PART II. TRANSFER OF PROPERTY AS BETWEEN SELLER AND BUYER. Section 17. No Property Passes Until Goods are Ascertained. Where there is a contract to sell unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of ascertained goods may be transferred as provided in section six. Part II deals with the transfer of the title from the vendor to the vendee and provides rules for ascertaining the intention of the parties as to how and when title passes. The title to goods cannot pass until the vendor and the vendee both consent and intend that it shall pass. The rule of construction stated in this section provides that there is no intention until the goods have been ascertained or identified,' since the minds of the parties cannot meet upon the subject matter of the contract until it has been selected, ascertained or identified by them. Unascertained goods may be considered under the following classification: 1. Goods which are a portion of a specific ascertained mass: (a) Of like constituent parts. (b) Of unlike constituent parts. 2. Goods of a specific class or description, the particular individual units of which have not yet been appropriated to the contract. 1. Allen v. Elmore, 121 Ga. 241; 1 Mechem on Sales, §§ 198, 695; Benjamin on Sales, § 352. "There can be no transfer of property until the parties have ascer tained and agreed upon the articles sold. Before they are designated and set apart in some form, there is nothing to which the contract of sale can attach or on which it can operate." Gardner v. Lane, 91 Mass. (9 Allen) 492, 499, 94 Mass. (12 Allen) 39. Citing Aldridge v. Johnson, 7 E. L. & B. 885; Rice v. Dwight Mfg. Co., 56 Mass. (2 Cush.) 80, 86; Scudder v. Worster, 65 Mass. (11 Cush.) 573. "Where the specific goods to which the contract is to attach are not specified, the ordinary conclusion is that the parties only contemplated an executory agreement." Hatch v. Standard Oil Co., 100 U. S. 124. 3. Goods to be manufactured to order. The second and third of these classes will be considered under section 19, and only the first class will be considered in this section. 1. The question which arises upon the sale of a portion of a specific mass of goods is whether separation of the portion from the mass is necessary in order to identify the portion separated as the particular portion sold. This is materially affected by the question whether the mass is homogeneous, that is, composed of like constituent parts, each unit of which is, or is considered to be, like every other unit, in this Act called "Fungible Goods," or whether the constituent parts are unlike. (a) FUNGIBLE GOODS.-Where the goods are homogeneous, the courts have been divided as to whether or not separation is neces sary. The English Courts hold with substantial unanimity that title does not pass in such cases until separation has been made.2 The American Courts are divided as to whether or not separation is necessary to ascertain the goods and pass title. Many cases, following the English cases, hold that separation is necessary. 2. Wallace v. Breeds, 13 East, 522; Busk v. Davis, 4 M. & S. 397. To the same effect are White v. Wilks, 5 Taunt. 176; Austen v. Cravens, 4 Taunt, 644; Shepley v. Davis, 5 Taunt. 617; Gillett v. Hill, 2 Cr. & M. 530; Gabannon v. Kreeft, L. R. 10 Ex. 274; Whitehouse v. Frost, 12 East, 614; Benjamin on Sales, § 352. 