Contract to sell. — The latter view would not have been entertained had the judges borne in mind the fact that the mutual assent of the parties to the passing of title is distinct from, and subsidiary to, the principal agreement in a contract for the sale of future goods.1 This assent may be subsequent to the agreement to sell and in the nature of a new meeting of minds.2 This is brought out very clearly in the following extracts from the cases in the last note. "But here the question turns, not upon the original contract between the plaintiff and Smith & Bryant, but upon the circumstances which afterwards took place, viz.: the payment by the plaintiff, after the greenhouse had been completed, of the stipulated price, the appropriation and setting apart by the bankrupts of the greenhouse for the plaintiff and his assent to such appropriation. . . . It may be that the original contract did not pass the property; but the parties may be said to have entered into a new contract." "If the seller subsequently selects the goods, and the buyer adopts his acts, the contract which before was a mere agreement is converted into an actual sale, and the property passes to the buyer."

...

Or it may be provided for by a subsidiary term of the original contract. Such a term exists whenever either party is authorized by the contract to despatch the goods to the other, or to deliver them at a stipulated place, unless it is clear that the

1 Brown's Sale of Goods Act (1st ed.), 89.

3

2 Wilkins v. Bromhead, 6 Man. & Gr. 963 (1844); Hatch v. Oil Co., 100 U. S. 124, 136 (1879); Platt v. Peck, 70 Wis. 620 (1888).

3 Supra, ¶ 102.

4 Hunt v. Thurman, 15 Vt. 336,343, 344 (1843). "Whatever wood was delivered agreeably to the contract became the property of the defendants; and the plaintiff had no right, afterwards, to take it away. the place of delivery" was "part of the contract of sale." White v. Harvey, 85 Me. 212, 214 (1892). "The delivery at a place agreed is for the buyer's accommodation. Instead of his taking the goods, they are sent to him at his direction. Then the seller's responsibility is ended, and an acceptance is implied. The buyer, in effect, agrees that such delivery shall operate as a complete transfer of the property. The buyer is not, however, precluded from the right of inspection or examination, unless such right has been previously exercised, and of subsequently objecting that the goods are not according to the contract. To that extent the acceptance may be considered as conditional." Cf. Salomon v. King, 63 N. J. L. 39; 42 At. 745 (1899); Tift v. Wight & Weslosky Co., 113 Ga. 681; 39 S. E. 503 (1901).

parties intend that title shall not pass until some further act is done, such as measuring and removing wood.1 In a case of this kind, what is called a place of delivery is really a place of deposit; and the final appropriation of the goods to the contract is made by the purchaser with the precedent assent of the seller. 104. Mutual Assent to passing Title to Existing Goods.· Some courts decline to enforce the common-law rule that a bargain and sale operates as a present conveyance of the property in existing goods, when delivery and payment are to take place in the future, holding, substantially, that until delivery is made the parties do not assent to the passing of title.2 Undoubtedly, if delivery at a particular place is an essential term of the sale contract, the subject-matter of the sale is not the article, simply, but that article delivered at a particular place.3 Or to put it in another way, something remains to be done to the article to put it into a deliverable state, and until that is done the presumption is that the parties did not intend title to pass.

105. Withdrawal of Precedent Assent. If the precedent assent of either party is withdrawn before the property is finally appropriated to the contract by the other party, title will not pass upon such unilateral appropriation, although the one withdrawing his assent may subject himself to an action for breach of contract. If, however, one party does no more than object to an improper appropriation by the other, the latter may make a second appropriation of goods conforming to the contract within the time limited by the contract.5

1 Home Insurance Co. v. Heck, 65 Ill. 111 (1872); Cole v. Bryant, 73 Miss. 297; 18 So. 655 (1895); Burdick's Cases on Sales, 169.

