other evidence to show the intention of the parties that the title shall pass before the price or quantity is so determined.10 The reason for this is because ordinarily in such transactions it is the intention of the parties that the title and corresponding risk remains in the seller, until the price is definitely ascertained.11 Thus in the English case of Zagury v. Furnell (2 Campb. 242) where several bales of skins (stated in the contract to contain five dozen in each bale) were sold at a certain sum per dozen, but it was the duty of the seller to count over the skins, to see how many each bale actually contained, and before doing so they were consumed by fire, Lord Ellenborough and Sir James Mansfield held that the loss fell entirely on the seller.12 And in this country it has been held, in case of a sale of corn in cribs of the seller at a certain price per barrel to be subsequently measured and thereafter taken away by the buyer, that the title does not pass until the corn has been measured and that therefore the risk of its accidental loss before measurement is on the seller.18 Also where the seller agreed to sell and the buyer to purchase a quantity of wood which the seller was to draw and put in a certain place where the buyer was to measure, receive and pay for it at a certain price per cord, and the wood was drawn and piled and a part measured and received by the buyer, who refused to receive the remainder, it was held that such remainder did not pass to the buyer, and therefore the seller's remedy was an action for damages for the wrongful refusal of the buyer to accept delivery instead of an action for the price.14

283. Qualification of Rule as to Measuring, etc.; Intention of Parties. It is perfectly legitimate to point to the want of measuring and setting apart as evidence, in the very nature of the transaction, that it was not intended as a perfect sale; still this is not essential to such a sale, and therefore not conclusive one way or the other, except

10. The Elgee Cotton Cases, 22 Wall. 180, 22 U. S. (L. ed.) 863; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Pittsburg, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713; Webber v. Minor, 6 Bush. (Ky.) 463, 99 Am. Dec. 688; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Prescott v. Locke, 51 N. H. 94, 12 Am. Rep. 55; McDonald v. Hewett, 15 Johns. (N. Y.) 349, 8 Am. Dec. 241; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Williams v. Allen, 10 Humph. (Tenn.) 337, 51 Am. Dec. 709; Morgan v. King, 28 W. Va. 1, 57 Am. Rep. 633. See also.

Love v. State, 78 Ga. 66, 3 S. E. 893, 6 A. S. R. 234.

Notes: 26 A. S. R. 17; 1 L.R.A. 767; 3 L.R.A. 199.

11. Williams v. Allen, 10 Humph. (Tenn.) 337, 51 Am. Dec. 709.

12. See Williams V. Allen, 10 Humph. (Tenn.) 337, 51 Am. Dec. 709, where the above case is approved and applied.

The effect of this decision is carried into the English Sale of Goods Act 1893, § 18, Rule 3. See 23 Eng. Rul. Cas. 344-346 note.

13. Williams v. Allen, 10 Humph. (Tenn.) 337, 51 Am. Dec. 709. 14. Pittsburgh, etc., R. Co. v. Heck, 50 Ind. 303, 19 Am. Dec. 713.

when it is necessary in order to define the subject matter, and in fact articles are very often transferred without any sort of measurement, and on the trial for their value the want of it is supplied by approximate estimation.15 The better rule in this country seems to be that where the whole of a mass or bulk is sold with the intention at the time of passing the title, the fact that it is to be weighed, counted or measured, to enable the parties to make a settlement and not for the purpose of completing the sale, will not prevent the title from passing as between the parties; 16 as has been said when the entire mass is sold, and must be measured simply with a view to the ascertainment of its price for the purpose of a settlement, the better opinion, on principle and authority, is that the title passes.1 17 Thus in case of the sale of a standing crop the fact that it is to be measured after it has been gathered in order to ascertain and fix the amount to be paid by the buyer will not prevent the title from passing at the time of the sale if it was the intention of the parties that it should pass.18 So, the title may pass in case of a sale of a raft of boards at so much per thousand feet, and delivery thereof to the buyer, although the number of feet contained therein remains to be ascertained,19 and the same has been held true as to the sale of certain piles of lumber located in different places at a certain price per thousand feet, though the amount of lumber in the piles had not been measured.20 So the delivery of wood sold by the cord may pass the title though it is to be measured by the buyer. If the circumstances show that it was not the intention of the parties that the title should pass until the property is measured,

15. Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354. See supra, par. 95, as to certainty of price in cases where it is to be fixed by subsequent estimation.

v. Ogden, 15 Pa. St. 528, 53 Am. Dec. 618; Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Hunt v. Thurman, 15 Vt. 336, 40 Am. Dec. 683; Morgan v. King, 28 W. Va. 1, 57 Am. Rep. 633; Sewell v. Eaton, 6 Wis. 490, 70 Am. Dec. 471; Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445, 54 Am. Rep. 619.

Notes: 11 Am. Rep. 90; 1 L.R.A. 767; 19 L.R.A. (N.S.) 197, 199; 26 L.R.A. (N.S.) 17.

16. Leonard v. Davis, 1 Black 476, 17 U. S. (L. ed.) 222; Standard Oil Co. v. Van Etten, 107 U. S. 325, 1 S. Ct. 178, 27 U. S. (L. ed.) 319; King v. Jarman, 35 Ark. 190, 37 Am. Rep. 11; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Kohl v. Lindley, 39 Ill. 195, 89 Am. Dec. 294; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Farmers' Phosphate Co. v. Gill, 69 Md. 537, 16 Atl. 214, 9 A. S. R. 443, 1 L.R.A. 767; Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 A. S. R. 531; Southwestern Freight, etc., Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. 1. Hunt v. Thurman, 15 Vt. 336, Rep. 42; Scott v. Wells, 6 Watts & S. 40 Am. Dec. 683.

(Pa.) 357, 40 Am. Dec. 568; Golder

17. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274.

18. Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85.

19. Scott v. Wells, 6 Watts & S. (Pa.) 357, 40 Am. Dec. 568.

20. Sewell v. Eaton, 6 Wis. 490, 70 Am. Dec. 471.

weighed or counted, effect will be given thereto, as the criterion as to whether the title has passed or not is dependent on the intention of the parties.

284. Payment of Price.-Where the sale is for cash on delivery, a delivery is generally considered conditional, and no title vests in the buyer until he has complied with the terms of the sale. On the other hand where the payment of the price, or giving security therefor, is not made a condition precedent to the transfer, it may well be the understanding of the parties that the title shall pass at once to the buyer, and where such is the intention of the parties the courts. will give effect thereto, though the buyer's right to the actual possession may be dependent on the payment of the price. And ordinarily where there has been a delivery and acceptance of the subject matter of the sale unless the title is expressly or impliedly retained in the seller until the price is paid, payment of the price is not essential to a transfer of the title. On the other hand the payment of the price. or a part thereof will not necessarily operate to transfer the title to the buyer, if anything further remains to be done by the seller to the subject matter of the sale before delivery; still the actual payment of the price or part thereof by the buyer in case of a sale of specified or identified chattels is a circumstance tending to show that it was the intention of the parties that the title should pass. The acceptance by the buyer of a draft drawn for the price being a payment sub modo has been considered a material or controlling consideration to show that the title passed, and the subsequent dishonor of the draft will not itself if the title has passed operate to revest the title in the seller.9

285. Identification of Subject Matter Generally.-As a general rule if a sale is not of specific chattels, but something remains to be done to identify the subject matter or discriminate it from other property with which it is connected, the transaction is executory and no title

2. Nicholson v. Taylor, 31 Pa. St. 128, 72 Am. Dec. 728; Morgan v. King, 28 W. Va. 1, 57 Am. Rep. 633.

3. Drake v. Scott, 136 Ala. 261, 33 So. 873, 96 A. S. R. 25; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Adams v. O'Connor, 100 Mass. 515, 1 Am. Rep. 137. See supra, par. 207 et seq., as to the seller's right to retake possession when the buyer fails to pay.

