dence is sufficient to show a specification of the goods. Unless the goods are designated or appropriated to the contract, a mere intention to pass title to goods that are unspecified is clearly no passing of title to any specific subject-matter of sale, and the contract, therefore, remains executory. Golder v. Ogden, 15 Pa. St. 528. First Nat. Bank v. Crowley, 24 Mich. 492. Moline Scale Co. v. Beed, 52 Iowa, 307. Howell v. Pugh, 27 Kan. 702. Ober v. Carson, 62 Mo. 213. Kohl v. Lindley, 39 Ill. 195. Davis v. Budd, 60 Iowa, 144. § 91. But when Goods are Appropriated Title Passes: At times the simplest circumstances are sufficient to "appropriate" the goods, and thus to pass title to the vendee. Appropriation may be made by simply setting apart the goods, marking them, or by other similar means. Higgins v. Murray, 73 N. Y. 252. Moody v. Brown, 34 Me. 107. Winslow v. Leonard, 24 Pa. St. 14. Home Ins. Co. v. Heck, 65 Ill. 111. Banchor v. Warren, 33 N. H. 183. § 92. Termination of Election of Appropriation and Time of Passing of Title: Simple as the statement of the rule regarding "appropriation" may seem, it is often, nevertheless, a perplexing one to apply. When are the goods appropriated, and exactly when does the title pass? Appropriation implies that both buyer and seller have assented to the specification of the goods, but, in the question now before us, and a question which frequently arises, the seller is presumed to be acting with the consent of the buyer, and has agreed to appropriate, or to set apart, the goods to the con tract. His act of appropriation, then, specifies the goods and executes the contract. When, however, in such cases is the seller's act final, and when, in consequence of such act, does the title pass? The seller may pick out certain goods intending to appropriate them to the contract, but he may change them again and again, if he pleases, until his election is terminated. When can he no longer exercise his election? The rule as laid down by Lord Blackburn and Mr. Benjamin in such cases is substantially as follows: When an election is to be made, the party who has the first thing to do, having done that act which he could not have done unless appropriation were made, thus makes his election irrevocable. Thus the vendor has agreed to ship the goods. This is the first thing to be done. He does ship the goods. His election is ended, because he could not have performed this act unless he had appropriated or specified the goods. Hence, one of the most common illustrations of appropriation of the goods is by delivering them to the carrier, and this act, unless the jus disponendi of the goods has been reserved (see § 97), is sufficient, generally, to pass the title. Philadelphia R. R. Co. v. Wireman, 88 Pa. St. 264. Stafford v. Walter, 67 Ill. 83. Leggett Tobacco Co. v. Collier, 89 Iowa, 144. Whiting v. Farrand, 1 Conn. 60. Glass v. Goldsmith, 22 Wis. 488. Shawhan v. Van Nest, 25 Ohio St. 490. Rider v. Kelley, 32 Vt. 268. § 93. Rules as to Portion of Uniform Mass: It is evident that there is a difference in principle between the necessity of appropriation or of separation from a larger stock or mass where the units of the whole quantity vary in quality or value, and where there is no appreciable difference between them. For example, an order for a hundred head of cattle from a larger herd, or for twenty sheep from a larger flock, requires an actual separation of the same in order to appropriate them to the contract, it being conceded that the cattle or sheep are not all of the same value. Consequently the rule in such cases is the general one before given, namely, that no title passes until, in accordance with the contract, the goods are appropriated. Where, however, the larger stock or mass is all of one or of an uniform quality, such as an order of ten barrels of flour from a larger number of barrels, the quality and quantity in each barrel being the same, or of oil or coal from a larger quantity in one tank or bin, then the question is a different one. There is no occasion for preference in such cases, since one unit is equal to every other unit. In such cases, consequently, does title to the quantity ordered pass to the vendee without separation? This question is answered both affirmatively and negatively by the different states, and the rule, therefore, depends upon the jurisdiction. § 94. The following states apply the general rule of the necessity of appropriation, making no exception in cases of uniform mass: Massachusetts (although some of the earlier cases inclined the other way), Ohio, Pennsylvania, Iowa, New Hampshire, California, Georgia, Indiana, Kansas, Kentucky, and doubtless other states. Scudder v. Worster, 11 Cush. 573. N. E. Co. v. Standard Worsted Co., 165 Mass. 329. Woods v. M'Gee, 7 Ohio St. 467. (In this case the value varied, but the doctrine was approved.) Haldeman v. Duncan, 51 Pa. St. 66. Courtright v. Leonard, 11 Iowa, 32. Commercial Bank v. Gillette, 90 Ind. 268. Bailey v. Long, 24 Kan. 90. Brewing Ass'n v. Nipp, 6 Kan. App. 730. |