3. Elgee Cotton Cases, 89 U. S. (22 Wall.) 180; Browning v. Hamilton, 42 Ala. 484; Warten v. Strane, 82 Ala. 311; Block Bros. v. Maas, 65 Ala. 211; Mobile Bank v. Fry, 69 Ala. 348, 350; Fry v. Mobile Sav. Bank, 75 Ala. 473; Gresham v. Bryan, 103 Ala. 629; Beller v. Block, 19 Ark. 566; Upham v. Dodd, 24 Ark. 545; McLaughlin v. Piatti, 27 Cal. 452, 463; Caruthers v. McGarvey, 41 Cal. 15; R. R. Co. v. Burr, 51 Ga. 553; Huntington v. Chisholm, 61 Ga. 270; Dunlop v. Berry, 5 Ill. (4 Scam.) 327; Morrison v. Woodley, 84 Ill. 192; Murphy v. State, 1 Ind. 366; Bricker v. Hughes, 4 Ind. 146; 3 Moffatt v. Green, 9 Ind. 198; Scott v. King, 12 Ind. 203; Lester v. East, 49 Ind. 588; Indianapolis R. R. Co. v. Maguire, 62 Ind. 140; Bertelson v. Bowers, 81 Ind. 512; Com. Nat. Bank v. Gillette, 90 Ind., 268, 270; Cook v. Logan, 7 Iowa, 141-142; Courtright v. Leonard, 11 Iowa, 32; Rosenthal v. Risley, 11 Iowa, 541; Snyder v. Tibbals, 32 Iowa, 447; Williams v. Feiniman, 14 Kan. 288; Bailey v. Long, 24 Kan. 90; Ferguson v. Northern Bank, 77 Ky. (14 Bush.) 555; Brewer v. Smith, 3 Me. (3 Greenl.) 44; Houdlette v. Tallman, 14 Mo. 400; Stone v. Peacock, 35 Me. 385; Morrison v. Dingley, 63 Me. 553; Cumberland Bone Co. v. Andes Ins. Co., 64 Me. 466; Lawry v. Ellis, 85 Me. 500; Reeder v. Ma. chen, 57 Md. 56; Young v. Austin, 23 Mass. (6 Pick.) 280; Merrill v. Hunnewell, 30 Mass. (13 Pick.) 213; Scudder v. Worster, 65 Mass. (11 Cush.) 573; (1. c.); Weld v. Cutler, 68 Mass. (2 Gray) 195; Ropes v. This is usually put upon the ground that selection is still to be Lane, 91 Mass. (9 Allen) 502; 93 Mass. (11 Allen) 591; Keeler v. Goodwin, 111 Mass. 490; New England, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 329; Hahn v. Fredericks, 30 Mich. 223; Pierson V. Spaulding, 67 Mich. 640; Thomas v. State, 37 Miss. 353; Baldwin V. McKay, 41 Miss. 358; Ober v. Carson, 62 Mo. 209, 213; Davis v. Hill, 3 N. H. 382; Messer v. Woodman, 22 N. H. 172; Warren v. Buckminster, 24 N. H. 336, 337; Fuller v. Bean, 34 N. H. 290; Ockington v. Richey, 41 N. H. 275; Bailey v. Smith, 43 N. H. 141; Jeraulds v. Brown, 64 N. H. 606; Gardiner v. Suydan, 7 N. Y. 357; Foot v. Marsh, 51 N. Y. 288; Rodee v. Wade, 47 Barb. (N. Y.) 53; Field v. Moore, H. & D. (N. Y.) 418; Waldo v. Belcher, 33 N. C. (11 1red.) 609; Blakeley v. Patrick, 67 N. C. 40; Austin v. Dawson, 75 N. C. 523; Dunkart v. Rineheart, 89 N. C. 354, 357; Woods v. MaGee, 7 Ohio, 128; Newhall v. Langdon, 39 Ohio St. 87; Hutchinson v. Hunter (7 Barr), 7 Pa, St. 140; Golden v. Ogden, 15 Pa. St. 528; Leonard v. Winslow, 24 Pa. St. 14; Haldeman v. Duncan, 51 Pa. St. 66; Hutchinson V. Commonwealth, 82 Pa. St. 472, 480; Fitzpatrick v. Fain, 3 Coldw. (43 Tenn.) 15; Cleveland v. Williams, 29 Tex. 204, 209; Gibbs v. Benjamin, 45 Vt. 124; Steaubli v. Blaine Bank, 11 Wash. 426; McDougall v. Elliott, 20 U. C. Q. B., 299; Glass v. Whitney, 22 Q. B. 290; Pollock v. Fisher, 6 N. B. 515; 1 Mechem on Sales, § 714; Benjamin on Sales, § 321. The owner of a large number of barrels of beef, all of equal value and all in one parcel, sold a number of them to the plaintiff and received the price, and a number of them to B, and reserved the rest for himself, and delivered them all to the agent of the vendees. Afterward B took away the number sold to him and the vendor took away the number reserved. It was held that, upon such separation, the barrels remaining in the hands of the agent became vested in the plaintiff. Valentine v. Brown, 35 Mass. (18 Pick.) 549. Under an agreement that the sale shall be at the seller's shop, the seller's putting up the liquors, marking them with the buyer's name, labelling them, and setting them aside with a bill of lading attached to them with an intent to pass the title in the liquors to the buyer, is a completed sale. Lynch v. O'Donnell, 127 Mass. 311. R. made a bill of sale to G. of all the lumber and materials in a shipyard for building and finishing a ship without specifying the articles or separating them by themselves. It was held that interest passed by the conveyance. Glover v. Hunnewell, 23 Mass. (6 Pick.) 222. A. sold B. 250 barrels of pork, part of a larger lot, all of the same quality, and having same marks, and stored in the same cellar, but no separation was made. B. sold and delivered to C. 100 barrels of the same pork and afterward sold D. the remaining 150 barrels, and gave him an order on A. therefor, which