But when it is agreed that payment may be delayed for a time after the date of the contract, then, even though the contract stipulates for "payment on delivery", the tendency is to hold that title passed according to the usual rules of presumption and only the buyer's right to possession is held up till payment.

The term "cash sale" is usually confined in its strictly legal use to transactions in which the court believes that the parties intended payment to be a condition precedent to the passing of title. But in common use, "cash sale" may also refer to an intent of the seller merely to hold possession till payment—to give no credit, although passing title. Because of this double meaning, the term itself means nothing certain, and its use is apt to be misleading.

If it be decided that the parties did in fact intend payment to be a condition precedent to the passing of title, then even the delivery of possession to the buyer does not vest title in him until the expected payment is forthcoming. But the condition precedent of payment may be waived by the seller, and his leaving the buyer in possession for an undue length of time after failure of payment will be looked upon as such a waiver.40

of the terms of payment the presumption is that it is a cash sale and that delivery of the goods (1. e., delivery of title) and the payment of the price are to be simultaneous".

Intent left to the jury as though it were a question of fact, Richardson v. Insurance Co., 136 N. C. 314; Boyd v. Bank of Mercer, 174 Mo. Ap. 431; Skinner, etc., v. Lemmert Furniture Co., 182 Mo. Ap. 549.

A statute of Georgia (Code of 1895, sec. 3546) provides that in a "cash sale" of certain goods title shall be deemed not to have passed till payment. It does not

define "cash sale", but the courts have taken it to mean a stipulation for cash on delivery. See Charleston R. R. Co. v. Pope, 122 Ga. 577; Flanney v. Harley, 117 Ga. 483.

40-Frech v. Lewis, 218 Pa. 141, 11 L. R. A. (n. s.) 948. In this case the question of waiver was held to be one of law for the court and not to be left to the jury. Compare, Manchester Loco. Wks. v. Truesdale, 44 Minn. 115 (in equity); Fishback v. Van Dusen & Co., 33 Minn. 111.

Whether there is a waiver or not is a question for the jury, Osborn v. Gantz, 60 N. Y. 540.

"C. O. D."-At this place it must be noted that the presumption, that "cash on delivery" means "cash before delivery of title", does not apply where the stipulation does not appear at the time of making the contract itself, but is stated only when the seller, in shipping the goods to the buyer, has directed the carrier to collect on delivery. This is the usual "C. O. D." shipment. In general the letters C. O. D. are interpreted as meaning "collect on delivery", but sometimes as "cash on delivery". In such case the preponderance of authority treats the stipulation as a condition precedent to delivery of possession only and as not affecting the title.

Two decisions in Missouri exemplify this important difference between a sale for "cash on delivery" and a shipment "C. O. D." In State v. Rosenberger, there was a sale of goods unidentified at the time of contract but subsequently appropriated by shipment to the buyer. This shipment was "C. O. D." Nevertheless the court held that only possession was intended to be conditioned on payment and title passed at the time of shipment. In Johnson-Brinkman Co. v. Central Bank, the plaintiff sold and delivered certain specified property to the buyer. The conditions at the time of sale were "cash on delivery". As the check given in payment turned out worthless, the court held that there was no payment, that the intention was not to pass title until payment, and therefore that title had not passed.

43

By what is probably the weight of authority numerically, as well as logically, a C. O. D. restriction on the carrier is held not to rebut the intention to pass title which is ordinarily presumed from the delivery to the carrier. These courts give the C. O. D. instruction an effect consistent with the presumption of intent to pass title, by treating it as a seller's retention of possession, only, for the sake of his seller's lien. In State v. Mul

41-Newhook v. Ryan, 9 Newf.

220.

42-212 Mo. 648, approved in State v. Brewing Co., 270 Mo. 100. 43-116 Mo. 556.

len, a resident of a county in which sale of liquor was prohibited, ordered Mullen, a dealer living in a non-prohibition territory, to ship him liquor C. O. D. The defendant did so ship it as ordered and was indicted for making a sale of liquor in the dry county. The court dismissed the charge, on the ground that title passed when the liquor was delivered to the carrier, although by the instruction to the carrier to collect on delivery the seller's right of possession was retained. In Keller v. Texas, the court went so far as to declare unconstitutional a statute of the state which attempted to fix the point of destination of C. O. D. shipments of liquor as the place of sale, on the ground that title really passed, in such cases, at the delivery to the carrier and the statute was an unauthorized interference with the right of persons living in non-prohibition territory, to make sales in that territory.46

