was said, placed the vendors in the relation of bailees to the quantity sold. This was in 1810.

In the following year the case of Jackson v. Anderson, 4 Taunt. 24, was decided in the King's Bench. That was an action of trover for one thousand nine hundred and sixty pieces of coin called Spanish dollars. Mr. Fielding, at Buenos Ayres remitted to Laycock & Co., at London, $4,700, and advised the plaintiffs that one thousand nine hundred and sixty of the number were designed for them in payment for goods bought of them. Laycock & Co. received the four thousand seven hundred pieces and pledged the whole of them to the defendant, who sold them to the bank of England. It was held: 1. That the letter of advice was a sufficient appropriation of $1,960 to the plaintiffs. 2. That the plaintiffs and defendant did not become joint-tenants or tenants in common of the dollars. 3. That although no specific dollars were separated from the residue for the plaintiffs, yet as the defendant had converted the whole, trover would lie for the plaintiffs' share. Of course the action in its nature directly involved the plaintiffs' title, and it was held that the sale or appropriation of a part without any separation was a perfect sale.

In Pleasants v. Pendleton, 27 Va. 473, 18 Am. Dec. 726, the sale (omitting immaterial circumstances) was of one hundred and nineteen out of one hundred and twenty-three barrels of flour, situated in a warehouse, all of the same brand and quality. It was held by the Virginia Court of Appeals, upon very elaborate consideration, and after a review of all the cases, that the title was transferred by the sale. See, also, Damon v. Osborn, 1 Pick. (Mass.) 477, 11 Am. Dec. 229; Crofoot v. Bennett, 2 N. Y. 258. In the last-mentioned, which was decided in this court, the sale was of forty-three thousand bricks in an unfinished kiln containing a larger quantity. A formal possession of the whole brick-yard was taken by the purchaser. It was held that he acquired title to the forty-three thousand, although no separation was made.

In the opinion of Judge Strong, the case was made to turn mainly on a supposed delivery of the whole quantity. But, with deference, that circumstance does not appear to me to have been the material one, inasmuch as all the bricks confessedly were not sold. The delivery, therefore, did not make the sale, and if part could not be sold without being separated I do not see how a formal delivery of the whole brick-yard could cure the difficulty. The learned judge speaks of the transaction as a delivery of the whole quantity "with the privilege of selection." But assuming, as he did, that the want of selection or separation was the precise difficulty to be overcome, it is not easy to see how a privilege to select could change the title before the selection was actually made. The case, therefore, it seems to me, can only stand on the ground that the sale was in its nature, complete; the formal delivery of the whole being doubtless a circumstance enti

tled to weight in arriving at the intention of the parties. The case is in short a strong authority to prove that in sales by weight, measure or count, a separation of the part sold from the mass is not in all cases a fundamental requisite.

Referring now to cases where it has been held that sales of this general nature were incomplete, it will be found that they are not essentially and necessarily opposed to the conclusion that, in the instance before us, the title was changed. In White, Assignee, etc., v. Wilks, 5 Taunt. 176, a merchant sold twenty tons of oil out of a stock consisting of different large quantities in different cisterns, and at various warehouses. The note of sale did not express the quality or kind of oil sold or the cistern or warehouse from which it was to be taken, and the purchaser did not even know where the particular oil lay, which was to satisfy the contract. Very clearly the title could not pass upon such a sale; and so it was held, although the seller was entitled by the contract to charge "1s. per ton per week rent," for keeping the oil. A very different question would have been presented if the cistern from which the twenty tons were to be taken had been specified. The mass and quality would then have been ascertained. As it was, the subject of the contract was not identified in any manner. The remarks of the judge, evidently not made with much deliberation, must be construed with reference to the particular facts of the case.

