hesitated to hold that the owner of grain which is in the possession of a warehouseman, may pass title to a part thereof by a delivery order to the purchaser, duly accepted by the bailee. This acceptance is deemed an appropriation to the use or credit of the purchaser, whereby the latter acquires "title, right of possession, and constructive possession of the grain so purchased." Statutes have been passed in a few States supporting and extending this rule.2

81. Title by Estoppel. - Although the goods may not have been specified, the vendor or a bailee may estop himself to deny that title has passed. "There may be also a good title by estoppel to things which do not require any instrument to transfer them; as, for instance, goods. If an action is brought upon the ground that the property in goods has passed to the vendor of the plaintiff, and if that question depends upon whether a particular parcel of goods has been set apart and appropriated to the contract between the vendor of the plaintiff and the defendant, an admission by the defendant, the owner of goods, that there had been a setting apart of the goods would

1 Keeler v. Goodwin, 111 Mass. 490 (1873); Burdick's Cases on Sales, 111.

2 Mass. Pub. Statutes, ch. 72, §7; Minn. Gen. St. 1878, c. 124, §§ 13–20; applied in Hall v. Pillsbury, 43 Minn. 33; 44 N. W. 673 (1890), and Doliff v. Robbins, 83 Minn. 498; 86 N. W. 772 (1901). In the latter case, the court said: "By statute, such tickets are made transferable and negotiable by indorsement and delivery. They are negotiable, not, perhaps, to the full extent of bills of exchange and promissory notes, but to the extent of transferring the title to the property to an indorsee or purchaser, together with all rights and remedies of the holder. They are contracts, in every sense of the term, and the assignment thereof must, in the nature of things, carry with it all rights incident thereto. The general rule of law with reference to storage tickets of this character, whether issued pursuant to some statutory requirement or otherwise, is that the sale of the tickets by indorsement and delivery operates as a transfer to the indorsee or purchaser of the legal title to the commodity represented thereby, and the warehouseman becomes liable to the indorsee to the same extent as to the original holder. And in case of such indorsement and transfer the indorsee may maintain an action against the warehouseman for injury to the property, whether the injury occurred before or after the transfer of the ticket.” Maine Rev. St. (4th Rev.) 333, § 9 and on.

3 Gillett v. Hill, 2 Cromp. & M. 530 (1834); Burdick's Cases on Sales, 98; Knights v. Wiffen, L. R. 5 Q. B. 660 (1870); Watts v. Hendry, 13 Fla. 523 (1870).

be effectual as against him to pass the property in the goods to the plaintiff's vendor." 1

§ 3. Contract to sell may become a Bargain and Sale.

82. This transformation may occur without further act by either party, as where a chattel is delivered upon an agreement that the transferee shall pay a certain sum for it, if it is damaged while in his possession.2 More commonly it is caused by an agreed act of one of the parties, or by their concurrent acts, such as the despatch of the goods by the seller to the buyer,3 or their inspection by a common agent, or their designation by the seller and acceptance by the buyer," or their selection and appropriation by the buyer. This topic will be discussed more fully in the next chapter.

§ 4. The Contract must be unconditional.

83. Even when the contract relates to specific goods, and the language is that of a present sale, it will not operate to pass title to the purchaser, if the parties intend that it shall not have that effect. An unequivocal statement of their intention is conclusive upon the parties. How far it is binding on third persons will be considered hereafter. If their intention has not been clearly expressed, it is to be ascertained from "the terms of the contract, the conduct of the parties, and the circumstances of the case." 8

1 Simm v. Anglo Am. Tel. Co., 5 Q. B. D. 188, 215, 216 (1879).

2 Bianchi v. Nash, 1 M. & W. 545 (1836); Burdick's Cases on Sales, 112; Grady v. Schweinler, 16 N. Dak. 452; 113 N. W. 1031; 125 Am. St. R. 674; 14 L. R. A. N. s. 1084, and case note (1907).

Fragano v. Long, 4 B. & C. 219 (1825); Burdick's Cases on Sales, 113. 4 Whitcomb v. Whitney, 24 Mich. 486 (1872); Burdick's Cases on Sales, 115. Rohde v. Thwaites, 6 B. & C. 388 (1827).

