will imply that the sale is made for cash. When a part of property is sold which is all of a common mass, as for instance grain, a separation is not always necessary to pass title. One who owns grain in a warehouse, which is mixed with other grain of the same quality, may pass title to it by a delivery of the warehouse receipt to the buyer. Where the contract is executory when made it may, of course, become executed by the seller's doing those things which remain undone, and then title will vest in the buyer, unless the buyer repudiates the contract before such steps are taken. Usually, when goods out of a mass are to be set apart so as to pass title, the consent of both parties is necessary; in some instances it may be done with the implied consent of the buyer. Thus, when a buyer orders certain goods, and leaves their selection to the seller, the goods become those of the buyer when the seller selects them and ships them by the implied or express direction of the buyer. A delivery to a carrier for the buyer unless it is otherwise expressly stipulated, is always equivalent to a delivery to the buyer himself, as the carrier is considered the buyer's agent for the purpose of receiving the goods. The title to articles to be manufactured does not pass until they are completed and there has been a delivery to the buyer. The fact that the purchaser has paid for goods to which title has not passed does not affect the question. If the articles are not delivered or are destroyed before delivery, the buyer is entitled to a return of his money, or may sue for damages.

The above rules govern in the absence of any express agreement of the parties. The parties may contract in any way they see fit. For instance, they may contract that the title to goods not ready for delivery shall vest in the buyer, or they may contract that the title shall be in the seller, but at the risk of the buyer. Sometimes a seller who ships goods wishes to control them as long as possible, so as to make certain of his goods or the price therefor. This is usually done by the seller's taking a bill of lading in his own name as consignee, and by sending the bill of lading with a draft attached to a bank, to be delivered to the buyer on payment of the draft. The seller may in such case endorse the bill of lading in blank, or make the goods deliverable to the order of the buyer on payment of the draft. In such case the goods are at the risk of the

seller until the bill of lading is turned over to the buyer. The question of the passing of title is often important in its bearing upon the rights of creditors. Until title has passed, for instance, the buyer cannot make a valid sale to a third person; he can only agree to sell. Until title has passed, the seller's creditors may levy on the goods under execution or attachment, etc. even though he has agreed to sell them to another. After title has passed, the buyer's creditors may levy.

Decisions.-The following decisions by the Supreme Court of Wisconsin will illustrate what has been said in the preceding paragraph: A contract for the sale of lumber provided that the seller was to cut the lumber and deliver it on cars at his mill as the buyer directed. The buyer was to accept, scale and grade the lumber as it was loaded on the cars, and after accepting it, pay for it. After some of the lumber contracted for had been piled on cars, but before it was accepted by the buyer, the seller gave a chattel mortgage on all lumber in his yard. In a contest between the purchaser and the holder of the chattel mortgage it was decided that the chattel mortgagee had a right to hold the lumber as against the buyer, as title had not passed to the buyer. Again: The owner of logs delivered them to the owner of a saw mill, to be sawed into lumber, and was to be paid therefor, in lumber, sixty per cent of the product of the logs, to be delivered at a certain point. The proprietor of the mill had put a large amount of lumber, made from such logs, into a river near his mill, and had marked it with the initial of the owner of the logs, but the place of delivery was several miles from that point. Before the lumber was delivered the owner of the logs inquired whether his lumber was ready and the owner of the mill informed him that it was, and took him to the place where the lumber was and told him that certain lumber which he pointed out belonged to him, the owner of the logs. A bill of the lumber was made out and it was charged to the owner of the logs, and it was then agreed by the parties that a certain person should run the lumber down the river to the place of delivery for the owner of the logs. Before the logs left on their way down the river a creditor of the owner of the mill attached the logs, claiming that title vested in the owner of the mill. The court says: "We think it is be

yond all controversy or doubt that the parties not only intended to make a delivery of this lumber at the mill, but did in fact perfect such delivery. It is true that the place of delivery was designated in the contract... ... but it was competent for the parties to change the place of delivery and we think that the facts show that they did change it... The lumber was set apart and marked with the buyer's name or initials, pointed out to him, examined by him, the amount computed and a bill of it made out in which it was charged to him; and he at once assumed control and exercised acts of ownership over it. . . . . If it clearly appears to have been the intention of the parties that the property should be deemed to be delivered, and the title to have passed, and especially if their acts be inconsistent with any other view, the mere fact that something remains to be done will not govern such intention." It was accordingly held that the title had passed, and that the creditor could not hold the lumber. Again: A bill of sale of logs provided that it conveyed "all the pine saw logs in our boom at W. except those marked and sold to T.; the title to said logs and the possession to vest in the said C. on the ensealing of these presents. The amount is to be settled by the mill scale,... culls to belong to the seller, or to be taken by the purchaser at three dollars per thousand.........." The court says: "It is too well settled that the fact that the lumber had to be cut, graded and measured before the aggregate contract price therefor could be determined is no impediment to a transfer of the title thereto....... when the contract was executed." It was therefore held that the purchaser could hold the lumber made from the logs as against a creditor of the seller.

