title passes and the sale is completed. The reservation of the right also includes the right of making a pledge of the property, or a sale, or mortgage, before the title to the goods passes to the purchaser. The purchaser acquires no title where the carrier delivers the goods to the purchaser, if the goods are shipped accompanied by a bill of lading providing otherwise. Mere delivery, in such a case could not convey title to the purchaser. The title remains in the seller.

SECTION 31. WHERE TITLE PASSES.

The rule is well established that the title passes in the place where the contract of sale is made, and under the rule that the lex loci contractus controls in the matter of the validity of the contract; if the sale is a valid one where made, it is valid everywhere. The terms of the sale may show however, that goods bought in one state, to be delivered to the purchaser in another, are to remain the property of the seller, until actually turned over to the buyer in the state where he is. The sale in such a case would therefore take place in the latter state.18 The passing of the title to goods is not affected by the fact that the parties to the sale have their domicile in a place other than the place where the sale is made.

The comity of states, does not require the enforcement of a contract valid where made, in a state where its enforcement would mean a violation of the public policy of the state,19 or where it would be against the best interests of the citizens of the state to enforce it. A sale is not invalidated merely from knowledge of the vendor, that the goods are to be resold in another state, where in the latter, the sale is forbidden by the law of that state.

18 Weil vs. Golden, 141 Mass., 364.

19 Green vs. Van Buskirk, 5 Wall.,

PERFORMANCE OF THE CONTRACT.

SECTION 32. PAYMENT AND DELIVERY CONCURRENT CONDITIONS.

The title to the goods having passed, it remains for the seller to put the purchaser in possession. The right to possession, ordinarily arises with the passing of the title, and unless the parties to the contract of sale reach a different understanding, there is an immediate obligation on the seller, to deliver the thing sold to the purchaser, on the passing of the title. This obligation to deliver may not be referred to by the parties in their agreement, but if no express obligation is made to deliver, it will be implied.1

Where the sale is made without any special conditions in regard to delivery, the duty to deliver carries with it the reciprocal right to demand payment for the goods delivered, and no delivery need be made until the price of the goods is paid by the purchaser; delivery and payment are therefore concurrent conditions to the fulfillment of the sale contract. In other words, to properly complete the sale, one party, the seller, must be ready and willing to deliver, and the buyer must be ready and willing to make payment.2

SECTION 33. WHAT CONSTITUTES DELIVERY.

What constitutes delivery, so as to give the seller a right to sue for the unpaid purchase price, depends oftentimes upon the express agreement made between

1 Gray vs. Walton, 107 N. Y., 254.

'Haskins vs. Warren, 115 Mass., 514.

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buyer and seller, or delivery may depend upon a previous course of dealing in similar cases, or the custom of delivery may be invoked to show the manner of delivery intended by the parties. The delivery may also be regulated by the circumstance of the contract, or the kind of goods sold. Under the general rule delivery is made, so as to satisfy the law, whenever the seller has done everything that he should do under the contract of sale, and has placed the goods at the disposal of the purchaser in as complete a way as the circumstances of the sale permit. The place of delivery, unless the parties agree otherwise, is at the place of the sale of the goods; therefore in the absence of express or implied obligations on the seller, by the terms of the agreement made by the parties making the sale, under terms or circumstances out of the ordinary course, the delivery is complete by the seller's placing the goods at the place of sale, at the free disposition of the purchaser, and within his complete dominion.3

SECTION 34. PLACE OF DELIVERY.

The place of delivery as already stated, is ordinarily fixed as the place where the goods are at time the sale is made. If goods for instance, are bought at a shop, delivery is to be made there, in the absence of an agreement to deliver elsewhere. And the same principle is applied in the case of goods to be manufactured or raised from the soil. The rule has no application however, where the parties make an express agreement as to where delivery is to be made, or when the parties deal with each other supposedly having in mind a fixed and general custom. Where a fixed place of delivery is agreed on by the seller, this then is a term of the Mitchell vs. LeClair, 165 Mass., Smith vs. Gillett, 50 Ill., 290

contract and its fulfillment is a prerequisite to recover on the contract.5

Where the place of delivery is at the option of one of the parties, the Massachusetts court has stated the rule as follows: "Where the vendee is by the terms of the contract to designate the place of delivery, the vendor is bound to make delivery at the place designated. If the vendee omits to designate the place, the vendor is guilty of no breach of contract if the articles are ready for delivery at the time fixed by the contract." • SECTION 35. DELIVERY TO CARRIER OR THIRD PERSON.

In all cases where the purchaser ultimately wishes to make use of the goods at a place, distant from the place of purchase, it is quite necessary that the goods be shipped to him by carrier, but since the delivery is held to take place at the place of sale, ordinarily the carrier must be considered as the agent of the purchaser and not the agent of the seller. Where the contract is silent on this point, the delivery is made by delivering the goods to the carrier. The seller, may, however, agree to assume the risk of carriage, if that is the case, then the carrier is the agent of the seller.

It is the usual rule, that with the transfer of the title in the goods, and delivery of same, the risks of carriage also pass to the purchaser and must be sent in accordance with the order of the purchaser. The delivery to the carrier, also must be made with the intention to pass title completely to the purchaser." The fact that goods are sold on credit will not interfere with the intention to pass title.

Miller vs. Somerset Co., 51 S. W
R., 614.

Lucas vs. Nichols, 5 Gray (Mass.),
309.

7 Prince vs. Boston & L. R. Co., 101 Mass., 542.

8 Diversey vs. Kellogg, 44 Ill., 114. Foster vs. Ropes, 111 Mass., 10.