the purpose of showing the quality of the goods. This will be taken as a representation by the seller, that the sample is a fair representation of the quality of the bulk, and the seller will be bound as on an express warranty.25 It is, however, to be commonly treated as an implied warranty that the bulk is of the same quality, nature and kind as the sample.20

To constitute a sale by sample, the parties must deal with each other on the basis, and understanding, that the bulk will correspond to the sample, and the buyer must rely on the representation so understood. The warranty is that the sample fairly represents the average quality of the whole mass.

• Bradford vs. Manly, 13 Mass., 26 Hanson vs. Busse, 78 Ill., 230.

139.

SECTION 23.

PASSING OF TITLE.

EXECUTED AND EXECUTORY CONTRACTS.

A sale, as distinguished from an executory contract to sell, only takes place when the agreement to transfer the property rights in the goods is concluded. It is true that delivery is not essential to pass the title as between the parties themselves, but that the title passes as soon as the bargain is struck, without regard to delivery, or payment of the sale price, unless the contract by the terms states that the title is not to pass until delivery and payment is made. The executory contract is simply an agreement to transfer the title to the goods, the property right in the goods remaining in the seller until this agreement is concluded by the sale. The importance of the distinction rests in determining who shall bear the loss of the property, where it is destroyed, where the goods are either the subject matter of the sale, or agreement to sell, and also in determining the rights of creditors of either party to the goods in question, when it is a question whether a sale of the goods has actually taken place, or whether the goods are merely the subject of an agreement to sell.

The Illinois Court in stating the legal meaning to be attached to the term bargain and sale, as distinguished from an agreement to sell states the principle as follows: "The words bargained and sold have a settled legal meaning and import a sale, which vests the property in the buyer."1 And they quote in that case, from the rule of the common law as stated in 1 Barrow vs. Wendow, 71 Ill., 214.

Noys Maxims, C. 42: "If I sell my horse for money,

I may keep him until I am paid, but I cannot have an action in debt until he is delivered; yet the property of the horse is by the bargain, in the bargainer or buyer. But if he do presently tender me the money, and I refuse it, he may take the horse and have an action for detainment; and if the horse die in my stables, between the bargain and delivery, I may have an action of debt for my money, because by the bargain, the property was in the buyer." The rule as stated in Cowen's Treatise, 2nd ed., part 1, p. 50, is also quoted: "By a regular sale, even without delivery, the property is absolutely vested in the vendee, that if it afterward dies or is destroyed in the vendor's custody, without his fault, still he is entitled to the price, because, by the contract, the property is in the vendee

and the vendor is considered a bailee or trustee for the vendee and would be responsible only for

ordinary neglect."

SECTION 24. INTENT GOVERNS.

Whether the contract agreement is held to be a sale, or a bargain and sale, as it was early called, or whether it was merely an agreement to sell, depends upon the intention of the parties to the contract. There can ordinarily be no difficulty in determining what the agreement was, when the intention of the parties is clearly shown by their negotiations and acts, the seller divesting himself of all title to the goods and the buyer assuming full control with all attending liabilities. If the intention is manifested in no uncertain way, it will control. What was the intention of the parties, is one of fact for the jury, acting under instructions from the Court. Where 'Callaghan vs. Meyers, 89 Ill., 570.

the contract is in writing, or the terms are not in dispute, it is the province of the court to construe its meaning. The intention of the parties may be shown by the circumstances of the case, or by the express declarations of the parties made at the time of the sale. Where the goods are actually delivered, that shows the intention of the parties to complete the sale, as indicative of the intent to transfer the property absolutely.

Justice Cooley said: "That the question whether a sale is completed, or only executory, is usually one to be determined from the intent of the parties, as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale; that where the goods sold are designated, that no question can arise as to the thing intended, it is not absolutely essential that there should be a delivery or that the goods should be in a deliverable condition, or that the quantity or quality, when the price depends upon either should be determined, these being circumstances indicating intent, but are not conclusive; but that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods are ascertained, and they appear to be in a state in which they may be and ought to be accepted."

SECTION 25. SOMETHING REMAINING TO BE DONE.

Where doubt is raised by the parties themselves Byles vs. Collier, 54 Mich., 1