the buyer will have the defects remedied at the former's expense is an act of the same nature.1

98. Sale or Return. - The English statute, following the decisions of England and Scotland, makes no distinction between a "sale or return," and a sale on approval. In this country, however, the former is treated, both by the courts and by the Uniform Sales Act, as a bargain and sale upon a condition subsequent. In a leading Massachusetts case, the court said: "An option to purchase if he (defendant) liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined; in the other the property passes at once, subject to the right to rescind and return." If no time for return is fixed, return must be made within a reasonable time."

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§ 2. Unascertained or Future Goods.

8

99. A contract for the sale of such goods cannot operate as a bargain and sale until and unless the goods described in the contract are unconditionally appropriated to it by one of

1 Stutz v. Coal Co., 131 Pa. St. 267; 18 At. 875 (1889). If the trial of the property results in its partial consumption, the use of more than is necessary to a fair trial may amount to an adoption of the transaction.

2 Sale of Goods Act, § 18, Rule 4.

Supra, ¶ 89; Buswell v. Bicknell, 17 Me. 344; 35 Am. Dec. 262 (1840); Burdick's Cases on Sales, 142. "The property in the thing passes, and the remedy of the former owner rests in contract. It is the option conceded to the party receiving which produces this effect." But the parties may expressly provide that title shall remain in the vendor when the transaction becomes a conditional sale. Crocker v. Gullifer, 44 Me. 491; 69 Am. Dec. 118 (1858); Wright v. Barnard Bros., 89 Ia. 166; 56 N. W. 424 (1893).

4 Mass. L. 1908, ch. 237, § 18, Rule 3 (1): "When goods are delivered to the buyer on sale or return,' or on other terms indicating an intention to make a present sale but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fixed in the contract, or if no time has been fixed, within a reasonable time."

Hunt v. Wyman, 100 Mass. 198 (1868).

Lewis v. Pope Motor Car Co., 202 N. Y. 402; 95 N. E. 815 (1911); Guss v. Nelson, 200 U. S. 298; 26 Sup. Ct. 260 (1906), affirming s. c. 14 Okla. 296; 78 Pac. 170 (1904).

7 Graecen v. Poehlman, 191 N. Y. 403; 84 N. E. 390 (1908). 8 Supra, ch. ii.

the parties with the assent of the other. "In the case of executory contracts," to quote from a leading English case, “when the goods are not ascertained, or may not exist at the time of the contract, from the nature of the transaction no property in the goods can pass to the purchaser by virtue of the contract itself; but when certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands, as to the vesting of property, very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain. In most cases of such executory contracts something more would generally remain to be done, such as, for instance, selection or appropriation, approval,2 and delivery of some kind, before the property would be considered as intended to pass, and upon that taking place the property might pass, if it was intended to do so, equally as in the case of a contract for specific and ascertained goods. Lord Wensleydale, in the case of Dixon v. Yates (5 B. & Ad. at p. 340), put the case of the sale of a specific chattel upon the same footing as the sale of an unascertained chattel after delivery, for the purpose of showing that the property vested in the latter case upon delivery, and in the former by the contract itself." 3

100. The Described Goods. When the subject-matter of the contract is not a specific chattel, it is a condition precedent to the passing of title from the seller to the buyer, that the goods appropriated to the contract shall be those which the seller has agreed to deliver and the buyer has agreed to accept. Otherwise it would be possible for one party to transmute the title to goods without the other's assent. Hence, if the goods appropriated to the contract by either party are not such as have been stipulated for, title will not pass unless the other elects to substitute them for those agreed upon.

1 Sale of Goods Act, § 18, Rule 5; Uniform Sales Act, § 19, Rule 4. 2 Yates v. Jones, 137 Ga. 460; 73 S. E. 657 (1912). Lumber was to be received, marked, and accepted by the purchaser, before title was to pass. Heilbutt v. Hickson, L. R. 7 C. P. 438, 449, 450 (1872).

4 Aultman v. Clifford, 55 Minn. 159, 161; 56 N. W. 593 (1893).

5 Gardner v. Lane, 12 Allen (94 Mass.), 39, 43 (1866).

Gardner v. Lane, 98 Mass. 517 (1868); Graff v. Osborne Co., 42 Pac. R. 705; 56 Kans. 162 (1895); Burdick's Cases on Sales, 143.

