pletion of the sale being the carriage of the goods to Rhode Island.

In State v. O'Neil, 10 a resident of Vermont purchased liquor of dealers in New York, upon an order by mail, the goods to be shipped by express, C. O. D. It was held that the sale took place in Vermont, since the shipment C. O. D. indicated an intention to make the payment of charges a condition precedent to the vesting of title in the vendee.11

In sales, as in other transactions, the acts of an agent within the scope of his authority are the acts of his principal. If the agent has authority to sell, and does so, the sale takes place at the place where the agent acts, not where the principal lives or does business. But if the agent has no authority to pass the title, but only to forward orders, which are subject to the principal's approval, the contract is not completed until such approval; and the place of the contract must be referred to the place where the approval is given.12

It is to be observed furthermore, in connection with conveyances and sales of personalty, that not only does the lex loci contractus govern the substantial validity of the transfer as between the parties, but it also determines the effect of the contract, and in general the interpretation to be placed upon the terms used, when an ambiguity arises touching the legal signification to be attached to them.13

10 58 Vt. 140, 56 Am. Rep. 557.

11 But see State v. Carl, 43 Ark. 353, 51 Am. Rep. 565.

12 Erman v. Lehman, 47 La. Ann. 1651, 18 So. 650; Newman v. Cannon, 43 La. Ann. 712, 9 So. 439. In these cases the agent had absolute authority to sell. Compare with these Claflin v. Meyer, 41 La. Ann. 1048, 7 So. 139, where the agent had only authority to forward orders. See also Tegler v. Shipman, 33 Ia. 194, 11 Am. Rep. 118.

13 Erman v. Lehman, 47 La. Ann. 1651, 18 So. 650; Newman v. Cannon, 43 La. Ann. 712, 9 So. 439; Claflin v. Meyer, 41 La. Ann. 1048, 7 So. 139. In all of these cases the question involved was the vendor's right to a lien or "vendor's privilege" under the law of Louisiana. The vendor's right to the privilege was held dependent upon the law of the place of sale. In Codman v. Krell, 152 Mass. 214, 218, it was held that the lex loci contractus should determine the legal interpretation of the phrase "heirs at law," used in a deed conveying personalty. See also Meyer v. Richards, 163 U. S. 385, where it was

§ 129. Same As to Third Persons. Notwithstanding the general rule that the lex loci contractus regulates absolute conveyances and sales of personalty, there are some cases in which the "proper law" for this purpose will be substituted by the law of the forum and actual situs of the property. These cases are the exceptional cases mentioned in the second chapter of this work.

But only two of the exceptions there mentioned have much practical bearing in this particular instance. It is in general only where the enforcement of the proper law would work an injury, loss, or injustice to the citizens of the forum, or would contravene its policy, that the law of the actual situs of the property will prevail over the lex loci contractus; though it is conceivable that a transfer valid by the latter law might be refused recognition in another State because the consideration therefor is contra bonos mores,1 or that a transfer, invalid where made because of a penal disability imposed upon the assignor, might still be enforced in other States. In the main, however, the operation of the lex fori et situs will be confined to the two cases first mentioned.

Instances of the application of the lex fori et situs (instead of the lex loci contractus), though numerous enough in cases of chattel mortgages and assignments for the benefit of creditors, are much more infrequent with respect to absolute conveyances and executed sales of personalty, for the reason that there are comparatively few differences of policy between the various States respecting the latter transactions, and therefore conflicts of laws are not so apt to arise. The few cases that have been decided, however, indicate that the lex fori et situs will be applied in these cases in the same way and to the same extent as in the case of chattel mortgages and voluntary assignments

held that the law of the place of transfer should govern the question whether the vendor of certain bonds warranted their validity. For similar questions touching warranties implied in sales of chattels, see McIlvaine v. Legare, 36 La. Ann. 359; Maillard v. Nihoul, 21 La. Ann. 412.

1 See Savings Bank v. National Bank, 38 Fed. 800.

2 See Scoville v. Caufield, 14 Johns. (N. Y.) 338. Post, §§ 132-134.

for the benefit of creditors, whenever the circumstances call for the substitution of the lex fori for the proper law.

The mere fact that the property conveyed or sold is in another jurisdiction than the locus contractus, and that citizens of the actual situs may incur loss by reason of the transfer, is not in itself sufficient to call for the overthrow of the transfer, where it is voluntary and contractual. In order that the lex loci contractus and the transfer validly made thereunder should be set aside, the transfer must be positively invalid as to third persons under the law of the actual situs of the property. The courts of the latter State must be able, by substituting their own law, to pronounce the transfer invalid there. There must be an actual substitution of the lex fori for the proper law, as well as a setting aside of the lex loci contractus.

