truth, when applied to those subjects of property which are distinguishable by their physical attributes from all other things and, therefore, are capable of exact identification. No person can be said to own a horse or a picture, unless he is able to identify the chattel or specify what horse or what picture it is that belongs to him. It is not only legally, but logically, impossible to hold property in such things, unless they are ascertained and distinguished from all other things; and this I apprehend is the foundation of the rule that, on a sale of chattels, in order to pass the title, the articles must, if not delivered, be designated, so that possession can be taken by the purchaser without any further act on the part of the seller.

"But property can be acquired and held in many things which are incapable of such an identification. Articles of this nature are sold, not by a description which refers to, and distinguishes the particular thing, but in quantities, which are ascertained by measure, weight, or count; the constituent parts which make up the mass being undistinguishable from each other by any physical difference in size, shape, texture, or quality. Of this nature are wine, oil, wheat, and the other cereal grains, and the flour manufactured from them. These can be identified in masses or quantities, and in that mode, therefore, they are viewed in the contracts and dealings of men. In respect to such things, the rule above mentioned must be applied according to the nature of the subject. In an executed and perfect sale, the things sold, it is true, must be ascertained. But as it is not possible in reason and philosophy to identify each constituent particle composing a quantity, so the law does not require such an identification. Where the quantity and the general mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it becomes a possible result for the title to pass, if the sale is complete in all its other circumstances. An actual delivery indeed cannot be made unless the whole is transferred to the possession of the purchaser, or unless the particular quantity sold is separated from the residue. But actual delivery is not indispensable in any case in order to pass a title, if the thing to be delivered is ascertained, if the price is paid or a credit given, and if nothing further remains to be done in regard to it."

Subsequent Appropriation. An executory contract may be converted into a complete bargain and sale by the appro

priation of specific goods to the contract. Where the vendee makes the selection or appropriation, there is slight chance of controversy, but where it is plain that the vendor is entitled to make the selection, it is difficult to determine what his act of appropriation is. His mere intention to appropriate or select certain goods would not answer for an actual appropriation. Only when he has performed some act of appropriation can the attention be at all considered. If the vendor undertakes to set aside or select the goods for the vendee, and the vendee acquiesces or subsequently assents to the act of the vendor, that will be held sufficient. The vendee may assent to what the vendor has done, although not authorized to do anything. In Merchants' National Bank v. Bangs,39 the court said:

"When, from the nature of the agreement, the vendor is to make the appropriation, then, as soon as any act is done by him, identifying the property, and it is set apart with the intention unconditionally to apply it in fulfillment of the contract, the title vests, and the sale is complete. Thus the delivery to the buyer or his agent, or to a common carrier, consigned to him, whether a bill of lading is taken or not, if there is nothing in the circumstances to control the effect of the transaction, will be sufficient. If the bill of lading or other written evidence of the delivery to the carrier be taken in the name of the consignee, or be transferred to him by endorsement, the strongest proof is afforded of the intention to transfer an absolute title to the vendee. But the vendor may retain his hold upon the goods to secure payment of the price, although he puts them in course of transportation to the place of destination, by delivery to a carrier. The appropriation which he then makes is said to be provisional or conditional. He may take the bill of lading or carrier's receipt, in his own or some agent's name, to be transferred on payment of the price, by his own or his agent's endorsement to the purchaser, and in all cases where he manifests an intention to retain this jus disponendi, the property will not pass to the vendee.""

§ 54. Factors' Acts. transfer of title, it is

In connection with the subject of proper to consider the effect of

39 102 Mass. 291.

so-called Factors' Acts, which have been passed in some ten or twelve States of the Union, and also in England. A factor is a commission merchant who receives and sells goods consigned to him for sale by producers and others. He differs from a broker in that he has the goods in his possession for sale, while a broker is merely an agent who brings together parties, one of whom has something to sell to the other. Under Factors' Acts the shipper remains the true owner of the goods, but a factor has the right to dispose of them and is empowered to give good title to a purchaser. He may even pledge the property in his possession to a party acting bona fide, but he cannot pledge the property for a previous debt beyond the factor's interest in the goods. A factor may make a binding sale of the goods to another on credit, although exceeding his power in so doing. In Dias v. Chickering, 40 the facts were that a piano had been consigned by the Chickering Piano Company to its agents to be sold for cash. One of the agents, with the consent of the other, placed the piano in his house for nearly a year, using it as his own. He then sold it to Dias, who thought it belonged to the agent or his wife. Dias was held to have taken good title. The court said:

"Bucklin (one of the agents), being clothed, not only with possession of the piano, but the right to sell it also, and moreover having been allowed to treat it as his own property, and so used it in his private family without objection or interference by the Chickerings, for nine or ten months, we think, under the common law, without pausing to consider the Factors' Act, that the Chickerings are now estopped from making any demand upon Dias, and that the latter took a good title to the piano.

As goods are sent to a factor for sale, he is not at liberty to trade them for other property, and an exchange or barter of a principal's goods is not binding upon the principal.41

The bankruptcy of the factor does not affect the title of the consignor, for no one can be deprived of his property without his consent, and the very business of the factor is enough to put one on his guard as to his title.

40 64 Md., 348, 1 Atl. 709.

41 Potter v. Denison, 5 Gilm. 590.

CHAPTER V

PERFORMANCE OF THE CONTRACT

A contract is performed when each party thereto fulfills his part of the agreement entered into. In the absence of statutory requirement, no writing is required to make a sale valid. It is customary, however, for the seller to give the buyer a bill of sale of the goods bought. In some States such a bill may be required and may also in some cases have to be recorded to safeguard the interests of third parties, although as between the parties themselves the bill of sale would be valid without recording.

Performance of a contract may be excused on account of impossibility, if the impossibility is rendered such by law, or if it is prevented by the act of the other party to the contract, or by the destruction of the subject-matter of the contract subsequent to the time of making, and in the case of personal performance where sickness renders the person incapable of performing his part of the contract.1

In a contract of sale, the seller has duties to perform and the buyer has duties to perform. The duties of the one correspond to the rights of the other.

DUTIES OF SELLER
DELIVERY

While delivery of goods is not essential to a contract of sale, yet as a purchase of goods changes ownership, it must include delivery of some kind, either actual or constructive. A contract of sale that does not contemplate a delivery of some kind is a wagering contract.

It is the duty of the seller to deliver the goods in accordance with the terms of the contract. It may be his duty to send the goods to the buyer, and to send them within a fixed time, and at all events within a reasonable time. If the 1 Wolf v. Marsh, 54 Cal. 228.

84

contract is silent as to the place of delivery, the place where the goods are at the time of the sale is the proper place.

The Sales Act2 provides that where the seller, in compliance with the contract, delivers goods to a carrier, it is a good delivery to the buyer, unless a contrary intention appears, or unless the goods under the contract must first be delivered to the buyer or reach a place agreed upon.

There are also provisions in regard to delivery and payments the same as at common law. Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending upon the terms of the contract, express or implied. In the absence of any time mentioned for sending for the goods, a reasonable time is understood.

Where the goods at the time of sale are in the possession of a third person, and the duty is upon the seller to deliver to the buyer, it is the seller's duty to obtain from the third person an acknowledgment that he holds the goods on the buyer's behalf. A buyer of goods is not obliged to accept delivery in installments, unless he has agreed to do so.4

§ 55. When Delivery Not Required. The law does not require a party to do a useless thing; hence delivery need not be attempted where buyer gives notice he will not receive goods. In Windmuller v. Pope, the facts were as follows:

In January, 1880, the parties entered into a contract for the sale by plaintiffs and purchase by defendants of "about 1,200 tons old iron, Vignol rails, for shipment from Europe at seller's option, by sail or steam vessel to New York, Philadelphia, or Baltimore, at any time from May 1 to July 15, 1880, at thirty-five dollars per ton . . . deliverable in vessels at either of the above ports on arrival." On or about June 12, 1880, defendants notified plaintiffs that they would not receive or pay for the iron, or any part of it, and advised that plaintiffs better stop at once in attempting

2 Uniform Sales Act, § 19. 8 Idem, § 41.

4 Uniform Sales Act, § 45.

5 107 N. Y. 675.