 178. Terry v. Bissell, 362. V. Wheeler, 120, 127, 142. Textor V. Hutch ings, 307. Thacher v. Moors, 41. Thaxter v. Foster, 194. Thayer v. Lnce, 109. V. Turner, 191. Theiss v. Weiss, 356. Theo. Hamm Brewing Co. v. Young, 225. Thick V. Railroad Co., 296. Third Nat. Bank v. Smith, 37. V. Steel, 109. Thirlby v. Rainbow, 141. Thomas China Co. v. C. W. Ray- mond Co., 368. Thomas v. Shoemaker, 279. Thomason v. Lewis, 140. Thompson v. Alger, 98, 99, 350. V. Brannin, 123. V. Conover, 126. V. Doming, 33. V. Douglas, 57. V. Fairbanks, 49. V. Gaffey, 353. V. Gardiner, 116. V. Gould, 45, 309. V. Harvey, 369. V. Lay, 17. V. Libby, 186, 258, 373. v. Peck, 191. V. Railroad Co., 97, 292, 317. V. Rose, 194. V. Stewart, 328. V. Wedge, 132, 317. Thorns V. Dingley, 377, 378. Thomson v. Poor, 75. Thorne v. McVeagh, 240, 378. Thornton v. Charles, 116. V. Kempster, 53, 105, 110. V. Meux, Moody & M., 116. V. Wynn, 368. Thorpe V. Hanscom, 22. Thorp V. Smith, 183. Thrall v. Wright, 18, 21. Thurman v. Omaha, 233. Thurnell v. Balbimie, 60. 488 CASES CITED. [Tlie figures refer to pages.] Thurston v. Blanchard, 191. Tiedeman v. Knox, 35. Tift V. Wight & Weslosliy Co., 155. Tigress, The, 338. Tilford V. Dotson, 76. Tillock V. Webb, 217. TimkeQ Carriage Co. v. 0. S. Smitii & Co., 250, 267. Tindle V. Birkett, 184. Tingley v. Boom Co., 112. Tipton V. Feitner, 268. Tisdale v. Buckmore, 191. V. Harris, 72. Titcomb V. Wood, 194. Tobin V. Larkin, 104. Todd V. Gamble, 351. Tolerton & Stetson Co. v. Bank, 173. Tomblin v. Callen. 218. Tomkinson v. Staight, 84. Tompkins v. Haas, 81. V. Sheeban, 84. Tone V. Wilson, 182. Tootle V. Bank, 192. V. Petrie, 176. Torkelson v. .Torgenson, 239. Torrey v. Corliss, 155, 225. Totten V. Bui-hans, 182. Toulmin v. Hedley, 20.5, 297. Towers v. Osborne, 63, 66. Towle V. Dresser, 15. V. Larrabee, 215. Towne V. Collins, 29. V. Davis, 120, 123, 124, 142. Townend v. Drakeford, 116. ToTraley v. Crump, 317. Townsend v. Cowles, iSl. V. Harsraves, 87, 93, 96, 101, 118, 123. Tracy t. Talmage, 211, 212. Trainer v. Trumbull, 19, 21. Travers v. Leopold, 9. Treadwell v. Reynolds, 299. Treat v. Hiles, 80. Tregelles v. Sewell, 155. Trigg V. Clay. 3r,6. Triplett V. Implement Co., 135, 136. Tripp V. Armitage, 71, 158. V. Machine Co., 301. Trist V. Child, 223. Troewert v. Decker, 215. Trotter v. Heckscher, 289. Troy Grocery Co. v. Potter & Wrightington, 257. Trudo V. Anderson, 304. Trueman v. Loder, 103. Truschel v. Dean, 261. Tucker v. Humphrey, 324. V. Moreland, 14. V. JNIowrey, 221. V. West, 216, 217. V. Woods, 51. Tufts V. Bennett, 346, 349, 350. V. Brace, 141. V. D'Arcambal, 140. V. Grewer, 161. V. Griffin, 142. V. Lawrence, 161, 352. V. McClure, 277. V. Mining Co., 102. V. Sylvester, 331. V. Wynne, 142. TuU V. David, 113, 114. Tupper V. Cadwell, 19, 20. Turberville v. Whitehouse, 19. Turley v. Bates, 128. lurnbow v. Beckstead, 7. Turner v. Felgate, 30. V. Foundry Co., 144. V. Harvey, 175. V. Hnssins, 175. V. Lorillard Co., 105, 107, 109. V. Mflson, 69. V. Jloore, 12.3. V. Kusk, 22. V. Trisby, 19. V. Trustees, 166, 327. Tustin Fruit Ass'n v. Fruit Co., 340. Tuthill V. Skidmore, 313, 315, 342. Tuttle v. Brown, 240. V. Holland, 211. Twyne's Case, 200. CASES CITED. [The figures refer to pages.] 489 Tyler v. Augusta, 369. V. Carlisle, 222. V. Freeman, 12.5. V. Gallop's Estate, 17. u Uhler V. Semple, 177. Ullman v. Ass'u, 220, 222. UUmann v. Kent, 341. Underwood v. Wolf, 371, 375. Unexcelled Fireworks Co. r. Po- ntes, 155, 349. Union Iron Worljs v. Spottswood, 259. Union I^eague Club v. Machine Co., 235. Union Nat. Bank v. Hunt, 186. Union Pac. R. Co. v. Johnson, 33, 35. Union Stockyards & Transit Co. V. Cattle Co., 6. v. Mallory, Son & Zimmerman Co., 188, 207. United Railways & Electric Co. V. H. Wehr & Co., 355. Upson V. Holmes, 74, 129, 130. Upton. V. Cotton Mills, 132. ■ V. Tribilcock, 181. Upton Mfg. Co. V. Hulske, 369. U. S. V. Bradley, 224. V. Lapene, 212. V. Peck, 305. V. Pine River L. & I. Co., 286. V. Robeson, 233. V. Shriver, 157. United States Reflector Co. v. Rushton, 85. Unitype Co. v. Long, 135. Utley V. Donaldson, 52. Vail V. Strong, 12. Valentine v. Brown, 160. Valentin! v. Canali, 16. Valpy V. Gibson, 59, 61, 332. V. Oakeley, 314, 315, 317, 355. Van Bracklin v. Fonda, 262. Van Brocklen v. Smeallie, 46, 123, .340, 341, 342, 343. Van Casteel v. Booker, 165, 327. Vandegrift v. Engineering Co., 305, 308. Vandenbergh v. Spooner, 103. Vanduzor v. Allen, 137. Van Epps v. Harrison, 178. Van Eps v. Schenectady, 81. Van Hoozer v. Cory, 48. Van Horn v. Rucker, 340. Van Kleek v. Leroy, 185. Van Valkenburg v. Gregg, 275. Van Winkle v. Crowell, 298. Van Woert v. Railroad Co., 93. Van Wyck v. Allen, 251, 379. Varley v. Whipp, 249, 366. Varney v. French, 215. Vaughn v. McFayden, 139. V. Railroad Co., 165, 170. Vawter v. Griffln, 72. Veasey v. Doton, 176. Veazie v. Holmes. 154. V. Williams, 192. Vent V. Osgood, 21. Ventress v. Smith, 29. Venus, The, 127. Vermont Marble Co. v. Brow, 11. Vertue v. Jewell, 334. Vickers v. Hertz, 42, 43. V. Vickers, 60. Vidette, The, 338. Viele V. Osgood, 111. Vierling t. Furnace Co., 237. Vietor v. Stroock, 86. Vigers v. Sanderson, 159. Village of Bellefontaine v. Vaa- saux, 105. Vincent v. Germond, 87. V. Leiand, 371. Vining v. Gilbreth, 207, 272. Vinz V. Beatty, 217. Vodrey Pottery Co. v. H. B. Home Co., 176. Vogt V. Schienebeck, 157, 356. Voorhls V. Olmstead, 321. Vulicevich v. Skinner, 77. 490 CASES CITED. [The figures w Wabash Elevator Co. v. Bank, 123 125. Wachsmuth v. Martini, 185. Waddington y. Oliver, 284. Wadhams & Co. v. Balfour, 120, 154, 296. Wadsworth v. Dunnam, 224. AVaeber v. Talbot, 251, 375. Wagar v. Railroad Co., 119. V. Wagoner, 23. Wagner v. Breed, 225. V. Hallack, 157. V. Hildebraud, 218. Wailing v. Toll, 19. Wainer v. Insurance Co., 118. Wain V. Warlters, 104. Wait V. Baker, 152, 159, 165, 166; 291. Waite V. Jones, 223. V. McKelvy, 89. Waldron v. Chase, 149. Waldrop v. Wolff, 185. Walker v. Butterick, 10. V. Davis, 233. T. Lovell, 224. V. Nussey, 98, 99. V. Railroad Co., 32. V. Staples, 9. V. Supple, 73. Wall V. Schneider, 35. Wallace v. Breeds, 14S. V. Cohen, 194. V. Lark, 211. Walley v. Montgomery, 166. Walsh V. Jlorse, 183. V. Myers, 307. V. Young, 15. Walter v. Bloede, 108. V. Reed, 2G9. V. Ross, 336. Walter A. Wood Harvester Co. v. Ramberg, 263. Walters v. Eaves, 183. V. Railroad Co., 33. Walton V. Black. 276, 289. V. Lowrey, 75. refer to pages.] Wamsley v. H. L. Horton & Co., 50. Wanamaker v. Yerkes, 315. Wanser v. Messier, 247. Ward V. Hobbs, 175. v. Shaw, 123, 132. V. Taylor, 166, 292. V. Ward, 216. \'\'arden v. Marshall, 298, 318. Warder, Bushnell & Glessner Co. V. Whitish, 234. Warder, Mitchell & Co. v. Hoover, 132. Ware River R. Co. v. Vibbard, 313. Warfleld v. Warfleld, 23. Waring v. JIason, 204. Warner v. Ice Co., 260. V. Martin, 38. v. Wiilington, 105. Warner Elevator Mfg. Co. T. As- sociation, 140. Warren v. Buck, 262. V. Chapman, 224. V. Cola Co., 2:39. V. Mfg. Co., 108. V. Milliken, 151. Warren Chemical & Mfg. Co. v. Dolbrook, 68. Warten v. Strane, 149. Warwick v. Bruce, 15, 77. Warwick Iron Co. v. Bank, 201. Washbourn v. Burrows, 74. Washburn-Crosby Co. v. Railroad Co., 37. Washington Ice Co. v. Webster, 84. Wasserboehr v. Soulier. 225. V. Morgan, 212. 225. Wasserman v. Sloss, 222. Watchman v. Crook, 228. Waterbury v. Miller, 179. Waterhouse v. Skinner, 269. Waterman v. Meigs, 64, 67, 105. Waters Heater Co. v. Mansfield, 144. Watkins v. Bank, 376. T. Paine, 156, 299. CASES CITED. [The figures refer to pages.] 491 Watson, Ex parte, 331, 387. V. Brown, 55. V. Inhabitants of Needham, 359. V. Kirby, 355. V. Roode, 241. Watts V. Ainsworth, 105. T. Cummins, 176. V. Friend, 74, 81. V. Hendry, 149. Way V. Ryther, 177, 178. V. Wakefield, 12. Waymell v. Reed, 225. Weaver v. Wallace, 187. Webb V. Fairmaner, 279. V. Railroad Co., 73. V. Stephenson, 307. Webber v. Donnelly, 211, 225. Weber v. Baessler, 331. Webster v. Anderson, 95. V. Hunger, 212, 225. Weed V. Page, 188. Weeks v. Hull, 279. V. Pike, 136. V. Prescott, 201. Weldmann v. Champion, 115. Weil V. State, 141. V. Stone, 295. Weiland v. Sunwall, 8. Weill V. Metal Co., 277. Weimer v. Clement, 255. Weir V. Bell, 182. V. Hudnut, 99. Welch V. Burdick, 178. V. Olmstead, 177. V. Spies, 129, 149. Weld V. Came, 127. V. Cutler, 150. Weles T. McNerney, 145. Wellauer v. Fellows, 56. Wells V. Calnan, 309. V. Cook, 184. V. Day, 81. Wellston Cola Co. v. Paper Co., 353. Wentworth v. Dows, 376. V. Outhwaite, 338. V. Tubb, 24. Wertheimer Schwartz Shoe Co. v. Faris, 181. Wesoloski v. Wysoski, 128. West v. Bechtel, 289, 291. V. Graff, 180. Westbrock v. Eager, 77. Western Bank of Scotland v. Ad- die, 182. Western Twine Co. v. Wright, 377. Westheimer v. Weisman, 225. West Jersey R. Co. v. Car Works Co., 161. West Jlichigan Furniture Co. v. Glue Co., 257. Weston V. Brown, 11. Westzinthus, In re, 336. Wetherill v. Neilson, 254. Wharton v. Mackenzie, 18, 20. Wheat V. Cross, 55, 362. Wheeler v. Russell, 214. V. Sumner, 207. V. Woodward, 302. Wheeler & Wilson Mfg. Co. v. Bank, 132. V. Givan, 304. V. Thompson, 377. Wheelhouse v. Parr, 159, 292. Wheeling & L. E. R. Co. v. Koontz, 330, 334. Wheelwright v. Depeyster, 29. Whipple V. Foot, 77. ■V\Tiistler v. Forster, 27. Whitaker t. McCormick, 250. V. Sumner, 9. Whitbeck v. Van Ness, 303. Whitcomb v. Joslyn, 15. V. Whitney, 161. White, Ex parte, 11. V. A. W. Gray's Sons, 140. V. Bank, 222. V. Barber, 218. V. Breen, 109. V. Cotton- Waste Corp., 15. V. Drew, 99. V. Fitch, 181. V. Foster, 75, 77. V. Garden, 44, 194. V. Mfg. Co., 104, 114. 492 CASES CITED. [Tlie figures refer to pages.] White V. Miller, 250, 251, 2j5, 379. V. Mitchell, 320, 331. V. Oakes, 141, 241, 259. V. Solomon, 346. V. Spettigue, 28. V. Welsh, 316. V. Wilts, 148. Whiteford v. Hitchcock, 61. Whitehead v. Anderson, 325, 329, 330, 333, 337. V. Root, 50. T. Vanderhilt, 144. Whitehouse v. Frost, 148. Whitelaw Furniture Co. v. Boon, 141. Whiteside v. Brawley, 190. Whitesides v. Hunt, 218, 219. Whiting V. Price, 187. Whitman Agricultural Co. v. Strand, 56. Whitmarsh v. Walker, 74. Wliitmore v. Iron Co., 254. Whitney v. Abbott, 140. V. Bank, 302. V. Eeckforth, 11. V. P.oardman, 340. 341. V. Eaton, 124, 125. V. Goin, 303. V. Heywood, 244. V. McConnell, 139. Whiten V. Spring, 304. Whittemore v. Gibbs, 72. Whitten v. Fitzwater, 180. Whittier v. Dana, 108. Whitworth v. Thomas, 179. Whywall v. Champion, 19. Wickham v. Martin, 194. Widoe V. Webb, 224. Wiedeman v. Keller, 262. Wieler v. Schilizzi, 248. Wiener v. Whipple, 113, 263. Wigand v. Sicliel, 1S8. Wiggins V. Snow, 139. V. Tumlin, 9. Wigton V. Bowley, 132, 169. Wilcox V. Cherry, 135. V. Owens, 267. V. Roath, 17. Wilcox Silver Plate Co. v. Green, 04, 291. Wilder v. Weakley, 23. Wilk V. Key, 180. Wilkes V. Ferris, 273. Wilkins v. Bromhead, 160. V. Holmes, 150. Wilkinson v. Evans, 102. V. Ferree, 245. T. Heavenrich, 111. V. King, 31. V. Eex, 28. Wilks V. Davis, 60. William B. Grimes Dry-Goods Co. V. Jordan, 181. Williams v. Bacon, 113, V. Barfield, 214. V. Briggs, 46. V. Burgess, 71. V. Given, 194. V. Hodges, 332. V. Jaekman, 162. V. Jones, 350. V. Merle, 28. V. Miller, 30. V. Montgomery, 361. V. Moor, 16. V. Pasquali, 16. T. Paul, 216, 222. V. Reynolds, 359. V. Robb, 374. V. Robinson, 103, 104, 106, 110. V. Spafford, 263. V. Ward, 355. v. Wentworth, 24. V. Winsor, 49. V. Woods, 115. Williams-Haywood Shoe Co. ▼. Brooks, 70. Williams Mfg. Co. v. Brass Co., 234. Williamson v. Berry, 2, 12. V. Lumber Co., 282. V. Railroad Co., 197. V. Russell, 194. V. Sammons, 244. Willingham v. Veal, 60. CASES CITED. [The figures refer to pages.] 