74. If the Notes differ. If one note only is put in evidence, it warrants the inference that the other agrees with it,1 and satisfies the statute as against the party on whose behalf and with whose authority it was signed.2

Again, in case the broker does not make a book entry, and delivers bought and sold notes which differ in some material respect, but which are retained by the parties, if the note retained by the party to be charged is in accordance with the terms of the oral contract as counted on by the plaintiff, it should satisfy the statute, and there is authority to that effect.3 Notwithstanding some of the earlier decisions, a mere memorandum in the broker's book, signed by him, is not the contract; it is at most only evidence of the contract in cases where he has authority to make it. Accordingly, if he delivers properly signed, bought and sold notes of the same tenor which are retained by the principals, but signs a book entry at variance with them, they will satisfy the statute, unless the defendant can show that the oral contract differs from the notes, and that he has not assented to the new terms stated in them.5

In the United States it is said that bought and sold notes should be taken together for the purpose of deciding whether they constitute a sufficient memorandum. However, brokers' notes appear to have caused the courts of this country but little trouble, while in England they have been the source of much judicial discussion and perplexity."

1 Hawes v. Foster, 1 Mood. & Rob. 368, 371 (1834); Parton v. Crofts, 16 C. B. N. s. 11 (1864); Burdick's Cases on Sales, 95.

2 Thompson v. Gardiner, 1 C. P. D. 777 (1876); Burdick's Cases on Sales, 96. Campbell on Sales (2d ed.), 567, 568, and cases cited. 4 Thornton v. Meux, M. & M. 44 (1827). See Campbell on Sales (2d ed.), 569, 570. Authorities cited above.

Bibb v. Allen, 149 U. S. 481, 495; 13 Sup. Ct. 950 (1892). In Butler v. Thomson, 92 U. S. 412 (1875), the following broker's note was held to be binding on the purchasers, A. A. Thomson & Co.

"New York, July 10, 1867. Sold for Messrs. Butler & Co., Boston, to Messrs. A. A. Thomson & Co., New York, seven hundred and five (705) packs first-quality Russia sheet iron, to arrive at New York, at twelve and three-quarters (1234) cents per pound, gold, cash, actual tare. Iron due about Sept. 1, '67. White & Hazzard, Brokers."

7 The various forms of brokers' notes, and the English cases to which they have given rise, are carefully considered, under the topic of Agency, in Campbell on Sales (2d ed.), 558-572.

75. When made. The statute is silent on this subject, but the weight of authority favors the view that the memorandum must be made before a suit is brought to enforce the contract.1 There is high authority, however, for what appears to be the better doctrine, that, as the memorandum is only evidence of the sale, and not the sale contract, it is immaterial whether this evidence is obtained before or after the suit is brought.2

1 Lucas v. Dixon, 22 Q. B. D. 357 (1889); Bird v. Munroe, 66 Me. 337 (1877); Burdick's Cases on Sales, 60.

2 Remington v. Linthicum, 14 Pet. 84, 92, Taney, C. J. (1840).

§ 1. Its Nature.

CHAPTER II.

BARGAIN AND SALE.

76. WE have seen that a contract of sale may operate as a present conveyance of the property in goods, even though delivery and payment are to take place in the future.1 Such a transaction is known to the common law as a bargain and sale. It is often called an executed sale,2 but this designation is not a happy one, for frequently the engagements of neither party are executed fully; and it appears to have induced confusion of thought and erroneous decisions.3

§ 2. The Goods must be specific.

77. In order that a transaction amount to a bargain and sale, not only must the subject-matter be in existence, but it must consist in specific or ascertained goods. A contract to sell a horse or a picture from a number owned by the seller cannot operate as a bargain and sale. "No person can be said to own a horse or a picture unless he is able to identify the chattel or specify what horse or what picture it is that belongs to him." Until the party having the right to designate the particular horse or picture exercises that right, the contract may be satisfied by the appropriation of any one of the various horses or pictures among which the choice is to be made; and the law knows no such thing as a floating right of property which may attach itself to one chattel or another, according to the exigencies of the party having the right of choice.5

1 Supra, ¶ 3; Johnson v. Tabor, Miss.; 57 So. 365 (1912). Beardsley v. Beardsley, 138 U. S. 262; 11 Sup. Ct. 318 (1890). ' Supra, ¶ 2. Kimberly v. Patchin, 19 N. Y. 330, 333 (1859). Scudder v. Worster, 11 Cush. (65 Mass.) 573, 580 (1853).

