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total price to be paid. In all such cases the legal presumption is that the parties did not intend title to pass until the thing should have been done.13*

As this rule is practically founded on the decision in Hanson v. Meyer,14 and that was not a presumption of intent, but rather a rule that title could not pass till payment, it may be doubted if there is any real reason, other than judicial custom in following precedent, behind the present rule. However, the rule itself exists as stated, and it can at least be justified by the reason suggested by the writer.

Even if the measuring or other thing to determine the price is to be done by the seller, if it is merely to adjust an agreed proximate price, no presumption that the seller intended to keep title arises. In so far as this rule is confined to cases in which the buyer is permitted, by the contract, to take possession at the agreed approximate price, without awaiting further weighing, etc., this exception is quite in accord with the underlying reason suggested.15

13—Kein v. Tupper, 52 N. Y. tion, and, indeed, it appears that 550 (quality); Frost v. Woodruff, the measuring was not to have 64 Ill. 155; Lester v. East, 49 Ind. been done by the seller at all but 588; Smith V. Wisconsin Invest- by the buyer. The form of statement Co., 114 Wis. 151; Robbins ment was founded only on the V. Chipman, 1 Utah 335 dictum; veriest dictum in Cleveland v. Wesoloski v. Wysoski, 186 Mass. Williams, 29 Tex. 204. 495; Simmons v. Swift, 5 Barn. &

Lassing v. James, 107 Cal. 348, Cress. 857.

holds with some confusion of lanIn Hanson v. Meyer, 6 East 614, guage, that title had passed desthe rule is apparently put on the pite necessity of weighing by both ground that the buyer could not parties, to determine total price. pay the price till the goods were The opinion was based on a mere weighed and that, contrary to the dictum in Blackwood v. Cutting general rule, title could not pass Packing Co., 76 Cal. 212, referring till payment.

to lack of identification of the Boaz & Co. v. Schneider & Co., property. See also Groat v. Gile, 69 Tex. 128, appears to be contrary 51 N. Y. 431. In this case the to this rule, but is not necessarily court confounded the presumption

The court does say, "Where with the rule that title can not the entire mass is sold and must

pass till identity is established be measured simply with a view to and, the latter having been satisthe ascertainment of its price for fied, ignored the former. Sanger the purpose of a settlement, the

v. Waterbury, 116 N. Y. 371. title passes”. In expression this

As soon as the weighing or is in conflict with the presumption

measuring has been done by the as stated. The actual decision,

seller title passes instantly. however, could have been reached

Thompson v. Brannin, 94 Ky. 490 without any conflict. The other

dictum. circumstances were easily suffi

14–6 East 614. cient to rebut the usual presump*See Uniform Sales Act, Section 19, note.

So,

Neither is it presumed that the seller intended to keep title if the determination of the price is a mere mathematical calculation not requiring him to retain possession of the goods.16

In regard to all these statements of rule, it must be said that there is much conflict and utter confusion of ideas in the decisions and opinions.

It is sometimes stated, that if the seller is to do something to complete the goods, or to put them in a deliverable state, title is presumed not to have passed." The reason for this rule may be that suggested abovethat the buyer would hardly intend to take title and its attendant risks while barred from immediate possession by the seller's right or duty to do something which would necessitate his possession-or it may be because the thing whose title the buyer has contracted to accept is not in existence till the seller's work is done. Thus, if the sale were existing rough castings, to be polished by the seller, it might be either that the parties considered the rough castings as the thing sold and purchased, with a collateral agreement that the seller should polish them, or that they intended to transfer title only to polished castings made from the rough castings pointed out. If they had in mind the former transaction, if title did not pass it would be for the former reason. But if they had in mind the second transaction, obviously there would be no title to pass until the things contemplated—the polished castings—should come into existence through the seller's having done the work. Even in clear cases of fact, however, the particular reason on which the courts hold that title has not passed is usually indeterminable.18

17*

15—Lingham v. Eggleston, 27 16—Bradley V. Wheeler, 44 N. Mich. 324; Swanwick v. Sothern, Y. 495. 9 Adolph. & El. 895.

17—Blackwood v. Cutting Pack.

ing Co., 76 Cal. 212. *See Uniform Sales Act, Section 19, Rule 2.

Of course, if the facts clearly indicate that the parties intended title to pass before the seller's further duty should be performed the courts will give effect to that intention.

