condition, a valid tender of performance by the buyer operates to vest title at once in him.1

117. Miribita v. Ottoman Imperial Bank. - In this case, the sellers took the bill of lading to their order for a cargo of lumber and indorsed it to the defendant bank to secure the payment of a draft on plaintiff for the price, which the bank discounted for the sellers. It clearly appeared from the evidence that the sellers dealt thus with the bill of lading only to secure payment of the draft, and did not intend nor pretend to sell the goods to the bank. Before the bank took possession of the cargo or became liable for the freight, plaintiff offered to pay the draft as well as to guarantee the freight, and demanded the bill of lading. The bank refused to deliver the bill and sold the goods. It was held by the court that title vested in the plaintiff on his tender of payment. Lord Justice Cotton said: When the buyer, in such a case, tenders payment of the contract price, "there is a performance of the condition subject to which the appropriation was made, and everything which, according to the intention of the parties, is necessary to transfer the property is done." Lord Justice Bramwell declared: The property "vested on tender of the price, and that whether the vendors' right was a right of property or a jus disponendi; for whichever it was, it was their intention that it should cease on the plaintiff's paying the price, and therefore it would cease unless meanwhile some title had been conferred on a third person to something more than the price. This, though wrongful as regards the plaintiff, would have been valid. But no such title exists here. There is nothing in the authorities inconsistent with this. The only case that may be thought to seem so is Wait v. Baker, where, though the vendee tendered the price, he was held to have acquired no property. But it is manifest that in that case the vendor originally took the bill of lading to order, and kept it in his possession, to deal with as he thought fit, and never intended that the property should pass until he

1 Miribita v. Imperial Ottoman Bank, 3 Ex. D. 164 (1878); Uniform Sales Act, Mass. L. 1908, ch. 437, § 20 (2). Cf. Walcott v. Richman, 94 Me. 364; 47 At. 901 (1900).

22 Exch. 1 (1848); Burdick's Cases on Sales, 154.

handed the bill of lading to the vendee on such terms as he chose to exact."

The

118. Buyer may be Bailee of Owner of Bill of Lading. seller of goods, who has retained the jus disponendi by taking a bill of lading to his order, may, as his assignee may,' deliver the goods to the buyer as bailee only; in which case the buyer does not obtain title to the goods and cannot transmit title to others.2

§ 4. The Risk of the Loss.

119. This, as a rule, attends the ownership of goods. Hence, in the case of a bargain and sale, it passes with the title to the buyer, as soon as the contract is made. If the goods remain with the seller, his liability with respect to them is that of a bailee. Mr. Justice Chalmers declares that "there appears to be no decision defining the nature of such bailment." 5 In the United States the bailment is considered one of hire, where the seller has bound himself by the contract of sale to keep the goods, but gratuitous where they remain in his possession, through the fault of the vendee in not taking them away. In the case of a contract to sell, the risk is borne by the seller, so long as the general property is in him. The expense of keeping the property during this period is also to be borne by the seller.

7

8

120. Risk may be transferred without the Title. By agreement of the parties the risk may be separated from the ownership, and may be cast upon the buyer before he acquires title, or may remain with the seller after he ceases to be the

1 Moors v. Wyman, 146 Mass. 60; 15 N. E. 104 (1888); Burdick's Cases on Sales, 204.

2 For further discussion of this topic see ¶ 272 et seq.

Joyce v. Adams, 8 N. Y. 291 (1853); Uniform Sales Act, Mass. L. 1908, ch. 237, § 22.

4

• Lansing v. Turner, 2 Johns. 13 (1806); Burdick's Cases on Sales, 206. 5 Sale of Goods Act (2d ed.), 47.

• Story on Bailments (4th ed.), § 300 b; Koon v. Brinkerhoff, 39 Hun (N. Y.), 130 (1886).

" McCandlish v. Newman, 22 Pa. St. 460 (1854); Brock v. O'Donnell, 49 N. J. L. 230 (1886).

• Chalmers v. McAuley, 68 Vt. 44; 33 At. 767 (1895); Burdick's Cases on Sales, 207.

owner. The Uniform Sales Act has a provision on this point, which is set forth in the note.2

121. Risk when Delivery improperly delayed. - The English statute provides that where delivery "has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault."3 This rule was suggested by Blackburn, J., in 1872,4 in the following words: It "is perfectly good sense and justice, though it is not necessary to the decision of the present case that," although "the property did not pass," and "there were no express stipulation about risk, yet because the non-completion of the bargain and sale, which would absolutely transfer the property, was owing to the delay of the purchaser, the purchaser should bear the risk just as much as if the property had passed."

122. This rule has been approved by some of our courts,5 and has been embodied in the Uniform Sales Act. A different view has been taken in New York,' where it is said that the

1 Castle v. Playford, L. R. 7 Exch. 98 (1872); Stock v. Inglis, L. R. 12 Q. B. 564; 10 App. Cas. 263 (1885); Cushman v. Holyoke, 34 Me. 289 (1852).