4

78. Contract for Sale of Part of Mass. To this extent all courts are agreed. But suppose the contract is for the sale and purchase of a designated quantity from a larger mass of goods of the same kind and quality, as of 1,000 bushels of wheat, or 100 barrels of flour, can it take effect as a bargain and sale before the stipulated portion is severed from the mass? The English courts and those of some of our States answer in the negative, holding that until such severance no one can say which part of the mass the seller has agreed to deliver; the subject-matter has no individuality, and the purchaser cannot bring detinue, because he cannot describe the particular thing.1 Such, however, is not the prevailing view in this country. When goods "are sold, not by a description which refers to and distinguishes the particular thing, but in quantities which are ascertained by weight, measure, or count," and "can be identified only in masses or quantities, and in that mode, therefore, are viewed in the contracts and dealings of men," if the agreed 'quantity and the general mass from which it is to be taken are specified, the subject-matter is thus ascertained, and it becomes a possible result for the title to pass."2 All of these conditions must concur. Hence, if the larger quantity is composed of parcels differing in quality, or possessing distinct individuality, or if the contract permits the agreed quantity to

1 Gillett v. Hill, 2 Cromp. & M. 530 (1834); Burdick's Cases on Sales, 98; Waldo v. Belcher, 11 Iredell (N. C.), 609 (1850); Com. Bank v. Gillett, 90 Ind. 268 (1883); Burdick's Cases on Sales, 105; Hutchinson v. Railway, 59 N. H. 487 (1879). Even the English courts hold that such a contract confers upon the purchaser an insurable interest in the goods. Stock v. Inglis, L. R. 12 Q. B. 564 (1884); 10 App. Cas. 263 (1885).

Kimberly v. Patchin, 19 N. Y. 330, 333; 75 Am. Dec. 334 (1859); Hurff v. Hires, 40 N. J. L. 581; 29 Am. R. 282 (1878); Burdick's Cases on Sales, 99; Seldomridge v. Farmers & M. Bk., 87 Neb. 531; 127 N. W. 871 (1910); Brownfield v. Johnson, 128 Pa. St. 267; 18 Atl. 543; 6 L. R. A. 48 (1889); Burdick's Cases on Sales, 375. In Staake v. Penn. Ry., 231 Pa. 466, 470; 80 At. 1102 (1911), the court explained Brownfield v. Johnson as a case "decided largely upon principles affecting the relations of principal and agent," and declared "that the goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed before the property can pass."

Foot v. Marsh, 51 N. Y. 288 (1873).

Hutchinson v. Hunter, 7 Pa. St. 140, 146 (1847); Burdick's Cases on Sales, 107.

be taken from a particular mass or from any other of like kind,1 the transaction cannot operate as a bargain and sale.

The prevailing view, above referred to, has been codified in the Uniform Sales Act.2

79. Title not lost by remingling an Appropriated Part with the Mass. Even in England it is admitted that if the vendor once appropriates a part of the mass to the contract, title to such ascertained part may vest at once in the purchaser, and cannot be devested by the vendor's mingling it again indistinguishably with the mass.3 In the case last cited, the assignee in bankruptcy of the seller was held liable in conversion to the purchaser for exercising dominion over the whole mass, although when it came to his possession the part once appropriated to the contract had lost its identity. No one could tell what part of the mass was owned by the purchaser, and unquestionably the assignee could have escaped liability by tendering any seventy-eight quarters of wheat from the specified heap. If the purchaser can retain title to seventy-eight quarters of wheat after the seller has intermingled them with the bulk from which they had been separated, it is difficult to see why he cannot obtain title while so intermingled.1

80. English Rule modified by Usage of Warehousemen. Some courts, while adopting the English doctrine, have not

1 Golder v. Ogden, 15 Pa. St. 528 (1850); Burdick's Cases on Sales, 108. * Mass. L. 1908, ch. 237, § 6: "(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) In the case of fungible goods, there may be a sale of an undivided share of a specific mass, 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. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears."

• Aldridge v. Johnson, 7 E. & B. 885 (1857); Burdick's Cases on Sales, 109. Accord, Rust Land & Lumber Co. v. Isom, 70 Ark. 99; 66 S. W. 434 (1902).

Kimberly v. Patchin, 19 N. Y. at pp. 334, 335 (1859).