The proprietor of a saw mill sold and agreed to deliver to another several hundred thousand feet of lumber, at a certain price. It was agreed that after the lumber was sawed it should be piled up in the mill-yard to dry until the following spring and that it was to be inspected, accepted and paid for by the buyer within a certain time after it was sawed. When the time arrived the mill owner notified the buyer to inspect and accept the lumber and pay for it, but he failed to do so. Thereafter the lumber was destroyed by fire. It was decided that the buyer could not evade payment on the ground that he had not accepted the lumber,

as his failure to do so was his own fault, and that the intention of the parties was that title should pass when the lumber was piled in the mill owner's yard. The following case will illustrate a contract by which the title remains in the seller, but the risk of the property is with the buyer. A sold to B some saw logs at a certain price per thousand feet. The logs were delivered at B's boom and taken charge of by him, and A did all he was required to under the contract. The contract of sale, however, provided that the right of possession and legal title to the logs should remain in the seller until the logs were paid for. After delivery, but before payment, some of the logs were lost. The court says: "When property is sold and delivered and the vendor has fully performed all the conditions of the contract of sale on his part, and the intention of the parties at the time of the making of the contract, as in this case, clearly is that the vendor is to have no interest in the property after delivery, except as security for the unpaid purchase money; that, subject to the right to resort to said property as such security, the entire dominion and control over the same are turned over to and assumed by the vendee, as such, although, for the purpose of effectually retaining the security, the contract of sale provides that the title and right of possession shall remain in the vendor, as security, until the purchase price is fully paid, and though the amount of the property is yet to be ascertained by measurement in order to determine the amount of the purchase money, if any of such property is lost after such delivery, before measurement, such loss must fall upon the vendee, whether the loss accrues through his negligence or otherwise, and the amount of such property may be ascertained by competent evidence. ......The conditional vendee......is in a sense the owner; if he pays the purchase price he becomes the absolute owner, without any new transaction or bill of sale; if the goods be wrongfully taken away from him by a third party, he may recover their full value of the wrongdoer; and if the property is lost or stolen while in his possession, whether by or without fault on his part, he must nevertheless pay the full price agreed upon." A merchant sold a stock of goods and was to be paid $2000 in cash and was to take a note of $500. $25 was paid on the bargain. The goods were set apart and ready for delivery. When the money and note were offered

to him he refused to part with the goods, and the buyer brought a replevin suit to get possession of the property. The court says: "There can be no doubt that under the circumstances stated, the title to the goods, and the right of possession as well, passed to the plaintiff, and if afterwards they were wrongfully detained, he might maintain replevin for them. When the terms of sale are agreed on and the bargain is struck, and everything the seller is to do with the goods is complete, the contract of sale becomes absolute between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at the sale as to the time of delivery or time of payment...... But if the goods are sold upon credit, and nothing is agreed upon as to the time of delivery of the goods, the vendee is immediately entitled to the possession, and the right of property vests at once in him." O sold to B a portable sawmill for $400; $100 was to be paid at the time of sale and the title was to remain in O until B paid the other $300. Before B paid the $100 he put the mill on a car and shipped it to another city. B then sold the sawmill to a third party, who bought it in good faith. O did not know of the shipment of the mill at the time it was made, and did not waive the payment of the $100. It was decided that O had never parted with the title to the mill, and that he could recover the value of the mill from the third party. A letter containing a proposition, which was afterwards accepted so as to make a contract, provided: "We will sell and deliver to you 1000 cords maple wood, to be delivered from G's pier, L. county, Michigan, over the rail of the vessel, at $3.25 per cord; all the wood to be sound......and to be delivered from time to time to your vessel as wanted during the season of navigation of 1884. The said wood to be piled as taken from vessel, and to be measured and paid for when piled on your dock in Milwaukee." While a cargo of the wood was in course of transportation it was washed overboard and lost. The court held that the agreement showed an intention on the part of the parties that title should pass when the wood was delivered on board the buyer's vessel, although the wood was still to be measured on arrival, and that the loss fell on the buyer.