493 Willman Mercantile Co. v. Fussy, 169. Willoughby v. Moinlton, 197. Wilmerding v. Furniture Co., 139. Wilmot V. Lyon, 180. AVilmoth v. Hamilton, 356. Wilmshurst v. Bowker, 165. Wilson V. Cattle Ranch Co., 189. V. Fisher, 197. V. Fruit Co., 292. V. Hundley, 188. V. Mill Co., 113. V. Reedy, 379. V. Salt Co., 148. V. Spear, 200. Wilson, Close & Co. v. Prltchett, 177. Wilson & Wallace v. Comer, 125. Wilstach V. Heyd, 109. Wiltse V. Barnes, 296. Wimp V. Early, 77. Winchell v. Carey, 217, 222. Winchester v. King, 138. Winchester Mfg. Co. v. Carman, 136. Wind V. Her, 145, 156. Windmuller v. Pope, 306. Wlneland v. Coonce, 194. Winfield v. Dodge, 221, 222. Wing V. Clark, 123. Winn V. Morris, 361. Winside State Bank v. Lound, 355. Winslow V. Iron Co., 341. V. Leonard, 120, 205. Winsor v. Lombard, 250, 253, 262. Wire V. Foster, 355. Wisconsin Red Pressed Brick Co. V. Hood, 258, 259. Wiseman v. Vandeputt, 323. Witherow v. Witherow, 57, 285. Withers v. Greene, 375, 376. v.' Lyss, 128. V. Reynolds, 287. Wittowsky v. Wasson, 60. W. K. Henderson Lumber Co. v. Stillwell Co., 374. Wolcott V. Mount, 250, 251, 256, 372, 379. Wolf V. Dietzsch, 159. V. Di Lorenzo, 45, 142. Wolfenden v. Wilson, 70. Wood V. Bell, 158. V. Boynton, 55. V. Dixie, 199. V. Losey, 19, 21. V. Manley, 274. V. Michaud, 263, 345. V. Rowcliffe, 40. V. Sheldon, 362. V. Smith, 240. V. Tassell, 274. V. Yeatman, 194, 330. Woodcock V. Bennet, 30. Woodford v. Paterson, 71. Woodham v. Allen, 223. Woodland Co. v. Mendenhall, 314, 322. Woodle V. Whitney, 250. Woodley v. Coventry, 321. Wood Reaping and Mowing Mach. Co. V. Smith, 234, 235. Woodruff V. Hinman, 223. Woods V. McGee, 149, 150. V. Russell, 161. Woodward v. Boone, 8. V. Edmunds, 6. V. Emmons, 298. Woolfe V. Home, 339. Woonsocket Rubber Co. v. Loe- wenberg, 195. Worcester Mfg. Co. v. Brass Co., 368. Word V. Cavin, 246. Worthington v. A. G. Rhodes & Son Co., 139. Wright V. Dannah, 113. V. Davenport, 368. 376. V. Tetlow, 162. V. Weeks, 106. V. Zeigler, 190. Wright & Colton Wire-Cloth Co. V. Warren, 33. Wrigley v. Cornelius, 341. 494: CASES CITED. [The figures refer to pages.] W. W. Kendall Boot & S. Co. v. Bain, 56. W. W. Kimball Co. v. Mellon, 134. V. Raw, 186. Wyler v. Rothschild, 88. Wylie V. Kelly, 96. Wyllie V. Palmer, 13. Yellow Poplar Lumber Co. v. Chapman, 349. Yerby v. Grigsby, 113. York Co. Bank v. Carter, 199. Yomi V. Lament, 23. Young V. Burton, 360. V. Dalton, 345. V. Heermans, 200. T. Mfg. Co., 124. V. Matthews, 126. V. Mertens, 340, 343. Young V. Miles, 7, 149. V. MinUler, 129, V. Stevens, 23. Yukon River Steamboat Co. Gratto, 162. Zabriskie v. R. Co., 375, 876. Zacharie v. Franklin, 111. Zachrisson v. Ahman, 41. Zagury v. Furnell, 128. Zaieski v. Clark, 234. Zimmerman v. Morrow, 239. Zimmerman Mfg. Co. v. Dolph, 237. Zipp Mfg. Co. v. Pastorino, 295. Zoeller v. Riley, 44. Zouch V. Parsons, 14, 25. Zuchtmann v. Roberts, 136. Zuck V. McClure, 306. INDEX. [THE FIGURES REFER TO PAGES.] A "ABOUT," meaning of, 285. ACCEPTANCE, of offer to t)uy or sell, 51. under statute of frauds, see "Statute of Frauds." where seller delivers too much, property does not pass until, 159. where goods made to order, whether necessary to pass proper- ty, 160. see "Transfer of Property." by buyer in performance of contract, in general, 297. duty to accept, 268, 297. meaning of acceptance, 297. express, 298. Implied, 298. acts of ownership, 298. failure to reject within reasonable time, 299. effect of acceptance, 300. whether right of action for breach of warranty sur- vives, 300. whetlier waiver of cJaim for damages for delay, 300. liability for failure to accept delivery, 301. right to examine goods before, 294. where seller delivers wrong quantity, 281. duty to accept on delivery by installments, 287. see "Performance of Contract." action for nonacceptance, see "Actions for Breach of the Con- tract." right to reject, see "Rejection." ACTIONS FOR BREACH OF THE CONTRACT, remedies of the seller, 344. action for price, in general, 344. where property has passed, 344, 345. may recover on indebitatus counts, 345. where sale is on ci;edit, 345. where price payable by bill or note, 345. where goods delivered, seller may not rescind, 345. Tirr.SALES(2D Ed.) (495) 4:96 INDEX. [The figures refer to pages.] AC5TI0NS FOR BREACH OF THE CONTRACT— Cont'd, where property has not passed, o44, 346. price payable absolutely, 346. conditional sale, 139, 846. where seller has manifested inability or Inten- tion not to perform, 346. wrongful refusal to accept, 346. In some Jurisdictions, no action for price, 346. in some jurisdictions, action for price, 346. in some jurisdictions, action for price, provid- ed goods not salable, 348. action for damages for nonacceptance, 348. measure of damages, 348, 349. in general, 349. where available market, 349. where no available market, 349. where goods have no money value, 349. where contract price does not esceed market price, 349. resale to establish market price, 350. where buyer repudiates, 350. where seller sues for present breach, 350. may not increase damages, by useless perform- ance, 351. rescission, where buyer repudiates, 353. remedies of the buyer, 353. action for failing to deliver goods, 353. measure of damages, 353, 354. in general, 354. where buyer has prepaid price, 355. where no difference between contract and market price, 355. where seller repudiates, 355. where time of delivery is extended, 355. where no market price, 356. special damages, 357. communication of special circumstances, S58. profits of subsale, 359. specific performance, 360. recovery upon failure of consideration, 361. in general, 361. where title fails, 361. where subject of sale Is invalid security, 362, or void patent, 362. failure must be total, .363. action for converting or detaining goods, 364. measure of damages for conversion, 364. replevin, 364. INDEX. |497 [Tlie figures refer to pages.] ACTIONS FOR BREACH OF THE CONTRACT— Cont'd, breach of warranty, 365. rights before acceptance, 305. right to reject, Implied warranty, 365. express warranty, 366. affirmance and recovery of damages, 367. rescission and recovery of price, 367. rights after acceptance, 368. right to rescind, 368. action for damages, 368, 370. express warranty, 370. implied warranty, 372. diminution of damages, recoupment, 374. cross-action, 376. counterclaim, 376. measure of damages, 368, 377. special damages, 378. ACTUAL RECEIPT, see "Statute of Frauds." AFTER-ACQUIRED PROPERTY, sale of, 44, 48. AGENCY, to sell, distinguished from sale, 10. to buy, distinguished from sale, 11. see "Agent" AGENT, to sell, may not exchange, 12. authorized to sign under statute of frauds, see "Statute of Frauds." payment to, 304. delivery to, as terminating right to stop in transitu, 331. to whom bill of lading has been indorsed, right to stop In transitu, 334. right to stop in transitu for principal, 334. see "Agency." AGREEMENT TO SELL, see "Contract to Sell." ALIEN ENEMY, sale to, illegal, 212. ANTECEDENT DEBT, transfer of property in goods for, whether a sale, 9. whether value, in purchase under title voidable for fraud, 194. whether value for transfer of bill of lading, to defeat right of ' stoppage in transitu, 335. ] Tiff.Sai.es(2d Ed.) — 32 498 INDEX. [The figures refer to pages.] APPARENT OWNERSHIP, whether gives power to sell, 30, 31. see "Who can Sell." APPROPRIATION, of goods to contract, see "Transfer of Property." APPROVAL, sale on, 143, 144. ARRIVE, goods to, sale of, 23-5. ASSENT, see "Mutual Assent." ASSIGNEE IN BANKRUPTCY, of fraudulent buyer, not protected, see "Fraud." ATTORNJIENT, delivery by, under statute of frauds, 96. in performance of contract, 271. in termination of seller's lien, 319. of carrier, la termination of right of stoppage In transltn, 332. AUCTIONEER, agent authorized to sign under statute of frauds, 113. AUCTION SALE, ■within statute of frauds. 71. B BAILMENT, distinguished from sale, 6. deposit of grain in elevator or warehouse, whether sale or bail- ment, 7. with option to buy, 8. pledge, 9. agency to sell, 10. with option to buy, distinguished from conditional sale, 9, 134. distinguished from sale or return, 145. see "Sale on Approval or Trial." BANK BILLS. whether gootls, wares and merchandise, within statute of frauds, 72. BARGAIN AND SALE, 2. BARTER, see "Exchange." BILL OF EXCIIANCr;, see "Bills and Notes." INDEX. 499 [The figures refer to pages.] BILL OF LADING, nature of instrument, 33. Indorsement and aelivery, as symbolical delivery of goods, 33. not a negotiable Instrument, 33. wrongful delivery by carrier under, 33. estoppel of carrier delivering goods without surrender of, 33. statutes declaring negotiable, 35. Bale by person in possession of, 36. whether bona fide purchaser acquires title by transfer of, 36. mercantile view, 37. under factors' acts, 38. reservation of right of possession or property by, 162, 163. bill of lading to seller or order, 162, 165. bill of lading to buyer or order, 162, 168. dealing with bill of lading to secure price, 162, 169. transfer of, as defeating seller's lien, 319. as defeating seller's right of stoppage in transitu, 323, 333. BILLS AND NOTES, as subject of sale, 4. rights of bona fide purchaser of, 26, 29. whether goods, wares, and merchandise, within statute of frauds, 72. where seller draws bill of exchange on buyer and deals with bill of lading to secure price, 162, 169. as conditional payment, 302, 304. effect of taking as waiver of seller's lien, 312, 314. revival of lien on dishonor, 315. revival of lien on insolvency, 315. price payable by, failure to give, 345. action for price, 345. where subject of sale is invalid bill or note, see ■'Consideration." see "Negotiable Instruments." BONA FIDE PURCHASER, from one not owner of goods, In general, 26, 27. in market overt, 28. of negotiable instrument, 29. on sale under power, 29. where owner estopped, 30. from person in possession of goods, 31. from vendor in possession, 32. from person in possession of bill of lading, 36. under factors' acts, 38. from one having voidable title, 26, 43. contract induced by fraud, 103. does not include attaching creditor, 194. or assignee in bankruptcy, 194. whether one taking for antecedent debt, 194. 500 INDEX. [The figures refer to pages.] BONA FIDE PURCHASER— Cont'd. sale voidable by creditors, 203. from buyer, where delivery is conditional, 124, 133. from buyer under conditional sale, 135. from buyer, where seller liiis lien, 319, 320. where document of title transferred, 319. where seller assents to subsale, 020. transfer of bill of lading to, as defeating right of stoppage In transitu, 323. 333. see "Capacity of Parties." BOUGHT NOTE, of broker, as memorandum under statute of frauds, 115. BREACH OF CONTRACT, see "Actions for Breach of the Contract." BREACH OP A\AURANTY, see "Warranties." BROKER, as agent authorized to sign, under statute of frauds, 115. payment to, 304. c CAPACITY OF PARTIES, in general, 13. necessaries, 13. distinguished from authority, 14. see "Infants" ; "Lunatics" ; "Drunken Men" ; "Married Women." CARRIER, under statute of frauds, agent to receive, but not to 'accept, 89. effect of delivery to, in transferring property, 151, 155. appropriation by delivery to, as agent for buyer, 155. where seller Is to deliver to buyer at destination, 156. how authority to make appropriation conferred, 156. effect of stipulation to deliver f. u. b., 156, note 35. ■^\here goods are shipped C. O. D., 157. seller must conform to authority, 159. reservation of right of possession or property, 130, 102. in general, liJ2, 103. riglit of disposul, 103. by bill of lading, 102, 103. bill of lading to seller or order, 1C2. 105. till of lading to buyer or order, 102, 108. dealing with bill of lading to secure price, 102, 1G9. delivery to, in performance of contract, 290. , delivery to, as bailee of buyer, 291. where seller is to deliver to buyer at destination, 291. INDEX. 501 [The figures refer to pagea.] CARRIER— Cont'd. reservation of right of possession or property, 292. delivery to wrong carrier, 292. duty to insure safe arrival, 291, 202. duty to insure, 293. buyer's right of examination, 295. where goods shipped C. O. D., 295. risli of deterioration in transit, 261, 293. delivery to, as terminating seller's lien, 319. right of stoppage in transitu, after delivery to, see "Stoppage in Transitu." CASH, payment in, presumption, 123, 268, 302. stipulation for payment in, effect, 123, 131. see "Credit" and "Payment." CAVEAT EMPTOR, 175, 253, 255. CHANCE, sale of, 49. CHATTEL, what chattels included !n "goods," 5. intended for a fixture, contract for, not within statute of frauds, 70. contract to make improvements on, not within statute of frauds, 71. fructus industriales are chattels, 5, 75, 77. specific, when property passes, see "Tiansfer of Property." unascertained, when property passes, see "Transfer of Property." CHATTEL MORTGAGE, distinguished from sale, 9. distinsuished from conditional sale, 134. statutes regulating chattel mortgages, conditional sales some- times held within, 134, note 81. CHOSE IN ACTION, as subject of sale, 4. whether goods, wares and merchandise, within statute of frauds, 72. C. O. D., delivery to carrier C. O. D., effect in transferring property, 157. whether buyer has right to examine goods shipped C. O. D., 295. COMMERCIAL AGENCY, representations of buyer to, see "Fraud." CONDITIONS, transfer of property, when subject to condition, 119, 130. unconclitioniil contract, 121. putting goods into deliverable state, when a condition, 121, 125. 