2 Kirven v. Pinckney, 47 S. C. 229; 25 S. E. 202 (1896); Burdick's Cases on Sales, 171; Anglin v. State, 96 Miss. 215; 50 So. 492, 728 (1909). 3 Morris v. Vinn, 98 Ga. 482; 25 S. E. 562 (1896); Burdick's Cases on Sales, 171; cf. Platter v. Acker, 13 Ind. App. 417; 41 N. E. 832 (1895); Burdick's Cases on Sales, 174; Johnson v. Tabor, - Miss.; 57 So. 365 (1912).

Unexcelled Fire Works Co. v. Polites, 130 Pa. St. 536; 18 At. 1058 (1889); Burdick's Cases on Sales, 173, Trinidad Asphalt Co. v. Buchstaff Bros. Mfg. Co., 86 Neb. 623; 126 N. W. 293 (1910).

Borrowman v. Free, 4 Q. B. D. 500 (1878); cf. Walker v. Davis, 65 N. H. 170; 18 At. 196 (1889); Burdick's Cases on Sales, 374, where buyer rescinded the contract as soon as an improper appropriation was made.

106. Waiver of Subsidiary Provision. - A subsidiary provision concerning the despatch or delivery of goods must be complied with, or waived,2 in order to have an appropriation under it operate to pass title.3

In case the transaction is a bargain and sale, the seller's obligation to make delivery is collateral to the passing of title.*

§ 3. Reservation of the Right of Disposal.

107. In every case of a contract to sell, as distinguished from a bargain and sale, the seller may reserve the right to dispose of the goods until certain conditions are fulfilled.5

108. Specific Deliverable Goods. - Title to these may be retained by the seller until the purchase price is paid, or some other condition is performed, if the parties so stipulate, although the goods are delivered. The rights of the parties and of third persons, under such conditional-sale contracts, will be discussed later.

109. Specific Goods to be made deliverable. We have seen that when the seller engages to do something to existing goods to put them into a deliverable state, the presumption is that

1 Wheelhouse v. Parr, 141 Mass. 593; 6 N. E. 787 (1886); Burdick's Cases on Sales, 176; Jones v. Schneider, 22 Minn. 279 (1875); Downer v. Thompson, 2 Hill (N. Y.), 137 (1841); Vigers v. Sanderson (1901), 1 K. B. 608; 70 L. J. K. B. 383.

2 Sparks v. Marshall, 2 Bing. N. C. 761 (1836); Hanauer v. Bartels, 2 Colo. 514 (1875); Downer v. Thompson, 6 Hill (N. Y.), 208 (1843); Thomas & Huycke-Martin Co. v. T. M. Gray & Sons, 94 Ark. 9; 125 S. W. 659 (1910), receiving and paying for part of the goods held a waiver of buyers' right to delivery in the manner contracted for. Olcese v. Mobile Fruit & T. Co., 211 Ill. 539; 71 N. E. 1084 (1904).

Ramish v. Kirschbraun, 107 Cal. 659; 40 Pac. 1045 (1895).

4 Harris v. Beebe, 144 Ia. 735, 738; 123 N. W. 938 (1909). "The record clearly shows that the potatoes were at the time of the sale in the bin, that they were inspected by the defendant's agent, and that nothing was necessary to complete the transaction but the delivery of the potatoes on the track and the ascertainment of the quantity contained in the bin in question. All of the potatoes in that bin were sold to the defendant."

English Sale of Goods Act, § 19; The Uniform Sales Act, Mass. L. 1908, ch. 237, § 20. The American statute substitutes for the words, "reserve the right of disposal of the goods,” the phrase, "reserve the right of possession or property in the goods."

Marvin Safe Co. v. Norton, 48 N. J. L. 410; 7 At. 418 (1886).

title is not to pass until they have been put into such a state; for, until then, the seller cannot "call upon the purchaser to accept them as corresponding to the agreement." We have also seen that, in some jurisdictions, the same presumption obtains when existing goods are to be weighed, measured, or tested for the purpose of ascertaining their amount and total price. In such cases, the seller's title not having been devested, he has the power to reserve the right of disposal by annexing a new condition to the transfer of the property, and this without the buyer's consent.1

