the intention of the parties must give way when their intention otherwise appears.16 It seems that ordinarily the question of intention is one of fact for the determination of the jury,17 but if the intention is to be determined mainly from a construction of written instruments, the legal effect of which is for the court, and uncontradicted evidence, it is one for the court.18 A general usage or custom of the trade or business in question may be controlling to show the intention of the parties as to when the title passes and effect will be given thereto if the intention of the parties is otherwise left indefinite.19 276. Effect of Provision as to Risk or Insurance.-In determining when title passes under a contract of sale the courts are not in harmony as to the effect to be given provisions as to risk. Such provisions are construed in some instances to indicate that the title was in the party who did not assume the risk. This view may be illustrated by the cases where the risk is assumed by the buyer. When a contract of sale has transmitted title to the buyer, the law determines, in the absence of agreement to the contrary, that the risk of loss belongs to him. This is a consequence of his ownership, though undoubtedly the property may be in one and the risk in another. But it needs no agreement that the buyer shall take the risk, if it is intended the ownership shall pass to him. Hence a stipulation that the property should be at the risk of the buyer after the date of the contract, instead of showing an intention of the parties that the right of property should pass to him, seems rather to indicate a purpose that the ownership should remain unchanged.20 Other courts, however, have construed provisions specifying which of the parties shall bear the risk as merely indicating the intention of the parties to make it clear that the title. to the property shall be in the party to the contract who assumes the risk of the property. While a provision that one of the parties shall insure the goods contracted for is some evidence that it was the intention of the parties that the title should remain or vest in him, it is not controlling, and where the provision was that the seller should insure up to a certain time, it was held under the circumstances that 16. H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299, 87 N. W. 268, 92 A. S. R. 452, 55 L.R.A. 301. 17. Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Byer v. Etnyre, 2 Gill (Md.) 150, 41 Am. Dec. 410. Notes: 11 Am. Rep. 90; 3 L.R.A. 200. 18. Dows v. National Exch. Bank, 91 U. S. 618, 23 U. S. (L. ed.) 214. 19. Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726 180, 22 U. S. (L. ed.) 863; Todd v. Note: 56 L.R.A. (N.S.) 140. 2. Stewart v. Henningsen Produce 20. Elgee Cotton Cases, 22 Wall. Cas. 1914B 708. the title passed to the buyer prior to such designated time. The fact that the seller or buyer insures the goods in his name is itself evidence against him to show that it was the understanding of the parties that the title was vested in him. The necessity of taking out insurance to pass title under contracts of sale "c. i. f." has already been considered. 277. Effect of Delivery of Bill of Sale.-Ordinarily the delivery of a bill of sale has the legal effect of consummating the sale and transferring the title to the property; and where in pursuance of a prior agreement the bill of sale is delivered to a third person for the buyer this has been held sufficient to pass the title to the buyer. It may, however, be shown that there was no intention to deliver the bill of sale, though placed in the possession of the buyer. An invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. It does not of itself necessarily indicate to whom the things are sent, or even that they have been sent at all. Hence, standing alone, it is never regarded as evidence of title." 278. Transfer of Bill of Lading or Warehouse Receipt.-A bill of lading is recognized by the commercial law as the symbol of the property which it represents, and its unconditional transfer operates to pass the title to the property.10 And the customary transaction by which the owner of goods consigns them to a third person on whom a 3. Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, Ann. Cas. 1914B 701, 50 L.R.A. (N.S.) 111. 4. Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713. Note: Ann. Cas. 1914B 708. 5. See supra, par. 158. 6. Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A 1103; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85. 7. Buffington v. Curtis, 15 Mass. 528, 8 Am. Dec. 115. 8. Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A 1103. 9. Dows v. National Exch. Bank, 91 U. S. 618, 23 U. S. (L. ed.) 214. 