502 INDEX. rrte figures refer to pages.] CONDITIONS— Cont'd. ascertainment of price, when a condition, 121, 127. payment of price, when a condition, 123, 131. waiver of, 132. see "Conditional Sale." approval or acceptance, when a condition, see "Sale on Ap- proval or Trial." return of goods, when a condition subsequent, see "Sale or Return." performance of, 226,. 227. dependent and independent promises, 227. precedent, 227. concurrent, 227. conditions and warranties, 22S, 228. term "condition" used with different meanings, 22S. contingent or casual conditions, 229, 233. suspensive or suspensory conditions, 233. promissory conditions, 230. implied conditions, so called, 230. proper, 232. sale dependent on act of third person, 2.03. sale of goods to be satisfactory, 231. sale of goods to arrive, 235. fulfillment of implied warranty, a condition, 205. payment and delivery, concurrent conditions. 2GS. in contracts for delivery by installments, 2&7. excuses for nonperformance of, 305. waiver, 305. performance prevented by other party, 305. renunciation of contract, 305, 306. where party to perform incapacitates himself from perform- ing, 307. Insolvency of buyer, 307. impossibility of performance, 305, 308. destruction of subject-matter of sale, 305, 308. legal Impossibility, 305, 310. fulfillment of warranty a condition, 365. implied warranty, 365. express warranty, 3G0. buyer may reject goods for nonfulfillment of, 365. Implied warranty in some jurisdictions termed "condi- tion," 372. waiver of fulfillment of, and election to treat breach as breach of warranty, 372. promise forming part of description In some jurisdictions termed "condition," and does not survive acceptance as to visible defects, 373. Bee "Conditional Sale" ; "Performance of Contract" ; "Transfer of Property" ; "Warranties." INDEX. 503 [The figures refer to pages.] CONDITIONAL SALE, so called, where possession delivered, but property reserved until payment of price, 133. distinguished from other transactions, 134. bailment with option to buy, 9, 134. mortgage, 134. lease, 134. effect of, 135. when property passes, 135. attaching creditors of buyer, 135. bona fide purchasers from buyer, 135. buyer has defeasible interest, 137. purchasers from buyer, 137. attaching creditors of buyer, 138. buyer's rights against trespassers, 138. purchasers from seller, 1.38. attaching creditors of seller, 138. remedies of seller, 138. right to possession revests on default, 138. buyer's rights after default, 139. waiver of default, 139. action for price, 139. whether after action may reclaim goods, 139. whether action lies after reclaiming goods, 140. whether buyer forfeits partial payments by default, 140. risk of loss, 141. see "Conditions" and "Transfer of Property." CONFLICT OF LAWS, see "Illegality." CONSIDERATION, failure of, 361. buyer may rescind for, 361. where title fails, 361. where subject of sale is Invalid security, 362. must be total, 363. seller may not rescind for, where property passes and goods de- livered, 345. see "Price." CONSIGNMENT, distinguished from sale, 10. CONSIGNOR, right of stoppage in transitu, 324. CONTRACT OF SALE, meaning, 3. under statute of frauds, see "Statute of Frauds"; "Sale." 504 INDEX. [Tlie figures refer to pages.] CONTRACT TO SELL, defined, 2. distin^ished from sale, 2. distinguished from bailment with option to buy, 8. CONVERSION. action for by buyer, where property has passed, see "Actions for Breach of the Contract" COPYRIGHT, as subject of sale, 4. COUNTERCLAIM, see "Actions for Breach of the Contract" CREDIT, sale on, presumption n^fiinst, 123, 2G9, 302. obtained by fraud, 179. giving, as waiver of seller's lien, 312. 314. expiration of, as reviving seller's lien, 312, 315. effect of, in action for price, 345. see "Cash" ; "Payment" CREDITORS, attaching, of fraudulent buyer, not protected, 194. when sale voidable for fraud on, 197. who are, 203. how far delivery essential to transfer of property against, 204. see "Conditional Sale." D DAMAGES, action for price, 344. where property has passed, 345. price payable by bill or note, breach, 313. where property has not passed, 344, 346. price payable absolutely, 34G. wrongful refusal to accept, 340. action for damages for nonacceptance, 34S. measure of damages, 348, 349. in general, 349. where available market, 349. where no available market, 349. where goods have no money value, 349. where contract price does not exceed market price, 349. where buyer repudiates, 3jO. where seller sues for present breach, 350. may not increase damages by useless perform- ance, 351. INDEX. 505 [The figures refer to pages.] DAMAGES— Cont'd. action for failing to deliver goods, 353. measure of damages, 358, 354. in genei'al, 354. where buyer has prepaid price, 355. where no difLerence between contract and market price, 355. ■where seller repudiates, 355. duty to mitigate damages, 355. where time of delivery is extended, 355. where no market price, 356. special damages, 357. communication of special circumstances, 358. profits of subsale, 359. action for converting or detaining goods, 3C4. measure of damages for conversion, 364. action for breach of warranty, 3U5, 368. before acceptance, 364, 366. after acceptance, 368, 370. action for damages, 370. express warranty, 370. implied warranty, 372. diminution of damages, recoupment, 374. cross-action, 376. counterclaim, 376. measure of damages, 368, 377. special damages, 378. DAYS, when certain number allowed for delivery, how counted, 279. DEALER, sale by, whether implied -p-arranty of fitness for purpose, 252, 258. sale by, implied warranty of merchantableuess, 252, 260. see "Warranties." DEALER'S TALK, see "Fraud." DECEIT, action for, see "Fraud." DELIVERY, as constituting actual receipt, see "Statute of Frauds." not essential to transfer of property, 120, 121. on condition of immediate payment, 124. goods to be put into deliverable state, 121, 125. to be delivered at particular place, 127. unconditional, as waiver of condition of payment, 132. effect of conditional delivery, 132. delivery to carrier, 133. 506 INDEX. [The figures refer to pagea.] DELIVERY— Cont'd. to buyer with resei-vation of property until payment of price, see "Conditional Sale." to buyer on approval, or on trial, or on satisfaction, see "Sale on Approval or Trial." to buyer on "sale or return," see "Sale or Return." appropriation by delivery to carrier, 151, 152, 155. see "Transfer of Property." retention of possession as evidence of fraud on creditors, 197, 200. how far delivery essential to transfer of property against creditors and purchasers, 20-i. what constitutes, 206. In performance of contract, 268. delivery and payment concurrent condrtions, 2G8. meaning of deliverj-, 269, 270. constructive delivery, 271. symbolical delivery, 272. place, time and manner of delivery, In general, 270. seller not bound to send goods, 273. goods in possession of third person, 274. place of delivery, 275. time of dellveiy, 277. reasonable time, 277. when time is fixed, 278. hour of delivery, 279. whether delay in delivery waived by acceptance, 300. expenses of putting In deliverable state, 2S0. delivery of wrong quantity, in general, 2S1. of too much, 281. of goods mixed with other goods, 283. of too little, 28d. meaning of "more or less," "about," 285. delivery by installments, 287. delivery to carrier, 290. see "Carrier." In termination of lien of unpaid seller, 312, 317. by delivery, to buyer, 317. what constitutes, 317. where goods are in possession of seller, 318. as bailee of buyer, 318. where goods are in possession of buyer, 318. where goods are in possession of third person, 319. by delivery to carrier, 319. part delivery, 321. by carrier, as terminating transit, see "Stoppage in Transitu." action by buyer for failing to deliver, see "Actions for Breach of the Contract." INDEX. B07 tThe figures refer to pages.] DELIVERY ORDER, effect of, under factors' acts, 39. effect of, as delivery under statute of frauds, 96. effect of transfer of, as terminating seller's lien, 319. DESCRIPTION, Implied warranty on sale by, see "Warranties." DESTRUCTION OF SUBJECT-MATTER OF SALE, before contract of sale, 44, 45. after contract to sell, but before property has passed, 305, 309. after property has passed, 309. see "Risk of Loss." DETAINING GOODS, action for by buyer, where property has passed, see "Actions for Breach of the Contract." DETERIORATION, of goods in transit, "whether covered by warranty of merchant- ableness, 261. buyer talies risk of, 293. DISCLOSURE, failure of seller or buyer to make, whether constitutes fraud, 175. DISPOSAL, reservation of right of, see "Transfer of Property." DIVISIBLE CONTRACT, where delivery is by installments, 287. where part of consideration is illegal, 223. where consideration is divisible, and buyer, having prepaid price, accepts delivery of part, 363. see "Entire Contract" DOCK WARRANT, effect of under factors' acts, 39. transfer of, does not constitute delivery, 272. effect of transfer of as terminating seller's lien, 319. DOCUMENT OF TITLE, under factors' acts, 39. effect of, at common law, 272. effect of transfer of, as terminating seller's lien, 319. DRUNKEN MEN, capacity to buy and sell, 21, 24. necessaries, 24. see "Parties." 508 INDEX. [The figures refer to pages.] EARNEST, see "Statute of Frauds." EFFECT OP CONTRACT, In passing the property. see "Transfer of Property." ELEVATOR, deposit of grain in, whether sale or bailment, 7. grain in, owned in common, transfer of undivided share, 150. EMBLEMENTS, as subject of sale, 5. whether good.s, wares, and merchandise, within statute of frauds, 75, 77. ENTIRE CONTRACT, for sale of goods and other objects, whether within statute of frauds, 80. where contract entire, buyer may reject partial performance, 283. see "Divisible Contract." EQUITABLE ASSIGNMENT, 44, 48. ESTOPPEL, against owner where goods sold by another, 27, 30. sale by person in possession of goods, 31. sale by vendor in possession, 32. of carrier delivering goods without surrender of bill of lad- ing, 33. sale by person In possession of bill of lading, 36. of seller to assert lien, by assenting to subsale, 320. see "Bona Fide Purchasers" ; "Who Can Sell." EVIDENCE, parol, to explain note or memorandum, within statute of frauds, 106. to vary contract in writing, 100. to show that writing is not note or memorandum, within statute of frauds, 107. as to subsequent agreement to modify original contract, 107. to prove warr.inty, when contr.ict in writing', 237. whether express excludes implied warranty, 2C5. of Intention, as to when property is to pass, see "Transfer of Property." EXAJIINATION, opportunity to examine goods, effect on implied warranty of merchantableness, 200. right to opportunity to examine goods on sale by sample, 262, 264. INDEX. 509 [The figures refer to pages,] EXAMINATION— Cont'ci. buyer's right to examine goods before acceptance, see "Per- formance of Contract." whether promise forming part of description survives accept- ance, where buyer has opportunity to examine goods, 3T3. EXCHANGE, distinguished from sale, 12. legal effect, 12. form of pleading, 12. measure of damages, 12. authority to exchange, 12. contract for, within statute of frauds, 71. EXCUSES, for nonperformance of conditions, see "Performance of Contract." EXECUTED CONTRACT OF SALE, meaning of, 3. EXECUTED SALE, meaning of, 3. EXECUTION, sale on, by sheriff, 30. EXECUTORY CONTKACT OF SALE, meaning of, 3. EXECUTORY SALE, meaning of, 3. EXISTENCE, of subject-matter of sale, see "Subject-Matter of Sale." EXPRESS WARRANTY, see "Warranties." F FACTOR, payment to, 304. right of stoppage in transitu, 324. principal consigning goods to, right to stop In transitu, 324. FACTORS' ACTS, in general, 27, 38. in England, 38. in the United States, 41. transfer of documents of title, as excluding seller's lien, 319. FAILURE OF CONSIDERATION, see "Consideration." FALSE REPRESENTATION, see "Fraud." 