XIX. Purchases and Sales by Agents SALES BY AGENTS 672. Rule Stated as to Authority Generally 673. Authority in Particular Instances 674. Terms of Sale Generally 675. Sales on Credit 676. Pledge or Sale in Payment of Agent's Indebtedness 677. Possession as Evidence of Authority to Sell Generally 678. Possession by Dealer in Similar Articles 679. Receiving Payment Generally 680. Authority of Traveling Salesman to Receive Payment 681. Effect of Notice on Bill Rendered 682. Medium of Payment 683. Revocation of Authority 684. Modification and Rescission of Contract 685. Proof of Agency 686. Declarations of Agent 687. Execution of Authority 688. Ratification of Unauthorized Sale Generally 689. What Constitutes and Effect of Ratification 690. Purchase by Agent for Himself Generally 691. Void or Voidable Character of Purchase 692. Purchase from Principal or from Buyer 693. Rights and Liabilities of Undisclosed Principal Generally 694. Defenses Available against Undisclosed Principal 695. Liability of Seller for Agent's Fraud 696. Duty of Principal to Reimburse Agent 697. Liability of Agent to Buyer Generally 698. Liability of Unauthorized Agent 699. Liability of Agent to True Owner WARRANTIES BY SELLING AGENTS 700. In General 701. Authority of General Agent 702. Special or Particular Agents Generally 703. Particular Application of Rule 704. Usage or Custom as Affecting Power of Agent 705. Auctioneers 706. Warranty of Soundness of Horse or Slave 707. Implied Warranties 708. Ratification of Unauthorized Warranty PURCHASE BY AGENT 709. Authority to Purchase Generally 710. Purchase on Credit 711. Revocation of Authority 712. Ratification of Unauthorized Purchase 713. Fraud of Purchasing Agent 714. Notice to Agent as Notice to Principal 715. Liabilities of Undisclosed Principal Generally 716. Qualification of Rule as to Liability of Undisclosed Principal 717. Rights of Undisclosed Principal 718. Personal Liability of Agent to Seller 719. Purchase by Agent from Himself or for His Own Benefit 720. In General XX. Contracts of "Sale or Return" 721. Distinguished from Other Transactions 722. Exercise of Privilege of Return Generally 723. Time for Exercising Privilege to Return 724. What Constitutes Reasonable Time; Question of Law or Fact 725. Condition of Property at Time of Return XXI. Sales on Approval 726. Approval by or Satisfaction of Buyer Generally 727. Reasonableness of Buyer's Grounds for Rejection Generally 728. Qualification of General Rule 729. Good Faith of Buyer 730. Approval by or Satisfaction of Third Person Generally 731. Reasonableness of Third Person's Ground for Rejection 732. General Duty of Buyer as to Care, Use and Return 733. Duty as to Trial of Article 734. What Constitutes Approval by Buyer Generally 735. Effect of Continued Use 740. Sales with Condition of Defeasance or Right of Repurchase Generally 741. Intention of Parties 742. Particular Incidents as Affecting Nature of Transaction 743. What Constitutes Conditional Sale with Reservation of Title Generally 744. Whether Transaction Constitutes Conditional Sale or Mortgage Generally 745. Effect of Absolute Obligation for Price; Taking Additional Security; Mechanics' Liens; Insurance 746. Provision for Resale on Account of Buyer 747. Conditional Sale Distinguished from Lease or Bailment for Hire Generally 748. Tests as to Character of Transaction 749. In General WHAT LAW GOVERNS 750. Removal of Property to Another State VALIDITY AND OPERATION GENERALLY 751. Against Third Persons Generally 752. Against Creditors and Bona Fide Purchasers; General Rule 753. Particular Circumstances Affecting General Rule 754. Purchasers from Retailer or Where Buyer Is Authorized to Resell 755. Lien for Repairs 756. Lien of Innkeeper, Boarding House Keeper, Livery Stable Keeper, ets. 757. Minority Rule as to Creditors and Bona Fide Purchasers 758. Necessity for Writing 759. Recording Generally 760. Sales Made in Another State 761. Sufficiency of Compliance with Statute 762. Persons Entitled to Protection of Statute Generally 763. Creditors without Lien 764. Receiver and Assignee for Creditors 765. Trustee in Bankruptcy Generally 766. Effect of Amendment of Bankruptcy Act in 1910 767. Fraud; Unlawful Preferences 768. Chattels to Be Annexed to Real Estate Generally 769. Rights under Pre-existing Mortgage of Realty 770. In General RIGHTS OF SELLER GENERALLY 771. Accession to Subject Matter of Sale 772. Transfer of Rights by Seller RIGHT TO RETAKE POSSESSION 773. In General 774. Effect of Breach of Contract by Seller 775. Waiver of Right to Retake Possession Generally 776. Effect of Action for Price Generally 777. Special Provisions as Affecting Rule 778. Attempt to Enforce Mechanic's Lien 779. Exercise of Right to Retake Possession Generally 780. Replevin 781. Detinue and Trover 782. Remedy of Seller against Buyer's Trustee in Bankruptcy RECOVERY OF PRICE OR DAMAGES FOR BREACH OF CONTRACT 783. In General 784. Refusal of Buyer to Accept Delivery 785. Retaking Possession as Affecting Buyer's Liability 786. Resale on Account of Buyer; Liability for Deficiency 787. Character of Possession by Seller 788. Destruction of Property as Affecting Buyer's Liability 789. Receiver Appointed for Buyer 790. In General RIGHTS OF BUYER GENERALLY 791. Insurable Interest of Buyer 792. Transfer by Buyer Generally 793. Execution by Third Persons against Buyer 