19

Something to be Done by Buyer.—The presumption that there was no intent to pass title does not arise if the weighing, measuring, etc., to determine the total price is to be done by the buyer. This, again, is in precise accord with the underlying principle suggested. If the buyer is to do the weighing, etc., the determination of the total price is within his own volition. It is true that actually the seller may not let the buyer proceed, but by the terms of the agreement, as distinct from physical power, the buyer has the power to control possession, can take possession when he chooses, without waiting for the seller to act, and is thereby indicated as the intended owner.20

However, as the rule, that title would not pass if there was something to be done by the seller, originated in the idea that determination of total price was preliminary to payment, which was itself a prerequisite to the passing of title, some courts have followed the original statement without making any distinction of those cases where it is to be done by the buyer. Likewise there is considerable statement to the effect that if something is to be done by either party to determine the total price, title is presumed not to pass regardless of whether it is the seller or the buyer who is to do the necessary acts. This is apparently derived from a confusion with the rule of law that until goods have been identified, as by measuring or sorting from a larger mass, title can not pass. But again the conflict is for the most part one of expression only and in practically every case where the broad statement appears it will be found that other factors would themselves have precluded a presumption of intent to pass title,81

18-Blackwood v. Cutting Packing Co., 76 Cal. 212.

19—Byles v. Colier, 54 Mich. 1; Owen v. Dixon, 11 Ky. L. Rep. 902.

20—Bradley v. Wheeler, 44 N. Y.

495; Lingham v. Eggleston, 27 Mich. 324; Burrows v. Whitaker, 71 N. Y. 291; Odell v. Boston & Maine R. R., 109 Mass. 50; Turley V. Bates, 2 Hurl. & Colt. 200.

If the parties are to act jointly in doing whatever is necessary to determine the price it is presumed they intended the title to stay where it was until such acts should be done.28

-Delivery to Buyer.-If there has been actual delivery to the buyer any presumption arising from the necessity of measuring, or doing other things, is rebutted. 29

22

-Rebutting Circumstances. These rules, like those referred to later on, are rules of presumption only and are not rules of title. They do not imply that title must pass if nothing remains to be done, nor that it can not pass if something is still to be done by the seller. They merely furnish formulæ by which, in the absence of any indication of real intent, the courts can reach a consistent assumption of what the parties probably would have intended had they thought about the matter. This presumption is fully subject to rebuttal by any particular circumstance in the case that leads the court to believe the parties would normally have intended otherwise. 84

21-Andrew V. Dieterich, 14 Wend. (N. Y.) 31, has been cited as in conflict but the case itself shows that payment had been made a condition precedent to the passing of title. Ballantyne v. Appleton, 82 Me. 570, seems flatly in conflict. In McFadden & Bro. v. Henderson, 128 Ala. 221, the facts show that the seller was obligated to do certain other things, which he did not do, before the buyer could weigh. In Hoffman v. Culver, 7 Ill. Ap. 450, the real reason for the holding was that “payment was a condition precedent to the passing of title".

22-Lingham v. Eggleston, 27 Mich. 324; Allen v. Greenwood, 147 Wis. 626; Mount Hope Co. v.

Buffington, 103 Mass. 62; Macom. ber v. Parker, 13 Pick. (Mass.) 175; Scott v. Wells, 6 W. & S. (Pa.) 357; Leonard v. Davis, 66 N. Y. 476; Farmers Phosphate Co. v. Gill, 69 Md. 537, 1 L. R. A. 767; Cunningham v. Ashbrook, 20 Mo. 553; Turley V. Bates, 2 Hurl. & Colt. 200.

Contra in expression although the same decisions could have been reached on other and consistent grounds stated, are An. drew V. Dieterich, 14 Wend. (N. Y.) 31; Hoffman v. Culver, 7 Ill. Ap. 450; Ballantyne v. Appleton, 82 Me. 570.

23—Keim v. Turper, 52 N. Y. 550; H. M. Tyler Lumber Co. v. Charlton, 55 L. R. A. 301.

Likewise, a fortiori, these rules for consistently ascertaining mere constructive intention give way before anything which shows a contrary real intention.

Some few cases seem to be opposed to the proposition that these rules are presumptions only. Their verbiage states that title has passed, or has not passed, because of the circumstances, as a matter of law. To some extent this is due to a feeling that unless credit is expressly given title can not be presumed to have passed till payment has been made, and that until the price is determined payment can not be made.26 But this, as has been noted, is in conflict with the general rule that title may have passed even though payment has not been made, and out of harmony with the cases holding that no presumption adverse to the passing of title arises when the buyer is himself to ascertain the price. Examination shows this statement of irrebuttable rule to be usually verbiage only and that in the particular case the presumption is in fact unrebutted and, as a presumption only, would lead to the same result.26 The writer does not

24-Wilkinson V. Holiday, 33 Mich. 386; Byles V. Colier, 54 Mich. 1; Graff v. Fitch, 58 Ill. 373; Lynch v. Merrill, 72 W. Va. 514, 46 L. R. A. (n. s.) 192; Morrow V. Reed, 30 Wis. 81; State v. O'Neil, 58 Vt. 140; many authorities are collected in the note in 26 L. R. A.

(n. 8.) 1. Martineau v. Kitchin,
L. R. 7 Q. B. 436; Lingham v.
Eggleston, 27 Mich. 324; Ellis &
Myers Lumber Co. v. Hubbard, 123
Va. 481, 96 S. E. 754.

25—Ante, p. 24.
26—Hamilton v. Gordon, 22 Ore.

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