510 INDEX. [The figures refer to pages.] FITNESS FOR PURPOSE, implied warranty of. see "Warranties." FIXTURES, contract to sell chattel Intended for fixture, whether within statute of frauds, 70. removable, whether within statute of frauds, 72, 78. F. O. B., meaning of, 156, note 35. FOOD, see "Provisions." FORM, of contract of sale, 50, 56. see "Statute of Frauds." FRAUD, contract of sale induced by, 174. characteristics of, 174. action for deceit a test, 174. Is a false representation, 175. when failure to disclose is fraudulent, 175. representation must be of fact, 176. not matter of opinion, 176. statement of value, 177. dealer's talk, 178. quality, character, or soundness of goods, 178. not rualter of intention, 179. intention not to pay, 179. failure to disclose insolvency, ISO. absence of reasonaole expectation of ability to pay, 180. representation by buyer as to financial condition, ISl. not matter of law, 181. representation must be with knowledge of falsity, or In reckless disregard of truth, 182. unqualified statement of material fact, 183. motive immaterial, 183. representation must be with intention that it he acted on, 1S3. representation to commercial agency, 1S4. representation must be material and must induce sale, 185. what representations deemed material, 185. need not be sole inducement, 185. where defrauded party fails to use means of knowl- edge, 186. representation must deceive, 186. INDEX. 511 [The figures refer to pages.] FRAUD— Cont'd. representation wliere means of knowledge are at hand, 187. remedies of defrauded party, 188. election to aflirm or rescind, 188. affirmance or rescission must be in toto, 188. affirmance, how efCected, 189. rescission how effected, 190. party rescinding must make restitution, 191. depreciation of goods In value will not defeat rescission, 192. requirement of restitution, when relaxed, 192. bona fide purchaser for value from fraudulent buy- er protected, 188, 193. but not attaching creditor, 194. or assignee in bankruptcy, 191. whether pre-existing debt constitutes value, 194. sale induced by fraud distinguislaed from delivery of possession Induced by fraud, 196. bona fide purchaser from one obtaining goods by fraudulently Impersonating another not protected 196. or from one obtaining goods by pretending to be agent of another, 196. rescission must be within reasonable time, 197. on creditors, 197. in general, 197, 198. mutual intent to defraud, 199. voluntary conveyance, 200. retention of possession, 197, 200. in some jurisdictions, evidence of fraud, 200. in some jurisdictions, prima facie evidence of fraud, 200. In some jurisdictions, conclusive evidence of fraud, 201. who are creditors, 203. effect of fraud, 197, 203. FRAUDS, STATUTE OF, see "Statute of Frauds." FRAUDULENT IMPERSONATION, 196. see "Fraud." FREIGHT, seller to pay, effect on transfer of property, 156. carrier's lien for, effect on right of stoppage in transitu, 333. FRUCTUS INDUSTRIALES, as subject of sale, 5. whether within statute of frauds, see "Statute of Frauds." FRUCTUS NATURALES, see "Statute of Frauds." 512 INDEX. [The figures refer to pages.] FUTURE GOODS, sale of, 44, 46. FUTURES, see "Illegality." G GAMING, contracts by way of, illegal, 217. GIFT, distinguished from sale, 12. GOLD COIN, whether goods, wares, and merchandise, within statute of frauds, 72, note 42. GOODS, defined, 2. meaning of, 4. GOODS, WARES AND MERCHANDISE, see "Statute of Frauds." GROWER, sale of specific goods by, whether implied warranty against latent defects, 255. sale by, implied warranty of fitness for purpose, 252, 25S. GROWING CROPS, see "Crops." H HOUR, of delivery, 270. ! ICE, whether goods, wares and merchandise, within statute of frauds, 80. ILLEGALITY, In general, 208. classification of unlawful sales, 2^)8. sales prohibited by common law, 2. sale of innocent thing for unlawful purpose, 209, 210. sales prohibited by public policy, 209. Kales prohibited by statute, 213. statutes imposing a penalty, 213. statutes regulating trade, 214. statutes regulating siile of intoxicating liquor, 215. statutes prohibiting Sunday sales, 215. ratification of Sunday saK's, 210. INDEX. 513 [The figures reler to pages.] IIXEGALITY— Cont'd. statutes prohibiting wagering contracts, 217. sale of futures, 218. effect of, 219. disaflBrmance before execution of illegal purpose, 222. plaintiff not in pari delicto, 223. separable contracts, 223. conflict of laws, 22-1. IMPOSSIBILITY OF PERFORMANCE, in general no excuse, 305, 308. from destruction of subject-matter before sale, 23. after contract to sell, but before property has passed, 305, 308. destruction of subject-matter of sale, 305, 308. legal impossibility, 305, 310. INCORPOREAL PROPERTY, whether goods, wares and merchandise, within statute of frauds, 72. INFANTS, capacity to buy and sell, 14. may avoid sale or purchase, 15. return of consideration, 15. ratification of contract, 16. necessaries furnished to, 13, 17. liability for, 14, 17. articles included in, 17. ' goods supplied for trade or business, 19. ' goods necessary for wife and children, 19. effect of age or condition or quantity, 19. where wants are otherwise supplied, 19. province of court and jury in determining what are, 19. obligation to pay for, quasi-contractual, 21. where note is given in payment, 21. liability of father for, 21. see "Capacity of Parties." INITIALS, signature by, in note or memorandum under statute of frauds, 111. INSANE PERSONS, see "Lunatics." INSOLVENCY, of buyer, failure to disclose, whether constitutes fraud, ISO. of buyer, as excusing seller from performance, 307. of buyer, revival of seller's lien, on, 312, 315, 318. of buyer, seller's right of stoppage in transitu, see "Stoppage in Ti'ansitu." meaning of, 325. see "Solvency." TrFT.SALEs(2D Ed.) — 33 514 INDEX. [The figures refer to pages.] INSPECTION, buyer's right of. see "Examination." INSTALLMENTS, wtiere chattel to be paid for in, when property passes, 161. delivery by, 2S7. see "Delivery." INTENTION, as to transfer of property, rules for ascertaining, see "Transfer of Property." not to pay, as constituting fraud, 179. to warrant, whether essential, 236, 238. INTOXICATING LIQUOR, sale of, see "illegality." INVENTION. as subject of sale, 4. before letters patent, whether goods, wares, and merchandise, within statute of frauds, 73, note 44. JUS DISPONENDI, reservation of, 163. K KEY, delivery of goods by giving, 272, L LAND, interest In, sale of, under statute of frauds, see "Statute of Frauds." LATENT DEFECTS, on sale by grower, whether implied warranty against, 255. whether covered by implied warranty of fitness for purpose, 259. in sample, rendering goods unmerchantable, 263, 261. LEASE, instrument in form of, construed as conditional sale, 134. see "Bailment." LICENSE TO SEIZE, taking possession under, as constituting delivery, 47. LIEN OF UNPAID SELLER, In general, 311, 312, 313. nature of, 313. INDEX. 515 [The figures refer to pages.] LIEN OF UNPAID SELLER— Cont'd, extends only to price, 313. by agreement, 314. waiver of, 312, 314. by giving credit, 312, 314. by accepting negotiable instruments In conditional payment, 312, 314. revival of, 312, 315. on expiration of credit, 315. on dislionor of instrument accepted in conditional payment, 315. on insolvency of buyer, 315. termination of, 312, 317. by delivery to buyer, 317. what constitutes delivery, 317. where goods are in possession of seller, 318. as bailee of buyer, 318. where goods are in possession of buyer, 318. where goods are in possession of third person, 319. by delivery to carrier, 319. by assent to subsale, 320. effect of part delivery, 321. effect of judgment for price, 322. see "Remedies." LORD TBNTERDEN'S ACT, 64. LOSS, risk of, see "Risk of Loss." LUNATICS, capacity to buy and sell, 21, 22. necessaries, 13, 24. see "Capacity of Parties." M MANUFACTURER, sale of specific goods by, whether Implied warranty against latent defects, 255. sale by, implied warranty of fitness for purpose, 252, 258. whether implied warranty that goods are of seller's manu- facture, 265. MARK, signature by, in note or memorandum, imder statute of frauds, 111. MARKET OVERT, rules as to sale in, 26, 28. 516 INDEX. [The Sgures refer to pagesj MARKET PRICE, ■when price left to be fixed by, 60. when unreasonable, 61. see "Damages." MARRIED WOJIEN, capacity to buy and sell, 24. liability of husband for necessaries of, 26. see "Capacity of Parties." MASTER OP SHIP, sale by, 29. MEASURE OP DAMAGES, see "Damages." MEASURING, ■when price is to be ascertained by, see "Transfer of Property." MEMORANDUM IN WRITING, see "Statute of Frauds." MERCHANTABLENESS, implied warranty of, see "Warranties." MINERALS, whether goods, wares, and merchandise. Within statute of frauds, 80. MISREPRESENTATION, see "Fraud." MISTAKE, see "Mutual Assent." MONEY, not included in "goods," 4. "MONTH," meaning of, 279. "MORE OR LESS," meaning of, see "Performance of Contract." MORTGAGE, see "Chattel Mortgage." MUTUAL ASSENT, transfer of property effected by, 50, 51. mistalie affecting mutual assent, 52. mlstalie as to subject-matter of sale, 53. mistake as to price, 54. must go to root of contract, 54. mistal^e as to nature of promise known to other party, 55. form of contract, 50, 56. sale by suit, 57. INDEX. 617 [The figures refer to pages.] MDTUAL ASSENT— Cont'd. effect of fraud, see "Fraud." to appropriation of goods to contract, 151. see "Transfer of Property." N NECESSARIES, see "Infants"; "Lunatics"; "Drunken Men"; "Married Women." NEGOTIABLE INSTRUMENTS, as subject of sale, 4. bona fide purchasers of, 26, 29. see "Bill of Lading" ; "Bills and Notes" ; "Warehouse Re- ceipt." NOTE OR MEMORANDUM, see "Statute of Frauds." NOTICE, purchaser from fraudulent buyer must be without, 193. tranferee of bill of lading must be without, to defeat right of stoppage in transitu, 334. of stoppage in transitu, see "Stoppage in Transitu." of intention to resell, see "Resale." of defects, 370. see "Bona Fide Purchaser." OWNER, as a rule no one but owner can sell, see "Who can Sell." PAROL EVIDENCE, see "Evidence." PARTIES, capacity to buy and sell, 13. see "Infants"; "Lunatics"; "Drunken Men"; "Married Women." who may sell, see "Who can Sell." effect of mistake as to, 52. names of, in note or memorandum, see "Statute of Frauds." PART DELIVERY, effect on seller's lien, 321. as terminating transit, see "Stoppage in Transitu." see "Performance of Contract." 518 INDEX. [The figures refer to pages.] PART PAYMENT, see "Statute of Frauds." "PARTY TO BE CHARGED," under statute of frauds, 110. PATENT DEFECTS, see "Warranties." PAWN, sale by pawnee, 29. PAYMENT, not essential to transfer of property, 121. presumption against credit, lua, 269, 302. effect of stipulation for cash or security, 123, 131. duty of buyer to pay, 268, 302. payment and delivery as concurrent conditions, 268, 302. payment in cash, 123, 302, 30.-J. tender of payment, 302. payment by negotiable security, conditional payment, 302, 303. payment to agent, 304. part payment under statute of frauds, see "Statute of Frauds." see "Credit" ; "Performance of Contract" ; "Actions for Breach of the Contract." PERFORMANCE OF CONTKACT, duties of seller and buyer, 268. delivery and payment concurrent conditions, 208. delivery, in general, 268. meaning of delivery, 269, 270. constructive delivery, 271. symbolical delivery, 272. place, time, and manner of, in general, 270. seller not bound to send goods, 273. goods in possession of third person, 271. place of delivery, 270, 275. time of delivery, 270, 277. reasonable time, 270, 277. ■when time is fixed, 278. hour of delivery, 279. expenses of putting in deliverable state, 280. delivery of wrong quantity, in general, 2S1. of too much, 281. of goods mixed with other goods, 281, 283. of too little, 281, 283. meaning of "more or less," "about," 2S5. delivery by Installments, 287. delivery to carrier, 290. duty to insure safe arrival, 292. duty to insure, 293. see "Delivery." INDEX. 