794. Recovery by Buyer of Partial Payments 795. Sale to Infant 796. Buyer's Right of Redemption 797. In General VESTING OF TITLE IN BUYER 798. Transfer by Seller of Purchase Money Note 799. Renewal of Obligation for Price; Collateral Security XXIV. Negligence in Sale of Dangerous Articles 800. In General SELLER'S LIABILITY TO BUYER 801. Discovery and Disclosure of Danger Generally 802. Articles Manufactured or Packed by Others 803. Dangers Known or Apparent to Buyer 804. In General SELLER'S LIABILITY TO OTHERS THAN BUYER 805. Meaning of Phrase "Imminently Dangerous" 806. Basis of Liability Generally 807. Seller's Knowledge of Danger or Defect 808. Misrepresentation or Concealment of Danger 809. Violation of Statute in Sale of Article 810. Disclosure of Danger and Buyer's Knowledge Thereof X. PASSING OF TITLE Between Buyer and Seller 274. In General.-The question as to the passing of title is not always easy of solution. An examination of the multitude of cases bearing on this subject, with their infinite variety of facts, and at least apparent conflict of law, is often confusing. It is best, therefore, to consider always, in cases of this kind, the general principles of the law as applicable to the facts of the case in hand.12 Much of this confusion, it has been pointed out, arises from the misleading influence of unsuitable analogies. The class of cases which have tended most to embarrass this question are those wherein the real question was not whether title has vested in the buyer, but whether it so absolutely vested as to take away the lien of the seller for unpaid purchase money, or his right to stop in transitu. And yet to this class belong most of the older cases which are usually referred to 12. Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Hall v. Richardson, 16 Md. 396, 77 Am. Dec. 303; Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 A. S. R. 531; Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354. Note: 26 L.R.A. (N.S.) 2. as leading cases in the present question, though they have nothing to do with it; for it is very plain that the title may vest, even while the seller has such remaining control over the goods as entitles him to arrest their full delivery in default of payment, or on the failure of the buyer.13 The cases of delivery under the statute of frauds are quite as unsuitable analogies; for in those cases delivery is necessary to the validity of the contract, rather than to the passing of the title. That the contract may be valid without writing, there must be an unconditional delivery of the thing sold; but if the contract be in writing, or otherwise valid, delivery is not at all necessary to its perfect or executed character. 14 275. Question of Intention.-Where the sale is of specific identified chattels or articles appropriated by the seller to the fulfilment of the contract, the question as to when the title passes is primarily one of the intention of the parties, to be derived from the terms of the contract and the circumstances of the case.15 The parties may by the express terms of the contract fix the time at which the title shall pass and ordinarily full effect will be given to such provisions as between the parties. But as the parties do not always stipulate in this respect, the courts when called upon to determine when the title passes must necessarily seek to arrive at the intention of the parties as evidenced by the circumstances and the otherwise indefinite expressions of intention, and in doing so have laid down certain more or less definite rules to govern the circumstances of particular cases. These somewhat technical rules, however, being adopted as the best means of arriving at 13. Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354. As to the seller's lien, see infra, par. 391 et seq.; and as to the right of stoppage in transitu, infra, par. 399 et seq. 14. Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354. See generally as to the operation and effect of the statute of frauds as regards the delivery necessary to take the sale out of the operation of the statute, STATUTE OF FRauds. 15. Elgee Cotton Cases, 22 Wall. 180, 22 Ū. S. (L. ed.) 863; Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; Greene v. Lewis, 85 Ala. 221, 4 So. 740, 7 A. S. R. 42; Foley v. Filrath, 98 Ála. 176, 13 So. 485, 39 A. S. R. 39; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Hamilton v. Jos. Schlitz Brewing Co., 129 Ia. 172, 105 N. W. 438, 2 L.R.A. (N.S.) 1078; Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, Ann. Cas. 1914B 701, 50 L.R.A. (N.S.) 111; Kentucky Refining Co. v. Globe Refining Co., 104 Ky. 559, 47 S. W. 602, 84 A. S. R. 468, 42 L.R.A. 353; Hall v. Richardson, 16 Md. 396, 77 Am. Dec. 303; Hopkins v. Cowen, 90 Md. 152, 44 Atl. 1062, 47 L.R.A. 124; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299, 87 N. W. 268, 92 A. S. R. 452, 55 L.R.A. 301; Hurff v. Hires, 40 N. J. L. 581, 29 Am. Rep. 282; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Russell v. Carrington, 42 N. Y. 118, 1 Am. Rep. 498; O'Keefe v. Leistikow, 14 N. D. 355, 104 N. W. 515, 9 Ann. Cas. 25; Barber v. Andrews, 29 R. I. 51, 69 Atl. 1, 26 L.R.A. (N.S.) 1; Sewell v. Eaton, 6 Wis. 490, 70 Am. Dec. 471; Laing v. Barclay, etc., Co., [1908] A. C. 35, 10 Ann. Cas. 137, 2 British Rul. Cas. 635. Notes: 92 A. S. R. 460; 3 L.R.A. 200; 26 L.R.A. (N.S.) 7. |