sold and the price that the buyer is to pay, and nothing remains to be done but that the buyer shall pay the price and take the goods, the property passes to the buyer and with it the risk of loss by fire or any other accident. The appropriation of the goods to the buyer is equivalent, for that purpose, to delivery by the seller. The assent of the buyer to take the goods is equivalent for the same purpose to his acceptance of possession (8).

§ 59. Same: Where specific goods are in undeliverable state. Rule 2 is merely a statement of the established principle that when, after a sale of goods some act remains to be done by the vendor before delivery, such as counting, weighing, measuring, inspecting, and so forth, the property does not vest in the purchaser but continues at the risk of the seller. The leading case is Hanson v. Meyer (9). There, there was an agreement to sell all of the starch belonging to the vendor, the quantity not being ascertained, at £6 per cwt. An order was given to the warehouseman to weigh and deliver all the vendor's starch. A part had been weighed and delivered when the buyer became bankrupt. The court held, in an action of trover brought by the assignees against the vendor, who had removed and refused to deliver the part that had not been weighed or delivered, that the weighing and delivery of part did not operate as a transfer of the property to the whole. The property had passed in only that part of the starch which had been weighed.

(8) Goddard v. Binney, 115 Mass., 450 (stated in § 15, above), following Dixon v. Yates, 5 B. & Ad., 313, 340.

(9) 6 East., 614.

Lord Ellenborough said, "If anything remain to be done on the part of the seller as between him and the buyer, before the commodity purchased is to be delivered, a complete present right of property has not attached in the buyer."

§ 60. Same: Where acts are to be done by buyer. If that which remains to be done is to be done by the buyer, instead of by the seller, the presumption is that the parties intend that the property shall pass at once. In Turley v. Bates (10) a pile of fire clay on the land of the seller was sold at 2s. per ton, the purchaser to take it away and have it weighed at his expense. He took away a part but refused to take the residue. In an action for goods bargained and sold, it was held that the property in the whole amount had passed to the buyer. It was there shown that the rule does not apply where what remains to be done is to be done by the buyer, but applies only where something remains to be done by the seller.

This is especially true where the goods have been delivered to the buyer, but something remains to be done in order to ascertain the total value of the goods (11). "The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completely delivered to the purchaser, it is usually very strong if not conclusive evidence of the intent that the property shall vest in him and be at his risk, notwithstanding weighing, measuring, inspection, or some other

act is to be done afterwards" (12). If, however, the delivery is for some special purpose, such as for the purpose of inspecting or testing, that fact may be shown, to rebut any presumption of intent that the property shall vest, from the fact of delivery.

§ 61. Same: Delivery of goods "on sale or return" and "on approval." The question, which is involved in the cases mentioned in Rule 3, where the goods are delivered "on sale or return," or "on approval or on trial or on satisfaction," is a question of fact, depending upon the intention of the parties. Where the goods are delivered "on sale or return" the property in the goods passes to the buyer, with the option in the buyer of returning the goods and thus rescinding the sale. This is clearly a sale with a condition subsequent (§ 5, above).

Where the goods are delivered "on approval," or "on trial," or "on satisfaction," the words meaning practically the same thing, there is, in such case, as a general thing, no present sale. The approval or satisfaction of the buyer is a condition precedent to the vesting of the property as upon a completed sale. In all these cases, however, the intention of the parties governs. That intention must be shown from the terms of the contract and the surrounding circumstances. The language used by them is not conclusive, but must be considered in the light of the surrounding circumstances at the time the contract is made.

Any exercise of dominion over the goods by the buyer which is inconsistent with the right to return them to the

(12) Cooley, J., in Lingham v. Eggleston, 27 Mich., 324.

seller will put an end to such right, as by selling the goods or using them in a way which prevents returning them in the same state in which they were delivered to him. If the property has passed to the buyer, though he has the right to rescind the sale and return the goods, all the incidents of ownership attach to them. They are at his risk of loss or damage, they are subject to seizure by his creditors, they are taxable as his goods, and all rights of the seller over them are gone, unless by some special agreement, in which case the rights of the seller arise from and are dependent upon the special agreement alone.

§ 62. Same: Contract to sell unascertained goods. Assent to appropriation to the contract. In Rule 4, we are dealing with the case of a "contract to sell," where the property in the goods is to pass at some time subsequent to the agreement. Obviously, the property in the goods cannot pass until particular goods are appropriated to the contract. But appropriation alone is not sufficient. There must be an assent to the appropriation on the part of both the buyer and the seller. In Moody v. Brown (13) there was a contract for stereotype plates, which the seller carried to the store of the buyer, who refused to take them. The seller left them there against the remonstrance of the buyer. It was held that the property in the plates did not pass to the buyer. The buyer might be liable in an action for damages, as for a breach of contract, but, until the buyer accepted the goods, property therein could not vest in him. That is

(13) 34 Maine, 107.

true even where goods are sold by sample and goods conforming to the sample are appropriated to the contract. There must be an assent to the appropriation of the goods. Here again there might be a cause of action based upon the contract itself for not accepting the goods (14). The assent may be implied from the words or conduct of the buyer, as where goods were appropriated to the contract and the buyer upon being notified merely said that "he would take them away as soon as he could” (15), or where the buyer promised to pay a certain price for the goods (16), or where the purchaser requested the vendor "to take care of it, until he sent for it" (17). The assent may be given before the appropriation is made. In Langton v. Higgins (18) there was a purchase of a year's crop of peppermint oil. The buyer sent his bottles to be filled. The property passed when the bottles were filled, the assent in that case being before the appropriation was made. "When a vendee sends his ship, or cart, or cask, or bottle to the vendor, and he puts the article sold into it, that is a delivery to the vendee." The assent is obviously given before the appropriation is made.

§ 63. Same: Delivery of appropriated goods to buyer or bailee. When the goods are delivered to the buyer, there is a presumption that the seller unconditionally appropriates the goods to the contract, except where the