Nash v. Rockford Veneer Co., 67 N. W. 111; 109 Mich. 269 (1896); Lauber v. Johnston, 54 Wash. 59; 102 Pac. 873 (1909). Under contract for the sale of all the merchantable hay on seller's premises, title passed as the merchantable hay was separated and baled.

Platter v. Acker, 13 Ind. App. 417; 41 N. E. 832 (1895); Burdick's Cases on Sales, 174; Cunningham Iron Co. v. Warren Mnfg. Co., 80 Fed. 878 (1897); Pittsburgh, C. C. & St. L. Ry. v. Knox, Ind. ; 98 N. E. 295 (1912).

Sale of Goods Act, § 17 (2); Lingham v. Eggelston, 27 Mich. 324 (1873); Burdick's Cases on Sales, 118; Kost v. Reilly, 62 Conn. 57; 24

A recent New Jersey decision is instructive upon this point.1 The plaintiff made a written offer to one Schurr for the purchase of the latter's drug-store stock and fixtures, which was accepted in writing, and plaintiff paid twenty-five dollars, at Schurr's request, to bind the bargain. In his letter of March 12, 1897, accepting the offer, Schurr wrote that he would be ready for plaintiff to take the property at any time after April 15, upon payment of the price. The court declared: "He thereby negatived the idea that he was making a present actual sale, by which he was to part with the title. It was an executory agreement a promise to sell, and not a sale." Accordingly Schurr was able to give to defendants, who were bona fide purchasers of the property on April 1, a perfect title, although thereby subjecting himself to an action for damages for breach of his contract with plaintiff.

84. Presumption that Contract for Specific Goods is one of Bargain and Sale. It is well settled that a contract for the sale of specific goods is prima facie a bargain and sale, immediately vesting the title to the goods in the purchaser and a right to the price in the seller. Nor is this presumption changed by the fact that the seller engages to deliver the property at a future time and a designated place; nor in England by the fact that it is a sale for cash, except in the case of goods sold in a retail shop.5

At. 519 (1892). The language of the Uniform Sales Act is as follows: "For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case." Mass. L. 1908, ch. 237, § 18 (2). 1 Kerr v. Henderson, 62 N. J. L. 724; 42 At. 1073 (1899).

2 Blackburn on Sales (2d ed.), 124, 171, 172; Thompson v. Brannin, 94 Ky. 490; 21 S. W. 1057 (1893); Van Broecklen v. Smeallie, 140 N. Y. at p. 72; 35 N. E. 415 (1893).

Terry v. Wheeler, 25 N. Y. 520 (1862); Burdick's Cases on Sales, 121; Hagins v. Combs, 102 Ky. 165; 43 So. 222 (1897); Penley v. Bessey, 87 Me. 530; 33 At. 21 (1895). Contra, McDowell v. Murfreesboro, 103 Tenn. 726; 54 S. W. 977 (1900), holding that a groceryman, who received orders for goods, separated them from his stock, wrapped them up, and charged them to his customers Saturday evening but delivered them on Sunday, was guilty of violating an ordinance prohibiting the public sale of goods on Sunday. 4 Sale of Goods Act, § 18, Rule 1; Campbell's Sale of Goods (2d ed.), 340; Blackburn on Sales (2d ed.), 124, 171, 172.

Bussey v. Barrett, 9 M. & W. 312 (1842).

The Uniform Sales Act follows the English statute in this respect,1 and declares the presumption to be that a cash sale is a bargain and sale, though the buyer is not entitled to possession without paying cash.

85. Is a Sale for Cash conditional? But in this country there are numerous judicial dicta and a few decisions to the effect that a present sale contract of specific goods "for cash," or "for ready money," is conditional, and that title does not pass unless the condition is performed or waived. In an early case the doctrine is stated in this form: "But if the sale be for money to be immediately paid, or to be paid upon delivery, payment of the price is a precedent condition of the sale, which suspends the completion of the contract until the condition is performed, and prevents the right of property from passing to the vendee, unless the vendor chooses to trust to the personal credit of the vendee. If credit be not given, this bargain is considered nothing more than a communication." 2

This view is adopted by Chancellor Kent, who declares that "Where no time is agreed on for payment, it is understood to be a cash sale, and the payment and delivery are immediate and concurrent acts, and the vendor may refuse to deliver without payment, and if the payment be not immediately made, the contract becomes void."3 It appears to be the law in some of the States.*

1 Mass. L. 1908, ch. 237, § 19, "Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed."

2 Copland v. Bosquet, 4 Wash. C. Ct. 588 (1826), (at six months, "payable in Philadelphia, or if his principal prefers cash, three per cent discount, acceptance to be perfectly satisfactory").

