transfer the property, when the goods could not be actually delivered until the seller had paid the duties; that fact being known and understood at the time, and when the buyer. accepted of the sample as part of the quantity purchased. (b) The delivery must always be according to the subject-matter of the delivery, and the property must be placed under the control and power of the vendee. (c)

Cutting off the spiles of wine-casks, and marking the initials of the purchaser's name on them, has been held an incipient delivery, sufficient to take the case out of the statute. (d) So if the purchaser deal with the commodity as if it were in his actual possession, this has been held to supersede the necessity of proof of actual delivery. (e) Where a purchaser at the merchant's shop, marked the goods which he approved of, and laid them aside on the counter, and went for a porter to remove them, without receiving a bill of parcels, or stipulating a time of payment, or tendering the merchant's note, which he was to offer in payment, it has been held, that the property in the goods was not changed by that transaction. (f) Since that decision, a more relaxed rule has, at times, been adopted; and it has been held, that on

the purchase of a horse, without memorandum payment * 503 * or actual delivery, the verbal. request of the buyer that the vendor keep the horse in his possession for a special purpose, and the consent on the part of the vendor, amounted to a constructive delivery, sufficient to take the sale out of the statute. (a) This case has since been questioned, as carrying the doctrine of constructive delivery to the utmost verge of safety; and the latter cases seem to have resumed a stricter doctrine, and qualified the inference to be drawn from the acts of the buyer.

(b) Hinde v. Whitehouse, 7 East, 558. But generally, as a substitute for actual or constructive delivery, the taking of samples has no effect. Hill v. Buchanan, cited in a note to 1 Bell, Com. 182..

(c) 2 N. Hamp. 318. Incorporeal rights are not susceptible of actual delivery, and a quasi-possession is taken, when the use commences, as a right of way. So, the delivery of a debt or chose in action, consists in the assignment of it, with notice. Pothier, Traité du Droit de Propriété, Nos. 214, 215.

(d) Anderson v. Scott, 1 Campb. 235, n.

(e) Chaplin v. Rogers, 1 East, 192. Blenkinsop v. Clayton, 1 Moore, 328.

(f) Dutilh v. Ritchie, 1 Dall. 171. So, also, to the same point, Baldey v. Parker, 2 Barn. & Cress. 37; S. C. 3 Dow. & Ry. 220.

(a) Elmore v. Stone, 1 Taunt. 458.

The presumption of a delivery is not readily allowed, when there has been none in fact; for it goes to deprive the seller of the possession and of his lien, without payment. (b) The purchase of a part of a heap of grain, or of other goods in bulk, if the same be not measured off and separated at the time, is not valid, even though the seller afterwards measured it off and set it apart for the vendee. (c) On the other hand, probity in dealing, the interests of commerce, and the variety, extent, and rapidity of circulation of property, which it has introduced, require that delivery should frequently be presumed from circumstances; and a destination of the goods by the vendor to the use of the vendee, the marking them, or making them up to be delivered, or the removing them for the purpose of being delivered, may all entitle the vendee to act as owner. (d)2 But the presumption fails when positive evidence contradicts it, as in the case of a refusal on the part of the vendor to part with the goods until payment; (e) and on the part of the vendee to take the goods when inspected; (f) or the delivery be of a sample which is not * 504 part of the bulk of the commodity sold. The good sense of

*

the doctrine on the subject would seem to be, that, in order to satisfy the statute, there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and an actual acceptance by the vendee, with an intention of taking possession as owner. (a)

(b) Tempest v. Fitzgerald, 3 B. & Ald. 680. Carter v. Toussaint, 5 Idem, 855. Dole v. Stimpson, 21 Pick. 384.

(c) Howe v. Palmer, 3 B. & Ald. 321. Salter v. Knox, 1 Bell Com. 181, n. S. P. Eagle v. Eichelberger, 6 Watts, 29. See supra, p. 496, S. P.

(d) Lord Loughborough, 1 H. Blacks. 363. 1 Campb. (N. P.) 233. Parker v. Donaldson, 2 Watts & Serg. 1.

(e) Goodall v. Skelton, 2 H. Blacks. 316.

(f) Kent v. Huskinson, 3 Bos. & Pull. 233. The delivery to the carrier will not conclude the vendee, and be construed into an actual acceptance of the goods, so long as the vendee retains the right of inspection upon the ultimate delivery, and to object to either the quantity or quality of the goods. Astey v. Emery, 4 Maule & Selw. 264. Hanson v. Armitage, 5 Barn. & Ald. 559.