1107; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Winslow v. Norton, 29 Me. 419, 50 Am. Dec. 601; Chandler v. Sprague, 5 Metc. (Mass.) 306, 38 Am. Dec. 404; Adams v. O'Conner, 100 Mass. 515, 1 Am. Rep. 137; Green Bay First Nat. Bank v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; Scharff v. Meyer, 133 Mo. 428, 31 S. W. 858, 54 A. S. R. 672; Farmers, etc., Bank v. Hazeltine, 78 N. Y. 104, 34 Am. Rep. 518; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Decan v. Shipper, 35 Pa. St. 239, 78 Am. Dec. 334; Hieskell v. Farmers', etc., Nat. Bank, 89 Pa. St. 155, 33 Am. Rep. 745; Davis v. Bradley, 28 Vt. 118, 65 Am. Dec. 226. Notes: 59 Am. Dec. 170; 38 Am. Dec. 419; 89 Am. Dec. 361; 26 A. S. R, 452. 10. The Vaughn & Telegraph, 14 Wall. 258, 20 U. S. (L. ed.) 807; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 8 S. Ct. 266, 31 U. S. (L. ed.) 287; Means v. Randall Bank, 146 U. S. et seq. 620, 13 S. Ct. 186, 36 U. S. (L. ed.) R. C. L. Vol. XXIV.—2. 17 See BILLS OF LADING, vol. 4, p. 32 draft is drawn and transfers the bill of lading with the draft attached to one, generally a bank, who discounts the draft, is held to divest the consignor of the title, and to vest it in the holder of the draft to the extent of his advances.11 So it has been held that where the seller of goods consigns them to the buyer, taking a bill of lading from the. carrier, and intending to reserve the right of control over them, at the same time draws on the buyer for the price, and delivers the bill of exchange, with the bill of lading attached, to an indorsee, for a valuable consideration, the buyer, on receipt of the goods, takes them subject to the right of the holder of the bill of lading to demand payment of the bill of exchange, and cannot retain the price of the goods on account of a debt due to him from the seller. 12 A mere indorsement, however, of a bill of lading, without a delivery thereof, does not transfer the property in the goods.13 As in case of a bill of lading a warehouse receipt is in ordinary commercial transactions regarded as the symbolical representation of the property and its transfer and delivery is upheld as a valid transfer of the legal title to the property represented thereby.14 279. Acts Remaining to Be Done to Subject Matter Generally.— The principle is often stated to be that if anything remains to be done by either party to the transaction, before delivery-as for example to determine the price, quantity or identity of the thing sold-the title does not vest in the buyer, but the contract is merely executory, and that if anything remains to be done by the seller which is material or important before the buyer can identify or possess the thing sold, or before it becomes deliverable, the sale is executory and incomplete, and the property in it does not pass absolutely to the buyer. 15 There seems 11. Means v. Randall Bank, 146 U. S. 620, 13 S. Ct. 186, 36 U. S. (L. ed.) 1107; De Wolf v. Gardner, 12 Cush. (Mass.) 19, 59 Am. Dec. 165; Green Bay First Nat. Bank v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; National Newark Banking Co. v. Delaware, etc., R. Co., 70 N. J. L. 774, 58 Atl. 311, 103 A. S. R. 825, 66 L.R.A. 595; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Dec. 299; Hieskell v. Farmers', etc., Nat. Bank, 89 Pa. St. 155, 33 Am. Rep. 745. Note: 59 Am. Dec. 170. As between the holder of a draft with a bill of lading attached and the consignee, who accepts or pays the draft, the relation of seller and buyer is not created, according to the better view, so as to render such holder liable as a seller. See supra, par. 21. 12. Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299. 13. Buffington v. Curtis, 15 Mass. 528, 8 Am. Dec. 115. 14. Gibson v. Stevens, 8 How. 384, 12 U. S. (L. ed.) 1123; Burton v. Curyea, 40 Ill. 320, 89 Am. Dec. 350; De Wolf v. Gardner, 12 Cush. (Mass.) 19, 59 Am. Dec. 165; St. Anthony, etc., Elevator Co. v. Dawson, 20 N. D. 18, 126 N. W. 1013, Ann. Cas. 1912B 1337. Notes: 89 Am. Dec. 361; 26 L.R.A. (N.S.) 47. As to the general nature of warehousemen's receipts and their transfer, see WAREHOUSES. 15. Elgee Cotton Cases, 22 Wall. 180, 22 U. S. (L. ed.) 863; Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; Foley v. Felrath, 98 Ala. 176, 13 So. 485, 39 A. S. R. to be no objection to this as a general proposition, but it must be limited to those cases where the evidence does not show an intention to make the sale absolute and complete without any regard to the performance of these usual prerequisites,16 and it seems to be well recognized under the modern decisions at least that where the sale is of specific identified property the title may pass, if such is the intention of the parties, though something remains to be done by the seller to put the property in its final condition or before the price becomes payable. Thus in case of a sale of a growing crop if the subject matter is identified, the fact that the crop is to be gathered by the seller will not prevent the title from passing at the time of the sale if such was the intention of the parties; 18 so in case of the sale of an unfinished piano the title may pass though the seller is to finish it.19 By keeping the distinction between a specific and an indefinite commodity in view, it is said that many of the cases upon this subject can be explained, and their apparent conflict reconciled.20 280. Transportation and Inspection.