CHAPTER V.

TRANSFER OF TITLE.

SECTION 1. AS BETWEEN SELLER AND BUYER.

§ 56. No property passes until goods are ascertained "Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of ascertained goods may be transferred as provided in section 6" (1).

This is the well established rule. Section 6, here referred to, contains the provision in regard to the sale of undivided shares (§ 34, above). It was there shown that the property may be transferred in an undivided share of ascertained goods, although there be no separation of the quantity sold, if such be shown to be the intention of the parties. In Aldridge v. Johnson (2) there was a sale of 100 out of a 200 to 300 quarter lot of barley, which was in a large heap, it being agreed that the buyer should send sacks which the seller should fill and take to the railway and put upon trucks. The buyer sent 200 sacks, enough to contain the 100 quarters purchased. After the seller had filled 155 sacks, being unable to get trucks to transport them, he emptied the sacks back on to the

(1) Sales Act, sec. 17. (2) 7 E. & B., 885.

bulk. It was held that the property in what was put into the sacks had passed to the buyer. Where there is a sale of a particular chattel, the property passes by the sale; but if the thing sold is not ascertained, it does not pass until it is ascertained. Here the right of ascertainment rested with the vendor only. When he had done the outward act which showed which part was to be the vendee's property, his election was made and the property passed.

§ 57. Property in specific goods passes when parties so intend. "1. When there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. 2. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case" (3).

In every contract, the intention of the parties governs, as to all its terms. In a sale of goods, if the parties have made it sufficiently clear when they intend the property shall pass, that intention governs. The intention of the parties is proven, as a question of fact, from the contract itself and the circumstances surrounding the sale (4).

§ 57a. Rules for ascertaining intention: Sales Act. "Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer:

"Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.

"Rule 2. Where there is a contract to sell specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done.

"Rule 3. (1) When goods are delivered to the buyer 'on sale or return,' or on other terms indicating an intention to make a present sale, but to give the buyer an option to return the goods instead of paying the price, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods within the time fixed in the contract, or, if no time has been fixed, within a reasonable time.

"(2) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer: (a) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction. (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.

"Rule 4. (1) Where there is a contract to sell unascertained or future goods by description, and goods

of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.

"(2) Where, in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section twenty (§ 65, below). This presumption is applicable, although by the terms of the contract the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words 'collect on delivery' or their equivalents.

"Rule 5. If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or have reached the place agreed upon" (5).

$58. Same: Contract to sell specific goods in deliverable state. The terms of the contract may show that it is not the intention of the parties that title shall pass immediately. Such terms as, "delivery to be made and price paid as soon as the quantities can be verified,"

(5) Sales Act, sec. 19.

show that it is the intention of the parties that the transfer of title and the payment of the price shall be simultaneous, and both be postponed until the quantities of the goods are verified and the amount of the purchase money thereby ascertained (6). We shall consider the above rules in order.

Rule 1 states what is really a presumption, that in the absence of a different intention, upon a contract to sell specific goods, in a deliverable state, the property passes to the buyer when the contract is made. In Tarling v. Baxter (7) there were notes of agreement signed on the 4th day of January, to sell and to buy a stack of hay, standing in a certain field, at a certain price, to be paid on the 4th of February, and the hay to be allowed to stand on the premises until the first day of May. The hay was wholly consumed by fire on the 20th of January, without any fault or neglect of either party. It was held that the agreement showed that an immediate sale was intended. The property, then, vested in the buyer and the loss by fire fell upon him. The case establishes the principle that, "in the case of a sale of goods, if nothing remains to be done on the part of the seller, as between him and the buyer, before the thing purchased is to be delivered, the property in the goods immediately passes to the buyer, and that in the price to the seller; but if any act remains to be done on the part of the seller, then the property does not pass until that act has been done." Where the parties agree upon specific goods that are

(6) Sherwin v. Mudge, 127 Mass., 547.