As a general rule, the loss follows the title. When it can be shown that the property has passed, the risk of loss is prima facie upon the person in whom the property is vested. On the other hand, when the risk of loss can be shown to be on either party, it is evidence that the property in the goods is in him. But here, as is the general rule, the intention of the parties is what governs. The parties may agree that though the property is in one the risk of loss shall be on the other; as in Martin v. Kitching (34), where it was expressly stipulated that the goods should be "at seller's risk two months."

In a conditional contract, such as where the goods are delivered to the buyer on the agreement that the property shall not pass until the price is fully paid, the risk is upon the buyer from the time of the delivery. In Tufts v. Griffin (35) there was a sale of a soda fountain, the price to be paid in installments. The soda fountain was delivered to the purchaser and used by him. Some of the payments had been made, but before the others were due the fountain was destroyed by fire, without negligence on the part of the purchaser and before any default in the payments. By the terms of the sale, the property was not to pass to the purchaser until the price had been fully paid. It was held that the purchaser must bear the loss, and that the fact that the property had been destroyed before the time for the last payment, on the making of which only his right to the property would have accrued, did not relieve him of the payment of the price

(34) L. R. 7 Q. B., 436.

(35) 107 N. C., 47.

agreed upon. "The transaction was something more than an executory conditional sale. The seller had done all he was to do, except to receive the purchase price; the purchaser had received all that he was to receive as the consideration of his promise to pay. . The con

tract imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation, the court must make a new agreement for the parties instead of enforcing the one made, which it cannot do" (36).

SECTION 2. As AGAINST THIRD PARTIES.

§ 73. Sale by a person not the owner. "1. Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods. than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. 2. Nothing in this act, however, shall affect: (a) The provisions of any factors' acts, recording acts, or any act enabling the apparent owner of goods to dispose of them as if he were the true owner thereof. (b) The validity of any contract to sell or sale under any special common law or statutory power of sale or under the order of a court of competent jurisdiction” (37).

As a general rule a purchaser of property takes only such title as his seller has or is authorized to transfer, and can acquire no other or greater interest. The owner

(36) Ibid, pp. 50-51.

(37) Sales Act, sec. 23.

of goods may recover them from one who has purchased them from a thief or a finder or anyone entrusted with possession as a mere bailee.

§ 74. Same: Owner estopped by conduct. The owner may, however, by his conduct, preclude himself from denying the seller's authority to sell. If A stands idly by and sees B sell his (A's) goods to C, and C part with the purchase money, A by his conduct precludes himself from later asserting his ownership. "Where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time" (38). In Spooner v. Cummings (39) the owner sold a horse to one Pope with the understanding that title was not to pass until the price was paid. Pope sold the horse to a third person. It was shown that for some time the owner, who was a horse dealer, and Pope had engaged in similar transactions, Pope purchasing the horses upon similar conditional agreements. Pope before paying for them, would resell the horses and send the money to the owner, which he would apply as he saw fit on any of the agreements. It was rightly held that from the course of dealing Pope had implied authority to sell the horse in question. It was said to be immaterial whether Pope had actual authority to make the sale or it depended upon

(38) Lord Denman in Pickard v. Sears, 6 A. & E., 469. (39) 151 Mass., 313.

facts which estopped the owner from denying the validity of the sale.

The mere transfer of possession alone will not work such an estoppel.

§ 75. Same: Sales by factors. A factor is a person to whom goods are consigned for sale. He has possession of the goods and may sell them in his own name. He may sell the goods on credit. He has a lien on the goods for advances made by him upon the goods and for the balance of the general account between him and his principal. The principal cannot restrict the authority of the factor, as to anyone who has no notice of the restrictions. At common law the factor could not pledge the goods for advances to himself (40). "Factor's acts" have been passed in England and in some states in the Union, viz., Maine, Massachusetts, Rhode Island, New York, Pennsylvania, Maryland, Ohio, and Wisconsin. By these statutes the authority of the factor is considerably extended. He may, for example, pledge the goods for advances, and persons who advance money in good faith on the security of the goods or documents of title, in reliance upon the possession of the goods or documents of title as proof of authority, are protected, if the goods or documents of title were voluntarily entrusted to the factor by the owner for the purposes specified in the statutes.

§ 76. Sale by one having a voidable title. "Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods; provided, that he buys

(40) Paterson v. Tash, 2 Strange, 1178.

them in good faith, for value, and without notice of the seller's defect of title" (41).

In Rowley v. Bigelow (42) one Martin fraudulently purchased corn at New York, pretending to purchase it for cash, when he was insolvent, and shipped it to Boston to purchasers, to whom the bill of lading was sent. The purchasers accepted a draft for the price and paid it at maturity. They purchased the corn with no notice of Martin's fraud. It was held that they obtained a good title. Where a sale of goods is obtained by fraud on the part of the purchaser, the transaction is not void but voidable and title vests in the purchaser until the defrauded vendor rescinds the transaction and reclaims the goods. If, however, before rescission, the goods have been sold to a purchaser without notice of the fraud, he obtains an indefeasible property in the goods. The same is true where the sale is made by an owner to defraud his creditors. The rule as above stated in the Sales Act will prevent an infant or insane person from avoiding a sale, where the goods have been transferred by the purchaser to a subsequent purchaser. Compare § 7, above.

§ 77. Sale by seller in possession of goods already sold. "Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, the delivery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the

(41) Sales Act, sec. 24. (42) 12 Pickering, 307.