519 tThe figures refer to pages.] PERFORMANCE OF CONTRACT— Cont'd, buyer's right to examine goods, 294. not deemed to have accepted until reasonable opportunity, 294. ■whether right exists where goods shipped C O. D., 295. see "Examination." acceptance, in general, 297. duty to accept, 268, 297. meaning of, 297. express, 298. implied, 298. acts of ownership, 293. failure to reject, 299. effect of, 300. whether seller discharged from liability for breach of promise or warranty, 300. buyer's liability for failure to accept delivery, 301. see "Acceptance." payment. In general, 302. duty to pay cash, 302, 303. tender of payment, 302. payment by negotiable security, conditional payment, 302, 303. payment to agent, 304. see "Payment." excuses for nonperformance of conditions, 305. waiver, 305. performance prevented by other party, 305. renunciation of contract, 305, 806. where party to perform incapacitates himself from per- forming, 307. Insolvency of buyer, 307. Impossibility of performance, 305, 308. destruction of subject-matter of sale, 305, 308. legal Impossibility, 305, 310. see "Conditions" ; "Warranties." PERSONAL PROPERTY, not all Included in "goods," 4. whether goods, wares and merchandise within statute of frauda, 72, 73. PLACE, of delivery, see "Delivery ;" "Performance of Contract." PLEDGE, distinguished from sale, 9. PORTION OP MASS, sale of, 147. 520 INDEX. [The figures refer to pages.] POSSESSION, right of, distinguished from property, 6. sale by person In, 31. hy vendor in, 32. by person in possession of bill of lading, 36. reservation of right of, see "Transfer of Property." retention of, as evidence of fraud, 200. see "Delivery." POTENTIAL EXISTENCE, sale of goods having, see "Subject-Matter of Sale." POWER, sale under, 26, 29. PRE-EXISTING INDEBTEDNESS, see "Antecedent Debt." PREVENTION, of performance, see "Performance of Contract" PRICE, distinguishing element of sale, 6. gift, 12. exchange, 12. mistalie as to, 54. ascertainment of, 59. reasonable price, 59, 60. what is a contract for the price or value of £10 ($50), see "Stat- ute of Frauds." statement of in note or memorandum, see "Statute of Frauds." payment of, not essential to transfer of property, 121. wliere to be ascertained by vs'eighing, measuring or testing, see "Transfer of Property." payment of, when condition to transfer of property, 131. waiver of condition, 132. by unconditional delivery, 132. effect of conditional delivery, 132. delivery to carrier, 133. lien of unpaid seller for, see "Lien of Unpaid Seller." action by seller for, under conditional sale, see "Conditional Sale." action for. In general, see "Actions for Breach of the Contract" remedies of unpaid seller against the goods, see "Remedies." see "Credit"; "Payment" PROMISES, dependent and Independent, 227. PROinSSORT NOTE, see "Bills and Notes." INDEX. 521 [The figures refer to pagea.] PROPERTY, defined, 2. transfer of, essence of sale, 5. general, as distinguished from special, 5. distinguished from right to possession, 6. transfer of general, distinguishing element of sale, 6. effect of contract in transferring, see "Transfer of Property." PROVISIONS, implied warranty on sale of, see "Warranties." PUBLIC POLICY, see "Illegality." PURCHASERS, subsequent, how far delivery essential to transfer property against, 204. see "Bona Fide Purchaser." Q QUALITY, implied warranty of, see "Warranties." QUANTITY, delivery of wrong, see "Performance of Contract" K RATIFICATION, by infants, 16. by lunatics, 22. by drunken men, 24. by married women, 25. of signature of agent under statute of frauds, 112. of Sunday sale, 216, 221. of stoppage in transitu by agent, 325. REASONABLE TIME, see "Time." REASONABLE PRICE, see "Price." RECEIPT, actual, see "Statute of Frauds." REJECTION, buyer's right to reject goods, where wrong quantity delivered, 281. where no opportunity to examine, 294. failure to reject, as constituting acceptance, 2yV, 299. 522 INDEX. [The figures refer to pages.] EEJECTION— Cont'd. right to reject for breach of warranty before acceptance, 365. after acceptance, 3i>S. see "Acc-eptance" ; "Warranties." REMEDIES, of defrauded party, see "Fraud." under illegal agreement, 219. of seller under conditional sale, see "Conditional Sale." of unpaid seller against the goods, in general, 311. lien, see "Lien of Unpaid Seller." right of stoppage in transitu, see "Stoppage In Transitu." right of resale, see "Resale." right to rescind, see "Rescission." of seller for breach of contract, see "Actions for Breach of the Contract." of buyer for breach of contract, see "Actions for Breach of the Contract" RENUNCIATION OF CONTRACT, in general, 305, 306. by buyer, damages for nonacceptance, 350. see "Actions for Breach of the Contract" by seller, damages for nondelivery, S.j.j. see "Actions for Breach of the Contract" REPUDIATION OF CONTRACT, see "Renunciation of Contract" RESALE, contract for, within statute of fraud?, 71. unpaid seller's right of, where he has right of lien or has ex- ercised right of stoppage in transitu, 311, 339. In En-land, 339. in United States, 339. ■ duties in making resale, 340. notice of intention to resell, 341. notice of sale, 341. under contract to sell, where buyer wrongfully refuses to ac- cept, 350. RESCISSION, right of, for fraud Inducing contract of sale, see "Fraud." right of creditors to avoid sale for fraud, see "Fraud." bankruptcy of buyer, not, 300. by consent, when buyer insolvent, 330. exercise of right of stoppage in transitu, not, 33S. right of, by unpaid seller, where he has right of lien or has ex- ercised right of stoppage in transitu, 311, 342. where property has passed and goods have been delivered, seller may not rescind, 345. by seller, where buyer repudiates, 3-j3. INDEX. 523 [Th« figures refer to pages.] RESCISSION— Cont'd. by buyer, for failure of consideration, 363. buyer's right of, for breaeli of warranty, 365, 368. before acceptance, 365, 367. after acceptance, 368. RESTITITIO IN INTEGRUM, 191, RETURN, sale or, 144, 145. RIGHT OF DISPOSAL, reservation of, see "Transfer of Property." RISK OF LOSS, accompanies transfer of property, 123. as a rule attaches to ownership of goods, 141. on sale on approval, 142. on sale or return, 142. may be fixed by agreement, 142. under conditional sale, 142. destruction of specific goods before risk passes to buyer, 305, 308. see "Destruction of Subject-Matter of Sale." s SALE, defined, 1. how effected, 2. distinguished from contract to sell, 2. contract of, 3. executed and executory, distinguished, 3. subject of, 4. goods, 4. distinguished from other transactions, 6. where general property is not transferred, 6. bailment, 6. deposit of grain in elevator, whether sale or bail- ment, 7. with option to buy, 8. pledge, 9. chattel mortgage, 9. agency to sell, 10. agency to buy, 11. ■where transfer Is not for a price, 12. gift, 12. exchange, 12. contract for work, labor, and materials, 13. who can sell, see "Who can Sell." subject-matter of sale, see "Subject-Matter of Sale." 524 INDEX. [The figures refer to pages.] SALE— Cont'd. mutual assent, see "Mutual Assent" form of contract, 50. 56. under statute of frauds, see "Statute of Frauds." transfer of property, see "Transfer of Property." contract of, induced by fraud, see "Fraud." fraudulent against creditors, see "Fraud." Illegal, see "Illegality." SALE OF GOODS ACT, English, 413. SALE ON APPROVAL OR TRIAL, 143, 144. SALE OR RETURN, 143, 145. SALES ACT, proposed American, 380. SALE "TO ARRIVE," 235. SAMPLE, implied warranty in sale by, see "Warranties." acceptance and receipt of, to satisfy statute of frauds, 82, 84. SATISFACTION, sale on, see "Sale on Approval or Trial." SATISFACTORY, sale of goods to be, 234. see "Sale on Approval or Trial." SEEDS, Implied warranty on sale of by description, 251, note 120, 255, note 140. damages for breach of warranty, 378. SELLER'S LIEN, see "Lien of Unpaid Seller." SEPARABLE CONTRACT, see "Divisible Contract." SEPARATION, when necessary to pass property, 147. see "Transfer of Property." SET-OFF, agreement to, whether payment, under statute of frauds, 99. SHARES OP STOCK, whether goods, wares, and merchandise, within statute of frauds, 72. SHIP, delivery on buyer's, vrhether precludes right of stoppage in transitu, 327. on chartered ship, 328. INDEX. 52o [The figures refer to pages.] SIGNATURE OP PARTY, in note or memorandum, see "Statute of Frauds." SOLD NOTE, of broker, as miemorandum under statute of frauds, 115. SOLVENCY, false representation by buyer as to, 181. see "Insolvency." SPECIAL DAMAGES, see "Damages." SPECIAL PROPERTY, distinguished from general property, 5- passes on bailment, 6. SPECIFIC PERFORMANCE, action by buyer to enforce, see "Actions for Breach of the Con- tract." STATUTE OP FRAUDS, In general, 62. what contracts are within statute, 62. executed and executory contracts, 62, 63. contract of sale, or contract for work, labor, and materials, English rule, 62, 64. Massachusetts rule, 63, 66. New York rule, 63, 67. rule elsewhere in United States, 09. chattel intended for fixture, 70. auction sales, 71. contract for exchange, 71. contract for resale, 71. what is an interest in land, 73. what are goods, wares, and merchandise, in general, 72. incorporeal property, choses in action, 72. fructus naturales and fructus industriales, 72, 74. removable fixtures, 72, 78. minerals, 80. Ice, 80. what is a contract for price or value of f 10 (-550), 80. entire contract for sale of goods and other objects, 80. entire contract for sale of different goods, joint value ex- ceeding statutory amount, 81. entire contract for sale of goods of unascertained value, after- wards ascertained to exceed, 81. acceptance and receipt, In general, 82. of part, sample, 82, 84. acceptance, in general, 85. constructive acceptance, 85, feci. 526 INDEX. [The figures refer to pages. 1 STATUTE OF FRAUDS— Cont'd. wlietber acceptance nmst be in performance of contract, in England, 85, 89. in United States, 85, 91. actual receipt, in general, 93. by agreement, 93, 94. when goods are in possession of seller, 94. when goods are in possession of third pi^rson, 96. when goods are on premises of third person, not bailee, 97. when goods are in possession of buyer, 97. earnest and part payment, in general, 98. earnest, 98. part payment, 98. note or memorandum, in general, 100. difference between contract In writing and note or memo- randum, 100. note or memorandum in the nature of an admission, 101. what note or memorandum must contain, names of parties, 100, in2. price, 104. subject-matter and other terms, 105. parol evidence to show that writing is not a note or memo- randum, 107. parol evidence as to subsequent agreement to modify original contract, 107. sopinite papers, 108. signature of party, 110. agents authorized to sign, 112. who may be agent, 113. auctioneer, 113. broker, 115. effect of noncompliance with the statute, 117. STOCK, shares of, whether goods, wares, and merchandise, within statute of frauds, 72. STOPPAGE IN TRANSITU, right of, in general, 322, 323. founded on mercantile usage, 323. arises on insolvency of buyer, 323. who may exercise right of, 322, 324. person in position analogous to that of unpaid seller, 324. consignor or factor, 324. agent of seller, 324. surety, -"24. principal consigning to factor, 324. agent on behalf of seller, 325. INDEX. 627 [The figures refer to pages.] STOPPAGE IN TRANSITU— Cont'd. effect of partial payment on right, 325. effect of conditional payment on right, 325. against whom right may be exercised, 324. buyer who is insolvent, 325. meaning of Insolvency, 325. stoppage before insolvency, 325. insolvency existing at time of sale, 326. right superior to claims of persons claiming under buyer, 326. right subject to lien of carrier, 326. right only against goods, 326. meaning of transit, 323, 327. goods must be in possession of middleman, 327. delivery on buyer's ship, 327. on chartered ship, 328. termination of transit, 323, 327. delivery to buyer, 329. failure to talte delivery, 329. delivery of part, 330. obtaining delivery before destination, 330. delivery after bankruptcy, 330. delivery to assignee, 330. ■ delivery to insolvent buyer, 330. ' delivery to agent, 331. agent to foi-ward to buyer, 330. agent to hold for buyer, 331. attornment of carrier, 332. effect of maintenance of carrier's lien, 333. wrongful refusal of carrier to deliver, 333. how right may be defeated, 323, 333. transfer of bill of lading to bona fide purchaser, 333. purchaser must take without notice of insolvency, 333. or of facts rendering bill not fairly assignable, 333. effect of transfer after notice of stoppage to carrier, 333. transfer must be for value, 335. antecedent debt sufficient, 335. transfer by way of pledge or mortgage, 336. how stoppage Is effected, 323, 337. by taking actual possession, 337. by notice to carrier or bailee in possession, 337. notice to principal, 337. duty to redeliver upon notice, 337. effect of stoppage, 322, 338. see "Remedies." SUBJECT-MATTER OF SALE, existence and ownership, 44. goods which have ceased to exist, 45. sale of goods not owned by seller, 46. 