appear showing that the parties intend that it should pass at once.1

92. Notice to Buyer that Goods are Deliverable. - The English statute requires, in the cases just referred to, that the buyer shall have notice that the goods have been put into a deliverable state before title shall pass, though the notice need not be given by the seller. The provision was added on a suggestion from Scotland that it was "inequitable that the buyer should be liable to undertake a risk of which he was ignorant.' In this country, the buyer does not appear to be entitled to notice that the goods have been put into a deliverable state, unless he stipulates for notice.3

"2

93. Weighing, measuring, or testing by the Seller. - When the contract binds the seller to do either of these acts, even though it is to be done for the sole purpose of ascertaining the price, the English statute declares that "the property does not pass until such act or thing be done, and the buyer has notice thereof." This rule, except the provision as to notice, had been established by judicial decisions in England, although it had encountered serious opposition. The suggestion that it was "somewhat hastily adopted from the civil law, without adverting to the great distinction made by the civilians between a sale for a certain price in money and an exchange for anything else," is borne out by the opinions in the early English cases on the subject, and by the decisions in Louisiana based upon the civil code of that State.

5

remove unmerchantable ones. Williams v. Sayers, 79 Miss. 50; 29 So. 995 (1901), damaged cotton to be separated from good. Young v. Edwards, 64 W. Va. 67; 60 S. E. 992 (1908); Quisenberry v. Rercher (Ky.), 124 S. W. 274 (1910); Automatic Time-Table Advertising Co. v. Automatic TimeTable Co., 208 Mass. 252; 94 N. E. 462 (1911), applying Uniform Sales Act, 19, Rule 2.

1 Guion Merc. Co. v. Campbell, 91 Ark. 240; 121 S. W. 164 (1909); Summit Lumber Co. v. Shepard, Ark. ; 143 S. W. 100 (1912); McDermott v. Kimball Lumber Co., Ark.; 144 S. W. 524 (1912).

2 Brown's Sale of Goods (1st ed.), 88.

Uniform Sales Act, Mass. L. 1908, ch. 237, § 18, Rule 2.

Blackburn on Sales (2d ed.), 174; Martineau v. Kitching, L. R. 7 Q. B. 436, Cockburn, C. J. (1872); Burdick's Cases on Sales, 132.

Hanson v. Meyer, 6 East, 614 (1805); Withers v. Lyss, 4 Camp. 237

(1815); Simmons v. Swift, 5 B. & C. 857 (1826).

Article 2456 declares that a sale is perfect and the property passes to the purchaser "as soon as there exists an agreement for the object and for the price thereof." Article 2458 provides, "When goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things sold are at the risk of the seller, until they be weighed, counted, or measured." The price is not agreed upon and ascertained, if the contract is for the sale of all the corn in a specified elevator, estimated at six or eight thousand bushels at sixty-five cents a bushel. "Had the elevator taken fire, and the corn been consumed before it was weighed, defendant could not have sued for any specific sum as the ascertained price of the corn. . There can be no sale in lump except for a lumping price." 1

94. Weighing or measuring to identify the Goods. If the agreement is not for the sale of specific goods, and the weighing, measuring, or testing is to be done by the seller, for the purpose of identifying the subject-matter or of appropriating it to the contract, the intention of the parties that title is not to pass until such act is done seems to be fairly inferable. It is an act which the seller must do, before he can call on the buyer "to accept the goods as corresponding to the contract." In many of the cases which support the rule that where the seller is bound to weigh, measure, or test the goods, it is the presumed intention of the parties that such act shall be a condition precedent to title passing, the act was necessary not simply to arrive at the exact price for which suit could be brought, but to ascertain the subject-matter,2 or to put the goods into a deliverable state.3

1 Peterkin v. Martin, 30 La. Ann. 894 (1878); cf. Abat v. Atkinson, 21 La. Ann. 414 (1869); Goodwyn v. Pritchard, 10 La. Ann. 250 (1855).