In Austen v. Craven, 4 Taunt. 644, there was a contract to sell two hundred hogsheads of sugar, to be of four different kinds and qualities, which were specified. It did not appear that the seller, at the time of the contract, had the sugar on hand, or any part of it, and the fact was assumed to be otherwise. The sale was, moreover, at so much per cwt., requiring that the sugar should be weighed in order to ascertain the price. In these circumstances the case was considered plainly distinguishable from Whitehouse v. Frost, supra, and it was held that the title did not pass. I do not see the slightest ground for questioning the decision, although, perhaps, one or two remarks of Chief Justice Mansfield are capable of a wider application than the facts of the case would justify.

The two cases last mentioned have been not unfrequently cited in various later English and American authorities, which need not be particularly referred to. Some of these authorities may suggest a doubt whether the title passes on a mere sale note by measure or weight out of a larger quantity of the same kind and quality, there being no separation and no other circumstances clearly evincing an intention to vest the title in the purchaser. It is unnecessary now to solve that doubt, because none of the decisions announce the extreme doctrine, that where, in such cases, the parties expressly declare an intention to change the title, there is any legal impossibility in the way of that design.

Upon a simple bill of sale of gallons of oil or bushels of wheat, mixed with an ascertained and defined larger quantity, it may or may not be considered that the parties intend that the portion sold shall be measured before the purchaser becomes invested with the title. That may be regarded as an act remaining to be done, in which both parties have a right to participate. But it is surely competent for the vendor to say in terms, that he waives that right, and that the purchaser shall 'become at once the legal owner of the number of gallons or bushels embraced in the sale. If he cannot say this effectually, then the reason must be that two men cannot be owners of separate quantities or proportions of an undistinguishable mass. That conclusion would be a naked absurdity, and I have shown that such is not the law. In the case before us the vendor not only executed his bill of sale professing to transfer six thousand bushels of wheat, but waiving all further acts to be done, in order to complete the transaction, he acknowledged himself, by another instrument, to hold the same wheat in store as the bailee thereof for the purchaser. If his obligations from that time were not simply and precisely those of a bailee, it is because the law would not suffer him to stand in that relation to the property for the reason that it was mixed with his own. But no one will contend for such a doctrine.

I repeat it is unnecessary to refer to all the cases, or to determine between such as may appear to be in conflict with each other. None of them go to the extent of holding that a man cannot, if he wishes and intends so to do, make a perfect sale of part of a quantity without actual separation, where the mass is ascertained by the contract and all parts are of the same value and undistinguishable from each other.

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We are of opinion, therefore, both upon authority and clearly upon the principle and reason of the thing, that the defendant, under the sale to Shuttleworth, acquired a perfect title to the six thousand bushels of wheat. Of that quantity he took possession at Buffalo, by a writ of replevin against the master of the vessel in which the whole had been transported to that place. For that taking the suit was brought, and it results that the plaintiff cannot recover. It is unnecessary to decide whether the parties to the original sale became tenants in common. If a tenancy in common arises in such cases, it must be with some peculiar incidents not usually belonging to that species of ownership. I think each party would have the right of severing the tenancy by his own act; that is, the right of taking the portion of the mass which belonged to him, being accountable only if he invaded the quantity which belonged to the other. But assuming that the case is one of strict tenancy in common, the defendant became the owner of six thousand and the plaintiffs of two hundred and forty-nine parts of the whole. As neither could maintain an action against the other,

for taking possession merely of the whole, more clearly he cannot if the other takes only the quantity which belongs to him.

The judgment must be reversed and a new trial granted.

GRAY and GROVER, JJ., dissented; STRONG, J., expressed himself as inclined to concur, if necessary to a decision; but, it being unnecessary, he reserved his judgment.

Judgment reversed and new trial ordered.31

SECTION 6.-CONTRACT TO SELL UNASCERTAINED GOODS-APPROPRIATION

WOODS et al. v. RUSSELL.

(Court of King's Bench, 1822. 5 Barn. & Ald. 942.)

ABBOTT C. J., now delivered the judgment of the Court.

