request, and pay for and take the goods, the contract is dissolved, and the vendor is at liberty to sell the goods to another person. (c) If anything remains to be done, as between the seller and the buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. This is a well-estab* 496 lished principle * in the doctrine of sales. (a) But when everything is done by the seller, as to a parcel of the quantity sold, to put the goods in a deliverable state, the property, and consequently the risk of that parcel passes to the buyer; and as to so much of the entire quantity as requires further acts to be done on the part of the seller, the property and the risk remain with the seller. (b) The goods sold must be ascertained, desig

1

it was in use in the early ages of the English law, as a means of binding the parties and completing the sale. Glanville, b. 10, c. 14. Bracton, b. 2, c. 27. It is mentioned in the statute of frauds, and in the French Code, as an efficient act; but it has fallen into very general disuse in modern times, and seems rather to be suited to the manners of simple and unlettered ages, before the introduction of writing, than to the more precise and accurate habits of dealing at the present day. It has been omitted in the New York Revised Statutes.

(c) Langfort v. Tiler, 1 Salk. 113. Goodall v. Skelton, 2 H. Blacks. 316. In Greaves v. Ashlin, 3 Campb. 426, Lord Ellenborough denied the right of the seller in such a case to put an end to the contract. It was held in Neil v. Cheves, 1 Bailey (S. C.) 537, that if time and place for delivery be appointed, and the purchaser does not attend, or offer to pay, the vendor may rescind the contract, even though he had previously received part of the purchase-money.

(a) Hanson v. Meyer, 6 East, 614. Withers v. Lyss, 4 Campb. 237. Wallace v. Breeds, 13 East, 522. Busk v. Davis, 2 Maule & Selw. 397. Shepley v. Davis, 5 Taunt. 617. Simmons v. Swift, 5 Barn. & Cress. 857. M'Donald v. Hewett, 15 Johns. 349. Barrett v. Goddard, 3 Mason, 112. Allman v. Davis, 2 Ired. (N. C.) 12. The rule, as drawn from the case of Whitehouse v. Frost, in 12 East, 614, by Mr. Selwyn, is, that when goods are sold, if anything remains to be done on the part of the seller, as between him and the buyer, to ascertain the price, quantity, or individuality of the goods before delivery, a right of property does not attach in the buyer.

(b) Rugg v. Minett, 11 East, 210.

Henderson v. Brown, Newfoundland, 90.

1 Hutchinson v. Hunter, 7 Barr, 140. Scudder v. Worster, 11 Cush. 573. Field v. Moore, Hill & Den. 418. Golder v. Ogden, 15 Penn. 528. Stevens v. Eno, 10 Barb. (N. Y.) 95. Messer v. Woodman, 2 Foster, 172. Evans v. Harris, 19 Barb. (N. Y.) 416. The fact of earnest or part payment does not alter the case, and the money paid may be recovered if the contract fails. Joyce v. Adams, 4 Seld. 291. Nesbit v. Burry, 25 Penn. 208. But separation is enough to pass the property, though writing or other acts may remain to be performed. Cunningham v. Ashbrook, 20 Mis. 553. See, however, Waldron v. Chase, 37 Maine, 414, where it is held, that when a certain number of bushels out of a quantity of corn is paid for, and a part taken, though the rest has not been separated from the heap, the property and risk are in the vendee. And see Sweeny v. Owsley, 14 B. Mon. (Ky.) 413, and Wooster v. Sherwood, 25 N. Y. 278.

nated, and separated from the stock or quantity with which they are mixed, before the property can pass. (c) It is a fundamental principle, pervading everywhere the doctrine of sales of chattels, that if the goods of different value be sold in bulk, and not separately, and for a single price, or per aversionem, in the language of the civilians, the sale is perfect, and the risk with the buyer; but if they be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller, until the specific property be separated and identified. (d) 2

2

(3.) Where no time is agreed on for payment, it is understood to be a cash sale, and the payment and the delivery are immediate and concurrent acts, and the vendor may refuse to deliver without payment, and if the payment be not immediately made, the contract becomes void. (e) If he does deliver freely and absolutely,

(c) Austen v. Craven, Taunt. 644. White v. Wilks, Idem, 176. Outwater v. Dodge, 7 Cowen, 85. Woods v. M'Gee, 7 Ohio, 128.