528 INDEX. fTlie figures refer to pagea.l SUBJECT-MATTER OF SALE— Cont'd. sale of goods not yet in existence or acquired, 44, 46. goods liaving potential existence, 44, 47. rule In equity, 44, 48. wagering contract, 49, 218 sale of chance, 49. efCect of mistake as to, 53. destruction of, see "Destruction of Subject- Jlatter of Sale." see "Illegality." SUB SALE, by buyer, effect on lien of unpaid seller, 320. special damages for loss of profits of, 359. SUBSEQUENT APPROPRIATION, see "Transfer of Property." SUBSEQUENT PURCHASERS, see "Bona Fide Purchasers" ; "Purchasers." SUIT, sale by, 57. SUNDAY, when day for delivery falls on, 279. SUNDAY SALES, see "Illegality." SURETY, who has paid price, right of stoppage in transitu, 334. SUSPENSORY CONDITIONS, 233. SYMBOLICAL DELIVERY, what is, 272. T TENDER, actual, need not be shown in action on contract, 2G9. of payment, 302. TERMINATION, of lien, see "Lien of Unpaid Seller." of transit, see "Stoppage in Transitu." i'ERMS OF SALE, mistake as to, 54. note or memorandum, must contain under statute of frauds, 100, 105. TESTING, where price to be ascertained by, see "Transfer of Property." THING SOLD, see "Subject-Matter of Sale." INDEX. 529 [The figures reler to pages.] TIME, for approval, under sale on approval or trial, 143, 144. for return, under sale or return, 144, 145. for delivery, in performance of contract, 270. when no time is fixed, reasonable time, 277. wliat is reasonable time, 277. when notice is necessary, 277. when time is tixed, 278. stipulation as to, when of essence, 278. meaning of month, 279. days, how counted, 279. when last day Sunday, 279. hour of delivery, 279. for acceptance of goods, 297. failure to reject within reasonable time, 299. what is reasonable time, 299. where time is fixed, 299. whether acceptance waives damages for delay in delivery, 30O. TITLE, implied warranty of, see "Warranties." transfer of, see "Bona Fide Purchasers"; "Transfer of Prop- erty" ; "Who can Sell." TRADE, statute regulating, see "Illegality." TRANSFER OF PROPERTY, sale of specific goods, in general, 119. executed and executory sales, 119. property transferred when parties intend, 119. intention, how ascertained, 119, 120. delivery not essential, 120. rules for ascertaining intention, 121. where contract is unconditional and goods in de- liverable state, 121. payment of price not essential, 122. effect of stipulation for payment in cash or by security, 124. where goods are to be put into deliverable state, 121, 12.5. contract to sell unfinished chattel, 127. goods to be delivered at particular place, 127. where price is to be ascertained by weighing, measur- ing, or testing, 121, 127. reservation of right of possession or property, 130. in general, 130. where property and right of possession are to pass on payment, 131. Tifp.Sales(2d Ed.) — 34 ^30 INDEX. [The figures refer to pages.] TKANSFBR OF PROPERTY— Cont'd. wah-er of coudUion by unconditional delivery, 132. effect of conditional delh'ery, 132. BO-called "conditional sales." 133. conditional sale distinguislied from other transac- tions, 134. effect of conditional sale, 135. rem^edies of seller under conditional sale, 13S. risk of loss, 141. see "Conditional Sale." sale on approval or trial, 143, 144. sale or return, 144, 14.j. sale of goods not specific, in general, 147. no property passes until goods are ascertained, 147. when property in undivided share may be transferred, 147, 148. elevator cases, 150. subsequent appropriation, in general, 151, 152. hove efCected, 151, 153. rules for ascertaining intention as to time when prop- erty is to pass, 151. appropriation by act of seller, 153. authority to make appropriation, how conferred, 153. by delivery to carrier, 155. delivery to carrier as agent of buyer, 156. where seller is to deliver at destination, 156. where goods are shipped C. O. D., 1.j7. other forms of appropriation by act of seller, 158. putting goods in buyer's sacks, 158. incorporating materials with buyer's property, 158. seller must act in conformity with authority, 159. goods must conform with description, LjD. shipment must conform with authority, loO. goods must be quantity ordered, 159. appropriation by act of buyer, 160. goods made to order, 160. chattel to be paid for in installments as work progresses 161. reservation O'f right of possession or property, 162. in general, ](j-, lii3. right of disposal, 163. by bill of lading, 1(;2. 163. bill of lading to seller or order, 162, 165. bill of lading to bu.ver or order, 162, 168. dealing with bill of lading to secure price, 162, 169. INDEX. 531 [The figures refer to pages.] TRANSFER OP PROPERTY— Ck)nt'd. how far delivery is essential to transfer, agaiast creditors and purchasers, 204. what constitutes delivery, 20G. TRANSIT, see "Stoppage in Transitu." TREES, standing, as subject of sale, 4. whether within statute of frauds, 74. TRIAL, sale on, see "Sale on Approval or Trial." u UNASCERTAINED GOODS, when property passes, see "Transfer of Property." UNCONDITIONAL SALE, where contract unconditional, if goods specific and In deliver- able state, property passes, 121. see "Conditions"; "Conditional Sale"; "Transfer of Prop- erty." UNDIVIDED SHARE, transfer of property in, 147. UNLAWFUL SALES, see "Illegality." UNPAID SELLER, rights of against goods, see "Remedies." USAGE, whether warranty implied from, 253. V VALUATION, price to be fixed by, 60. VALUE, what is a contract for the price or value of £10 (?50), see "Stat- ute of Frauds." misrepresentation as to, whether fraudulent, 176. whether antecedent debt constitutes, in purchase of title voidable for fraud, 194. whether for transfer of bill of lading to defeat right of stoppage in transitu, 335. market value, see "Price" and "Damages." see "Bona Fide Purchaser." 532 INDEX. [The figures refer to pages.] VENDOR IN POSSESSION, sale by, 32. VENDOR'S LIEN, see "Lien of Unpaid Seller." VOIDABLE TITLE, sale under, 27, 43. see "Fraud." VOLUNTARY CONVEYANCE, in fraud of creditors, 200. w WAGERING CONTRACT, contract to sell for future delivery, in general, not, 49. whether illegal, 213, 217. contract to sell for future delivery, when illegal as, 213, 218. WAIVER, of condition of payment, 132. of default on conditional sale, 139. of condition, 226, 231. acceptance of goods, whether waiver of claim for damages for breach of promise or warranty, 300. of performance of conditions, 305. of seller's lien, see "Lien of Unpaid Seller." waiver of performance of condition and election to treat as breach of warranty, 231, 372. WAREHOUSE RECEIPT, in some jurisdictions declared negotiable by statute, 35, 319. under factors' acts, 41. transfer of, whether constitutes delivery, 272. In somie jurisdictions treated as on same footing as bills of lad- ing, 273, 319. WARRANTIES, conditions and warranties, in general, 226, 228. term "warranty" used with different meanings, 22G, 228. nonperformance of condition, when may be treated as breach of warranty, 226, 231. fulfillment of warranty, when a condition, 226, 231. in general, 236. express, 236. parol evidence to prove, when contract in writing, 237. intention to warrant, 230, 238. fact or opinion, 240. known defects, 241. future events, 242, INDEX. 633 [The figures reler to pages.] WARRANTIES— Cont'd. Implied, 236. of title, 242. In England, 243. In America, 243. none in official sales, 344. nature of, 245. remedies of buyer for breach, 245. right to reject, 245. recovery as on failure of consideration, 245. recovery of damages, 245. when action for breach accrues, 246. In sale by description, 247. rule in England, 247. rule in United States, 250. of quality, 252. caveat emptor, 253. ■whether may be implied from usage, 253. sale of specific chattel, 255. of fitness for puipose, 252, 256. whether rule applies to dealers as well as to manu- facturers and growers, 258. latent defects, 2.j9. of merchantableness, 252, 260. deterioration of goods in transit, 261. in sale of provisions, 261. In sale by sample, 262. when sale is by sample, 263. In sale by manufacturer, 265. fulfillment of warranty a condition, 265. whether express excludes implied warranty, 265. whether acceptance of good's discharges seller from liability for breach of, 300. breach of, 365, 368. rights of buyer before acceptance, 365. right to reject, implied warranty, 365. express warranty, 366. action for damages, 367. right to rescind, 307. rights of buyer after acceptance, 368. right to rescind, 368. action for damages, 370. express warranty, 370. implied warranty, 372. ' diminution of damages, recoupment, 374. cross action, 376. counterclaim, 376. 534 INDEX. [The figures refer to pages.] WARRANTIES— Cont'd. measure of damages, 3GS, 377. special damages, 378. see "Conditions." WEIGHING, MEASURING, OR TESTING, where price is to be ascertained by, see "Transfer of Property." WEIGHTS, MEASURES, AND SCALES, statutes requiring to be approved or sealed, 214. see "Illegality." WHO, CAN SELL, as a rule, no one, except owner, 2G, 27. exceptions, 26. sale in market overt, 26, 28. negotiable instruments, 27, 29. sale under power, 27, 29. estoppel, 27, 30. sale by person in possession of goods, 31. sale by vendor in possession, 32. sale by person in possession of bill of lading, 33, 36. factors' acts, 27, 38. in England, 38. in United States, 41. sale under voidable title, 27, 43. see "Bona Fide Purchaser" ; "Capacity of Parties." WORK, LABOR, AND MATERIALS, contract for, 13. distinguished from sale, 13. contract for, as distinguished from contract of sale, within stat- ute of frauds, see "Statute of Frauds." WRITTEN CONTRACT, distinguished froui note or memorandum, under statute of frauds, 100. WEST PDELISHTNO CO., PKINTEBS, BT. PAT7L, MLNN. (n?e ^ornbook Series Comprises elementary treatises on all the principal sub- jects of the law. The books are made on the same gen- eral plan, in which certain special and original feature s are made prominent. ^t]c "^ornbook plan." Is to set forth the leading principles in black-letter (like this) And to give the necessary amplification, explanation, ap- plication, etc., under the principles, in type like this. The authorities are grouped in footnotes at the bottom of the page.* This shows why these books are found so serviceable as practitioners' handbooks. A lawyer may want to be re- minded of the law ; in that case he wants it presented in such a way that he can pick out what he needs with the least trouble. *The Hornbook Series now include? treatises on Agency, Admi- ralty. Bailments, l?ills and Notes, Common-Law Pleading, Constitu- tional Law, Contracts, Corporations, Criminal Law, Criminal Pro- •cedure, Damages, Elementary Law, Equity Jurisiirudenee, Equity Pleading, Eyidence. Executors and Administrators, Federal .Juris- diction and Procedure, Insurance, International Law, Interpreta- tion of Laws, Slining Law, Negligence, Partnership, Persons and Domestic Relations, Public Corporations, Real Property, .Sales, Torts (2 vols.) and Wills. Uniform price, $3.75 a volume, delivered. Bound in American Law Buckram. West Publishing Co. St, Paul, Minn. 100 William St. 225 Dearborn St. New York. Chicago. C6559a Barrotps on Hcgltgence. 1899. C04 pages. J-S.T.j delivered. By MORTON BARROWS, A. B., LL. B. TABLE OF CONTENTS. Ciap. 1. Definition and Essential Elements. 2. Contributory Negligence. 3. Liability of Master to Servant. 4. Liability of Master to Third Persons. 5. Common Carriers of Passengers. G. Carriers of Goods. 7. Occupation and Use of Land and Water. 8. Dangerous Instrumentalities. 9. Negligence of Attorneys, Physicians, and Public OfBeers. 10. Death by Wrongful Act. 11. Negligence of Municipal Corporations. COO.jO-I Black on Construction anb 3nterpretatton of £atps. 1911. 624 pages. $3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law Dictionary, and Treatises on CSonstltutlon- al Law, Judgments, etc. Second Edition. TABLE OF CONTENTS. Chap. 1. Nature and Office of Interpretation. 2. Construction of Constitutions. 3. General Principles of Statutory Construction. 