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"he had ascertained the actual price of the raft by the "measurement previously made; nor was there anything "to be done by him for the buyer; the seller had, according to his contract, conveyed the raft to Indian Cove, and, "according to the finding of the jury, had delivered it "there. Nor was there anything to be done in which they both were to concur, as in Simmons v. Swift, 5 B. & C. "857; the case therefore depends upon the effect of a "contract for the sale of certain ascertained goods, without "anything to limit or control its legal operation. By such "a contract the property was changed, and the loss must "fall on the buyer.'

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The same question arose in Lockhart et al. v. Pannell, 22 U. C. C. P. 597 (1873), in which the subject of sale was a stock of goods, as shown by the stock book, and which were sold for the sum of $7,695.24, of which the purchaser paid in cash $2,782, taking a receipt, on which was endorsed a memorandum that the balance was to be paid in notes at three, six and nine months, and the purchaser was to go to Ingersoll, where the goods were, next morning, and take possession. On the day of the sale the purchaser got possession of the key, and on the following day took possession, and while he was engaged in packing up the goods with a view to their removal they were destroyed by fire. The case is too plain as to the point now under consideration to be questioned. Hagarty, C.J., said that, even if the goods were to be checked with the stock-book as a necessary preliminary to ascertain the amount for which the notes were to be given, and though the purchaser declined to be bound by the quantities in the stock-book, he saw no reason why the property should not have passed, if it were the intention of the parties that it should pass. In this case the learned Chief Justice quotes a dictum of Cockburn, C.J., in Martineau v. Kitching, L. R. 7 Q. B. 436 (1872), which is eminently reasonable, and may one day be the law, but which goes a little beyond any of the decided cases. He says: "I agree to sell a man a specific thing, say a stack "of hay or a stack of corn. I agree to sell him that specific "thing, and he agrees to buy it; the price undoubtedly "remains an element of the contract; but we agree, instead "of fixing upon a precise sum, that the sum shall be ascer

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"tained by a subsequent measurement. What is there to prevent the parties from agreeing that the property "should pass from one to the other, although the price is "afterwards to be ascertained by admeasurement. I take "it that is the broad substantial distinction. If, with a view "to the appropriation of the thing, the measurement is to "be made, as well as the price ascertained, the passing of "the property being a question of intention between the parties, it did not pass because the parties did not intend "it to pass." The context shows that Cockburn, C.J., is speaking not of an express agreement, as to which there could never be any question, but of the agreement to be inferred from the fact of the goods being specific; and in that sense the cases have never gone to the full extent of his dictum, though there has been a somewhat steady development in that direction, so far as regards the necessity for weighing or measuring as a condition to the passing of the property.

Price agreed upon necessary in goods bargained and sold. This was decided in Upper Canada in 1846, in Elvidge v. Richardson, 3 U.C.Q.B. 149, in which it was held that the count should have been for not accepting the goods. The matter has become of comparative unimportance under the present system of pleading and with the present liberality in allowing amendments. The same remark applies to the case of Lane v. Melville, 3 O.S. 124, where goods were ordered to be made by plaintiff in England and on arrival here went into the hands of the plaintiff's agent, who did not tender them or leave them with the defendant, and the plaintiff sued for goods sold and delivered. It was held that the action should be for refusing to accept the goods, but it was treated as an open question whether he could not have sued for goods sold. That would, of course, depend upon whether the property had passed, which question could not arise, as the action was for goods sold and delivered and they had not been delivered.

In Sheriff v. McCoy, 27 U.C., Q.B. 597, to an action on the common counts for goods sold, the defendant pleaded that at the time of the sale the plaintiff agreed to accept in payment two promissory notes made by one Merrit. Defendant replied that he was induced to receive these notes by fraud,

of which he gave the particulars, being fraudulent representations respecting the notes. The facts as stated in the particulars being admitted by defendant's counsel, it was held that the plaintiff could not recover, for, there being an express contract, the defendant's fraud could not create an implied one, though it would entitle the plaintiff to recover back the goods or maintain a special action for the deceit.

In Auger v. Thompson, 3 O. A. R. 19, the defendant gave the note of a third party for a buggy. The note was not paid upon maturity, whereupon the plaintiff sued the defendant on the common counts for the price, alleging that he had induced him to take the note by fraudulent representations. It was held that, there being an express contract to take the note for the buggy, no agreement to pay any money could be implied by reason of the alleged fraud. The transaction was held to be one of barter, not of sale for a money price.