(a) Phillips v. Bistolli, 2 B. & Cress. 511.

1 Holmes v. Hoskins, 28 E. L. & Eq. 564.

Putting oil in bottles furnished by the buyer, and marking on them the quantity (Langton v. Higgins, 4 Exch. 402) and placing barley in sacks furnished by the purchaser (Aldridge v. Johnson, 7 Ell. & Bl. 885), entitle the vendee to act as owner.

If the subject-matter of the contract does not exist in rerum natura, at the time of the contract, but remained to be thereafter fabricated out of raw materials, or materials not put together, it is consequently incapable of delivery, and not within the statute of frauds; and the contract is valid without a compliance with its requisitions. (b) The case rests entirely on contract, and no property passes, until the article is finished and delivered. (c)

(b) Towers v. Osborne, Str. 506. Groves v. Buck, 3 Maule & Selw. 178. Littledale J., in Smith v. Surman, 9 Barn. & Cress. 561. Mixer v. Howorth, 21 Pick. 205. See, also, infra, 511, n. c.

(c) Mucklow v. Mangles, 1 Taunt. 318. Atkinson v. Bell, 8 Barn. & Cress. 277. In the Scotch law, if goods be purchased from a manufacturer, before some necessary operation of his art be completed, as if one buys a ship on the stocks, or a vase in the hands of a goldsmith, unfinished, or cotton goods upon the loom, in a state of preparation, and the price to be paid, there is held, in these cases, to be a constructive delivery sufficient to pass the property; and this was the doctrine of the civil law. 1 Bell, Com. 176, 178. This may be very reasonable doctrine; but the English rule, according to the case in Taunton, is more strict, and it requires the chattel to be finished, and in a state for delivery, and to be delivered, according to the nature of the case, to change the property. In Woods v. Russell, 5 Barn. & Ald. 942, C. J. Abbott laid down the principle, that where a ship is built upon special contract, and portions of the price were to be paid according to the progress of the work, those payments appropriate specifically to the purchaser the vessel so in progress, and vest the property as between him and the builder, so as to entitle him to insist on the completion of that very vessel. The same principle is declared in the Scots law. Simpson v. Duncanson, cited in Bell on the Contract of Sale, Edin. 1844, p. 17. But the court of K. B., in Clark v. Spence, 4 Adol. & Ell. 448, admitted with reluctance the authority for this new principle, and said that the general and prior rule of law was, that, under a contract for building a vessel, or anything not existing in specie at the time of the contract, no property vested in the purchaser during the progress of the work, even though the precise mode and time of payment were fixed, nor until the thing was delivered, or ready for delivery, and approved of by the purchaser; and that the purchaser was not bound to deliver the identical article, if another answered the specification in the contract. The court, nevertheless, followed the authority of Woods v. Russell.2 In Lunn v. Thornton, I Man. Gr. & Sc. 379, it was adjudged that personal property, not belonging to the grantor or vendor at the time of the grant or bill of sale, would not pass by it, as if a bill of sale be executed of goods in a shop, and other goods be afterwards added to them by the vendor to give effect to the grant; the grantor must ratify it by some act done by him after he has acquired the property. The 14th rule in Lord Bacon's Maxims is

to the same effect.

1 Butterworth v. McKinley, 11 Humph. 206. Read v. Fairbanks, 24 E. L. & Eq. 220. Wood v. Bell, 36 E. L. & Eq. 148. But in Andrews v. Durant, 1 Kernan, 35, the New York Court of Appeals rejected the English rule, and held, that, in a case similar to Wood v. Russell, or Clark v. Spence, the property would not pass to the vendee before the completion of the work. See, also, Moody v. Brown, 34 Maine, 107.

2 Hotchkiss v. Oliver, 5 Denio, 315.

If the buyer unreasonably refuses to accept of the article sold,` the seller is not obliged to let it perish on his hands, and run the risk of the solvency of the buyer. The usage on the neglect or refusal of the buyer to come in a reasonable time, after notice, and pay for and take the goods, is for the vendor to sell the same at auction, and to hold the buyer responsible for the deficiency in the amount of sales. (d) 8

*(7.) The place of delivery is frequently a point of con* 505 sequence in the construction of the contract of sale. If no place be designated by the contract, the general rule is, that the articles sold are to be delivered at the place where they are at the time of the sale. The store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer, at which the commodities sold are deposited or kept, must be the place where the demand and delivery are to be made, when the contract is to pay upon demand, and is silent as to the place. This appears to be the general doctrine on the subject. (a)

(d) Sands v. Taylor, 5 Johns. 395. Adams v. Minick, cited in 5 Serg. & Rawle, 32. Girard v. Taggart, Ibid. 19. M'Combs v. M'Kenman, 2 Watts & Serg. 216. Where the purchaser refused to pay for a thing sold by the sheriff at apublic sale, and the sheriff resells the article at a lower price, the rule of damages against the purchaser is the difference between the first bid and the second sale, for that is the loss actually sustained. Lamkin v. Crawford, 8 Ala. (N. S.) 153.

