a condition precedent to the transfer of the property. And if the parties contract for the sale of an unfinished chattel, as a partly-built carriage or ship, in the absence of anything to show a contrary intention, the property will not pass until the chattel is completed." It is also within the principle of this rule that, if the goods are to be delivered by the seller at a particular place, the property will not pass until delivery,3° unless a contrary intention is expressed or is inferable from other circumstances, such as the payment of the price. But the fact that something is to be done to the goods by the seller after delivery will not prevent the property from passing,"1 unless a different intention appears.

42

Rule 3.-Price to be Ascertained by Weighing, Measuring, or Testing.

43

Blackburn states the rule, that where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, etc., the performance of that thing is a condition precedent to the transfer of the property, thus stating the rule, not as one of presumption, but as an absolute rule; and he regards it as hastily

87 Halterline v. Rice, 62 Barb. (N. Y.) 593; Pritchett v. Jones, 4 Rawle (Pa.) 260. As to contracts for chattels to be manufactured by the seller, see post, p. 160.

38 Calcutta & B. S. Nav. Co. v. De Mattos, 32 Law J. Q. B. 322, 335, per Cockburn, C. J.; The Venus, 8 Cranch (U. S.) 253, 275, 3 L. Ed. 553; Suit v. Woodhall, 113 Mass. 391; Sneathen v. Grubbs, 88 Pa. 147; Devine v. Edwards, 101 Ill. 138; Miller v. Seaman, 176 Pa. 291, 35 Atl. 134; Northern Pacific Lumbering & Mfg. Co. v. Kerron, 5 Wash. 214, 31 Pac. 595.

39 Lynch v. O'Donnell, 127 Mass. 311.

40 Weld v. Came, 98 Mass. 152; Terry v. Wheeler, 25 N. Y. 520; Bethel Steam-Mill Co. v. Brown, 57 Me. 9, 18, 99 Am. Dec. 572; Lingham v. Eggleston, 27 Mich. 324, 329; Rail v. Lumber Co., 47 Minn. 422, 50 N. W. 471; Penley v. Bessey, 87 Me. 530, 33 Atl. 21; McElwee v. Lumber Co., 69 Fed. 302, 16 C. C. A. 232; Morris v. Winn, 98 Ga. 482, 25 S. E. 562; Lynch v. Daggett, 62 Ark. 592, 37 S. W. 227; Hagins V. Combs, 102 Ky. 165, 43 S. W. 222.

41 Hammond v. Anderson, 1 Bos. & P. (N. R.) 69; Graves v. Hepke, 2 Barn. & Ald. 131; Mount Hope Iron Co. v. Buffinton, 103 Mass. 62; Morrow v. Reed, 30 Wis. 81.

42 Kitson Mach. Co. v. Holden, 74 Vt. 104, 52 Atl. 271.

43 Blackburn's second rule.

adopted from the civil law, where it was a logical deduction from the principle that there could be no sale until the price was fixed. But the Court of Exchequer, in 1863, reviewed the English authorities, and concluded that the rule should be modified by confining it to acts to be done by the seller, and that it is to be regarded merely as a rule of presumption, thus bringing it within the principle of the second rule.**

The rule is generally laid down in the United States as one of presumption, sometimes without confining it to acts to be done by the seller, though sometimes confining it to acts to be done by the seller or by the seller in connection with the buyer. 18 In some cases it has been confined to acts to be done by the seller.1

48

49

It is to be observed, however, that in many of the cases which declare the rule the weighing, measuring, or testing was necessary, not merely to ascertain the price, but to ascertain the goods by separating them from a larger mass, and the property could not pass because the goods were not specif

44 Blackb. Sales, 175.

45 Hanson v. Meyer, 6 East, 614; Zagury v. Furnell, 2 Camp. 240; Withers v. Lyss, 4 Camp. 237; Simmons v. Swift, 5 Barn. & C. 857; Logan v. Le Mesurier, 6 Moore, P. C. 116.

