6

amount; and of a given number of brick to be taken from a kiln containing a larger number. So one who is entitled for services rendered in burning a kiln of brick for the owner to receive a certain number of brick out of the kiln has not, prior to their actual or constructive delivery to him, any interest therein subject to attachment at the suit of his creditors.8

291. Grain and Flour.-In case of the sale of a certain number of barrels of flour to be taken from a larger mass, if the strict rule of the English cases and the American cases which approve and follow the English rule is followed, it would seem on principle that title could not pass without a segregation of the part sold from the general mass. On the other hand, primarily on the ground that the general mass was alike in kind, a sale of a given number of barrels of flour has been held to pass the title, though there was no segregation of the part sold from the general mass. 10 And this has been held especially true where the flour is stored with a warehouseman who accepts the seller's order drawn on him for the part sold, though he does not segregate the part sold from the general mass.11 Also in case of the sale of a certain number of bushels of grain to be taken from a larger mass, it has been held that the title would not pass without a segregation of the part sold from the general mass, especially where the general mass was in the possession of the seller.12 But where a certain number of bushels of grain are sold to be taken from a larger mass, it has been held that if the acts and declarations of the parties clearly evince an intention to make an immediate transfer of title, effect will be given thereto, though there is no actual segregation of the part sold from the larger mass which is and remains in the actual possession. of the seller.13 And where the owners of grain stored in elevators

6. White v. Wilks, 5 Taunt. 176, 14 Rev. Rep. 735, 23 Eng. Rul. Cas. 252. 7. Dunlap v. Berry, 4 Scam. (Ill.) 327, 39 Am. Dec. 413; Brewer v. Smith, 3 Greenl. (Me.) 44, 14 Am. Dec. 213; Anderson v. Crisp, 5 Wash. 178, 31 Pac. 638, 18 L.R.A. 419. But see Damon v. Osborn, 1 Pick. (Mass.) 476, 11 Am. Dec. 229.

Note: 26 L.R.A. (N.S.) 42.

8. Brewer v. Smith, 3 Greenl. (Me.) 44, 14 Am. Dec. 213.

9. Woods v. McGee, 7 Ohio 127, pt. 2, 30 Am. Dec. 202, explained, however, and materially limited in the later case of Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426.

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

11. Hoor v. Barker, 11 Cal. 393, 70

Am. Dec. 791; Hall v. Boston, etc., R. Corp., 14 Allen (Mass.) 439, 92 Am. Dec. 783; Newhall v. Langdon, 39 Ohio St. 87, 48 Am. Rep. 426, explaining and limiting Woods v. McGee, 7 Ohio 127, pt. 2, 30 Am. Dec. 202.

12. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274. See also Love v. State, 78 Ga. 66, 3 S. E. 893, 6 A. S. R. 234.

Note: 26 L.R.A. (N.S.) 33, 58.

13. Waldron v. Chase, 37 Me. 414, 59 Am. Dec. 56; Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L.R.A. 409; Seldomridge v. Farmers', etc., Bank, 87 Neb. 531, 127 N. W. 871, 130 N. W. 848, 30 L.R.A. (N.S.) 337; Hurff v. Hires, 40 N. J. L. 581, 29 Am. Rep. 282; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; O'Keefe

and warehouses are regarded as tenants in common of the general mass, the sale by one of such cotenants of the whole or even a part of his grain accompanied by the delivery of an order on the warehouseman for the amount sold and his recognition of the order and placing the same to the credit of the buyer is held to transfer title to the grain so sold, though nothing further is done to segregate it from the general mass.14 And the same has been held true where the mass from which the part sold was to be taken was stored separately with a warehouseman who accepted the order of the seller drawn on him for the part sold.15

292. Article to Be Manufactured or Produced Generally.-In case of a sale of an article to be produced or manufactured by the seller the question as to when the title passes to the buyer is primarily one. dependent on the intention of the parties.16 They may by express agreement provide that the title to the article in the process of manufacture shall vest in the buyer, and effect will be given thereto,17 and such an agreement need not be express but may be implied from provisions in the contract manifesting the intention that the title shall be in the buyer. 18 Since the question when the title to personal property to be produced or manufactured passes is dependent on the intention of the parties, where there is any dispute as to the terms and material circumstances of the agreement, it is a question for the jury to determine.19 On the other hand where there is no material conflict in the testimony, or the terms of the agreement are admitted, the intent of the parties is ordinarily for the court to pass on as a matter of law,20.

See supra, par. 31, as to the general nature of the transaction arising out of the storage of grain in elevators.

15. Russell v. Carrington, 42 N. Y. 118, 1 Am. Rep. 498.

16. Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, Ann. Cas. 1914B 701, 50 L.R.A.(N.S.) 111; Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55; Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262.

Notes: 50 L.R.A. (N.S.) 113; 10 Ann. Cas. 142.

17. Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; Clarkson v. Stevens, 106 U. S. 505, 1 S. Ct. 200, 27 U. S. (L. ed.) 139; Hall v. Green, 1 Houst. (Del.) 546, 71 Am. Dec. 96; Edwards v. Elliott, 36 N. J. L. 449, 13 Am. Rep. 463; Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262.

Notes: 62 Am. Dec. 66; 50 L.R.A. (N.S.) 115, 140; 10 Ann. Cas. 142.

18. Clarkson v. Stevens, 106 U. S. 505, 1 S. Ct. 200, 27 U. S. (L. ed.) 139.

Note: 50 L.R.A. (N.S.) 115.

19. Note: 50 L.R.A. (N.S.) 113.

20. Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L.R.A. (N.S.) 807. Note: 50 L.R.A. (N.S.) 113.

293. Prior to Completion Generally.-Ordinarily in the absence of some provision in the contract or circumstances of the case evidencing a contrary intention the title does not pass while the article is in the process of manufacture or production, and where the contract is entire for the manufacture or production of a certain quantity of a commodity, the title will not ordinarily pass to the finished part until the whole amount is produced. And where the manufacturer completed the article except certain portions to be furnished by the buyer, who did not furnish them according to his agreement, the title was held to remain in the manufacturer, and that therefore the loss of the article by fire fell on him. The fact that some of the material from which the article is to be manufactured is to be furnished by the buyer does not ordinarily affect the rule that the title remains in the manufacturer; and ordinarily it is immaterial that the agreed price has been paid or partly paid in advance; the buyer does not by advancing the price become the owner of the article under construction, but he merely becomes entitled to such an article as he has ordered." Still the fact that such payment is made is evidence to be considered and given weight together with the other circumstances of the case,

1. Clarkson v. Stevens, 106 U. S. 505, 1 S. Ct. 200, 27 U. S. (L. ed.) 139; Shaw v. Smith, 48 Conn. 306, 40 Am. Rep. 170; Hall v. Green, 1 Houst. (Del.) 546, 71 Am. Dec. 96; Moline Scale Co. v. Beed, 52 Ia. 307, 3 N. W. 96, 35 Am. Rep. 272; Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, Ann. Cas. 1914B 701, 50 L.R.A.(N.S.) 111; Moody v. Brown, 31 Me. 107, 56 Am. Dec. 640; New England Dressed Meat, etc., Co. v. Standard Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 A. S. R. 516; Prescott v. Locke, 51 N. H. 94, 12 Am. Rep. 55; Andrews v. Durant, 11 N. Y. 33, 62 Am. Dec. 55; McConihe v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420; Johnson v. Hibbard, 29 Ore. 184, 44 Pac. 287, 54 A. S. R. 787; Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176; Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262. See also State v. State Journal Co., 75 Neb. 275, 106 N. W. 434, 13 Ann. Cas. 254, 9 L.R.A. (N.S.) 174.

Notes: 62 Am. Dec. 65; 50 LR.A. (N.S.) 114.

2. Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, Ann. Cas. 1914B 701, 50 L.R.A. (N.S.) 111.

3. McConihe v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420.

4. Merritt v. Johnson, 7 Johns. (N. Y.) 473, 5 Am. Dec. 289; McConile v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420.

5. Calais Steamboat Co. v. Van Pelts, 2 Black 372, 17 U. S. (L. ed.) 282; Clarkson v. Stevens, 106 U. S. 505, 1 S. Ct. 200, 27 U. S. (L. ed.) 139; Hall v. Green, 1 Houst. (Del.) 546, 71 Am. Dec. 96; Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Edwards v. Elliott, 36 N. J. L. 449, 13 Am. Rep. 463; Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55; Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262; Laing v. Barclay, [1908] A. C. 35, [1908] Sc. Ct. Sess. 1, 77 L. J. P. C. 33, 97 L. T. N. S. 816, 10 Asp. M. L. Cas. 583, 10 Ann. Cas. 137, 2 British Rul. Cas. 635.

Notes: 56 Am. Dec. 643; 50 L.R.A. (N.S.) 118, 139; 10 Ann. Cas. 141; 2 British Rul. Cas. 616.

as evidencing an intention that the title should vest in the buyer before completion.o

294. Approval by Buyer during Manufacture or Construction.— The fact that the article is constructed under the supervision of the buyer and approved by him as the process of construction is proceeded with is, in some cases, considered as a very material circumstance showing the intention of the parties that the title should vest in the buyer before completion. Still according to the better view, especially in this country, this fact is not considered sufficient to make the case an exception to the general rule that the title remains in the seller during the process of construction or manufacture, and it has been held that the fact that during the process of construction or manufacture the thing agreed on is identified and appropriated so that the manufacturer or mechanic would be bound to complete and deliver that particular thing, and could not, without violating his contract, substitute another similar article, though otherwise corresponding with the agreement, is not itself enough to pass the title.