2 Joyce v. Adams, 8 N. Y. 291, 297 (1853), (259 bales of cotton, but not "the cotton stored at 296 Water St. Any other bales of cotton of the description specified would" have satisfied the contract); Martin v. Hurlbut, 9 Minn. 142 (1864), ("all logs cut by me . . . with the exception of 175,000 feet"); Pike v. Vaughn, 39 Wis. 499, 505 (a half million feet of logs fit for use); Rosenthal v. Kahn Bros., 19 Ore. 571, 577 (1890), (2,900 cords of good, merchantable firewood four feet in length).

3 Rugg v. Minett, 11 East, 210 (1809), (casks of turpentine to be filled); Frost v. Woodruff, 54 Ill. 155 (1870), (wood to be chopped and piled);

95. Weighing or measuring to ascertain Sum to be paid. Where, however, specific goods are to be weighed, measured, or tested by the seller solely for the purpose of ascertaining the aggregate sum to be paid by the buyer, there seems to be no more reason for the inference that the parties intend title shall not pass at once1 than where the seller is to deliver the goods at a specified time and place. This view is held in a number of States, and supported by the Uniform Sales Act.3

However, the English rule is accepted by many of our courts; and in not a few jurisdictions the earlier form of the rule is maintained, that whether the weighing, measuring, or testing is to be done by the seller or by the buyer, if this is necessary to fix the aggregate sum to be paid, title will not pass until it is done, unless the parties disclose a different intention. AcLingham v. Eggelston, 27 Mich. 324 (culls to be separated from the better quality). This case is fully discussed and its doctrine approved in H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299; 87 N. W. 268; 55 L. R. A. 301 (1901); Hamilton v. Gordon, 22 Ore. 557, 560 (1892), (all my crop of wheat sacked in good merchantable sacks). Although Kein v. Tupper, 52 N. Y. 550 (1873), is frequently cited in support of this rule, the decision is based on the fact that the purchaser had not had an opportunity to compare the bulk with the sample. Elliott v. Southern Ry., 155 N. C. 235; 71 S. E. 339 (1911); wood was not to be paid for until it had been received, inspected, and weighed.

1 Cf. Burrows v. Whitaker, 71 N. Y. 291, 296, 297; 27 Am. R. 42 (1877); Carlson v. Crescent W. & B. U. Co., 20 Idaho, 794; 120 Pac. 460 (1911). Contra, Indiana Tie Co. v. Phelps (Ky.), 124 S. W. 833 (1910). In Porter v. Rice (Ky.), 128 S. W. 70 (1910), liquor was to be inspected by the buyer before he was to pay for it, and the court held that title was not to pass until such inspection.

2 Morgan v. Perkins, 1 Jones' Law (N. C.), 171 (1853); Farmers' Phosphate Co. v. Gill, 69 Md. 537; 16 At. 214 (1888); Sanger v. Waterbury, 116 N. Y. 371; 22 N. E. 404 (1889); Burdick's Cases on Sales, 138; Allen v. Elmore, 121 Ia. 241, 243; 96 N. W. 769 (1903), citing text; Kirkham v. B. F. Fullerton & Son, Okla. ; 122 Pac. 652 (1912).

-

3 Mass. L. 1908, ch. 237, § 19, which omits Rule 3 of § 18 of the English statute.

4 Barrett v. Goddard, 3 Mason, 111 (1822); Nicholson v. Taylor, 31 Pa. St. 128 (1858); Burdick's Cases on Sales, 140; Prescott v. Locke, 51 N. H. 94 (1871); Parman v. Marshall (Tenn.), 51 S. W. 116 (1899), citing with approval the following statement from Williams v. Allen, 10 Humph. (Tenn.) 337 (1849): "The contract may be complete and binding in other respects, but the property in the goods remains in the vendor, and they are at his risk, if any act is to be done by him before delivery, either to distinguish the goods, or ascertain the price thereof. Though the subject

tual1 or "symbolical" 2 delivery of the goods by the seller to the purchaser, before they are weighed, measured, or tested, is evidence of mutual intention that title shall pass at once.