46 Turley v. Bates, 2 Hurl. & Sale of Goods Act (6th Ed.) 49. decision of Turley v. Bates. Of. 436.

C. 200, 33 Law J. Exch. 43; Chalm.
The point was not necessary to the
Martineau v. Kitching, L. R. 7 Q. B.

Sale of Goods Act, § 18, rule 3, so provides, adding the requirement of notice to the buyer.

47 Macomber v. Parker, 13 Pick. (Mass.) 175, 183; Riddle v. Varnum, 20 Pick. (Mass.) 280; Barnard v. Poor, 21 Pick. (Mass.) 378; Sherwin v. Mudge, 127 Mass. 547; Smart v. Batchelder, 57 N. H. 140; Nesbit v. Burry, 25 Pa. 208; Nicholson v. Taylor, 31 Pa. 128, 72 Am. Dec. 728; Frost v. Woodruff, 54 Ill. 155; Rosenthal v. Kahn, 19 Or. 571, 24 Pac. 989; Gibbs v. Benjamin, 45 Vt. 124; Wesoloski v. Wysoski, 186 Mass. 495, 71 N. E. 982.

48 Elgee Cotton Cases, 22 Wall. (U. S.) 180, 188, et seq., 22 L. Ed. 863; Lingham v. Eggleston, 27 Mich. 324; Boswell v. Green, 25 N. J. Law, 390, 398; Haxall v. Willis, 15 Grat. (Va.) 434, 442; McClung v. Kelley, 21 Iowa, 508, 511; King v. Jarman, 35 Ark. 190, 37 Am. Rep. 11; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299, 87 N. W. 268, 55 L. R. A. 301, 92 Am. St. Rep. 452; Parman v. Marshall (Tenn.) 51 S. W. 116.

49 Burke v. Shannon, 43 S. W. 223, 19 Ky. Law Rep. 1170.

ic.50 At best the fact that the price remains to be ascertained affords little reason for inferring an intention that the property shall not pass; and in some jurisdictions the rule is not recognized, but it is held, as in other cases where there is an unconditional contract for the sale of goods in a deliverable state, that the property passes unless a different intention appears.1 The Sales Act omits the rule.52

In jurisdictions where the rule prevails, if the goods are actually delivered, it is held that this shows an intention to complete the sale; and in such case a provision that they are to be weighed, measured, or tested will not prevent the property from passing." And, if they have been weighed, measured, or tested, the mere arithmetical calculation of the price is immaterial."4

Where the property has passed, so that the goods are at the risk of the buyer, but the goods are destroyed, and consequently

50 See Joyce v. Adams, 8 N. Y. 297; Smart v. Batchelder, 57 N. H. 140; Martin v. Hurlbut, 9 Minn. 142 (Gil. 132); Rosenthal v. Kahn, 19 Or. 571, 24 Pac. 989; post, p. 147.

51 Sanger v. Waterbury, 116 N. Y. 371, 22 N. E. 404; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Boaz v. Schneider, 69 Tex. 128, 6 S. W. 402; Lassing v. James, 107 Cal. 348, 40 Pac. 534; Young ▼. Minkler, 14 Colo. App. 204, 59 Pac. 622; Allen v. Rushford, 72 Neb. 907, 101 N. W. 1028. And see Farmers' Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. 214, 1 L. R. A. 767, 9 Am. St. Rep. 443; Lobdell v. Horton, 71 Mich. 681, 40 N. W. 28; Allen v. Elmore, 121 Iowa, 241, 96 N. W. 769. Cf. Kein v. Tupper, 52 N. Y. 550.

52 See Sales Act, § 19. Cf. Sale of Goods Act, § 18, rule 3. 53 Macomber v. Parker, 13 Pick. (Mass.) 175, 183; Riddle v. Varnuin, 20 Pick. (Mass.) 280; Odell v. Railroad Co., 109 Mass. 50; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Boswell v. Green, 25 N. J. Law, 390; Scott v. Wells, 6 Watts & S. (Pa.) 357, 40 Am. Dec. 568; Leonard v. Davis, 1 Black (U. S.) 476, 483, 17 L. Ed. 222; Upson v. Holmes, 51 Conn. 500; Baldwin v. Doubleday, 59 Vt. 7, 8 Atl. 576; Haxall v. Willis, 15 Grat. (Va.) 434, 445; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Cunningham v. Ashbrook, 20 Mo. 553; Morrow v. Reed, 30 Wis. 81; Foster v. Magill, 119 Ill. 75, 8 N. E. 771; Sedgwick v. Cottingham, 54 Iowa, 512, 6 N. W. 738; King v. Jarman, 35 Ark. 190, 37 Am. Rep. 11.