D. presented to A., who assented to hold the same on storage for D., but nothing was done to distinguish or separate the 150 barrels, from the other pork in A.'s cellar. B. became insolvent and A. refused to deliver to D. Held, that the 150 barrels were not so specified and separated from the whole mass that D. could maintain replevin therefor against A. Scudder v. Worster, 65 Mass. (11 Cush.) 573 (1. c.). If a bill of sale of mackeral, describing them as No. 1, No. 2, No. 3, respectively, includes all that the vendor has on hand of any particular number, the title thereto will pass to the purchaser, although the same are not separated from other barrels made by one of the parties.* Many other cases hold that separation, designation or other means of identification is not necessary of mackeral; but if the bill of sale does not include all that the vendor has on hand of any particular number, and no separation or special designation is made of those which are intended to be sold, the title will not pass, although the vendor gives to the vendee a storage receipt for them. Ropes v. Lane, 91 Mass. (9 Allen) 502. Citing Scudder v. Worster, 65 Mass. (11 Cush.) 573. "Here was a contract of sale of 1,000 bushels of corn, parcel of a larger quantity lying in bulk'; until separation in some form, no title could pass." Keeler v. Goodwin, 111 Mass. 490, 491. Citing Young v. Austin, 23 Mass. (6 Pick.) 279, 280; Merrill v. Hunnewell, 30 Mass. (13 Pick.) 213; Scudder v. Worster, 65 Mass. (11 Cush.) 573; Weld v. Cutler, 68 Mass. (2 Gray) 195; Ropes v. Lane, 91 Mass. (9 Allen) 502, 510, 93 Mass. (11 Allen) 591. "That it was on storage with a third party as warehouse man would make no difference in this respect. Delivery of the order upon the warehouseman authorized him to make the separation or appropriation necessary to complete the sale by giving to the contract its intended effect on the specific property covered by it. If that had been accomplished, either by actual separation or by appropriation to the use or credit of the purchaser, in the usual mode of transacting the business of the warehouseman, he would have acquired title, right of possession and constructive possession of the grain so purchased." Keeler v. Goodwin, 111 Mass. 490, 491. Citing Cushing v. Breed, 96 Mass. (14 Allen) 376. "In a sale of a portion of a larger mass, the whole remaining in the possession of the vendor with a right and power in him to make a separation, both upon principle and the weight of authority, no title passes Ben until that is done so as to enable the vendor to recover the price, even for goods bargained and sold. jamin on Sales, 6th Am. Ed. 308. This doctrine is well established in Massachusetts, and while the decision is not uniform, it is a rule which prevails generally in this country as well as in England." New England Dressed Meat and Wool Co. v. Standard Worsted Co., 165 Mass. 328, 329. Citing Scudder v. Worster, 65 Mass. (11 Cush.) 573; Weld v. Cutler, 68 Mass. (2 Gray) 195; Middlesex Co. v. Osgood, 70 Mass. (4 Gray) 447; Ropes v. Lane, 91 Mass. (9 Allen) 502; Nichols v. Morse, 100 Mass. 523; Morse v. Sherman, 106 Mass. 430, 432; Keeler v. Goodwin, 111 Mass. 490; Turner v. Langdon, 112 Mass. 265; The Elgee Cotton Cases, 89 U. S. (22 Wall.) 180; Hatch v. Oil Co., 100 U. S. 124, 134; Browning v. Hamilton, 42 Ala. 484; Upham v. Dodd, 24 Ark. 545; McLaughlin v. Piatti, 27 Cal. 451, 463; Com. Nat. Bank v. Gillett, 90 Ind. 268, 270; Courtright v. Leonard, 11 Iowa, 32; Ferguson v. Northern Bank, 77 Ky. (14 Bush.) 555; Morrison v. Dingley, 63 Me. 553; Hahn v. Fredericks, 30 Mich. 223; Baldwin v. McKay, 41 Miss. 358; Bailey v. Smith, 43 N. H. 141; Woods v. MaGee, 7 Ohio, 128; Haldeman v. Duncan, 51 Pa. St. 66. 