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buyer to prove that the goods so specified by the seller did not in fact conform to the terms of the agreement. If the goods had been destroyed while in the carrier's hands this proof would of course be difficult to make and it is probable that the seller's prima facie proof would remain unrebutted.76

-Other Circumstances.--Various other circumstances have, by particular courts, been held presumptively to show an intent to pass title. The circumstances are not sufficiently recurrent to give rise to a rule of presumption and the cases are therefore of value only as showing the general trend of judicial idea as to what indicates intent to pass title. This intent has been presumed from the manufacture of goods and their delivery to a particular storage house agreed upon by the parties, 77 from the seller's putting property conforming to the contract into the buyer's sacks 78 or into bottles belonging to the buyer.79 The delivery of goods conforming to the contract to persons, other than a common carrier, to whom delivery has been authorized by the buyer has been held to pass the title, although the buyer had not in any other way signified his acceptance of those particular goods.80

These conclusions are only inferences of intent based upon the facts, and this judicial assumption of probable intent may be overthrown by any evidence of a real intent in conflict therewith. That is to say, no facts are conclusive, as a matter of law, in showing the intent of the parties. Even the rule that delivery to a carrier shows a probable and presumptive intent to pass title is rebuttable by any evidence that sufficiently clearly shows an intent not to pass title. The counter evidence may, of course, take as many forms as the circumstances of the case are capable of assuming.

76—Nomordust Co. v. Eberts Co., 59 Pa. Sup. Ct. 295; Skinner v. Griffiths, 80 Wash. 291, 141 Pac. 693; Levy V. Radkay, 233 Mass. 29, 123 N. E. 97.

77-Stewart v. Henningsen Produce Co., 88 Kan. 521, 50 L. R. A. (n. 8.) 111.

78—Aldridge v. Johnson, 7 El. & Bl. 885.

79—Langton v. Higgins, 4 Hurl. & Nor. 402.

80—Stewart V. Henningsen Produce Co., 88 Kan. 521, 50 L. R. A. (n. 8.) 111; Skinner v. Griffiths, 80 Wash. 291, 141 Pac. 693.

-Taking Out Bill of Lading.–Anything showing for which party the carrier is expected to act as bailee would logically be indicative of intent as to title. That is to say, a seller desiring to retain ownership would not naturally make the carrier bailee for the buyer. But if he intended to pass title he would naturally make the carrier the buyer's bailee rather than his own. Whether this be the reason on which courts have decided or not, the fact is that when, on shipment, a bill of lading is taken from the carrier by the seller, the fact that he takes it in his own name, so that the carrier becomes his own bailee, is treated by the courts as strong evidence that he intended to retain title despite the shipment.*

If the seller takes the bill in his own name as bailor, that fact in itself is held enough to rebut the presumption that in shipping the goods he intended to pass title.81

Taking a bill of lading in the name of an agent of the seller, or consigning to an agent instead of to the buyer also logically indicates an intent not to pass title to the

81—W. T. Wilson Co. v. Central be paid by the buyer; Wigton v. Natl. Bk., Tex. Civ. Ap. 139 Bowley, 130 Mass. 252; Emery's S. W. 996; Dows v. National Exch. Sons v. Irving Bk., 25 0. S. 360; Bk., 91 U. S. 618; Rylance v. Douglas v. People's Bk., 86 Ky. 176; Walker Co., 129 Md. 475; Jenkyns Security State Bk. v. O'Connell v. Brown, 14 Q. B. Rep. 496; Den- Lumber Co., 64 Wash. 506, 117 field Onion Co. v. N. Y., N. H. & Pac. 271; Ward v. Taylor, 56 Ill. H. R. R., 222 Mass. 535; Alderman 494; Gilbert v. Ayoob, 71 Pa. Sup. V. Eastern R. R., 115 Mass. 233; Ct. 336; a bill of lading in the Armstrong v. Coyne, 64 Kan. 75, shipper's own name "is inconsis67 Pac. 537; Willman Merc. Co. ent with an intent to pass the v. Fussy, 15 Mont. 511, 39 Pac. 738; ownership of the cargo", Hender. Sheperd v. Harrison, L. R. 5 H. L. son v. Lauer & Son, 40 Cal. Ap. 116; Wait v. Baker, 2 Exch. Rep. 696, 181 Pac. 811. 1, even though freight was to

*See Uniform Sales Act, Section 20, (1), (2), (3).

82

buyer and has been so held. In Berger v. State,88 Berger while in a county where sale of liquor was prohibited took an order for liquor from C. He transmitted this to L, a dealer in a wet county, who packed liquor conforming to the order and put C's name on the bottle, but shipped it by carrier to Berger. The latter delivered it to C and was thereafter prosecuted for selling liquor within the dry territory. The court said that if the shipment had been direct to C title would have passed on delivery to the carrier outside the dry territory, but that by consigning it to his agent the seller evinced an intent to retain title and that, therefore, the sale took place when Berger delivered the liquor to 0.83

Taking out a bill in the name of the buyer would not, of course, have this effect, but tends rather to strengthen the presumption that by delivery to the carrier the seller intended to pass the title.84

The courts have gone so far in giving consideration to the indication of intent shown by the bill of lading as to hold that even shipment on the buyer's own vessel with a statement that, as to payment of freight, the goods were buyer's property did not show an intent to pass title to the buyer when the bill of lading had been taken out in the seller's name.85

82–50 Ark. 20.

fer the title to the defendant",

Edelstone v. Schimmel, 233 Mass. 83-Accd., Zimmern's Coal Co.