(a) Pothier, Traité des Oblig. No. 512. Traité du Contrat de Vente, Nos. 45, 46, 51, 52. Code Napoleon, n. 1609. Toullier, Droit Civil Français, tom. vii. n. 90. Civil Code of Louisiana, art. 2469. Adams v. Minick, ub. sub. Lobdell v. Hopkins, 5 Cowen, 516. Chipman's Essay on the Law of Contracts, 29, 30. Goodwin v. Holbrook, 4 Wendell, 380.1

The Code Napoleon, in respect to the contract of sale, and in respect to all other contracts, seems to be, in a great degree, a concise abridgment or summary of the writings of Pothier. M. Dupin, in his dissertation prefixed to the edition of the works of Pothier, published in Paris in 1827, says, that three fourths of the Code Civil have been literally extracted from Pothier's treatises. The utility of the latter, and their great merit in learning, perspicuity, and accuracy of illustration, are far from being superseded or eclipsed by the simplicity, precision, and brevity of the code. The aid of the French civilians of the former school has been found as indispensable as ever. The Code Napoleon and Code de Commerce deal only in general rules and regulations.

3 It is declared not to be necessary in New York, that such sale should be by auction; it may be in the ordinary manner, upon notice to the party in default. Crooks v. Moore, 1 Sandf. (N. Y.) 297. Conway v. Bush, 4 Barb. (N. Y.) 564. Dibble v. Corbett, 5 Bosw. 202 Bogart v. O'Regan, 1 E. D. Smith (N. Y.) 590. Notice is necessary. McEachron v. Randles, 34 Barb. (N. Y.) 301. Judd Co. v. Kearney, 14 La. Ann. 352.

Bronson v. Gleason, 7 Barb. (N. Y.) 472.

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* 506 Pothier distinguishes between contracts for a thing certain, as for all the wine of the vintage of the vendor, and a contract for anything intermediate, as a pair of gloves, a certain quantity of corn, wine, &c. In the former case, the delivery is to be at the repository where the wine was at the time of the contract; and this is reasonably supposed to be the understanding of the parties, as the purchaser would then be able to see that he had the whole quantity agreeably to the contract. In the latter case, the property is to be delivered at the debtor's place of residence, unless the parties lived near each other, and the thing be portable; in which case the place of payment would be the creditor's residence. (a) The common law on the subject of the delivery of specific articles which are portable, makes a distinction between the contract of sale, and the contract to pay a debt at another time in such articles. We have seen, that in the contract of sale, the delivery is to be at the place where the vendor has the article; but in the other case, the weight of authority would seem to be in favor of the rule, that the property was to be delivered at the creditor's place of residence, though the cases on the subject are not easily reconcilable with each other.

Lord Coke lays down the rule, (b) that if the contract be to deliver specific articles, as wheat or timber, the obligor is not bound to carry the same abroad, and seek the obligee, (as in the case of payment of money,) but he must call upon the obligee before the day, to know where he would receive the articles, and they must be delivered, or the obligor must be ready and able to

They are not sufficiently minute and provisional to solve, without judicial discussion, the endless questions that constantly arise in the business of life. The citation of adjudged cases, M. Dupin says, is so very common in the French courts, that there seems to be an emulation who shall cite the most. (Jurisprudence des Arrets, Pref.) Between the years 1800 and 1827, there were upwards of two hundred original treatises and compendiums, upon different titles of the law, published in France. M. Toullier has undertaken a commentary upon the French Civil Law, according to the order of the Code, which has already extended to twelve volumes, and in 1839, his Droit Civil, the 5th edition, was published at Paris in fifteen volumes; and, as far as I may be permitted to judge, from a very imperfect knowledge of the French law, he seems to rival even Pothier himself in the comprehensiveness of his plan, and in the felicity of its execution. In 1844, the Cours de Droit Français suivant le Code Civil, by M. Duranton, was published at Paris in twenty-two volumes.

(a) Pothier, Traité des Oblig. Nos. 512, 513. Bradley v. Farrington, 4 Ark. 532. (b) Co. Litt. 210 b.