295. Vessels. In England it seems that contracts for the construction of vessels are placed in a class sui generis and that it is the accepted rule that where a vessel is constructed to order under the superintendence of the buyer or his agent, and upon which instalments of the price are paid as the work progresses and is approved, the title. vests in the buyer after the first instalment is paid. These acts of the parties, the permission by the builder of the superintendence of the buyer's agent and the payment of the instalments by the buyer, are held to be acts which sufficiently import an intention that the vessel shall be continually during the course of construction the property of the latter. The payment of instalments as the work progresses is considered also as a purchase of the labor and materials already furnished, or indeed a furnishing of the materials and labor, the builder becoming a contractor or agent of the buyer. And this view has been taken in some cases in this country.10 In other jurisdictions in this country, however, the authorities have not followed the English doctrine, but hold that the property in the vessel remains in the builder until it is completed and delivered.11 Even in England if

6. Note: 50 L.R.A. (N.S.) 118. 7. Seath v. Moore, 11 App. Cas. 350, 55 L. J. P. C. 54, 54 L. T. N. S. 690, 23 Eng. Rul. Cas. 262.

Note: 50 L.R.A. (N.S.) 116. 8. Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55.

9. Notes: 56 Am. Dec. 644; 62 Am. Dec. 66; 40 Am. Rep. 173; 2 British Rul. Cas. 646 et seq.

10. Notes: 56 Am. Dec. 645; 62 Am. Dec. 66; 50 L.R.A. (N.S.) 116.

11. Clarkson v. Stevens, 106 U. S. 505, 1 S. Ct. 200, 27 U. S. (L. ed.) 139; Hall v. Green, 1 Houst. (Del.) 546, 71 Am. Dec. 96; Edwards v. Elliott, 36 N. J. L. 449, 13 Am. Rep. 463; Merritt v. Johnson, 7 Johns. (N. Y.) 473, 5 Am. Dec. 289; Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55;

the price of the vessel is merely paid in advance, this will not transfer the title to the buyer until completion and delivery.12 And in a recent case it has been held that where the contract discloses an intention on the part of the parties that the vessel shall not be considered as being delivered to and finally accepted by the buyer until after an official trial off a foreign coast, and until after it has been shown by trials or tests that the conditions of the contract as to speed, capacity, coal consumption, etc., have been performed, the property in the ship does not pass to the buyer while the vessel remains uncompleted, though the contract contains stipulations for the payment of the price in instalments at certain periods of construction, and though the work is to be done under the superintendence of an agent appointed by the buyer; and that therefore the vessel cannot be arrested before its completion for a debt due a third person by the buyer.13

296. After Completion Generally.-If the contract or the circumstances indicate clearly an intention to appropriate the article when completed to the contract and pass title to the buyer without further act of appropriation by the parties or acceptance by the buyer, effect will be given thereto.14 And where the contract is for the sale of all of a certain commodity which the seller may manufacture or produce as distinguished from a sale of a part of his product, it is considered as evidencing an intention that the commodity as produced shall become vested in the buyer.15 In a number of cases the view is taken that a contract for the manufacture of a special article, as distinguished from an article which the manufacturer makes in the ordinary course of his business, is in the nature of a contract for services rather than a contract of sale, 16 and that the title vests in the buyer as between the parties when the article is completed and set apart for the buyer.17 On the other hand it is the general rule that the completion of the article itself has no operative effect to transfer the title to the buyer

Tompkins v. Dudley, 25 N. Y. 272, 82
Am. Dec. 349.

Notes: 56 Am. Dec. 644; 62 Am. Dec. 55; 40 Am. Rep. 173; 50 L.R.A. (N.S.) 115 et seq.

12. Notes: 56 Am. Dec. 645; 2 British Rul. Cas. 647.

13. Lang v. Barclay, [1908] A. C. 35, [1908] Sc. Ct. Sess. 1, 77 L. J. P. C. 33, 97 L. T. N. S. 816, 10 Asp. M. L. Cas. 583, 10 Ann. Cas. 137, 2 British Rul. Cas. 635.

14. Crookshank v. Burrell, 18 Johns. (N. Y.) 58, 9 Am. Dec. 187; Showhan v. Van Nest, 25 Ohio St. 490, 18 Am. Rep. 313; Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L.R.A.(N.S.) 807.

R. C. L. Vol. XXIV.-3.

33

Note: 50 L.R.A. (N.S.) 124, 133. 15. Note: 50 L.R.A. (N.S.) 125.

16. See supra, par. 38 et seq., as to the general distinction between contracts of sale and contracts for work and labor.

17. Stewart v. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181, Ann. Cas. 1914B 701, 50 L.R.A. (N.S.) 111; Murphy v. John Hofman Co., 215 N. Y. 185, 109 N. E. 101, L.R.A.1916A, 634; Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L.R.A.(N.S.) 807; Central Lithographing, etc., Co. v. Moore, 75 Wis. 170, 43 N. W. 1124, 17 A. S. R. 186, 6 L.R.A. 788 (contract for theatrical lithographs).