2 Sect. 22 (a). "Where delivery of the goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract, and the property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer's risk from the time of such delivery." Roach v. Whitfield & Hannah, 94 Ark. 448; 127 S. W. 722 (1910). See infra, ¶ 314. 3 Sale of Goods Act, § 20.

Martineau v. Kitching, L. R. 7 Q. B. 436 (1872); Burdick's Cases on Sales, 132.

5 Barker v. Freeland, 91 Tenn. 112 (1891). The contract was for the purchase and sale of a crop of potatoes to be delivered by the seller on the cars, the seller to give full measure and good merchantable stock; and the buyer to furnish sacks which were to be filled and sewed by his servants. The jury found that the potatoes were "good, merchantable stock" when put into the sacks, and there was evidence that the subsequent decay was due to the purchaser's fault in having them transported in sacks instead of barrels or boxes. The court held that the question whether the risk was on the purchaser during the transit to the cars and before title had passed was properly submitted to the jury.

6 Mass. L. 1908, ch. 237, § 22 (b).

7 McConihe v. N. Y. & E. Ry. Co., 20 N. Y. 495, 497, 498; 75 Am. Dec. 420 (1859); cf. Mountain City Mill Co. v. Butler, 109 Ga. 469; 34 S. W. 565 (1899). In the latter case the court said: "The mere failure of

89

CONTRACT TO SELL.

default of one party entitles the other to rescind the contract and proceed at once for damages; but that, while the contract remains in force, an accidental loss must be borne by the general owner of the goods; that such loss is "not the necessary consequence of the" default and "has no connection with" it. This view seems to have been rejected by the legislature when it adopted the Uniform Sales Act.1 It has found favor with other courts.2

123. Special Stipulations as to Risk. In contracts for perishable goods to be transported a long distance, a provision is often inserted that they are at the buyer's risk. If the seller in such a case is not the shipper and makes no false representations as to the condition of the goods, the buyer assumes all the risks, including defects in cars or vessels, improper packing, and the like. On the other hand, if the seller is also the shipper, such a provision throws upon the buyer only the risks of transportation and leaves the shipper responsible for all damages to the goods caused by improper methods of shipment.3

the defendant to pay the draft promptly" (such payment being a condition of title passing to defendant) "could not of course have been the cause of the fire and destruction of the flour."

1 N. Y. L. 1911, ch. 571, § 103 (b).

2 Grant v. U. S., 7 Wall. (74 U. S.) 331, 337 (1868), citing McConihe v. N. Y. & E. Ry., supra.

Rose v.

Weinberger, 108 Ga. 533; 34 S. E. 28 (1899).

CHAPTER IV.

ACCEPTANCE AND RECEIPT.

§ 1. To pass Title at Common Law.

124. We have seen that actual receipt of the goods by the buyer is not necessary to the passing of title at common law;1 that in case of a bargain and sale, title passes by virtue of the contract, without any overt act of acceptance or receipt; 2 that in case of a contract to sell, the title passes upon the unconditional appropriation of the goods to the contract by the seller with the assent of the buyer, and that this assent may precede the appropriation. Such an appropriation is often spoken of as a "constructive delivery." In a recent case it was said: "An acceptance sufficient to pass the title of personal property from a vendor to a vendee may be, and often is, made without any actual receiving by the vendee of any part of the goods." " On the other hand, the buyer may actually receive the goods under the contract, without title passing, as when it is agreed that the buyer may receive the property on trial, with the right to return it, if it is unsatisfactory. In such case,

66

1 Supra, ¶ 3; and see Van Brocklen v. Smeallie, 140 N. Y. 72; 35 N. E. 415 (1893); Clark v. Shannon & Mott Co., 117 Ia. 645; 91 N. W. 923 (1902). 2 Magee v. Billingsley, 3 Ala. 679 (1842).

3 Pratt v. Peck, 70 Wis. 620; 36 N. W. 410 (1888); Hill Veneer Co. v. Monroe, 189 Fed. 834 (1911); unconditional delivery to carrier for consignee with his assent.

4 Kelsea v. Ramsey Co., 55 N. J. L. 320, 322; 26 At. 907 (1893); Burdick's Cases on Sales, 209; Johnson v. Hibbard, 44 Pac. 287; 29 Ore. 184 (1896); Burdick's Cases on Sales, 211; Bellefontaine v. Vassaux, 55 Ohio St. 323; 45 N. E. 321 (1896).

McCormick Harvesting Mach. Co. v. Balfany, 78 Minn. 370; 81 N. W. 10 (1899).

Michael v. Curtis, 60 Conn. 363, 366; 22 At. 949 (1891).

7 Harrison v. Scott, 203 N. Y. 369; 96 N. E. 755 (1911). The learned