101. Unconditionally appropriated. - Under a contract such as we are now considering, the seller does not bind himself to deliver a particular chattel. He satisfies his obligation by delivering any chattel which answers the stipulated description.1 Hence, merely setting apart such a chattel for the buyer will not preclude the seller from changing his mind and selling it to another; 2 nor will such act alone vest title in, or transfer the risk to, the buyer.3

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Even when the subject-matter of the contract is so far ascertained that the seller cannot dispose of the chattel and substitute another in its stead without a breach of his obligation to the buyer, title will not pass by force of the contract, unless the parties agree that it shall pass. Accordingly, if one promises to sell a particular vessel,1 or vehicle,5 when finished in a specified manner, or a particular cargo of grain, when the purchaser accepts a draft for the price, title does not pass at once; but the vendor may transfer the property to a third person, who can hold it against the first purchaser. On the other hand, if the seller delivers the stipulated article to the buyer or to some one for transmission to him, pursuant to a term of the contract, and does not reserve the right of disposal, such act amounts to an unconditional appropriation of the article, passes title to the purchaser, and is irrevocable by the seller.

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This rule is un

1 Benjamin on Sales (7th Am. ed.), § 358; Atkinson v. Bell, 8 B. & C. 277 (1828); Johnson v. Hunt, 11 Wend. (N. Y.) 135, 138 (1834); Burdick's Cases on Sales, 150; Schreyer v. Kimball Lumber Co., 54 Fed. 653, 655 (1893).

2 Winslow, Lanier & Co. v. Leonard, 24 Pa. St. 14 (1854); Burdick's Cases on Sales, 146; Comfort v. Kiersted, 26 Barb. 472 (1857); Bryans v. Nix, 4 M. & W. 775, 792, 793 (1839).

3 Andrews v. Cheney, 62 N. H. 404 (1882); Burdick's Cases on Sales, 149; Black v. Webb, 20 Ohio, 304 (1851).

4 Merritt v. Johnson, 7 Johns. (N. Y.) 473 (1811); Yukon River Steamboat Co. v. Gratto, 136 Cal. 538; 69 Pac. 252 (1902); Laidler v. Burlison, 2 M. & W. 602 (1837); Burdick's Cases on Sales, 153 n.; Seath v. Moore (1886), 11 App. Cas. 370, 380; 13 Ret. H. L. 57.

5 Halterline v. Rice, 62 Barb. (N. Y.) 593.

• Wait v. Baker, 2 Exch. 1 (1848); Burdick's Cases on Sales, 154.

7 Kerr v.

Henderson, 62 N. J. L. 724; 42 At. 1073 (1899).

8 Sale of Goods Act, § 18, Rule 5 (2); Uniform Sales Act, § 19, Rule 4(2); Twitchell-Champlin Co. v. Radovsky, 207 Mass. 72; 92 N. E. 1038 (1910).

• Phil. Ry. v. Wireman, 88 Pa. St. 264 (1879); Burdick's Cases on Sales,

questioned, but its application to particular cases is beset with difficulty, as will appear more fully when we consider in the next section what amounts to a reservation of the right of disposal.

101 (a). F. O. B. Sales. In accordance with this rule, when the contract calls for the delivery "f. o. b." at a designated place, the title will pass upon such delivery, unless the facts of the case show the intention of the parties to be that it shall pass at some other time.3

102. Mutual Assent. Even though one of the parties has unconditionally appropriated to the contract goods conforming to the stipulated description, title will not pass until both parties have assented thereto. However, this assent may precede the act of appropriation, and need not be given in express terms. If a Chicago merchant orders from a New York jobber a quantity of silk of a specified pattern and quality, he impliedly assents in advance to an appropriation of the goods

158; Wigton v. Bowley, 130 Mass. 252 (1882); Burdick's Cases on Sales, 159; Dentzel v. Island Park Assoc., 229 Pa. 403; 78 At. 935 (1911).

