delivery of a part is made and accepted in token of a delivery of the whole. The buyer does not waive performance by unloading all the goods for inspection.2

In Brady v. Cassidy, the plaintiffs entered into a written contract of sale of the entire manufactured stock then on hand in specified buildings. During the negotiations leading up to the sale, plaintiffs sold portions of the stock to third persons, which portions were not taken away by their purchasers until after the written contract of sale was executed to defendants. These sales to third persons were known to defendants, however, and the defendants assisted in delivering to the third parties some of the articles so sold. Plaintiffs also gave evidence that the defendants received all of the stock not sold to third parties with knowledge that the remainder had been so sold, and that they acquiesced in and assented to this partial delivery as a delivery under the contract, claiming only a right to such damages as resulted from plaintiffs' failure to deliver the portions sold to third persons. It was held that, while this evidence was incompetent to prove that the defendants bought only a part of the stock (the written contract declaring that they bought the entire stock) it was competent to prove, and sufficient to uphold a verdict, that the purchasers had waived full performance of the seller's obligation to deliver the entire stock; and that plaintiffs could recover the contract price as for goods sold and delivered less the damages resulting to the defendants from plaintiffs' failure to deliver the whole stock.

§ 8. Buyer's Rights against Third Parties.

284. Buyer acquires Seller's Title. - As a rule, the purchaser of personal property acquires no better title than his vendor had. If he buys goods from a thief, or from a finder, or from any other person having no authority to sell, although his purchase is made in entire good faith and for full value, he

1 Hobbs v. Carr, 127 Mass. 532 (1879).

2 Wiburg & Hannah Co. v. U. P. Walling & Co., 113 S. W. 832, 834 (Ky. 1908).

145 N. Y. 171, supra.

Uniform Sales Act, § 23.

obtains no right to them as against the true owner. This rule is subject to some exceptions and qualifications, which are now to be considered.

285. Sale in Market Overt. In England, "where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller." This exception was not recognized prior to Edward I.,2 and is now applicable only "to a limited class of retail transactions." It has never "been recognized in any of the United States, or received any judicial sanction." In an early Pennsylvania case,5 the court declared: "This efficacy of markets overt arose from prescription, and was part of the ancient common law. But in this government we have no such ancient law or custom. On the contrary, the uniform determinations of courts of justice have rejected such an usage whenever it has been relied on, and great inconveniences would arise from adopting it."

286. Negotiable Paper. - Negotiable paper affords another exception to the general rule governing the transfer of title to personal property. When payable to bearer or indorsed in blank, so as to be transferable by delivery, the transferee

1 Sale of Goods Act, § 22 (1). The cases, in which title may be revested in true owner, are specified in § 24, the second paragraph of which overrides Bentley v. Vilmont, 12 App. Cas. 471 (1887).

• History of English Law (Pollock and Maitland), vol. ii, p. 163. "They enable us to lay down a proposition about the substantive law of the thirteenth century, which, regard being had to what will be said in later days, is of no small value. Stolen goods can be recovered by legal action, not only from the hands of the thief, but from the hands of the third, the fourth, the twentieth possessor, even though those hands are clean and there has been a purchase in open market." Cf. Peer v. Humphrey, 2 A. & E. 495, 499 (1835), where Williams, J., declares this exception to be as old as the law itself. In Crane v. London Dock Co., 5 B. & S. 313, 318 (1864), and in Bryant v. Whitcher, 52 N. H. 158 (1872), will be found learned suggestions as to the origin of this doctrine.

'Chalmers' Sale of Goods Act (2d ed.), 51; (7th ed.), 72-74.

Ventress v. Smith, 10 Pet. (U. S.) 161, 176 (1836). The oldest reported decision to this effect is Towne v. Collins, 14 Mass. (Supplement) 500 (1785).

5 Hosack v. Weaver, 1 Yeates (Pa.), 478 (1795); Burdick's Cases on Sales, 699.

acquires a perfect title if he purchases it before due and in good faith. The exception in the case of such negotiable securities has been "so framed to give confidence and security to those who receive them for a valuable consideration in the ordinary course of business, . . . and in general a party taking such a security under such circumstances has only to look to the credit of the parties to it, and the regularity and genuineness of the signatures and indorsements." 2

Modern legislation in this country is attempting to give to documents of title and certificates of stock all of the legal characteristics of negotiable paper.3

287. Transfer by One not Owner, under a Power of Sale.In some cases, a person in possession of goods, although not their general owner, can transfer a perfect title by reason of a common law or statutory power. This may be done by an officer pursuant to legal process, "unless the writ be void, or the goods taken were the property of a stranger.' ."4 It may be done, also, by a pledgee," or by a master of a vessel in some circumstances, or by a bailee under statutory authority to enforce his lien.7

6

1 Miller v. Race, 1 Burr. 452, 459 (1758). "No dispute ought to be made with the bearer of a cash-note in regard to commerce, and for the sake of the credit of these notes." In Peacock v. Rhodes, 1 Doug. 633, 636 (1781), it is said: "If this rule" (the general rule as to sale of goods) were applied to bills, it would stop their currency."

Wheeler v. Guild, 20 Pick. 545, 550 (1838); Spooner v. Holmes, 102 Mass. 503 (1869).

See Md. Annotated Code, Arts. 14, 14 a, 23 and 83. The negotiability of such documents will be discussed hereafter.