(d) Vinnius's Com. in Inst. 3, 24, 3, sec. 4. Dig. 18, 1, 35, 3. Pothier, Traité du Contrat de Vente, No. 308. Code Napoleon, No. 1585. Civil Code of Louisiana, art. 2433. Zagury v. Furnell, 2 Campb. 240. Simmons v. Swift, 5 Barn. & Cress. 857. Devane v. Fennell, 2 Ired. (N. C.) 36. By the English statute of 5 & 6 Wm. IV. c. 63, new provisions were introduced for verifying and adjusting the standard models of weights and measures. The Winchester bushel, and all other local measures were abolished, and heaped measures were abolished, and the stone weight was regulated at fourteen standard pounds avoirdupois, and a hundred weight at eight such stones, and a ton at twenty such hundred weight, and no one was allowed to sell by any other weights or measures than the imperial weights and measures prescribed by the

act.

(e) Comyn's Dig. tit. Agreement, B. 3. Bell on the Contract of sale, Edin. 1844, pp. 20, 21.

But if the vendor presents a bill of the articles as being of a certain amount, and the vendee assents, that is sufficient. Olyphant v. Baker, 5 Denio, 379. To prevent the property passing, something must be required to ascertain the quantity, by the very terms of the contract. Dennis v. Alexander, 3 Barr, 50. So it has been held, that if a portion of the bricks in a kiln be sold by the thousand, but not counted or marked, though clearly identified, and possession of the yard containing the whole be delivered to the vendee, the property in those sold passes. It is left to the vendee to make his own selection. Crofoot v. Bennett, 2 Comst. 258. See, also, Brewer v. Salisbury, 9 Barb. (N. Y.) 511. And when it is clear, by the terms of a contract, that the parties intended the sale should be complete before the article sold is weighed or measured, the property will pass before this is done; even though the price cannot be otherwise fixed. Boswell v. Green, 1 Dutch. (N. J.) 390. Kimberly v. Patchin, 19 N. Y. 330; and see Ockington v. Richey, 41 N. Hamp. 275. Wooster v. Sherwood, 25 N. Y. 278.

3 Leven v. Smith, 1 Denio 571.

Under the clause of the statute of New York, making every agreement for the purchase of goods void "unless the buyer shall at the time pay some

4

*

and without any fraudulent contrivance on the part of the vendee to obtain possession, and without exacting or expecting simultaneous payment, there a confidence and credit are bestowed, and the precedent condition of payment is waived, and the right of property passes. (f) This rule is understood not to *497 apply to cases where payment is expected simultaneously with delivery, and is omitted, evaded, or refused, by the vendee, on getting the goods under his control; for the delivery in such case is merely conditional, and the non-payment would be an act of fraud, entering into the original agreement, which would render the whole contract void, and the seller would have a right instantly to reclaim the goods. (a) The obtaining goods upon false pretences under color of purchasing them does not change the property. (b) If it was even a condition of the contract, that the seller was to receive, upon delivery, a note, or security for payment at another time, he may dispense with that condition, and it will be deemed waived by a voluntary and absolute delivery,

(f) Haswell v. Hunt, cited by Buller J., in 5 Term Rep. 231. Harris v. Smith, 3 Serg. & Rawle, 20. Chapman v. Lathrop, 6 Cowen, 110, S. P. 1 Denio, 51.