4. "Where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit, there the right to them does not pass to the vendee until the vendor has made a selection.' Gillette v. Hill, 2 C. & M. 530; Aldridge v. Johnson, 7 E. & B. 885." Hurff v. Hires, 40 N. J. L. 581, 588. "It is a general rule that, where goods which are not subject to inspection are sold by a particular description, an implied warranty arises that the goods are of that descrip to ascertain the goods and pass title, if the units of the goods do not vary in quality or value. Some States have adopted one of 5 tion." Tinken Carriage Co. v. Smith, 123 Ia. 554, 558. Citing Chapman v. Murch, 19 Johns. (N. Y.) 290; Briggs v. Hunton, 87 Me. 145; Wolcott v. Mount, 36 N. J. L. 262; Winsor v. Lombard, 35 Mass. (18 Pick.) 57; Gould v. Stein, 149 Mass. 570, 5 L. R. A. 213; Forcheimer v. Stewart, 65 Ia. 593. 5. Aderholt v. Embry, 78 Ala. 185; Horr v. Barker, 8 Cal, 603, 11 Cal. 393; Smith v. Friend, 15 Cal. 121, 124; Watts v. Hendry, 13 Fla. 523; Phillips v. Ocmulgee Mills, 55 Ga. 633; Seckel v. Stott, 66 Ill. 106, 110; Cloke v. Shafroth, 137 Ill. 393; Reab v. Middleton, 62 Iowa, 318; Piazzek v. White, 23 Kan. 621; Bailey v. Long, 24 Kan. 90; Howell v. Pugh, 27 Kan. 702; Waldron v. Chase, 37 Me. 414; Damon v. Osborn, 18 Mass. (1 Pick.) 476; Crapo v. Seybold, 35 Mich. 169, 36 Mich. 444; Iron Cliffs Co. v. Buhl, 42 Mich. 86; Carpenter v. Graham, 42 Mich. 191; Merchants Bank v. Hibbard, 48 Mich. 118; Byles v. Colier, 54 Mich. 1, 6; Kessler v. Veio, 142 Mich. 471; Kessler V. Lackie, 146 Mich. 384; Nash v. Brewster, 39 Minn. 530, 533; Kaufmann v. Schilling, 58 Mo, 218; Page v. Carpenter, 10 N. H. 77; Lamprey v. Sargent, 58 N. H. 241 (title passes if possession of whole mass is given the vendee, and he may replevin his part if the vendor retakes the whole); Hoyt v. Ins. Co., 26 Hun (N. Y.), 416; Andrews v. Smith, 34 Hun (N. Y.), 20; Rodee v. Wade, 47 Barb. (N. Y.) 53; Crofoot v. Bennett, 2 N. Y. 258; Clark v. Griffith, 24 N. Y. 595; Wooster v. Sherwood, 25 N. Y. 278; Russell v. Carrington, 42 N. Y. 118; Bradley v. Wheeler, 44 N. Y. 495, 501; Lobdell v. Stowell, 51 N. Y. 70; Parshall v. Eggert, 54 N. Y. 25; Groat v. Gile, 51 N. Y. 431, 437; Higgins v. R. R. Co., 60 N. Y. 553, 555; Cooke v. Millard, 65 N. Y. 352, 365; Sanger v. Waterbury, 116 N. Y. 371; Newhall v. Langdon, 39 Ohio St. 87; Steel Works v. Dewey, 37 Ohio St. 242; Nesbit v. Burry, 25 Pa. St. 208; Wilkinson v. Stewart, 85 Pa. St. 255, 260; Anderson v. Levyson, 1 Tex. Civ. App. 520; Pleasants v. Pendleton, 27 Va. (6 Rand.) 473; State v. Wharton, 117 Wis. 558, 564 (sale of 119 barrels of flour out of 123 stored in a warehouse of a third person. Vendor gave vendee an order on the warehouseman to deliver and vendee gave his check for the price. The contract was made late in the afternoon, and the goods would have been delivered that day if called for. Next morning, they were destroyed by fire. Held, that title had passed; put upon the ground of usage to make a constructive delivery by transfer of warehouse receipts or orders); Young v. Miles, 20 Wis. 615, 646, 23 Wis. 643; Morrow v. Read, 30 Wis. 81; Newton v. Howe, 29 Wis. 535; Galloway v. Week, 54 Wis. 604; Hoffman v. King, 58 Wis. 314, 318; Whitehouse v. Frost, 12 East, 614; 1 Mechem on Sales, § 711. "Where the subject-matter of the sale is part of an ascertained mass of uniform quality and value, no selection is required and in this class of cases it is affirmed by authorities of the highest character, that severance is not, as matter of law, necessary in order to vest the legal title in the vendee to the part sold. The title may and will pass if such is the clear intention of the contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title." Chapman v. Shepherd, 39 Conn. 413, 421. The sale was of an undivided quantity of the oil, but the title vested in severalty so as to maintain trover. Busk v. Davis, 2 Maule & Sel. 397. "Where a certain number of articles are sold out of a greater num |