The case is distinguished from one where the purchaser at a money price induces the vendor to accept a worthless note as payment of that price. "In the case we are considering the defendant did not agree to purchase the buggy "at a certain price and then induce the plaintiff to accept the note as payment.

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The previous case of Sheriff v. McCoy is also treated as not being a sale, Mr. Justice Wilson being quoted to the following effect: "The plaintiff is attempting to make a "contract for a sale of goods when no such sale was ever "made in fact, or in law, and when the defendant never "promised to pay cash. He is not without remedy, for he may sue for the fraud in an action on the case or in trover "for the goods parted with."

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In both these cases the note taken in payment was the note of a third person. If the note had been given by the purchaser in payment of the goods, doubtless the action for goods sold would lie after the maturity of the note and its dishonour, and the fact that the plaintiff was induced by fraud to accept the note would not prevent the plaintiff from recovering for the goods sold.

Property may vest in purchaser before completion or readiness to be delivered. Where it is expressly agreed between the parties that the property is to vest in the purchaser at any particular stage in the course of its prepara

tion, the agreement governs, and, as stated in the text, the effect of the cases is that where the price is to be paid accordingly as the work progresses from stage to stage, the general property vests upon payment of one of the instalments.

Canadian cases have occurred of this kind, both under express agreements for the vesting of the property, and under the agreement inferred from the terms of payment. The case of the Bank of Upper Canada v. Killaly, 21 U. C. Q. B. 9 (1861), was of the latter class. One Pierson had agreed to build for the Grand Trunk Railway Company one hundred freight cars according to a pattern car and specifications, the company paying for each car $825; payments to be made monthly by the company on the estimate made by a person appointed by the company on materials furnished and work done, "payments to be made to the

satisfaction of the Bank of Upper Canada, who are to "act as receivers." All but sixteen cars had been delivered, and these sixteen had been approved of, and were to be sent to the Suspension Bridge to wait for the springs, which the company were to furnish. The transaction between the company and the bank is not material to the present purpose. It was held that by the agreement between Pierson and the company the cars vested in the company before delivery and could not be seized under execution against Pierson. The case was held to resemble the early case of Wood v. Bell et al., 5 E. & B. 772, in which a ship was to be constructed, to be paid for in instalments dependent upon the successive stages reached in the construction. McLean, J., speaks of a lien in favor of the Grand Trunk Railway Company, but Burns, J., discussed it as a question whether the property vested in the Grand Trunk Company before the final delivery, dependent upon the intention of the parties, and held that the company had a vested right of property in the cars, which they could and did transfer to the plaintiff bank.

In Burnett et al. v. McBean, 16 U. C. Q. B. 466 (1858), the contract was to make bricks for the plaintiffs, who were to find the wood "to burn the kilns," and did find it to the amount of several hundred pounds. They were to deduct the cost of the wood from the price they were to pay for

the bricks, which was fixed at a certain price per thousand. The trial judge left the case to the jury with a direction that if the bricks were made upon the understanding that they were to be manufactured for the plaintiffs, and were to be theirs as they were made, without any delivery being necessary, the plaintiffs should recover in an action against the defendant, who claimed them under an assignment from the manufacturer. There was proof that the manufacturer, when applied to by parties who wished to buy some of the bricks, had referred them to the plaintiffs as the owners. No very great stress is laid upon this circumstance, but it would not be absolutely safe to read the case as a decision that the mere fact of the plaintiff agreeing to find the wood and deduct the cost from the price of the bricks would be enough to warrant the trial judge in leaving it to the jury to find that the intention was to pass the property in the bricks as manufactured. Probably, however, that was the view held by the court.

In Kelsey v. Rogers et al., 32 U. C. C. P. 624 (1882), the plaintiff entered into an agreement with one McDonald, by which the latter agreed "to furnish to the joint account " 12,000 to 15,000 staves of different kinds at stipulated prices," at which prices the parties agree to make it a joint "account transaction, share and share alike in gain or "loss," Kelsey to furnish some competent man to cull and mark the staves and to make reasonable advances from time to time, as the progress of the work shall warrant, the expenses of such culler, as also interest on the money advanced, to be charged to the joint account," said staves to "be considered at all times, whether marked or not, the property of said Kelsey as security for advances.' McDonald proceeded to purchase timber to make the staves, and got timber from three persons therefor with the money supplied by Kelsey. It was held that the staves became the property of the plaintiff as soon as made, and never were the property of McDonald. The written contract between the parties also provided that the staves should be considered at all times, whether marked or not, the property of said Kelsey, as security for advances. "On this I con"sider and hold that as each stave was made and became a stave, it also became and was Kelsey's property, and

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