The property passes, if such is the intention, although the necessary acts have not been done. Mayberry v. Mill Co., 112 Tenn. 564, 85 S. W. 401.

54 Tansley v. Turner, 2 Bing. N. C. 151; Bradley v. Wheeler, 44 N. Y. 495; Welch v. Spies, 103 Iowa, 389, 72 N. W. 548.

TIFF.SALES(2D ED.)-9

the price cannot be ascertained by weighing, or measuring, in the manner agreed, the weight or quantity may be ascertained in some other way, and the buyer may recover the price."

RESERVATION OF RIGHT OF POSSESSION OR PROPERTY.

44. Where there is a contract for the sale of specific goods, the seller may by the terms of the contract reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or of property may be thus reserved, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee for the purpose of transmission to the buyer.56

In General.

57

As we have seen, where there is a contract for the sale of specific goods the property in them is transferred to the buyer at such time as the parties intend it to be transferred. By the terms of the contract the property may pass when the contract is made, and in such case the transfer of the property may be, and generally is, subject to the seller's lien; that is, the seller may reserve the right of possession in the goods until payment of the price.58 As a rule the seller loses this right when he delivers the goods to the buyer. Again, by the express or implied terms of the contract the seller may reserve the property in the goods until certain conditions shall have been fulfilled, and this notwithstanding the delivery of the goods to the buyer. "Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the

60

61

55 Martineau v. Kitching, L. R. 7 Q. B. 436, 455 (per Blackburn, J.); Upson v. Holmes, 51 Conn. 500; Sedgwick v. Cottingham, 54 Iowa, 512, 6 N. W. 738; Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445, 54 Am. Rep. 619; Allen v. Elmore, 121 Iowa, 241, 96 N. W. 769.

5 See Sales Act, § 20 (1).

57 Ante, p. 119.

58 Ante, p. 122.

59 Post, p. 317.
60 Ante, p. 125.
61 Post, p. 133.

property will not pass until the condition is fulfilled, even though the goods may have been actually delivered into the possession of the buyer." "2

62

So, notwithstanding the delivery of the goods to a carrier for the purpose of transmission to the buyer, the seller may reserve the property in the goods, or may reserve the right to possession, as in the case of shipments C. O. D.3 The cases involving the transfer of the property upon delivery of the goods to a carrier are generally cases where the goods were not specific, and goods were subsequently appropriated to the contract, and the question was whether the seller by the terms of the appropriation had reserved the property or right of possession; but where the contract is for the sale of specific goods to be paid for on delivery, the property in which is reserved by the contract, the question whether the seller has retained the property or the right to possession, notwithstanding delivery of the goods to a carrier for transmission to the buyer, depends upon the same considerations."

The commonest condition precedent to the passing of the property is the payment of the price. Such a condition may be expressed, or it may be implied from the circumstances."5 Where Property and Right to Possession are to Pass on Pay

ment.

As a rule, where no such condition is expressed, if the goods are specific and in a deliverable state, and a different intention. does not appear, the property in the goods passes when the contract is made, although the seller is entitled to retain possession, unless credit is given, until the price is paid." But an intention that the property, as well as the right to possession, shall not pass until payment, may be indicated by the conduct of the parties and the circumstances of the case; and in some cases a stipulation that the goods are to be paid for, either in cash, or by note, or by acceptance, upon delivery, has been held to indicate such an intention. In all cases where such

62 Benj. Sales, § 320.

67

65 Silsby v. Railroad Co., 176 Mass. 158, 57 N. E. 376; ante, p. 123.

66 Ante, p. 121. 67 Ante, p. 124.