A leading case, in which the lex fori et situs was applied to an absolute conveyance of personal property, arose in Louisiana.5 In that case, a transfer of part of a ship was made in Virginia, where the owner resided, the ship at the time of the sale being at the New Orleans port. Before delivery to the vendee she was attached by creditors of the vendor resident in Louisiana. By the common law (prevailing in Virginia), it was argued, a sale of goods is, or may be, complete without delivery, if delivery is impossible at the time and is made within a reasonable time after it becomes possible. On the other hand, by the civil law (prevailing in Louisiana), delivery is absolutely essential to a valid title in the purchaser. The vendor's creditors, attaching the ship before any delivery to the vendee, claimed that the title was still in the vendor (under the Louisiana law), and that they took priority over the vendee. The vendee claimed that he had already, before the attachment, acquired a good title under the law of Virginia (lex loci contractus). There being thus a conflict between the " "proper law" on the one side and the lex fori et situs on the other, the court held that since the attaching creditors were citizens of Louisiana and would be injured by the

4 It is otherwise where the transfer is compulsory, as in involuntary assignments in bankruptcy. See post, §§ 137, 138.

5 Olivier v. Townes, 14 Mart. (La.) 93. See also Union Bank v. Hartwell, 84 Ala. 379, 4 So. 156, 157.

enforcement of the Virginia law, the law of the forum must be substituted, and the attachment was accordingly sustained.

In contrast with this another Louisiana case may be presented. In Thuret v. Jenkins, the circumstances were similar to those above given, except that the ship was at sea at the time of the transfer. It was attached by the vendor's creditors upon reaching port in Louisiana. The court, dismissing the attachment and upholding the "proper law," said: "In transferring the ship, it did not work any injury to the rights of the people of another country; it did not transfer the property of a thing within the jurisdiction of another government. If two persons in any country choose to bargain as to the property which one of them has in a chattel, not within the jurisdiction of the place, they cannot expect that the rights of persons in the country in which the chattel is will be permitted to be affected by their contract. But if the chattel be at sea, or in any other place, if any there be, in which the law of no particular country prevails, the bargain will have its full effect eo instanti, as to the whole world. And the circumstance of the chattel being afterwards brought into a country, according to the laws of which the sale would be invalid, would not affect it."

A fortiori would this be true if the chattel were in the locus contractus at the time of the transfer (which is valid there), and were afterwards brought by the vendee into another State, according to whose law the sale, if made there, would be invalid. In such case the lex loci contractus should clearly prevail over the lex fori."

So also cases may be found holding that where the policy of the forum and situs would be contravened by the enforcement of the lex loci contractus, the latter must give way to the former law.8

Upon principle, it would seem, in these cases, if the suit should be instituted in the locus contractus and not in the State

67 Mart. (La.) 318, 12 Am. Dec. 508.

7 Davis v. Williams, 73 Miss. 708, 19 So. 352; Walker v. Marseilles, 70 Miss. 284, 12 So. 211; Bank v. Lee, 13 Pet. 107.

8 Matthews v. Lloyd, 89 Ky. 625, 13 S. W. 106. See Hoyt v. Thompson, 19 N. Y. 207.

where the chattel is situated (such cases would be rare), that the court should follow the lex loci contractus, the lex situs of the property usually governing only because it is also the forum. Hence when, instead of the forum and the situs at the time of the transfer being identical, it is the locus contractus and the forum that are identical, the exceptional operation of the law of the actual situs of the property at the time of the transfer should cease, and the lex loci contractus should reign supreme." And so, if the forum is a third State, neither the situs nor the locus contractus.

§ 130. Sale of Personalty, with Reservation of Title in Vendor. - At common law a reservation of title in the vendor of a chattel until the purchase price is paid is sustained even as against a purchaser from the vendee for value and without notice of such reservation. But in many States by statute the reservation is void as against third persons unless it is recorded.

If therefore we suppose a chattel sold with such reservation in one State while the chattel is actually situated in another State subject to a different law, or is subsequently removed thither by the vendee, where it is afterwards sold by the vendee to a purchaser for value and without notice of the reservation, which law is to govern the title of the vendee's purchaser ?

The policy of the laws which set at nought the contract for the reservation of the title in favor of creditors of and purchasers from the vendee, must be kept in mind in the solution of this question. Some avoid the reservation of title absolutely as

See Martin v. Hill, 12 Barb. (N. Y.) 631, 633; Edgerly v. Bush, 81 N. Y. 199; Hornthall v. Burwell, 109 N. C. 10, 13 S. E. 721; Boehme v. Rall, 51 N. J. Eq. 574, 26 Atl. 832. This result however is denied in one New York case, in which it was held that even though the suit was brought in the locus contractus, the transfer being valid there, it would not be sustained if invalid by the law of the actual situs of the chattels at the time of the transfer. This case would seem to go too far in support of the lex situs. Guillander v. Howell, 35 N. Y. 657. Mr. Wharton also goes to great lengths in giving effect to the lex situs, claiming that it is the " proper law." Whart. Confl. L. §§ 297 et seq. The true rule is that the law of the actual situs is effective only when it is also the lex fori, the lex loci contractus, or the lex domicilii. Standing alone, it is of no significance.