4. Leonard v. Davis, 1 Black 476, 17 U. S. (L. ed.) 222; Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; Wade v. Moffett, 21 Ill. 110, 74 Am. Dec. 79; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Baker v.

McDonald, 74 Neb. 595, 104 N. W. 923, 1 L.R.A. (N.S.) 474.

Note: 26 L.R.A. (N.S.) 13. 5. Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439.

Note: 23 Eng. Rul. Cas. 520. 6. Jennings v. Flanagan, 5 Dana (Ky.) 217, 30 Am. Dec. 683.

7. Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85.

8. Hall v. Richardson, 16 Md. 396, 77 Am. Dec. 303.

9. Hall v. Richardson, 16 Md. 396, 77 Am. Dec. 303. See infra, par. 311, as to revesting of title in seller generally.

will pass to the buyer. 10 This rule is frequently applied in the case of a sale of a part of a bulk or mass, where the part sold is to be segregated; 11 and also in the case of the sale of articles to be produced or manufactured.12 It has been held that where a simple order is given to a dealer for goods of certain quality and quantity, there is an implied assent that the dealer shall make the selection, and the exact point in the act of making such selection when the dealer is no longer at liberty to change his intention may be designated as the time when the title vests in the buyer.18

286. Sale of Part of Mass; Necessity for Segregation Generally.While the sale of a specific chattel may pass the property to the buyer, although no delivery is made, the doctrine established by all the elementary writers on the subject, and by the authorities in England and in most jurisdictions in this country, is that where the subject matter of the sale is in bulk, and a certain quantity is sold, to be taken from a greater quantity, no title passes until the separation is made.14

10. Foley v. Felrath, 98 Ala. 176, 13 So. 485, 39 A. S. R. 76; Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 A. S. R. 199; Love v. State, 78 Ga. 66, 3 S. E. 893, 6 A. S. R. 234; Dunn v. State, 82 Ga. 27, 8 S. E. 806, 3 L.R.A. 199; Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Cloke v. Shafroth, 137 Ill. 393, 27 N. E. 702, 31 A. S. R. 375; Garden v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; State v. Wernwag, 116 N. C. 1061, 21 S. E. 683, 47 A. S. R. 873, 28 L.R.A. 297; Hubler v. Gaston, 9 Ore. 66, 42 Am. Rep. 794; Golder v. Ogden, 15 Pa. St. 528, 53 Am. Dec. 618; Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354; Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262.

180, 22 U. S. (L. ed.) 863; Love v. State, 78 Ga. 66, 3 S. E. 893, 6 A. S. R. 234; Dunn v. State, 82 Ga. 27, 8 S. E. 806, 3 L.R.A. 199; Dunlap v. Berry, 4 Scam. (Ill.) 327, 39 Am. Dec. 413; Cloke v. Shafroth, 137 Ill. 393, 27 N. E. 702, 31 A. S. R. 375; Commercial Nat. Bank v. Gillette, 90 Ind. 268, 46 Am. Rep. 222; Webber v. Minor, 6 Bush (Ky.) 463, 99 Am. Dec. 688; Ferguson v. Northern Bank, 14 Bush (Ky.) 555, 29 Am. Rep. 418; Brewer v. Smith, 3 Me. 44, 14 Am. Dec. 213; Arnold v. Delano, 4 Cush. (Mass.) 33, 50 Am. Dec. 754; Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779; New England Dressed Meat, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 A. S. R. 516; Hahn v. Fredericks, 30 Mich. 223, 18 Am. Rep. 119; Davis v. Hill, 3 N. H. 382, 14 Am. Dec. 373; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; Brazier v. Ansley, 33 N. C. 12, 51 Am. Dec. 408; Blakely v. Patrick, 67 N. C. 40, 12 Am. Rep. 600; Woods v. McGee, 7 Ohio 127, pt. 11. See the following paragraphs. 2, 30 Am. Dec. 202; Eagle v. Eichel12. See infra, par. 292 et seq. berger, 6 Watts (Pa.) 29, 31 Am. 13. Johnson v. Hibbard, 29 Ore. Dec. 449; Williamson v. Steele, 3 Lea 184, 44 Pac. 287, 54 A. S. R. 787. See (Tenn.) 527, 31 Am. Rep. 652; Clevealso Com. v. Hess, 148 Pa. St. 98, 23 land v. Williams, 29 Tex. 204, 94 Am. Atl. 977, 33 A. S. R. 810, 17 L.R.A. Dec. 274; Anderson v. Crisp, 5 Wash. 176 and note. 178, 31 Pac. 638, 18 L.R.A. (N.S.) 14. Elgee Cotton Cases, 22 Wall. 419; White v. Wilks, 5 Taunt. 176,