This was an action of trover for a ship, rudder, and cordage, by the assignees of Alexander Paton, a bankrupt, and the facts were shortly as follows: Paton was a ship-builder, and in October, 1818, he entered into a written contract with the defendant to build and complete a ship for the defendant, and finish and launch her in April, 1819; and the defendant was to pay for the ship by four instalments of £750 each; the first when the keel was laid, the second when they were at the light plank, and the third and fourth when the ship was launched. The payments were to be made by bills at two, four, six, and eight months. The first and second instalments were duly paid. In March, 1819, the defendant appointed a master, who from that time, superintended the building. In May, 1819, the defendant advertised the ship for charter, and on the 16th of June chartered her, with Paton's privity, for a voyage from Newcastle to Newfoundland. Before the 26th of June the ship was measured and surveyed, with Paton's privity, to the intent that the defendant might get her registered in his name. On the 19th June the master entered into the usual bond for delivering up the register; on the 25th Paton signed the usual certificate of her build,

31 See Sales Act, § 6, and for definition of "fungible goods" see section 76, and Interstate Banking & Trust Co. v. Brown, 235 Fed. 32, 39, 148 C. C. A. 526 (1916), where the court expressed the opinion that cotton bales in a large mass, such as would accumulate in any general warehouse, since they vary widely in quality and value, cannot, either by express agreement or by custom, acquire fungibility. But compare In re Heyward-Williams Co. (D. C.) 284 Fed. 983 (1922), and see note, 11 Cal. Law Rev. 290.

In Cassinelli v. Humphrey Supply Co., 43 Nev. 208, 183 Pac. 523 (1919), the court said: "We need not determine whether the hay in the stacks was fungible goods or not, within the meaning of that section of the act which defines fungible goods. It is sufficient that the parties in their agreement treated the hay as fungible goods, by making no reservation for selection from any part of the mass."

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&c., and on the 26th the ship was registered in the defendant's name. On that day the defendant paid Paton the third instalment. Paton's certificate described the ship was launched, but that was not the case, and Paton's people continued working upon her, and using his timber and materials till the third of July. One of the master's apprentices was employed on board by his directions from the early part of June, and on the 30th the master ordered him to sleep on board; but on that same day Paton committed an act of bankruptcy, upon which a commission afterwards issued. On the 2d of July the defendant and a crew he had hired took possession of the ship, and his servants, by his direction, took from Paton's yard and warehouse a rudder and cordage, which Paton had bought for the ship. On the 4th of July the ship was launched. The fourth instalment was never paid. The ship was incomplete when the act of bankruptcy was committed, and the expense of launching her was borne by the defendant.

Upon these facts, the questions proposed to the consideration of the Court were, whether the plaintiffs were entitled to recover the value of the ship, in which case the value, subject to a deduction, was to be taken at £3000; or, if not, whether they were entitled to recover the value of the rudder and cordage; and should the Court be of opinion that they were entitled to neither, a nonsuit was to be entered; and upon these points alone the case was argued before the Court. It has occurred, however, to the Court, that a third question arises upon the facts, which neither party could have intended to exclude, which is this: whether, if the plaintiffs are not entitled to recover the whole value of the ship, they may not be entitled to recover to the extent of so much of the fourth instalment as, if the defendant has the ship, he ought to pay. And, upon the first and second questions, our opinion is in favour of the defendant; upon the last against him. This ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid according to the progress of the work; part when the keel is laid, part when they are at the light plank. The payment of these instalments appears to us to appropriate specifically to the defendant the very ship so in progress, and to vest in the defendant a property in that ship, and that, as between him and the builder, he is entitled to insist upon the completion. of that very ship, and that the builder is not entitled to require him to accept any other.

But this case does not depend merely upon the payment of the instalments; so that we are not called upon to decide how far that payment vests the property in the defendant, because, here, Paton signed the certificate to enable the defendant to have the ship registered in his (the defendant's) name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as being in the defendant. The defendant had, at that time, paid half what the ship, when complete, would be worth. Paton WOODW.SALES (2D ED.)-6