1 "Whether the selection by one party merely showed an intention in that party to appropriate those goods to the contract, or showed a determination of a right of election, is one of law, and sometimes of some nicety." Blackburn on Sales (2d ed.), 129–131, citing Fragano v. Long, 4 B. & C. 219, and Atkinson v. Bell, 8 B. & C. 277. It will appear in the next section that "a determination of a right of election" may be conditional, e. g., upon the purchaser's accepting or paying a draft on him for the purchase price. Whether it is conditional or final is a question for the jury, unless the undisputed facts will warrant but one inference. Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295, 296 (1869)

2 Kilmer v. Moneyweight Scale Co., 36 Ind. App. 568; 76 N. E. 271 (1905). "We judicially know that 'f. o. b.' in such connection means 'free on board.'" Hurst v. Altamont Mfg. Co., 73 Kan. 422; 85 Pac. 551; 117 Am. St. R. 525; 6 L. R. A. N. s. 928 (1906); “f. o. b. cars' means that the seller shall do all that is necessary to load the cars, including obtaining the cars." Safe Company v. Bank, 25 S. D. 119; 125 N. W. 572 (1910); Adams v. Janes, 83 Vt. 334; 75 At. 799 (1910); "f. o. b. means delivery on board the cars at the usual place of shipping such freight from that locality." Menz Lumber Co. v. McNeeley & Co., 58 Wash. 223; 108 Pac. 621 (1910); Southern Flour & Grain Co. v. McGeehan, 144 Wis. 130; 128 N. W. 879 (1910).

U. S. v. Andrews, 207 U. S. 229; 28 Sup. Ct. 100 (1907).
Reeder v. Machen, 57 Md. 56 (1881).

5 Uniform Sales Act, Mass. L. 1909, ch. 237, § 19, Rule 4(1).

to the contract by the jobber.1 This is in accordance with the rule "that when from the nature of an agreement an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may perform his part of the agreement."2 But in case the order for goods does not give to the seller express or implied authority to despatch them to the buyer, the seller has no right of election, and he cannot appropriate any goods to the contract so as to pass title to the purchaser without the latter's subsequent assent. The same doctrine is applied by most courts to an order for goods from a manufacturer, although in some jurisdictions it is held that the manufacturer has implied authority to appropriate the finished article to the contract.5 103. Mutual Assent to the passing of Title is subsidiary to 1 Smith v. Edwards, 156 Mass. 221; 30 N. E. 1017 (1892); Burdick's Cases on Sales, 161; John F. Betz & Son v. McMorrow, 173 Mass. 8; 52 N. E. 1069 (1899).

2 Blackburn on Sales (2d ed.), 130.

› Hague v.

Sales, 163.

Porter, 3 Hill (N. Y.), 141 (1842); Burdick's Cases on

♦ Mucklow v. Mangles, 1 Taunton, 318 (1808); Moody v. Brown, 34 Me. 107; 56 Am. Dec. 640 (1852); Burdick's Cases on Sales, 168; Arons v. Cummings, 107 Me. 19; 78 At. 98 (1910); Rider v. Kelly, 32 Vt. 268 (1859). In Campbell on Sales (2d ed.), 346, the result of the English decisions is stated as follows: (1) "An act done by one of the parties in pursuance of a term of the contract, and such as could not be done without appropriating specific goods as the subject-matter of the contract, is construed to be an appropriation by the first with the authority of the other party, and therefore conclusive on both. (2) An act of one party showing however clearly his own intention to appropriate specific goods for that purpose, but not being in performance of a term of the contract, is inconclusive and revocable, unless there is actual assent on the part of the other." Fairbanks, Morse & Co. v. Heltsley, 135 Ky. 397, 400; 122 S. W. 198 (1909); Mossman v. Steiger, 79 N. J. L. 442; 75 At. 746 (1910); but see N. J. Pub. L., 1907, p. 335, § 63 (3).

5 Bement v. Smith, 15 Wend. (N. Y.) 493 (1836); Burdick's Cases on Sales, 164; Peru Plow & Imp. Co. v. Johnson Bros., 86 Neb. 428; 125 N. W. 595 (1910); Shawhan v. Van Nest, 25 Ohio St. 490 (1874). In Salomon v. King, 63 N. J. L. 29; 42 At. 745 (1899), the court said: "With this fact established, viz. that the gambia conformed to the contract, the legal rules with respect to delivery and acceptance are of no moment, inasmuch as, in legal contemplation, the vendee would, in any event, be compelled to accept the goods delivered as a full performance by the vendor under the contract."