4. Presumptions In Aid of Construction, and Consideration of Ef- fects and Consequences of Act. 5. Literal and Grammatical Construction, Meaning of ILanguage, and Interpretation of Words and Phrases. 6. Intrinsic Aids in Statutory Construction. 7. Extrinsic Aids in Statutory Construction. 8. Construction of Statute as a Whole and with Reference to Ex- isting Laws. 9. Interpretation with Reference to Common Law. 10. Retrospective Interpretation. 11. Construction of Provisos, Exceptions, and Saving Clauses. 12. Strict and Liberal Construction. 13. Mandatory and Directory Statutes and Provisions. 14. Amendatory and Amended Acts. 15. Construction of Codes and Revised Statutes. It). Adopted and Re-enacted Statutes. 17. Declaratory Statutes. 18. The Rule of Stare Decisis as Applied to Statutory Construc- tion. C6559a-2 Black 5 Constitutional £atp. 1910. 8CS pages. .$.3.75 delivered. By H. CAMPBELL BLACK, Author of Black's Law DictionarT. Treatises on .Judgments, Tax Titles, Bankruiitry, etc. Third Edition. TABLE OF CONTENTS. Chap. 1. Definitions and General Principles. 2. The United States and the States. ;;. E.stablishment and Amendment uf Constitutions. 4. Construction and Interpretation of Constitutions. 5. The Three Departments of Government, i;. The Federal Executive. 7. Federal Jurisdietiim. S. The Pciwcrs of Cmisress. 0. Interstate Law as Determined by the Cmistitution. 10. The Establishment of Republican Government. 11. Executive Power in the States. 12. Judiiial rowers in the Stati'S. 1.3. Legislative Power in the States. 14. The I'olice Power. l.ti. The Power of Tiixation. 16. The Right of Eminent Domain. 17. Municipal Corporations. 15. Civil Rights, and Their Protection by the Constitution. l!i. Political and Pulilic Ri-hts. 20. Constitutional Guaranties in Criminal Cases. 21. Laws Impairing the Obligation of Contracts. 22. Retroactive Laws. CCHoOa- (£t?tlb5 on Suretysl^tp an'b ®iiaranty. 1907. 572 pages. ^'3.7.' delivered. By FRANK HALL CHILDS, of the Chicago Bar. TABLE OF CONTENTS. Chap. 1. Definitions, Parties, Distinctions, and Classifications. 2. Formation of the (-Ontract. 3. The Statute of Frauds. 4. Construction of the Contract. 5. Rights and Liabilities as Between the Creditor and the Sure- ty. G. Rights and Liabilities of the Surety and of the Principal as to each other. 7. Rights and Liabilities of Co-Sureties as to each other. 8. Parties to Negotiable Instruments Occupying the Relation of Sureties. 9. Official Bonds. 10. Judicial Bonds. 11. Bail Bonds and Recognizances. C6559-4 (£lark on dontracts* 1904. 693 pages . $3.75 delivered. By WM. L CLARK, Jr. Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap 1. Contract in General. 2. Offer and Aeceiitance. 3. Classification of Contracts. 4. Requirement of Writing. 5. Consideration. 6. Capacity of Parties. 7. Reality of Consent. S. Legality of Object. 9. Operation of Contract. 10. Interpretation of Contract. 11. Discharge of Contract. 12. Agency. 13. Quasi Contract. C6.T|.jO-5 (Elark on (Eorporattons. 1907. 721 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." Second Edition: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chap. 1. Of the Nature of a Corporation. 2. Creation and Citizensliip of Corporations. 3. Effect of Irregular Incorporation. 4. Relation between Corporation and its Promoters. 5. Powers and Liabilities of Corporations. G. Powers and Liabilities of Corporations. 7. Powers and Liabilities of Corporations. 8. The Corporation and the State. 9. Dissolution of Corporations. 10. Membership in Corporations. 11. Membership in Corporations. 12. Membership in Corporations. 13. Management of Corporations — Officers and Agents. 14. Rights and Remedies of Creditors. 15. Foreign Corporations. Appendix. C6559-6 darks (£riminal £atp» 10iJ2. ."ilT pages. $3. To delivered. By WM. L. CLARK, Jr., Author of a "Handbook of tlie Law of Contracts." Second Edition: By FRANCIS B. TIFFANY. TACLE OF CONTENTS. Chap. 1. Definition of Crime. 2. Criminal Law. 3. Classification of Crimes. 4. The Jlental Element in Crime. 5. Persons Capable of Committing Crime. 6. Parties Concerned. 7. The Overt Act. 8. Offenses against the Person. 9. Oflienses against the I'erson. 10. Offenses against the Habitation. 11. Offenses against Property. 12. Offenses against the Public Health, Morals, etc. 13. Offenses against Public Justice and Authority. 14. Offenses against the Public Peace. 15. Offenses against the Government. 16. Offenses against the Law of Nations. IT. Jurisdiction. 18. Former Jeopardy. C6550-7 (£Iark 5 Cnmtnal Proccburc\ 1895. 665 pages. $3.75 delivered. By WM. L. CLARK, Jr., Author of a "Handbook of Criminal Law," and a "Handbook of Contracts." TABLE OF CONTENTS. Chap. 1. Jurisdiction. 2. Apprehension of Persons and Property. 3. Preliminary Examination, Bail, and Commitment. 4. Mode of Accusation. 5. Pleading — The Accusation. 6. Pleading — The Accusation. 7. Pleading — The Accusation. 8. Pleading — The Accusation. 9. Pleading — The Accusation. 10. Pleading and Proof. 11. Motion to Quash. 12. Trial and Verdict. 13. Proceedings after Verdict. 14. Evidence. 15. Habeas Corpus. C6559-8 (ErostPcU on (Sxccutors anb Ctbmintstrators* 1S97. COG pages. $3.75 delivered. By SIMON GREENLEAF CROSWELL, Author of "Electricitv," "Patent Cases," etc. TABLE OF CONTENTS. Chaj?. Part 1.— DEFINITIONS AND DIVISION OP SUBJECT. 1. Definitious and r>iyisioii of subject. Part 2.— APPOINTMENT AND QUALIFICATIONS. 2. Appointment in Court. 3. Place and Time of Appointment and Requisites Therefor. 4. Who may Claim Appointment as Executor, .'j. Who may Claim the Right to Administer. (J. Disqualiflcations for the Office of Executor or Administrator. 7. Acceptance or Renunciation. 8. Proceedings for Appointment of Executors and Administra- tors, 9. Special Kinds of Administrations. 10. Foreign and Interstate Administration. 11. Joint Executors and Administrators. 12. Administration Bonds. Part 3.— POWERS AND DUTIES. 13. Inventory — Appraisement — N'ltice of Appointment. 14. Assets of the Estate. l.'i. Management of the Estate. Hi. Sales and Conveyances of Personal or Real Assets. 17. Payment of Debts and AUowancts — lus.ilvent Estates. 15. Payment of Legacies. 10. Distribution of Intestate Estates. 20. Administration Accounts. Part 4.— TERMINATION OF OFFICE. 21. Revocation of Letters — Removal — Resignation. Part ,j.— REMEDIES. 22. Actions by Executors and Administrators. 2:!. Actions against Executors and Administrators. 24. Statute of Limitations — Set-off. 25. Evidence and Costs. C6rj.j'.J-0 (Costtgan on VTiininq, taw. 190S. 765 pages. $3.75 deliverea. By GEORGE P. COSTIGAN, Jr. Dean of the College of Law of the University of Nebraska. TABLE OF CONTENTS. Chap. 1. The Origin and History of American Mining Law. 2. The Mining Law Status of the States, Territories, and Posses- sions of the United States. 3. The Land Department and the Public Surveys. 4. The Relation Between Mineral Lands and the Public Land Grants. 5. The Relation Between Miner.al Lands and Homestead, Timber and Desert Entries. 6. The Relation Between Mineral Lands and the Various Public Land Reservations. 7. The Relation Between Mineral Lands and Townsites. 8. Definitions of Practical Mining Terms. 9. Definitions of Mining Law Terms. 10. The Discovery of Lode and Placer Claims. 11. Who Jlay and Who May not Locate Mining Claims. 12. The Location of Lode Claims. 13. The Location of Mill Sites. 14. The Location of Tunnel Sites and of Blind Lodes Cut by Tun- nels. 1.5. The Location of Placers and of Lodes within Placers. IC. The Annual Labor or Improvements Requirements. 17. The Abandonment, Forfeiture, and Relocation of Lode and Placer Mining Claims. 18. Uncontested Application to Patent Mining Claims. 19. Adverse Proceedings and Protests Against Patent Applications. 20. Patents. 21. Subsurface Rights. 22. Coal Land and Timber and Stone Land Entries and Patents. 23. Oil and Gas Leases. 24. Other Mining Contracts and Leases. 25. Jlining Partnerships and Tenancies in Common. 26. Conveyances and Liens. 27. Mining Remedies. 28. Water Rights and Drainage. Appendices. 06559-91/2 (Saton on (Equity. 1001. 734 pages. .f.^.T-"* (l:_'liyerecl. By JAMES Vv^. EATON, Editor 3d Edition Collier on Baiikruptc.v. Co-Editor American Bankruptcy licjiorts, Eaton and Greene's Xcgutialjle Instruments Law, etc. TABLE OF CONTENTS. Origin and History. General Principles Governing tlie Exercise of Equity Jurisdiction. Maxims. Penalties and Forfeitures. Priorities and Notice. Bona Fide Purcliasers Without Notice. Equitable Estoppel. Election. Satisfaction and Performance. Conversion and Reconversion. Accident. Mistake. Fraud. Equitable Property. Implied Trusts. Powers, Duties, and Liabilities of Trustees. Mortgages. Equitable Liens. Assignments. Remedies Seeking Pecuniary Relief. Specific Performance. Injunction. Partition, Dower, and Establishment of Boundaries. Reformation, Cancellation, and Cloud on Title. Ancillary Remedies. CC.'159-IO ©arbiter on VOill s. 1903. 720 pages. $3", delivered. By GEORGE E. GARDNER, Professor in tlie Boston University Law School. TABLE OF CONTENTS. Chap. 1. History of Wills — Introduction. 2. Form of Wills. 3. Nuncupative, Holographic, Conditional Wills. 4. Agreements to Make AYills, and Wills Resulting from Agree- ment. 5. Who may be a Testator. 6. Restraint upon Power of Testamentary Disposition — W'ho may be Beneticiaries — What may be Disposed of by Will. 7. Mistake, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. 11. Probate of Wills. 12. Actions for the Construction of Wills. 13. Construction of Wills — Controlling Principles. 14. Construction — Description of Subject-Matter. 15. Construction — Description of Beneficiary. 16. Construction — Nature and Duration of Interests. 17. Construction — Vested and Contingent Interests — Remainders — Executory Devises. 18. Construction — Conditions. 19. Construction — Testamentary Trusts and Powers. 20. Legacies — General — Specific — Demonstrative — Cumulative — Lapsed and Void — Abatement — Ademption — Advance- ments. 21. Legacies Charged upon Land or Other Property. 22. Payment of the Testator's Debts. 23. Election. 24. Rights of Beneficiaries Not Previously Discussed. CG0d9-12 (Bilmore on Partnerst^tp> 1911. About 775 pages. $.3.75 delivered. By EUGENE A. GILMORE. Author of Gilmore's Cases on Partnership (American Caseboolt Series). TABLE OF CONTENTS. Chap. 1. "What Constitutes a Partnership. 2. Formation and Classification of Partnerships. 3. The Nature and Characteristics of a Partnership. 4. Nature, Extent, and Duration of Partnership Liability. 5. Powers of Partners. G, Plights and Duties of Partners Inter se. 7. Remedies of Creditors. S. Actions Bet\yeen Partners. 0. Actions Between Partners and Third Persons. 10. Termination of the Partnership. 11. Limited Partnerships. Ct}550a-13 ^ale on Bailments anb (Earrters. 1896. 675 pages. $3.7.j delivered. By WM. B. HALE. TABLE OF CONTENTS. Chap. 1. In General. 2. Bailments for Sole Benefit of Bailor. 3. Bailments for Bailee's Sole Benefit. 4. Bailments for Mutual Benefit — Pledges. 5. Bailments for Mutual Benefit — Hiring. 6. Innkeepers. 7. Carriers of Goods. 8. Carriers of Passengers. 9. Actions against Carriers. CG5.5U-15 ^cile on X)amage5. 1896. 476 pages. .?3.T.j delivered. By WM. B. HALE, Author of "Bailments and Carriers.' TABLE OF CONTENTS. Chap. 1. Definitions and General Principles. 2. Nominal Damages. 3. Compensatory Damages. 4. Bonds, Liquidated Damages and Alternative Contracts. 5. Interest. 0. Value. 7. Exemplary Damages. 8. Pleading and Practice. 9. Breach of Contracts for Sale of Goods. 10. Damages in Actions against Carrier. 11. Damages in Actions against Telegraph Companies. 12. Damages for Death by Wrongful Act. 13. Wrongs Affecting Real Property. 14. Breach of Marriage Promise. C6559-16 ^ale on Corts. 1S9G. G36 pages. ip3.7.j delivered. By WM. B. HALE. Author of "Bailments and Carriers," etc. TABLE OF CONTENTS. Chap. 1. General Nature of Torts. 2. Variations in Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies for Torts — Damages. 6. Wrongs Affecting Freedom and Safety of Persoa. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. 06559^17 ^opktns on Keal Property. ISOO. 589 pages. .?3.75 delivered. By EARL P. HOPKINS, A. B. LL. M. TABLE OF CONTENTS. Chap. 1. What is Real Property. 2. Tenure and Seisin. 