45, 123 N. E. 333. v. L. & N. R. R., 6 Ala. Ap. 475,

85—Turner v. Trustees, 6 Exch. 60 So. 598.

Rep. 543; Ellershaw v. Magniac, 84–Georgia Marble Works V. 6 Exch. Rep. 569; In Gabarron v. Minor, Ark., 193 S. W. 498; Bailey Kreeft, L. R. 10 Exch. 274, the V. H. R. R. R. Co., 49 N. Y. 70; seller was under contract to de. Buckeye Cotton Oil Co. v. Mathe- liver to the buyer the particular son, 89 S. E. 478; Bk. of Litchfield goods shipped, and the vessel had v. Elliott, 83 Minn. 469, 86 N. W. been chartered for the purpose of 454; “Delivery of the goods to the carrying them to the buyer. Nevercarrier together with the taking theless it was held that title did of a non-negotiable bill of lading not pass to the buyer on shipment in the name of the defendant because the bill of lading was (buyer) was strong proof of in. taken in the name of a fictitious tention by the plaintiffs to trans- agent of the seller.

While the majority of cases indicate clearly that the seller in taking the bill of lading in his own name is presumed to have retained title, there are occasional decisions holding apparently that he retains a lien, a right of possession, only.* Thus in Mirabita v. Imperial Ottoman Bank the buyer was allowed to bring an action in damages, based on title rather than contract, despite the fact that the bill of lading was in the seller's name and he had thereby retained a jus disponendi. The court, however, avoided discussion of whether the seller's right was really title or not. In effect, therefore, it is confusing. 87

A seller's consignment to himself, without bill of lading, makes the carrier bailee of the seller and has been held not to indicate any intent to pass title.88 And a consignment to one who has never agreed to buy can not, of course, whatever be the shipper's intent, pass the title to him, for the reason that he has never consented to receive title and the carrier is not even by a fiction his agent to receive it.89

In Falk v. Fletcher,9° goods had been delivered to a carrier for transportation with expectation of taking a bill of lading of some sort. Before a bill could be taken out the master of the vessel sailed away with the goods. The court left it to the jury to determine what the shipper's intention as to title was.

90

Rebuttal of Evidence of Bill of Lading.–The rebuttal of presumptive intent to pass title by delivery to a

86-3 Exch. Div. 164.

88-Newcomb V. Boston 87-Cf., Sawyer v. Dean, 114 N.

Lowell R. R., 115 Mass. 230; Fur. Y. 469; but in Ullman v. Wormer

man v. Un. Pac. R. R. Co., 106

N. Y. 579, but it does not appear Mach. Co., 210 N. Y. 41, where previously unspecific goods were

definitely that there was even a shipped to the seller's own order,

contract to sell in this case. the court said, "The title to the

89—Allen v. Williams, 12 Pick. machine never vested in the de

(Mass.) 300; Dunn V. State, 48 fendant (buyer)."

Tex. Crim. 107, 122 Am. St. 734.

90—34 L. J. R. C. P. 146. *See Uniform Sales Act, Section 20, (1), (2), (3).

1

a

carrier, which follows from taking the bill of lading in the seller's own name, is itself rebuttable if other facts warrant a different conclusion. It must be borne in mind that the real intent of the parties governs the passing of title. It passes when they so intend and not until they intend. The various presumptions which the courts have established are not rules of title, but presumptions pure and simple, which will prevail in the absence of any other evidence of intent, but which will give way at once to any evidence whatever which is sufficient to convince the particular court or jury that the real intent of the parties was not in accord with the presumption.

A good illustration is found in the case of Lovell v. Newman & Son. K. & Co. having contracted to sell cotton to a certain spinning company, forged bills of lading made out in their own name for a pretended shipment of cotton conforming to the contract. These bills of lading they sent to the spinning company and collected the agreed price of the cotton. Later they did actually ship cotton, the genuine bills for which were also in the shippers' name and were identical with the forged ones. K. & Co. were adjudged bankrupt and these bills of lading were found among its papers by the trustee in bankruptcy. He brought suit against the bondsman of the carrier, claiming the title to be in him as trustee. The court held that taking the bills of lading in the seller's own name gave rise to a presumption that they intended to retain title, but that this presumption was rebutted by the circumstance that the real bills were taken out in form identical with the forged ones by delivering which K. & Co. had pretended to pass title to the buyers.

In Valley v. Montgomery,'' the bill of lading had been taken out in the seller's name. Lord Ellenborough said he would have been inclined to hold that title had not

92–3 East 585.

91–188 Fed. 534, 113 C. C. A. 39; affirmed 192 Fed. 753.

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