Notes: 3 L.R.A. 199; 26 L.R.A. (N.S.) 15.

This general rule is not changed by the fact that the seller at the time of the sale of a part of a bulk of goods stored in his warehouse issued to the buyer a warehouse receipt therefor if such receipt does not identify with reasonable certainty the portion of the bulk intended to be transferred.15 It has also been held that a provision in the contract requiring the buyer to pay storage charges will not be given the effect of passing title to the buyer before segregation.16 The rule also is not affected by the buyer's payment of the price. In case of the insolvency of the seller a court of equity will not, it has been held, afford relief by decreeing to the buyer any part of the mass. If no title or interest passed to the buyer, there can be no equitable lien, and to enforce the specific performance of a contract in the case of a chattel, if a court of equity will take the jurisdiction, there is as much necessity for identifying the property as in an action at law.18 If it was the intention of the parties to sell an entire lot or mass though it is designated as containing a certain number of bushels, barrels or the like, it has been held that the fact that the mass contained slightly more than the designated amount will not prevent the title from passing to the buyer.19 The rule that the sale of an unsegregated part of a larger mass will not pass title is not opposed to the rule generally recognized in this country in regard to the storage of grain in elevators or warehouses which recognizes the title as remaining in the depositor.20

287. Qualification of Rule as to Segregation.-The view has been taken that the necessity for segregation in case of a sale of part of a mass in order to pass title does not apply where the things sold are not portions of a larger mass, to be separated by weighing or measuring, but consist of divers separate and individual things, all precisely of the same kind and value, mixed with divers other separate and individual things, which are also of the same kind and value, and between which and the things sold there is no manner of difference whatever. The view has also been taken that where the bulk or mass

14 Rev. Rep. 735, 23 Eng. Rul. Cas.

252.

Notes: 52 A. S. R. 521; 26 L.R.A. (N.S.) 17, 54; 9 Ann. Čas. 26; 23 Eng. Rul. Cas. 255.

15. Ferguson v. Northern Bank, 14 Bush (Ky.) 555, 29 Am. Rep. 418.

16. White v. Wilks, 5 Taunt. 176, 14 Rev. Rep. 735, 23 Eng. Rul. Cas.

252.

17. Ferguson v. Northern Bank, 14 Bush (Ky.) 555, 29 Am. Rep. 418; Davis v. Hill, 3 N. H. 382, 14 Am. Dec. 373.

18. Ferguson v. Northern Bank, 14 Bush (Ky.) 555, 29 Am. Dec. 418.

19. Golder v. Ogden, 15 Pa. St. 528, 53 Am. Dec. 618. See also Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726.

20. Ferguson v. Northern Bank, 14 Bush (Ky.) 555, 29 Am. Rep. 418. See supra, par. 31, as to the nature of the transaction involved in the ordinary storage of grain to be commingled with other grain and a like amount returned.

1. Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726.