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ises at the time of sale, having been brought there by the seller to be used by him in constructing bridges and locks thereon. The only delivery consisted in the execution and transfer of a bill of sale of these and other goods, and the delivery of one copper halfpenny as a symbol or representative of the property. It was held that the transaction amounted to a change of possession. "It would have been absurd," said Ashhurst, J., "to have removed the goods from the place where they were lying, since they must have been afterwards brought back to the very same spot in order to be used."

268. Actual Tradition impracticable. The transfer of possession, without a change in the location of the goods, occurs most frequently in the case of ponderous articles, or of property so situated that its actual tradition is impracticable. Upon the sale of a quantity of logs in a boom, if the seller shows them to the buyer and the latter accepts them as his property, the possession is changed. Such acts are as effectual "for such kind of property as a delivery over in hand of a chattel capable of such personal possession." 1

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269. Symbolical Delivery. - A delivery of this sort is often
spoken of as symbolical; 2 and in some cases the parties have
stipulated that a part of the goods should be delivered as a
symbol of the whole; but the transaction is quite unlike the
transfer of a bill of lading of goods in transit, or of the grand
bill of sale of a ship at sea. Here we have examples of true
symbolical delivery. "A cargo while in the hands of the carrier
is necessarily incapable of physical delivery. During the period
of transit and voyage the bill of lading by the law merchant is
universally recognized as its symbol, and the indorsement and
delivery of the bill of lading operates as a symbolical delivery
of the cargo." 4
"4 "If a ship is sold whilst at sea, the delivery

to have rested his decision in part on the symbolical delivery of the half-
penny; but this circumstance is not alluded to in the judges' opinions.
1 Jewett v. Warren, 12 Mass. 300, 302 (1815).

2 Leonard v. Davis, 1 Black (U. S.), 476, 482 (1861).

Boynton v. Veazie, 24 Me. 286 (1844). A delivery of one raft of boards, having the same mark as that on all the lumber and logs sold, was made for the whole property thus marked.

Sanders v. Maclean, 11 Q. B. D. 327, 341 (1883).

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of the grand bill of sale amounts to a delivery of the ship itself. It is the only delivery which the subject-matter is capable of. The bill of sale is the only muniment of the property; by the en vendee's taking that, he prevents the vendor from defrauding others." But in the case of ponderous goods, or of timber afloat in ponds and streams, or so situated as to render actual tradition difficult merely, the parties do not deal with a symbol of the chattels; their acts relate to the chattels themselves; and the sole question is, has the seller, "by an apt and manifest act," put the buyer in the same position of control over them which he has been occupying.3

270. Delivery by Tradition of Key. Such is the nature of the act, when the key of a building in which the goods are located is delivered by the seller to the buyer, for the purpose of passing "the full control of the place to which admission is to be gained by means of the key."4 A delivery of this kind is real, not symbolical, although the latter term has been applied to it frequently.5 More than a century ago, Lord Hardwicke said, "Delivery of the key of bulky goods, where wines, etc., are, has been allowed as delivery of the possession, because it is the way of coming at the possession or to make use of the thing, and therefore the key is not a symbol, which would not do." The same doctrine was more concisely stated in an early New York case: "The goods in the storehouses were actually delivered at the time, by the delivery of the keys of the stores." 7 In a recent English treatise, after an analysis of the English cases, the conclusion is reached that "the key is not a symbol

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1 Atkinson v. Maling, 2 D. & E. 462, 465, 466 (1788). A ship may be sold, and title to it pass, while it is at sea, without a transfer of the grand bill of sale; but this will not operate to change the possession. Scranton v. Coe, 40 Conn. 159 (1873).

2 Kingsley v. White, 57 Vt. 565 (1885).

Ludwig v. Fuller, 17 Me. 162, 166 (1840).

Hilton v. Tucker, 39 Ch. D. 669, 676 (1888).

"Kellogg Co. v. Peterson, 162 Ill. 158, 160; 44 N. E. 411 (1896), and the case in the last note. Western Mining Supply Co. v. Quinn, 40 Mont. 156, 161; 105 Pac. 732 (1909).

Ward v. Turner, 2 Ves. Sr. 431, 443 (1751).

7 Wilkes v. Ferris, 5 Johns. (N. Y.) 335, 344 (1810); cf. Carter v. Willard, 19 Pick. (36 Mass.) at p. 8 (1837).

Pollock and Wright on Possession, 61-68.

in the sense of representing the goods, but the delivery of the key gives the transferee a power over the goods which he had not before, and at the same time is an emphatic declaration (which, being by manual act, instead of word, may be called symbolic) that the transferrer intends no longer to meddle with the goods." In Scotland the giving up of the key of a repository of goods is deemed an act of real delivery. "It differs from symbolical delivery in this, that a symbol is nothing more than the sign of the thing transferred; whereas the delivery of the key gives to the buyer access to the actual possession of the subject and power over it while the seller is excluded." 1

271. Delivery by Attornment of Third Party.

If the property

is in the possession of a third party at the time of sale, and a transfer of its possession without a change in its location is desired, it becomes necessary for such third party to attorn to the buyer; that is, to "acknowledge to the buyer that he holds the goods on his behalf."2 "A custodian cannot become the servant of another in respect of his custody except by his own agreement. And, a fortiori, when that custodian does not yield, but maintains his own possession, it is clear that his custody cannot enure to the benefit of another, as if it were the possession of that other, unless the bailee consents to hold for him subject to his own rights." 3

This consent may be given in advance, as where the third party assures the buyer before the purchase that if the latter buys the goods they shall be subject to his call; or where he issues a bill of lading, or other negotiable

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1 1 Bell's Com. (McLaren's ed.) 186.