* Kent's Commentaries, 496, citing as authorities Comyns's Digest, tit. Agreement, B. 3, and Bell on Sales, Edin. (1844) 20, 21. Undoubtedly the Scotch law treats such a term as a suspensive condition. 1 Bell's Commentaries (9th ed.), § 103; and Comyns lays down the rule as stated by Kent; but the cases which he cites do not support it, although the decision in Dyer, 29 b, has a dictum that such is the rule in case of a cash sale in a retail shop. The case of Cowper v. Andrews, Hob. 39, 41, declares that if "I sell you my horse for ten pounds, you shall not take my horse except you pay me ten pounds," but contains no intimation that failure to pay immediately avoids the sale.

4 Turner v. Moore, 58 Vt. 455 (1886); The Evansville Railway v.

86. Cash Sale is not conditional in most Jurisdictions. — In most jurisdictions, however, a contract for the sale of specific goods for cash on delivery is treated as a bargain and sale, unless some other fact appears evincing an intention that the title as well as the possession shall not pass unless, and until the price is paid.1 This fact may be disclosed by evidence of the course of dealing between the parties, or of the conduct of the parties before delivery has taken place,2 or of an option to the buyer to pay cash or to perform some express condition such as giving approved paper, or of a statement by the seller during the negotiations that the property shall not become the buyer's unless he pays cash. In most of the cases where cash sales have been spoken of as conditional, some such additional fact has appeared; or the question really at issue has been, not whether title had passed, but whether the buyer was entitled to possession.5

Erwin, 84 Ind. 457 (1882); Halt v. Mo. Pac. Ry., 50 Mo. App. 179 (1892); Bergan v. Magnus, 98 Ga. 514; 25 S. E. 570 (1896); Burdick's Cases on Sales, 124; Com. v. Devlin, 141 Mass. 423 (1886). But see Morse v. Sherman, 106 Mass. 430 (1871), and Haskins v. Warren, 115 Mass. 514 (1874); and see Uniform Sales Act, above cited. Some of the later cases supporting the view that a cash sale is conditional are: Hilmer v. Hills, 138 Cal. 134; 70 Pac. 1080 (1902); E. L. Welch Co. v. Lahart El. Co., 109 Minn. 219; 123 N. W. 821 (1909); B. & O. S. W. Ry. v. Good, 82 Ohio St. 278; 92 N. E. 435 (1910), applying rule of Cincinnati Chamber of Commerce; First Nat. Bank of Byass v. Griffin, 31 Okla. 382; 120 Pac. 595 (1911); Johnson v. Iankovetz, 57 Ore. 24; 110 Pac. 398 (1910); Freech v. Lewis, 218 Pa. 141; 67 At. 45; 120 Am. St. R. 864, with note; 11 L. R. A. N. s. 948, with note (1907); Victor L. & S. Co. v. Texas State Trust Co., 101 Tex. 94; 104 S. W. 1040 (1907). The condition was held to have been waived in this case by the seller's insistence upon the sale, and his continued demand for the price; Kitson Mach. Co. v. Holden, 74 Vt. 104; 52 At. 271 (1901).

1 Rail v. Little Falls Lumber Co., 47 Minn. 422; 50 N. W. 471 (1891); Phillips v. Moor, 71 Me. 78 (1880); Hayden v. Demets, 53 N. Y. 426, 431 (1873); Clark v. Greeley, 62 N. H. 394 (1882). Such is the rule, quoted in a former note, laid down by the Uniform Sales Act.

Paul v. Reed, 52 N. H. 136 (1872); Roberts v. Bullock, 73 S. E. 991 (1912).

N. C.;

Copland v. Bosquet, 4 Wash. C. Ct. 588 (1826); Tyler v. Freeman, 3 Cush. (Mass.) 261 (1849).

4 The Evansville Ry. v. Erwin, 84 Ind. 457 (1882).

Hodgson v. Barrett, 33 Ohio St. 63 (1877); Johnson-Brinkhan Co. v. Cent. Bk., 116 Mo. 558; 38 Am. St. R. 615; 22 S. W. 813 (1893); Bank v.