In the last cited case, the owners of a load of lumber executed the following contract: "Sold R. L. & C. L. Nicholson, load of Pine Creek lumber, within the neighborhood of 5,000 feet of plank, at $15.50 and expenses, take a note at 6 months with interest." Before delivering the load, they discovered that it contained 10,000 instead of 5,000 feet, and thereupon refused to deliver under the contract, offering, however, to deliver upon condition that the buyers pay for the entire load of 10,000 feet at the contract rate per thousand. The buyers sued the sellers for conversion of the lumber; but the court held that, as title did not pass upon the execution of the contract because "the lumber was to be measured before the price could be ascertained, so as to give the six months' note for the payment," the action was improperly brought. If the buyers had any cause of action it was "for damages for breach of the contract." In other words, the sellers had the power to reserve the right of disposal by annexing a new condition to the transfer of the property to the buyers, although they might subject themselves to an action for damages, by exercising such power. 110. Future Goods. Where the contract relates to specific goods, the condition imposed by the seller is generally express and unequivocal; 2 for example, that title shall remain in him until the buyer pays the entire purchase price. In transactions

1 Nicholson v. Tayler, 31 Pa. St. 128 (1858); Burdick's Cases on Sales, 140.

In McManus v. Walters, 62 Kan. 128; 61 Pac. 686 (1900), the condition was not express, but the court said it was a question for the jury whether the alleged condition was to be "implied from the conduct of the parties and the facts and circumstances of the case."

concerning future goods, however, it is often difficult to determine whether a condition has been imposed or not.1 When the communications between the parties have been reduced to writing, or when the facts of the transaction are undisputed and warrant but one inference as to the intention of the seller,3 the question is one for the court. If, however, the facts are in dispute or the intention as disclosed by parol evidence is doubtful, the question is one for the jury.

For cases of this kind definite rules of construction have been established, which are set forth in more detail in the American than in the English statute.

5

6

111. Goods deliverable to the Shipper or his Order. — When the seller ships goods under a bill of lading making the goods deliverable to him or his agent, or to the order of himself or of his agent, the American statute declares that he thereby reserves the property in the goods."

The foregoing rule applies, although the shipper is the consignee's agent to buy and ship the goods, provided he advances his own money or credit for the purchase of the property.8

1 Walley v. Montgomery, 3 East, 585 (1803); Wilmshurst v. Bowker, 2 Man. & G. 792 (1841); s. c. on appeal, 7 Man. & G. 882 (1844). Key v. Cotesworth, 7 Exch. 595 (1852); Burdick's Cases on Sales,

178.

Smith v. Edwards, 29 Hun (N. Y.), 493 (1883); Wigton v. Bowley, 130 Mass. 252 (1881); Burdick's Cases on Sales, 159; Mitchell v. Baker, 208 Pa. 377; 57 At. 760 (1904).

Falke v. Fletcher, 34 L. J. C. P. 146; 18 C. B. N. B. 403 (1865); Burdick's Cases on Sales, 181; Merchants' Nat. Bk. v. Bangs, 102 Mass. 291 (1869); Al. G. S. Ry. v. Mt. Vernon Co., 84 Ala. 173; 4 So. 356 (1887). The Uniform Sales Act, § 20.

The Sale of Goods Act, § 19.

"the seller is prima

The English statute declares that in such a case facie deemed to reserve the right of disposal." See Ogg v. Shuter, 1 C. P. D. 47 (1875); Burdick's Cases on Sales, 192 n.; Dows v. Nat. Ex. Bk., 91 U. S. 618 (1875); Burdick's Cases on Sales, 182. "These bills of lading, unexplained, are almost conclusive proof of an intention to reserve to the shipper the jus disponendi," at p. 631, of latter case.

8 Jenkyns v. Brown, 14 Q. B. 496 (1849); Moors v. Kidder, 106 N. Y. 32, 40; 12 N. E. 818 (1887). "Where a commercial correspondent, however, set in motion by a principal for whom he acts, advances his own money or credit for the purchase of property, and takes a bill of lading in his own name, looking to such property as the reliable and safe means of reimbursement up to the moment when the original principal shall pay the pur