3. Estates as to Quantity — Fee Simple 4. Estates as to Quantity — Estates Tail. 5. Estates as to Quantity — Conventional Life Estates. C. Estates as to Quantity — Legal Life Estates. 7. Estates as to Quantity — Less than Freehold. .8. Estates as to Quality on Condition — on Limitation. 9. Estates as to Quality — Mortgages. 10. Equitable Estates. 31. Estates as to Time of Enjoyment — Future Estates. 12. Estates as to Number of Owners — Joint Estates. 1.3. Incorporeal Hereditaments. 14. Legal Capacity to Hold and Convey Realty, l.j. Restraints on Alienation. IG. Title. CU.j.jO-IS ^ugl^es on dbmtralty. 1901. 504 pages. $3.70 delivered. By ROBERT M. HUGHES, M. A. TABLE OF CONTENTS. The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Subject-Matter. General Average and Marine Insurance. Bottomry and Respondentia ; and Liens for Supplies, Repairs, and Other Xecessaries. Stevedores' Contracts, Canal Tolls, and Towage Contracts, Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected by the Harter Act of February 1.3, 1893. Admiralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels, Special Circumstances, and General Precautions. Damages in Collision Cases. Vessel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Lia- bility Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including; (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (3) The Dividing Lines between the High Seas and Coast Wa- ters. (4) The Lake Rules. (5) The Jlississippi Valley Rules. (0) The Act of March 3, 1899, as to Obstructing Channels. 3. The Limited Liability Acts, Including: (1) The Act of March 3, 1851, as Amended. (2) The Act of June 26, 1884. 4. Section U41, Rev. St., as Amended, Regulating Bonding of Ves- sels. 5. Statutes Regulating Evidence in the Federal Courts. 6. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. 06559-19 ^ugl^cs on ^cbeval 3urtsbtctton anb proccbure. 1904. C34 pages. .$3.75 delivered. By ROBERT M. HUGHES, of the Norfolk Bar, Author of "Hughes on Admiralty," and Lecturer at the George Washington University Law School. TABLE OF CONTENTS. Chap. 1. Introduction — What it Comprehends. 2. The District Court — Its Criminal Jurisdiction and Practice. 3. Same — Continued. 4. The District Court — Criminal Jurisdiction — Miscellaneous Jurisdiction. 5. The District Court — Bankruptcy. 0-8. Same — Continued. 9. The District Court — Miscellaneous Jurisdiction. 10. The Circuit Court — Original Jurisdiction. 11-12. Same — Continued. 13. The Circuit Court — Jurisdiction by Removal. 14—15. Same — Continued. IG. The Circuit Court — Jurisdiction by Removal — Original Juris- diction of the Supreme Court — Other Minor Courts of Orig- inal Jurisdiction. 17. Procedure in the Ordinary Federal Courts of Original Juris- diction — Courts of Law. 18. Procedure in the Ordinary Federal Courts of Original Juris- diction — Courts of Equity. 19. Same — Continue^]. 20. Appellate Jurisdiction — ^The Circuit Court of Appeals. 21. Appellate Jurisdiction — The Supreme Court. 22. Procedure on Error and Appeal. The U. S. Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an appendix. C05.59-20 3nger5oU on Public (Corporations. 1901. 738 pages. $3.75 delivered. By HENRY H. INGERSOLL, LL. D., Dean of the University of Tennessee School of Law. TABLE OF, CONTENTS. Part 1.— QUASI CORPORATIONS. Chap. 1. Nature, Creation, Classification. 2. Quasi Corporations — Liabilities, Elements, Counties, Property, etc. 3. Same — Continued. 4. Same — Continued. Part 2.— MUNICIPAL CORPORATIONS. 5. Municipal Corporations. 6. Their Creation — How— By What Bodies— Subject to What Re- strictions, etc. 7. Their Alteration and Dissolution. 8. The Charter. 9. Legislative Control. 10. Proceedings and Ordinances. 11. Officers, Agents, and Employes. 12. Contracts, 13. Improvements. 14. Police Powers and Regulations. 1.5. Streets, Sewers, Parks, and Public Buildings. 16. Torts. 17. Debts, Funds, Expenses, and Administration. 18. Taxation. 19. Actions. Part 3.— QUASI PUBLIC CORPORATIONS. 20. Quasi Public Corporations. 21. Railroads. 22. Electric Companies. 23. Water and Gas Companies. 24. Other Quasi Public Corijoratlons. C6559-21 3aggarb on (Eorts. 1895. 2 vols. 1307 pages. $7.50 delivered. By EDWIN A. JAGGARD, A. M., LL. B., Professor of the Law of Torts in Minnesota University Law School. TABLE OF CONTENTS. Part 1.— IN GENERAL. Chap. 1. General Nature of Torts. 2. Variations in the Normal Right to Sue. 3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies. Part 2.— SPECIFIC WRONGS. 6. Wrongs Affecting Safety and Freedom of Persons. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 13. Master and Servant. 14. Common Carriers. C6550-22 iTTcKebeij on €r>ibence. 1907. .540 pages. $3.75 delivered. By JOHN JAY McKELVEY, A. M., LL. B., Author of "Common-Law Pleading," etc. Second Edition. TABLE OF CONTENTS. Chap 1. Introductory. 2. Judicial Notice. 3. Questions of Law and Questions of Fact. 4. Burden of Proof. 5. Presumptions. 6. Admissions. 7. Confessions. 8. Matters Excluded as Unimportant, or as Misleading, though Logically Relevant. 9. Character. 10. Opinion Evidence. 11. Hearsay. 12. Witnesses. 13. Examination 6f Witnesses. 14. Writings. 15. Demurrers to Evidence. C6559-23 Horton on Sills anb Ticks. 1900. GOO pages. $.3.75 delivered. By PROF. CHARLES P. NORTON. Third Edition: By Francis B. Tiffany. TABLE OF CONTENTS. Chap. 1. Of Negotiability so far as it Relates to Bills and Notes. 2. Of Negotiable Bills and Notes, and their Formal and EsseH- tial Requisites. 3. Acceptance of Bills of Exchange. 4. Indorsement. 5. Of the Nature of the Liabilities of the Parties. 6. Transfer. 7. Defenses as against Purchaser for Value without Notice. 8. The Purchaser for Value without Notice. 9. Of Presentment and Notice of Dishonor. 10. Checlvs. Appendix. CCo5!:>-24 Sl^ipman on (£ommon=£atP Pleabing. 1895. 015 pages. .«;3.75 delivered. By BENJAMIN J. SHIPMAN, LL. B. Second Edition. TABLE OF CONTENTS. Chap. 1. Forms of Action. 2. Forms of Action. 3. The Parties to Actions. 4. The Proceedings in an Action. 5. The Declaration. 6. The Production of the Issue. 7. Materially In Pleading. 8. Singleness or Unity in Pleading. 9. Certainty in Pleading. 10. Consistency and Simplicity in Pleading. 11. Directness and Brevity in Pleading. 12. Miscellaneous Rules. Appendix. C6559-2.3 Sl^tpman on (Equity Pleabing. 1897. 044 pages. .$3.7.". delivered. By BENJ. J. SHIPMAN, LL. B., Author of "Shipman's Common-Law rieading." TABLE OF CONTENTS. Chap 1. Equity Pleading in General. o Parties. 3. Proceedings in an Equitable Suit. 4. Bills in Equity. 5. Tbe Disclaimer. 6. Demurrer. 7. The Plea. 8. The Answer. 0. i 1 The Replication. co.j.-jO-l'i; Smitl? 5 (Elementary taw. 189G. 367 pages. $3.75 delivered. BY WALTER DENTON SMITH, Instructor in tlie Law Department of tlie University of Micliigan. TABLE OF CONTENTS. Chap. Part 1.— ELEMENTARY JURISPRUDENCE. 1. Nature of Law and the Various Systems. 2. Government and its Functions. 3. Government in >tlie United States. 4. The Unwritten Law. 5. Equity. 6. The AVritten Law. 7. The Authorities and their Interpretation. 8. Persons and Personal Rights. 9. Property. 10. Classification of the Law. Part 2.— TLIE SUBSTANTIVE LAW. 11. Constitutional and Administrative Law. 12. Criminal Law. 13. The Law of Domestic Relations. 14. Corporeal and Incorporeal Hereditaments. 15. Estates in Real Property. 16. Title to Real Property. 17. Personal Property. 18. Succession After Death. 19. Contracts. 20. Special Contracts. 21. Agency. 22. Commercial Associations. 23. Torts. Part 3.— THE ADJECTIVE LAW. 24. Remedies. 25. Courts and their Jurisdiction. 26. Procedure. 27. Trials. L_ CGS.-j'J-i , n Ctffany on CTgency. 1903. 609 pages. .?.3.7.") delivered. By FRANCIS B. TIFFANY, Author of "Death by Wrongful Art," -'Law of Sales," etc. TABLE OF CONTENTS. Chap. Tart 3.— IX GENERAL. 1. Introductory — Definitions. 2. Creation of the Relation of Principal and Agent — Appointment. 3. Same (continued) — Ratification. 4. What Acts Can be Done by Agent — Illegality — Capacity of Parties — Joint Principals and Agents, .""i. Delegation by Agent — Subagents. 6. Termination of the Relation. 7. Construction of Authority. Part 2.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND THIRD PERSON. 8. Liability of Principal to Third Person — Contract. 0. Same (continued). 10. Admissions by Agent — Notice to Agent. 11. Liability of Principal to Third Person — Torts and Crimes. 12. Liability of Third Person to Principal. Part 3.— RIGHTS AND LIABILITIES BETWEEN AGENT AND THIRD PERSON. 13. Liability of Agent to Third Person (including parties to con- tracts). 14. Liability of Third Person to Agent Part 4.— RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND AGEJN'T. l."). Duties of Agent t® Principal. k;. Duties of Principal to Agent. Appendix. <;(;.",.-.l>-28 CEiffany on Persons anb X)omesttc 2leIattons. 1909. 656 pages. $3.75 delivered. By WALTER C. TIFFANY. Second Edition : Edited by Roger W. Cooley. TABLE OF CONTENTS. Chap. Part 1.— HUSBAND AND WIFE. 1. Marriage. 2. Persons of the Spouses as Affected by Coverture. 3. Riglits in Property as affected by Coverture. 4. Contracts, Conveyances, etc., and Quasi-Contractual Obliga- tions. 5. Wife's Equitable and Statutory Separate Estate. 6. Antenuptial and Postnuptial Settlements. 7. Separation and Divorce. Part 2.— PARENT AND CHILD. 8. Legitimacy, Illegitimacy, and Adoption. 9. Duties and Liabilities of Parents. 10. Eights of Parents and of Children. Part 3.— GUARDIAN AND WARD. 11. Guardians Defined — Selection and Appointment. 12. Rights, Duties, and Liabilities of Guardians. 13. Termination of Guardianship — Enforcing Guardian's Liability. Part 4.— INFANTS, PERSONS NON COMPOTES MENTIS AND ALIENS. 14. Infants. 15. Persons Non Compotes Mentis and Aliens. Part 5.— MASTER AND SERVANT. 16. Creation and Termination of Relation. C6550a-29 Ctffany on Sales* lOOS. 034 pages. ?3.75 delivered. By FRANCIS B. TIFFANY, A. B., LL. B. Autlior of "Tiffany on Death by Wrongful Act." Second Edition. TABLE OF CONTENTS. Chap. 1. Formation of the Contract. 2. Formation of the Contract — Under the Statute of Frauds. 3. Effect of the Contract in Passing the Property — Sale of Spe- cific Goods. 4. Effect of the Contract in Passing the Property — Sale of Goods not Specific. 5. Fraud, and Retention of Possession. 6 Illegality. 7. Conditions and Warranties. 8. Performance. 9. Rights of Unpaid Seller against the Goods. 10. Actic^n for Breach of the Contract. Appendix: Sales Act — English Sale of Goods Act. L_. C6559a-30 Vance on 3nsurance. ISyC. CS3 pages. $3.75 delivered. By WILLIAM REYNOLDS VANCE, Professor of Law In the George Washiugton University, The principal object of this treatise is to give a consistent state- ment of logically developed principles that underlie all contracts of Insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of Insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover, — Historical and Introductory. Nature and Requisites of Contract. Parties. Insurable Interest, aiaking the Contract. The Consideration. Consent of the Parties — Concealment. Consent of the Parties — Warranties. Agents and their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and Liability Insurance. Appendix. C6559-31 ^ EDilson on 3ntemattonal £atp. 1010. (.;;o pages. .$.3.7.5 delivered. By GEORGE GRAFTON WILSON. TABLE OF CONTENTS. Chap. 1. Persons in International Law. 2. E.xistence, Independence and Equality. 3. Propertj' and Domain. 4. Jurisdiction. .5. Dii)Ioniatie Relations. 0. Consular and Other Relations. 7. Treaties and Other International Agreements. 8. Amicable Means of Settlement of International Differences. !>. Xon-Amicable Measures of Redress Short uf War. 10. Nature and Commencement. 11. Area and General Effect of Belligerent Operations. 12. Rights and Obligations During War. 13. Persons During War. 14. Property on Land, l.j. Property on W;iter. l(i. Maritime Capture. 17. Rules of War. 18. Military Occupation and Government. 10. Prisoners. I)isal)led and .Shipwrecked. 20. N(in-IIostiIe Relations between Belligerents. 21. Ternjination of War. 22. Nature of Neutrality. 23. Visit and Search. 24. Contraband. 2.-. Blockade. 2G. Continuous Voyage. 27. Unneutral Service. 28. Prize. ct;."j.no-32 KF 915 T56 1908 Author Vol. Tiffany, Francis Buchanan Title Copy Handbook of the law of sales Date Borrower's Name