-Where the property is to be transported by the seller to a particular place and there delivered to the buyer, who is given the right to inspect and reject the same if it does not conform to the requirements of the contract, the transaction 39; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Jennings v. Flanagan, 5 Dana (Ky.) 217, 30 Am. Dec. 683; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299, 87 N. W. 268, 92 A. S. R. 452, 55 L.R.A. 301; Smith v. Sparkman, 55 Miss. 649, 30 Am. Rep. 537; Southwestern Freight, etc., Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; McDonald v. Hewett, 15 Johns. (N. Y.) 349, 8 Am. Dec. 241; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; Cooke v. Millard, 65 N. Y. 352, 22 Am. Rep. 619; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Lownsdale v. Hunsaker, 2 Ore. 101, 88 Am. Dec. 465; Hubler v. Gaston, 9 Ore. 66, 42 Am. Rep. 494; Williams v. Allen, 10 Humph. (Tenn.) 337, 51 Am. Dec. 709; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726; Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262; Rugg v. Minett, 11 East. 210, 10 Rev. Rep. 475, 23 Eng. Rul. Cas. 295. Notes: 3 L.R.A. 199; 17 L.R.A. 181; 26 L.R.A. (N.S.) 13 et seq.; 23 Eng. Rul. Cas. 345. 16. Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43. 17. Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; McDermott v. Kimball Lumber, etc., Co., 102 Ark. 344, 144 S. W. 524, 39 L.R.A. (N.S.) 461; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318; Hurff v. Hires, 40 N. J. L. 581, 29 Am. Rep. 282; Williamson Steele, 3 Lea (Tenn.) 527, 31 Am. Rep. 652; Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726; Lynch v. Merrill, 72 W. Va. 514, 78 S. E. 669, 46 L.R.A. (N.S.) 192; Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445, 54 Am. Rep. 619. Note: 11 Am. Rep. 90. V. 18. Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Cummins v. Griggs, 2 Duv. (Ky.) 87, 87 Am. Dec. 482. 19. Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318. 20. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274. is ordinarily treated as executory and title does not pass to the buyer until actual delivery and acceptance; so though ordinarily the delivery by the seller to a carrier for transportation to the buyer passes the title to the buyer, it is otherwise where the contract of sale calls for delivery by the seller at the point of destination. The fact, however, where the sale is of specific chattels or where the chattels have been segregated and appropriated to the contract, that the seller is to transport them at his expense to a particular place will not prevent the title from passing if such was the intention of the parties. Where the chattels are delivered to a carrier for transportation to the buyer, the fact that the buyer has the right to inspect the goods on arrival and reject them if they do not conform to the contract will not prevent the title from passing to the buyer on the delivery to the carrier, if the goods in fact were such as the contract called for.5 281. Price to Be Fixed Generally.-An agreement as to the price is essential to a sale, and it is a general rule that the title to a thing sold does not pass to the buyer so long as anything remains to be done in order that the price may be known, but if the goods are sufficiently identified a complete sale of them may be made without fixing an absolute price, if such be the clear intention of the parties, as legally evinced by the circumstances attending the sale. Thus it has been held that title at once passes on the sale and delivery of a horse to the buyer for a reasonable price to be afterwards agreed on, and the fact that the parties cannot agree afterwards on a reasonable price makes no difference. The general question as to the element of price in sales and the necessity for certainty in this respect is heretofore treated. 282. Weighing, Measuring or Counting to Fix Price Generally.The general doctrine seems to be that a sale of personal property is not completed while anything remains to be done to determine its quantity, as by weighing, measuring, counting, if the price depends on this, unless this is to be done by the buyer alone, and there is no 4. See supra, par. 256, as to right of inspection generally. 5. See infra, par. 304. 6. Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Foley v. Felrath, 98 Ala. 176, 13 So. 485, 39 A. S. R. 39; Love v. State, 78 Ga. 66, 3 S. E. 893, 6 A. S. R. 234; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42. Note: 26 L.R.A. (N.S.) 12. 7. Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Greene v. Lewis, 85 Ala. 221, 4 So. 740, 7 A. S. R. 42; Francis Chenowith Hardware Co. v. Gray, 104 Ala. 236, 15 So. 911, 53 A. S. R. 37. Note: 26 L.R.A. (N.S.) 13. 8. Greene v. Lewis, 85 Ala. 221, 4 So. 740, 7 A. S. R. 42. 9. Ser supra, par. 93 et seq. |