Kennedy v. Duncklee, 1 Gray (67 Mass.), 65, 67 (1854). If the goods sold by the officer are exempt from execution, a purchaser with notice of the claim of exemption gets no title. Johnson v. Babcock, 8 Allen (90 Mass.), 583 (1864). An attachment creditor has no power to sell the attached property, and cannot give title thereto even to a bona fide purchaser. Jetton v. Tobey, 34 S. W. 531; 62 Ark. 84 (1896); Burdick's Cases on Sales, 484.

Guinzburg v. Downs, 165 Mass. 467; 43 N. E. 195 (1896); Burdick's Cases on Sales, 700. In the absence of special contract, the pledgee has power to sell only upon the maturity of the debt, at public auction, to the highest bidder, after giving notice to the pledgor. Whigham v. Fountain, 132 Ga. 277; 63 S. E. 1115 (1909).

Butler v. Murray, 30 N. Y. 88 (1864).

Baum v. Wm. Knabe & Co., 33 App. D. C. 237 (1909). In such case,

288. Transfers with Consent of Owner. All other exceptions and qualifications to which the general rule is subject, in the absence of a statute, are grounded in the express or implied consent to the sale of the true owner. In a leading New York case1 on this subject it is said: "After a careful examination of all the English cases and those of this State, that have been cited or referred to, I come to this general conclusion, that the title of property in things movable can pass from the owner only by his own consent and voluntary act, or by operation of law; but that the honest purchaser who buys for a valuable consideration, in the course of trade, without notice of any adverse claim, or any circumstances which might lead a prudent man to suspect such adverse claim, will be protected in his title against the original owner in those cases, and those cases only, where such owner has by his own direct voluntary act conferred upon the person from whom the bona fide vendee derives title the apparent right of property as owner, or of disposal as an agent."

289. Sale by Buyer with Voidable Title. The apparent right of property as owner is conferred upon a purchaser who has acquired avoidable title from the seller. The vendee from such a purchaser gets a perfect title, if he buys in good faith and without notice of his vendor's defect of title.2 When the owner of goods delivers them to a purchaser under a de facto contract of sale, he does this with the intention of conferring upon the purchaser complete dominion over them. If that intention has been induced by fraudulent representations, the seller has the option of rescinding the contract and retaking the goods, if they are still under the purchaser's dominion; or of enforcing the contract. In case they are sold by the defrauding buyer to a bona fide new purchaser, before the

he must conform strictly to the statutory provisions authorizing the sale, in order to convey good title; Jeffries v. Snyder, 110 Ia. 361; 81 N. W. 678 (1900); Beken v. Kingsbury, 113 App. Div. 555; 100 N. Y. Supp. 323 (1906).

1 Saltus v. Everett, 20 Wend. 267, 279 (1838); Burdick's Cases on Sales, 486; cf. Sale of Goods Act, § 21; Uniform Sales Act, § 23.

This doctrine is codified in Sale of Goods Act, § 23, and in Uniform Sales Act, § 24.

defrauded seller's option is exercised, the question arises upon which of two innocent parties the consequences of the first purchaser's fraud must fall; and the courts have had little hesitation in answering that it must fall upon the original vendor. It is to his act - generally an act to which something of "negligence, or carelessness, or inadvertence"1 on his part attaches that the loss is due. He has clothed the first buyer with title and possession, thus enabling him to transfer title and possession to another.

290. Sale by One who obtained Possession by Trick. - Such is not the case, however, where goods are obtained by some trick or device from the owner, who has not contracted nor intended to transfer his title to the goods to the trickster. Here, no sale is made to the trickster, nor does he obtain even a defeasible title. If A in the name of B orders goods from C, who supplies them under the mistaken idea that he is contracting with and passing title to B, no title is acquired by A, and he can transmit none even to a bona fide purchaser.2 Nor does X obtain any title to goods, nor apparent authority from Y to sell them, when he gains possession by false representation that he is buying as agent for a particular firm,3 or for an undisclosed principal in good credit with Y. In the case last cited it is said: "The invalidity of the transaction in the case

1 Kingsbury v. Smith, 13 N. H. 109, 120 (1842); White v. Gorden, 10 C. B. 919, 926 (1851); Burdick's Cases on Sales, 493. "The question is one of considerable importance, as affecting the mercantile transactions of this country; for if the argument urged on the part of the defendants were well founded, goods at all tainted by fraud might be followed through any number of bona fide purchasers, - a most inconvenient, and, as it strikes me, a most absurd doctrine. A vendor who does not choose to avail himself of means of inquiry would thus, by trusting the vendee, be giving him unlimited means of defrauding the rest of the world." Jervis, C. J., at p. 927.

495.

Cundy v. Lindsay, 3 App. Cas. 459 (1878); Burdick's Cases on Sales,

Barker v. Dinsmore, 72 Pa. St. 427 (1872); Burdick's Cases on Sales, 494; Rogers v. Dutton, 182 Mass. 189; 65 N. E. 56 (1902).

4 Rodliff v. Dallinger, 141 Mass. 1, 6; 4 N. E. 805 (1886). If A buys and receives goods from B, he can give good title to C, although B supposed that A was buying for D, A making no false misrepresentations and B in no way disclosing his mistaken notion to A. Stoddard v. Ham, 129 Mass. 383.