CHAPTER IV.

EFFECT OF THE CONTRACT IN PASSING THE PROPERTY (Continued)-SALE OF GOODS NOT SPECIFIC.

47-48. In General.

49-50. Subsequent Appropriation.

51-53.

Reservation of Right of Possession or Property.

47.

IN GENERAL.

NO PROPERTY PASSES UNTIL GOODS ARE ASCERTAINED. Where there is a contract for the sale of 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 stated in the following section.1

48. UNDIVIDED SHARES. (1) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares.

(2) UNIFORM MASS. In some jurisdictions, but not in all, there may be a sale of an undivided share of a specific mass of goods of uniform character, though the seller purports to sell and the buyer to buy a definite number, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass.2

The rule that the parties must be agreed on the specific goods which are to be the subject of the sale is founded, as Blackburn says, on the very nature of things; for, until the parties are agreed on the specific goods, the contract can be no more than a contract to supply goods answering a particular description, and since the seller would fulfill his contract by

1 See Sales Act, § 17.

2 See Sales Act, § 6.

furnishing any goods answering the description, and the buyer could not object to them, provided they answered the description, it is clear that there can be no intention to transfer the property in any particular goods.

Where Goods are Part of Specific Stock.

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But, where the goods are so far ascertained that the parties have agreed to take them from a particular stock owned by the seller, a different question may arise. If the goods are part of a specific stock, consisting of units of varying quality or value, as a number of sheep out of a flock, it is clear that a selection must take place before the property in any particular units can pass. But if the goods are part of a uniform mass, such as grain or oil or coal, so that any unit is the equivalent of any other unit, it is possible that the parties may intend that the property in an undivided share shall pass, the parties becoming owners in common of the mass; and such an intention may be inferable although the contract is not in terms for the sale of an undivided interest, as a half or a third, but where it is for the sale of a certain number of bushels or gallons or tons of the mass of grain or oil or coal, the buyer in such case to become owner of such share of the mass as the number of units bought bears to the number of units in the

mass.

In England no such distinction is recognized, and the general rule is applied, even though the mass be of uniform quality and value. But in the United States, while many cases main

3 Blackb. Sales, 124; Benj. Sales, 352; 2 Kent, Comm. 496.

4 Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Steaubli v. Bank, 11 Wash. 426, 39 Pac. 814; Lighthouse v. Bank, 162 N. Y. 336, 56 N. E. 738; Wilson v. Salt Co., 50 App. Div. 114, 63 N. Y. Supp. 565; Martin Bros. & Co. v. Lesan, 129 Iowa, 573, 105 N. W. 996.

5 Wallace v. Breeds, 13 East, 522; Austen v. Craven, 4 Taunt. 644; White v. Wilks, 5 Taunt. 176; Busk v. Davis, 2 Maule & S. 397; Shepley v. Davis, 5 Taunt. 617; Gillett v. Hill, 2 Cromp. & M. 530; Gabarron v. Kreeft, L. R. 10 Exch. 274. See Sale of Goods Act, § 16. Whitehouse v. Frost, 12 East, 614, may, perhaps, rest upon this distinction. See Busk v. Davis, 2 Maule & S. 397. But the case has been much questioned in England. Benj. Sales, § 354. It is, however, frequently cited as an authority in the American cases which recognize the distinction.

tain strictly the older rule, others hold that if the sale be of a certain quantity, by weight or measure or count, its separation from a specific, uniform mass is not necessary to pass the property, when the intention to do so is otherwise manifested." Upon the question of intention, the payment of the price, and particularly the undertaking of the seller to hold as bailee of

6 Woods v. McGee, 7 Ohio, 127, pt. 2, 30 Am. Dec. 220 (but see Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426); Scudder v. Worster, 11 Cush. (Mass.) 573; Ropes v. Lane, 9 Allen (Mass.) 502; Keeler v. Goodwin, 111 Mass. 490; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; Reeder v. Machen, 57 Md. 56; Ferguson v. Bank, 14 Bush (Ky.) 555; Courtright v. Leonard, 11 Iowa, 32; McLaughlin. Piatti, 27 Cal. 451; Dunlap v. Berry, 4 Scam. (Ill.) 327, 39 Am. Dec. 413; Warten v. Strane, 82 Ala. 311, 8 South. 231; Commercial Nat. Bank v. Gillette, 90 Ind. 268, 46 Am. Rep. 222; Jeraulds v. Brown, 64 N. H. 606, 15 Atl. 123; New England Dressed Meat & Wool Co. v. Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 516; Conard v. Railroad Co., 214 Pa. 98, 63 Atl. 424. See, also, Golder v. Ogden, 15 Pa. 528, 53 Am. Dec. 618; Haldeman v. Duncan, 51 Pa. 66; Morrison v. Woodley, 84 Ill. 192. Some cases cited as authorities on this point, perhaps, rest on the ground that the mass was not uniform. Woods v. McGee, supra; Hutchinson v. Hunter, 7 Pa. 140; McLaughlin v. Piatti, 27 Cal. 451 (see Horr v. Barker, 8 Cal. 603; Id., 11 Cal 393, 70 Am. Dec. 791). See Stone v. Peacock, 35 Me. 385, 388.

Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Russell v. Carrington, 42 N. Y. 118, 1 Am. Rep. 498; Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726; Hurff v. Hires, 40 N. J. Law, 581, 29 Am. Rep. 282; Chapman v. Shepard, 39 Conn. 413; Waldron v. Chase, 37 Me. 414, 59 Am. Dec. 56 (but see Morrison v. Dingley, 63 Me. 553); Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426; Carpenter v. Graham, 42 Mich. 191, 3 N. W. 974; Young v. Miles, 20 Wis. 615; Horr v. Barker, 8 Cal. 603; Id., 11 Cal. 393, 70 Am. Dec. 791; Kingman v. Holmquist, 36 Kan. 735, 14 Pac. 168, 59 Am. Rep. 604; Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L. R. A. 409; Mackellar v. Pillsbury, 48 Minn. 396, 51 N. W. 222; (barrels); Phillips v. Ocmulgee Mills, 55 Ga. 633; Watts v. Hendry, 13 Fla. 523; Wagar v. Railroad Co., 79 Mich. 648, 44 N. W. 1113; Welch v. Spies, 103 Iowa, 389, 72 N. W. 548; O'Keefe v. Leistikow (N. D.) 104 N. W. 515. Where the contract was for "merchantable brick," to be sorted from the kiln by the buyer, the title did not pass; it being impossible to determine either what brick, or what relative portion of the kiln, were sold. Kimberly v. Patchin, supra, distinguished on the ground that it did not appear that the brick were uniform and of equal value. Anderson v. Crisp, 5 Wash. 178, 31 Pac. 638, 18 L. R. A. 419.

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the buyer, are material; and it has also been held that the delivery of the mass to the buyer, with power to make the separation, is evidence of an intention to pass the property. In some cases where an undivided interest was held to have passed it is perhaps doubtful whether such intention existed; 10 but on principle there is no reason why the intention, if it exists, should not be given effect, and the doctrine that the property may pass in such cases without separation is supported by the weight of authority in this country.11 The doctrine has also been applied where the contract was to sell unascertained goods and the seller appropriated to the contract out of a larger mass the specified number of units.12

Elevator Cases.

Analogous to the cases last mentioned are the so-called "Elevator Cases," which hold that grain delivered by the owners at

8 See Foot v. Marsh, 51 N. Y. 288.

9 Page v. Carpenter, 10 N. H. 77; Lamprey v. Sargent, 58 N. H. 241; Weld v. Cutler, 2 Gray (Mass.) 195; Croze v. Land Co., 143 Mich. 514, 107 N. W. 313, 114 Am. St. Rep. 677. But see Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334, per Comstock, J., commenting on Crofoot v. Bennett, 2 N. Y. 258.

10 Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726, a leading case, of which it was observed by Grimke, J., in Woods v. McGee, 7 Ohio, 127, pt. 2, 30 Am. Dec. 220, that “it was a hard case, and hard cases make shipwreck of principles."

11 It is adopted by Sales Act, § 6. See, also, sections 17, 76 (fungible goods).

12 Where defendants ordered 400 hectolitres of nuts, after being in-. formed that they were sold in bulk by hectolitres, the buyer to furnish bags on arrival of shipment, and on arrival of steamer received a delivery order for 400 hectolitres in bulk in separate hold, and on presentment of the order found that the 400 hectolitres destined for them were embraced in a consignment of 582 hectolitres to various consignees, which was the usual method of shipment, it was held, in an action for the price, that the delivery on board vested in defendants' title to 400/582 of the consignment, and that the tender of the 582 hectolitres for defendants to take their share was a sufficient delivery. The court said: "A distinction is made between those cases where the act of separation is burdensome and expensive, or involves selection, and those where the article is uniform in bulk and the act of separation throws no additional burden on the buyer. In the latter class of cases a tender of too much, from which the buyer is to take the proper quantity, is a good delivery." Brownfield v. Johnson, 128 Pa. 254, 18 Atl. 543, 6 L. R. A. 48. Post, p. 282.

an elevator, and stored in a common mass, is owned by the depositors as tenants in common, and that the interest of any one of them may be transferred without separation. There is, however, in the Elevator Cases, this essential distinction: that the tenancy in common is created by the original deposit and mixture of goods, so that in case of a sale by one owner there can be no question that the intention is to transfer the property in an undivided interest.

SUBSEQUENT APPROPRIATION.

49. IN GENERAL. Where there is a contract for the sale of unascertained goods, the property in them is not transferred until there has been an appropriation of the goods to the contract—that is, a specification or selection, by the seller with the assent of the buyer, or by the buyer with the assent of the seller, of the goods which are to be the subject-matter of the sale; and when goods are so appropriated to the contract, with the intention of passing the property in them, the property is transferred.

(1)

50. RULES FOR ASCERTAINING INTENTION AS TO TIME WHEN PROPERTY IS TO PASS. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time when the property in the goods is to pass to the buyer: Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.

(2)

Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not), for the purpose of transmission to or a holding for the buyer,

13 Cushing v. Breed, 14 Allen (Mass.) 376, 92 Am. Dec. 777; Keeler v. Goodwin, 111 Mass. 490; Dole v. Olmstead, 36 Ill. 150, 85 Am. Dec. 397; Id., 41 Ill. 344, 89 Am. Dec. 386; Warren v. Milliken, 57 Me. 97. Ante, p. 7.