(a) Leedom v. Philips, 1 Yeates, 529. Harris v. Smith, 3 Serg. & Rawle, 20. Palmer v. Hand, 13 Johns. 434. Bainbridge v. Caldwell, 4 Dana (Ken.) 213. A purchase of goods with a preconceived design not to pay for them, is a fraud, and will avoid the sale. No title passes to the vendee. Earl of Bristol v. Wilsmore, 1 Barn. & Cress. 514. Root v. French, 13 Wendell, 570. Ash v. Putnam, 1 Hill (N. Y.) 302. Vide post, p. 514, n., and ante, p. 484. Cary v. Hotailing, 1 Hill, 311. Kilby v. Wilson, Ry. & Moo. 178. Abbots v. Barry, 5 Moore, 98, 102. (b) Noble v. Adams, 7 Taunt. 59.

part of the purchase-money," &c., 2 R. S. 136, it has been decided, that if payment be made in a reasonable time, it is sufficient. Thompson v. Alger, 12 Metcalf, 428. It has been decided, that if the price was to be applied to the payment of a precedent debt, the application must be actually made, by receipt or otherwise. Clark v. Tucker, 2 Sandf. (N. Y.) 157. Brabin v. Hyde, 30 Barb. (N.Y.) 265.

Furniss v. Hone, 8 Wendell, 247. Smith v. Lynes, 1 Seld. 41. S. C. 3 Sandf. (N. Y.) 203. Davis v. Bradley, 24 Vermont, 55.

1 Malcom v. Loveridge, 13 Barb. (N. Y.) 372, holds that a bonâ fide purchaser of goods, for a valuable consideration, from a person who obtained them from the owner by false pretences, amounting to a felony, will hold them against the first vendor, if he voluntarily parted with the possession, and intended to part with the title. A similar decision was made by the N. Y. Superior Court, in Keyser v. Harbeck, 3 Duer, 373. See, also, White v. Garden, 5 E.

L. & Eq. 379; Jennings v. Gage, 13 Ill. 610; Williams v. Given, 6 Gratt. 268; Acker r. Campbell, 23 Wendell, 372; Kingsford v. Merry, 34 E. L. & Eq. 607; Titcomb v. Wood, 38 Maine, 561; Caldwell v. Bartlett, 3 Duer, 341; Smith v. Lynes, 1 Seld. 4. But see Sawyer v. Fisher, 32 Maine, 28.

without a concurrent demand of the security. (c) But if the delivery in that case be accompanied with a declaration on the part of the seller, that he should not consider the goods as sold until the security be given, or if that be the implied understanding of the parties, the sale is conditional, and the property does not pass by the delivery, as between the original parties; though, as to subsequent bona fide purchasers or creditors of the vendee, the conclusion might be different. (d)2 Where there is a condition precedent attached to a contract of sale and delivery, the property does not vest in the vendee on delivery, until he performs the condition, or the seller waives it; and the right continues in the vendor, even against the creditors of the vendee. (c) If the delivery of the goods precedes for a short time the delivery of the note to be given for the price, according to particular usage in that species of dealing, and which usage is known to the buyer, the case falls within the same principle, and the *498 delivery is understood to be conditional. The condition is

3

(c) Payne v. Shadbolt, 1 Campb. 427. Carleton v. Sumner, 4 Pick. 516. Dennie, 6 Idem, 262.

Smith v.

Corlies

(d) Hussey v. Thornton, 4 Mass. 405. Marston v. Baldwin, 17 Idem, 606. v. Gardner, 2 Hall (N. Y.) 345. Reeves v. Harris, 1 Bailey (S. C.) 563. Lucy v. Bundy, 9 N. Hamp. 298. Lafon v. De Armas, 12 Rob. (Louis.) 598. In this last case after much learned discussion, it was held, that when the purchaser of a thing sold has acquired as against the seller a right to demand it, the sale is not complete as to third persons, until the price be paid and possession delivered; and if neither of them be done, a sale in good faith to a third person, followed by payment and delivery, will be good. The remedy for the first purchaser, if any, is by an action ex exempto for damages.

(e) Barrett v. Pritchard, 2 Pick. 512. Bishop v. Shillito, 2 Barn. & Ald. 329, n. Strong v. Taylor, 2 Hill (N. Y.) 326.

