know of an accepted case in which evidence sufficient to rebut the presumptions has been ignored on the ground that the rule was conclusive and not presumptive. Much of the confusion of expression arises from confusion in thought with the rule of law that title can not pass, whatever the intent, until property has been identified. Sometimes this identification is to be by measuring off from a larger lot and such measuring by way of identification has been confused with the measuring of identified property in order to ascertain total price. The ensuing conflict of expression is unfortunate, but no real conflict of holding seems to have arisen.27

-Delivery to Carrier.-The delivery of property to a carrier for transportation to the buyer, in the absence of anything else, raises a presumption of intent to pass title, if it has not already passed. As the matter of passing title to property by delivery to a carrier is inextricably interwoven with that of specification of property by such delivery, the topic is left for discussion under the latter subject.

-Agreement by Seller to Deliver.-An undertaking by the seller to deliver the goods to the buyer at a particular place seems occasionally to have led to a holding that title did not pass until such delivery had been accomplished. In Gibson v. Inman Packet Co.,28 the plaintiff had sold cotton to B "to be delivered at N in merchantable shape". It was delivered to the defendant, as a

557; Joyce v. Adams, 8 N. Y. 291; Pinckney v. Darling, 3 App. Div. (N. Y.) 553; Frost v. Woodruff, 54 III. 155.

27-If there are facts in the particular case which it is argued show a real intent, in conflict with the ordinary legal presumption, is the decision whether they do in truth suffice to rebut that presumption to be made by the court,

or left to a jury under proper instructions? There appears to be no definite answer to this. In some cases the decision has been made by the court. In some cases it has been left to the jury.

Lynch v. O'Donnell, 127 Mass. 311; Lingham v. Eggleston, 27 Mich. 324.

28-111 Ark. 521, Ann. Cas. 1916 A 1043.

carrier, consigned to B at N, and was damaged through the negligence of the defendant before delivery. On suit by the plaintiff to recover for this loss the defendant contended that the plaintiff was not the proper person to bring suit as he had parted with title by his shipment to the buyer. The court admitted the primary presumption to be that title had passed, but held that a contrary intention was shown by the agreement to deliver in merchantable shape.29 In Brown v. Adair 30 the buyer of fertilizer set up, in defense to an action for the purchase price, a statute of the state making such sales void unless certain tags were attached to the bags of fertilizer at time of sale. The seller proved that tags were attached at time of contract to sell. The court held, however, that inasmuch as the sale was to be "f. o. b." at a certain place the sale was not consummated till delivery to that place and it must be shown that tags were attached at that time.31

The effect of an undertaking to deliver is, however, like other matters, merely a circumstance evidencing intention in regard to title and it will not prevail if other evidence points to a contrary intent.32

Some courts when faced with an issue of the effect upon the passing of title of an obligation to deliver have left it to the jury to say what intent was demonstrated by the agreement as to delivery, coupled with all the other circumstances.83

This is quite in accord with the rule laid down by some courts that where more than one inference of intent can be drawn from undisputed facts the question of intent must be left to the jury. But those courts which decide

29-Accord, Garvan v. N. Y. C. & H. R. R. R., 210 Mass. 275, holding that seller's "obligation to deliver" caused title to remain in him so that he could sue the carrier for negligence. Westmoreland Coal Co. v. Syracuse Lt. Co., 145 N. Y. S. 420 semble.

30-104 Ala. 652, 16 So. 439. 31-Accord, Ala. Natl. Bk. v. Parker, 146 Ala. 513.

32-McElwee V. Metropolitan Lumber Co., 69 Fed. 302; Terry v. Wheeler, 25 N. Y. 520.

33-Blakiston v. Davies, Turner & Co., 42 Pa. Sup. Ct., 390.

for themselves that an intent not to pass title is evidenced by an undertaking to deliver evidently feel that a rule of inference has grown up in respect to it, just as the prima facie inference that intent to pass title is evidenced by delivery to a carrier has become a rule of law and is not left to the jury.3 34

While the circumstance of a seller's agreement to deliver to a particular place is frequently recurrent, there is comparatively little precedent which shows the judicial idea of its effect on title because the question of title seldom arises. When a seller has contracted to deliver at a certain place as an integral part of the consideration for the buyer's promise to pay, obviously he can not recover the contract price, whether title has passed or not, until he has made delivery. Usually the promise to deliver is inseparable from the promise to pass title, and both promises form the single consideration for the promise to pay. Therefore in cases arising between seller and buyer themselves courts usually decide whether there is an obligation to deliver or not (and whether, if there is, it has been accomplished) as a condition precedent to recovery, and they do not pretend to pass upon the question of title. That a seller who has failed to deliver as agreed in the contract can not recover the contract price is settled.35*