45

This holding that shipment "C. O. D." is intended only to leave possession dependent on payment is, as a practical matter, wise, since it gives a very real meaning and effect to the C. O. D. instructions while at the same time adhering to the fundamental proposition that delivery to a carrier shows a prima facie intent to pass title. Whether it is wholly consistent with the reasons on which the latter presumption is founded depends upon what those reasons arc, and as the courts are anything but explicit concerning the latter we are now practically constrained to accept the rule as one which is wholly reason

44-78 O. S. 358, 125 Am. St. 710. 45-Tex., 1 L. R. A. (n. s.) 474. 46-A similar statute of Michigan, Sec. 5051, Howell's Statutes, was upheld in People v. Brewing Co., 166 Mich. 292, but the court said that, independent of the statute, the sale, by the weight of authority, would have taken place at the point of shipment. In accord with the general proposition

that a shipment C. O. D. passes title, but retains possession in the seller, are, Jones v. U. S., 170 Fed. 1, 24 L. R. A. (n. s.) 143; People v. Converse, 157 Mich. 29; Pilgreen v. State, 71 Ala. 368; State v. Rosenberger, 212 Mo. 648; State v. Palmer, 170 Mo. App. 90; Keller v. State, Tex. 87 S. W. 669; Tex. Seed, etc., Co. v. Schnoutze, 209 S. W. 495.

able, but whose precise and original reason for being has been lost. Furthermore, this rule that "C. O. D." affects possession only gives a very real protection to the seller. It throws on the buyer the risk of loss, makes him liable for the price and yet gives the seller complete protection if the buyer fails to pay. It is precisely what a wise seller ought to mean.

A minority of courts hold, despite the usual rule respecting delivery to a carrier, that an instruction to the carrier to deliver only on payment rebuts the presumption that the shipper intended to pass title. Thus in State v. O'Neil,48 the facts were essentially identical with those of State v. Mullen, supra, and the decision quite opposite. Liquor ordered by a resident of Vermont from a firm in New York was shipped to the buyer with C. O. D. instructions. The issue was whether this constituted a sale in New York or in Vermont. The court said that passing of title was a question of intent, and determined the intent in this case not so much as a matter of presumption as one of actuality which could be truly determined from the circumstances. "It is difficult", said the court, "to see how a seller could more positively and unequivocally express his intention not to relinquish his right of property or possession in goods until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or forwards them to, or makes them deliverable upon the order of, his agent, with instructions not to deliver them except on payment of the price, or performance of some other specified condition precedent

47-One court however seems to have gone unduly far and to have ignored the real and expressed intent of the parties in favor of the merely constructive presumption. In Golightly v. State, 49 Tex. Crim. Ap. 44, 2 L. R. A. (n. s.) 383, the court held that title had passed at

the point of shipment notwithstanding the seller had agreed that the buyer would not have to take the whiskey ordered unless he wanted to, and that it would not be his whiskey until paid for. 48-58 Vt. 140.

by the vendee. The vendors made the express company their agent in the matter of the delivery of the goods, with instructions not to part with the possession of them except upon prior or contemporaneous receipt of the price. The contract of sale therefore remained inchoat or executory while the goods were in transit, or in the hands of the express company, and could only become executed and complete by their delivery to the consignee. There was a completed executory contract of sale in New York; but the completed sale was, or was to be, in this state. ''49

The answer of other courts to this reasoning is, as has been said, that the illustrations given by the court are all indicative of an intent to retain possession, but not necessarily an intent to retain title. Since retention of possession is in harmony with the usual effect of unrestricted delivery to a carrier, and retention of title is not in harmony, the weight of authority is also the more logical authority.*

In at least one case the intention evinced by a shipment C. O. D. has been treated not as a matter of construction for the court, but as a fact to be left to the jury.50

Rebuttal of Presumptions.-As has already been pointed out, these principles of decision are all rules of presumption only, or what may better be called rules of judicial custom, for construing a conventional intention as to title in cases where no real intention is evident. As the real intention, however, is the governing factor in the passing of title, they all give way before any evidence

49-Accord, E. M. Brash Cigar Co. v. Wilson, 32 Okla. 153; Lane v. Chadwick, 146 Mass. 68; Henderson v. Lauer & Son, Cal., 181 Pac. 811, a decision undoubtedly affected by other matters; Crabbe v. State, 88 Ga. 584; State v. Goss, 59 Vt. 266. See cases collected, both sides, 24 L. R. A. (n. s.) 143,

Note; 2 Id. 383.

It must be remembered that even this minority of decisions does not apply to cases of sales of specific property where there was no provision for cash at the time of making the contract.

50-Com. v. Tynnauer, 33 Pa. Sup. Ct. 604.

*See Uniform Sales Act, Section 19, Rule 4, (2).