In Coggill v. H. & N. H. R. R. Co. 3 Gray, 545, it is held that the vendor in a conditional sale may recover the property even from one who has purchased of the vendee in good faith and without notice. Haven v. Emery, 33 N. Hamp. 66. In Herring v. Hoppock, 15 N. Y. (1 Smith) 409, it was held that where property was delivered to a vendee, in a conditional sale, and the condition was not performed, the vendee had no interest in the property which would be the subject of a levy and sale on execution. And see Hart v. Carpenter, 24 Conn. 427.

3 A sale with a right of resale by the vendor, in default of payment by vendee, is a conditional sale, and the resale annuls the first sale. Lamond v. Davall, 9 Adol. & Ell. (N. S.) 1030. See Staats v. Hodges, Hill & Denio (N. Y.) 211, in which certain acts were held not to amount to a waiver of a condition.

Nor is the right of the vendor affected by his recovering a judgment for the price, nor by the article sold having been left in his possession against his will. Root v. Lord, 23 Vermont, 568.

1 Fleeman v. McKean, 25 Barb. (N. Y.) 474.

not deemed to be waived, and the seller will have a right in equity to consider the goods as held in trust for him, until the vendee performs the condition, and gives the note with security; and his right to the goods will be good, as against the buyer and his voluntary assignee, though not as against a bona fide purchaser from the vendee. (a) 2 It is the better and sounder doctrine, and one established by the later cases, that a written agreement to deliver by a certain time goods sold, cannot be enlarged as to the time by a subsequent parol agreement, for that would contravene the statute of frauds, by making the right of action of the agreement to rest partly in writing and partly in parol. (b)

(4.) By the civil law, the right of property was not vested in the purchaser without delivery; nor even by delivery, without pay

(a) Haggerty v. Palmer, 6 Johns. Ch. 437; and see Lord Seaforth's case, 19 Vesey, 235, in which the vendor's lien was carried at least equally far; and see, also, Whitwell v. Vincent, 4 Pick. 449; Corlies v. Gardner, 2 Hall (N. Y.) 345; Russell v. Minor, 22 Wendell, 661, and D'Wolf v. Babbett, 4 Mason, 294, to the same point. In the case in Hall, six days intervened between the delivery of the goods and the call for the note; and in the last case it was held, that if on a sale the delivery of goods be conditional, and the vendor assents to a qualified delivery, for the convenience of the vendee, and with the understanding that the property is not to pass absolutely, unless the terms of sale be complied with, the vendor in that case is not divested of his right to retake the goods. Copland v. Bosquet, 4 Wash. C. C. 588, S. P. But in Mills v. Halleck, 2 Edw. Ch. 652, the sale at auction was on approved notes, and the goods were delivered, and twenty-five days thereafter the vendee failed and assigned his property. As there was no custom proved authorizing such a delay, the title was held to be completely vested before the assignment, and passed with it. The rule in Canada is, that if goods be sold for cash, and not paid for, they may be followed and claimed in an action of revendication, if brought within eight days, and if the goods have remained in the state in which they were delivered. Aylwin v. McNally, Stuart's Lower Canada,

541.

By the Code of Louisiana, art. 3194, the vendor of a chattel not paid for has a preference for the price, over other creditors of the vendee, whether the sale was made on credit or without, if the property remains in the possession of the purchaser, and the privilege exists, though the vendor has taken a note from the buyer. This privilege is extinguished by the destruction of the thing sold; but it is held, that if the vendee sells the goods before he has paid for them, the money due by the second vendee will represent the goods, and the first vendor's privilege will attach thereon. Martin J., in Thayer v. Goodale, 4 Louis. 222.

(b) Goss v. Lord Nugent, 5 Barn. & Adol. 58. Stowell v. Robinson, 3 Bing. (N. C.) 928. Harvey v. Grabham, 5 Adol. & Ell. 61.

2 But in Sargent v. Metcalf, 5 Gray, 306, the vendor's right to the goods was held to be good against a purchaser in good faith and without notice of the conditions.