Whatever be the rule as to the effect of a seller's undertaking to deliver at a particular place, it must first be determined whether the seller did assume such an obligation. If there is doubt as to the terms of the agreement the question should, of course, be left to the

34-Blakiston v. Davies, Turner & Co., 42 Pa. Sup. Ct., 390; Dannemiller v. Kirkpatrick, 201 Pa. 218; Garvan v. N. Y. C. & H. R. R. R., 210 Mass. 275.

35-Braddock Glass Co. v. Irwin & Co., 153 Pa. 440; Devine v. Edwards, 101 Ill. 138; Hessig-Ellis

Drug Co. v. Priesmeyer, 151 Mo. App. 484; Westmoreland Coal Co. v. Syracuse Lt. Co., 145 N. Y. S. 420, which case appears to have been decided on the issue of title, rather than on non-performance of a condition precedent; McLaughlin v. Marston, 78 Wis. 675.

*See Uniform Sales Act, Section 19, Rule 5.

jury. When the question turns not on disputed terms of an agreement, but on a construction of the meaning of an admitted agreement, the issue is decided by the court. A common expression in agreements is that the goods are to be delivered "f. o. b." at a certain place. This is interpreted to mean that freight is to be paid to that place by the seller. As to what it means in respect to the seller's obligation to make safe delivery to that place, as a condition of the contract, courts are not at all agreed. If the agreement is "to deliver, f. o. b." it is clearly an undertaking, as it reads, to deliver. But the conflict is over agreements not so clear, as where the contract is to "sell" at a named price, "f. o. b. destination". Some courts have held that such an agreement implies an obligation to deliver.36 Others have decided the contrary and held that despite such a term in the contract title passes on delivery to the carrier according to the usual presumption.37*

Conditions Precedent to Passing of Title.-When the agreement of sale clearly indicates, expressly or impliedly, that payment is to be made "on delivery of possession" there is much conflict as to whether it shall be presumed that the parties intend payment as a condition precedent to passing of title as well as to the delivery of possession. As has already been noted, the fact that delivery of possession has not been made, nor the price paid, does not preclude the passing of title. On the contrary, title is presumed to have passed if nothing remains to be done by the seller, despite non-delivery and non-payment. Even the fact that the buyer can not

take possession until payment does not necessarily indicate that title has not passed. But a stipulation for "cash on delivery" may denote an intention not to pass even title until payment. As one court puts it,38 "A sale for cash is not necessarily a conditional sale. The phrases 'terms cash' and 'cash down' may or may not import that payment of the price is made a condition precedent to the transfer of the title, according to the intent of the parties. If by the use of these terms the parties understand merely that no credit will be given, and that the seller will insist on his right to maintain possession of the goods until the payment of the price, the sale is still so far completed and absolute that the property passes; but if it is to be understood that the goods are to remain the property of the seller until the price is paid, the sale is conditional and the title does not pass". This statement is, of course, in absolute accord with all the authorities, i. e., that the intention of the parties governs.

"Cash Sales."-But the question still remains, what intent is indicated by the stipulation for cash on delivery. Does it mean "cash before delivery of title" or only "cash before delivery of possession"?

When the contract clearly calls for cash on delivery and no delayed time for payment has apparently been contemplated, the preponderance of authority treats the agreement as making payment a condition precedent to delivery.39*

38-Clark v. Greeley, 62 N. H.

394.

39-Can. Nor. R. R. v. No. Miss. R. Co., 209 Fed. 758; Hirsch v. Lumber Co., 69 N. J. L. 509; Hughes v. Knoth, 138 N. C. 105; Ocean S. S. Co. v. So. States Naval Stores Co., Ga., 89 S. E. 383; Peo

ple's State Bk. v. Brown, Kan., 23 L. R. A. (n. s.) 824; Lentz v. Flint & P. M. Ry., 53 Mich. 444; Hamra Bros. v. Herrell, Mo., 200 S. W. 776; Eaton v. State, 16 Ala. 405, 78 So. 321; Piano Co. v. Piano Co., 85 O. S. 196, "If in such an agreement there is no mention

*See Uniform Sales Act, Section 19, Rule 1. This is the only possible reference to the subject in the act.