Moreover, if the weighing, measuring, or testing has been done, the title will pass, although the mathematical computation necessary to the ascertainment of the sum payable has not been made, and although the data for such computation may be unknown to the purchaser.1

96. Destruction of Goods before weighing or measuring. — It has been held that where the contract is to sell by weight, measure, or count, and the goods are destroyed before they have been weighed, measured, or counted, the seller cannot recover for goods bargained and sold, even though title has passed. In the case last cited, Bayley, J., said: "So here the contract made weighing necessary, for without that the price could not be ascertained. Suppose the plaintiff had declared specially upon this contract, he must have alleged and proved that he sold the bark at a certain sum per ton, that it weighed so many tons, and that the price in the whole amounted to such a certain sum." Littledale, J., said: "The mere bargain would not suffice, because no specific price was fixed; nor could the plaintiff recover on a quantum valebat, for the contract was to pay by weight; and, therefore, until the commodity was weighed, there would be nothing to guide the jury in the amount of damages to be given." This is not the prevailing view. In such a case, “the seller may recover the price .. by ascertaining the amount as nearly as you can."

matter of the contract be clearly ascertained, yet if the price cannot be calculated until the parties have weighed the goods, no property therein passes to the buyer till such act be done. "

1 Cunningham v. Ashbrook, 20 Mo. 553 (1855); Burdick's Cases on Sales, 1; Scott v. Wells, 6 W. & S. (Pa.) 357 (1843); Burrows v. Whitaker, 71 N. Y. 291; 27 Am. R. 42 (1877).

2 Macomber v. Parker, 13 Pick. 175 (1832); Leonard v. Davis, 1 Black (U. S.), 476 (1861). This use of the term "symbolical" is open to criticism. Infra, ch. v. § 8 (a).

Tansley v. Turner, 2 Bing. N. C. 151 (1835).

Bradley v. Wheeler, 44 N. Y. 495 (1871). But see the English statute, § 18, Rule 3.

5 Simmons v. Swift, 5 B. & C. 857 (1826).

Martineau v. Kitching, L. R. 7 Q. B. 436 (1872), Blackburn, J.;

97. Sale of Specific Goods on Approval. A contract of this nature is not a bargain and sale. It provides for the passing of title in the future, at the option of the purchaser. Under the English statute, and the Uniform Sales Act, title vests “ (a) when the buyer signifies his approval or acceptance to the seller, or does any other act adopting the transaction; (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.”1

The American decisions accord with these provisions in the main, although there is some authority for the view that the retention of the goods beyond the agreed time for their return, without notice of rejection, does not vest title in the buyer of itself; that it is evidence only of acceptance by the purchaser.3 Mortgaging the goods is an "act adopting the transaction, and changing it from a conditional contract to buy into a bargain and sale, unless the facts show that the parties had a different intention, and did not understand the act of mortgaging to be an act of final acceptance. Notifying the seller that

Upson v. Holmes, 51 Conn. 500, 503 (1883); Burdick's Cases on Sales, 141; Gill v. Benjamin, 64 Wis. 362; 25 N. W. 445 (1885).

1 Sale of Goods Act, § 18, Rule 4; Moss v. Sweet, 16 Q. B. 493 (1851); Mass. L. 1908, ch. 237, § 19, Rule 3 (2).

2 Delamater v. Chappell, 48 Md. 244 (1877); Columbia Rolling Co. v. Beckett Co., 55 N. J. L. 391; 26 At. 888 (1893); Forsaith Machine Co. v. Mengel, 99 Mich. 280; 58 N. W. 305 (1894); Butler v. School District, 149 Pa. St. 351; 24 At. 308 (1892); Gibson v. Vail, 53 Vt. 476 (1881); Chicago Pneumatic Tool Co. v. Sims, 90 Ark. 583; 119 S. W. 1118 (1909); Porter v. Rice (Ky.), 128 S. W. 70 (1910); Bland v. Peters, 30 Okla. 798; 120 Pac. 631 (1911).

Hunt v. Wyman, 100 Mass. 198 (1868); Kahn v. Klabunde, 50 Wis. 235 (1880), (but in this case the buyer was to return the horse within a fixed time or the seller was to go for it).

4 Lynch v. Willford, 57 Minn. 377; 59 N. W. 311 (1894).

5 Harrison v. Scott, 203 N. Y. 369; 96 N. E. 755 (1911). "The mortgagee was the president of the mortgagor, and knew that at the time the instrument was executed no satisfactory test had been secured, and that inspection was still being continued for the purpose of determining whether the machine was satisfactory, and he voted to have the mortgage executed under these circumstances."