2 Sale of Goods Act, § 29 (3), and cases infra. The Uniform Sales Act, § 43 (3), adds to the English statute these words: "but as against all others than the seller the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale."

Hallgarten v. Oldham, 135 Mass. 1, 10 (1883). If the third person is a mere servant of the seller, his possession is the seller's possession, and attornment is not necessary. Pollock and Wright on Possession, 60; Hardy v. Potter, 10 Gray (Mass.), 89 (1857).

♦ Wood v. Manley, 11 Ad. & E. 34 (1839); Burdick's Cases on Sales,

document of title,1 under which the goods are deliverable to the buyer.2

272. Bills of Lading and other Documents of Title. — In England and in most American jurisdictions the common law is understood to "draw a hard and fast distinction between bills of lading and other documents of title. The lawful transfer of a bill of lading was always held to operate as a delivery of the goods themselves. . . . But the transfer of a delivery order or dock warrant operated only as a token of authority to take possession, and not as a transfer of possession." 3

Some courts have held, however, that no such distinction existed at common law, but that the delivery of a warehouse receipt gave the deliveree all the rights possessed by an assignee of a bill of lading. Such appears to have been the view entertained by English merchants, and by a few judges in that country; but one which was finally overruled 5 in Farina v. Home.

1 Whitlock v. Hay, 58 N. Y. 484, 488 (1874). "When a purchaser who has a contract for the sale and delivery to him of a specified quantity of grain or other property, . . . accepts, instead of a delivery of the property, a guaranteed receipt of a warehouseman, made negotiable by the Act of 1588, the presumption is that he accepts such receipt as a performance and satisfaction of the contract by the vendor." It was accordingly held that the buyer had a right of action against the warehouseman for any deficiency in quantity, but none against the seller.

Julius Kessler & Co. v. Lally, 109 Minn. 238; 123 N. W. 921; 124 N. W. 213 (1909). The court held there was neither delivery nor tender, because the bill of lading made the goods deliverable to the seller's order and was not endorsed.

' Chalmers' Sale of Goods Act (2d ed.), 61 (7th ed.), 83. The author adds, "As between immediate parties, there is nothing to modify the common-law rule."

4 Horr v. Barker, 8 Cal. 609 (1857); Davis v. Russell, 52 Cal. 611 (1878); Burdick's Cases on Sales, 477; Gibson v. Stevens, 8 How. (U. S.) 384 (1850). In Hallgarten v. Oldham, supra, Holmes, J., declares that "the simplest explanation of Gibson v. Stevens would be that delivery was not necessary by the law of Indiana," and that the true question in that case "was only whether title had passed." But this explanation will not dispose of McNeil v. Hill, 1 Woolworth (U. S. Cir. Ct.), 96 (1865), nor of Harris v. Bradley, 2 Dillon (U. S. Cir. Ct.), 284, 287 (1872), nor of First Nat. Bk. v. Bates, 1 Fed. 702, 710 (1880); cf. Allen v. Maury, 66 Ala. 10, 18 (1880); Yenni v. McNamee, 45 N. Y. 614, 620, 621 (1871), and Shepard v. King, 96 Ga. 81; 23 S. E. 113 (1895).

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Benjamin on Sales (Bennett's ed., 1899), 845 (5th Eng. ed.), 847.

16 M. & W. 119 (1846); Burdick's Cases on Sales, 255.

The overruled view, however, has been embodied in the Uniform Sales Act1 which defines "Document of Title to Goods" to "include any bill of lading, dock warrant, warehouse receipt or order for the delivery of goods, or any other document used in the ordinary course of business in the sale or transfer of goods, as proof of the possession or control of the goods, or authorizing or purporting to authorize the possessor of the document to transfer or receive, either by indorsement or by delivery, goods represented by such document."

273. Does Notice to Third Party dispense with Attornment? — There is some authority for the statement that attornment by the third party is not essential to a complete delivery by the seller; that notice to him of the sale is sufficient to constitute delivery. In most of the cases cited for this doctrine, however, there was ample evidence of the third party's consent to hold the property as bailee of the buyer; and the doctrine itself seems to have originated in jurisdictions where it is held that actual transfer of possession is necessary to the transfer of title as against creditors of the seller or his subsequent vendees.1 Moreover, none of the cases cited decide or discuss the question whether a seller performs his duty of giving possession of the thing sold by notifying the third-party possessor of the sale.5 The dicta in Massachusetts cases upon this subject have been robbed of all authority by the decision in Hallgarten v. Oldham, a quotation from which has been given on a previous page.7 274. Delivery of Goods which are on the Premises of a Third Party, not a Bailee. If, at the time of sale, the goods are at

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1 Mass. L. 1908, ch. 237, § 76 (1), following the definition in English Factors Act, 1889, § 1 (1). Infra, Appendix II.

' Benjamin's Principles of Sales, 133, 134, and cases; Beatty v. Parsons, 8 Pennewill (Del.) —; 80 At. 1063 (1911).

'Freiberg v. Steenbock, 54 Minn. 514; 56 N. W. 175 (1893), is a fair sample; the bailees expressly agreed in advance to surrender to the buyer. Pierce v. Chipman, 8 Vt. 334, 339 (1836); Hodges v. Hurd, 47 Ill. 363 (1868).

Before the Sale of Goods Act, "the law of Scotland seems to have been satisfied with intimation to the custodier, without acknowledgment by him." Brown's Sale of Goods Act (Edinburgh, 1893), 139, and Black v. Incorporation of Bakers, 6 Sess. Cas. 3d ser. 141, 144 (1867).

135 Mass. 1, 10 (1883).

7 Supra, ¶ 271.

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