but there must be an acceptance or approval of the article by him unless a contrary intention on the part of the parties is apparent.18 The reservation by the buyer of a right to inspect the article when completed before accepting the same is a material fact showing that it was the intention of the parties that the title should not pass until this right of inspection is afforded. 19 If the title has not passed after the article has been completed or produced its tender to the buyer, if unaccepted or refused, will not transfer the title to him.20 On account of want of title the buyer, in case the seller refuses to deliver, has been denied the right to recover the possession which he would undoubtedly have had if the title was in him.1

297. Approval and Acceptance by Buyer.-After the article is completed its delivery and acceptance will of course transfer the title to the buyer, and when an intention to deliver and accept the article is manifested, the fact that it remains in the actual possession of the seller does not prevent the title from passing. As between the parties the question as to what will be a sufficient act of delivery and acceptance in the circumstances of different cases is determined principally on the criterion whether an intention of the parties that such act should constitute a delivery is manifested. A delivery and acceptance so as to transfer title will not ordinarily be inferred while anything remains to be done on the article in the fulfilment of the contract between the parties. As is shown later where goods sold are to be shipped to the buyer, a delivery to the carrier consigned to the buyer is ordinarily regarded as a delivery to the buyer so as to vest title in him, and though there is some conflict in the authorities, this rule is generally applied where the goods sold are to be manufactured

18. Clarkson v. Stevens, 106 U. S. 505, 1 S. Ct. 200, 27 U. S. (L. ed.) 139; Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640; Smith v. Sparkman, 55 Miss. 649, 30 Am. Rep. 537; Edwards v. Elliott, 36 N. J. L. 449, 13 Am. Rep. 463; Johnson v. Hibbard, 29 Ore. 184, 44 Pac. 287, 54 A. S. R. 787.

Note: 50 L.R.A.(N.S.) 122 et seq., 126.

19. Deutsch v. Dunham, 72 Ark. 141, 78 S. W. 767, 105 A. S. R. 21; Shaw v. Smith, 48 Conn. 306, 40 Am. Rep. 170.

Note: 50 L.R.A.(N.S.) 134.

20. Moody v. Brown, 3 Me. 107, 56 Am. Dec. 640; Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176.

1. Deutsch v. Dunham, 72 Ark. 141,

78 S. W. 767, 105 A. S. R. 21.

Note: 50 L.R.A.(N.S.) 126. 2. Notes: 56 Am. Dec. 643; 50 L.R.A.(N.S.) 130.

3. Pullman's Palace Car Co. v. Met ropolitan St. R. Co., 157 U. S. 94, 15 S. Ct. 503, 39 U. S. (L. ed.) 632; God. dard v. Binney, 115 Mass. 450, 15 Am Rep. 112; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Acme Food Co. v. Older, 64 W. Va. 255, 61 S. E. 235, 17 L.R.A. (N.S.) 807.

Notes: 56 Am. Dec. 643; 50 L.R.A. (N.S.) 130, 138.

4. Notes: 56 Am. Dec. 643; 50 L.R.A. (N.S.) 138.

5. Note: 56 Am. Dec. 643.
6. See infra, par. 304 et seq.

by the seller provided they correspond in quality, etc., with the terms of the contract.7

298. Necessity for Delivery Generally.-The general rule is that if it is a part of the contract of sale that the seller shall deliver the property sold at some place specified and receive payment on delivery, title will not pass until such delivery.8 On the other hand at common law chattels can be sold so as to vest title in the buyer as between the partics when such is the intention of the partics, without actual delivery and though they remain in the possession of the seller.

the common law, if the seller makes a proposition, and the buyer accepts, and the goods are in the possession of the seller, and nothing remains to be done to identify them, or in any way prepare them for delivery, the sale is complete, and the property in the goods passes at once. The buyer acquires not a mere jus ad rem, but an absolute jus in re, and he may demand delivery at once on tender of the price, and sue for the goods as his own if delivery be refused.10 As has been said there is no rule better established, both by the law of England and in this country, than that the sale of a specific chattel passes the right of property to the buyer without a delivery of possession, and he may maintain an action of detinue or replevin, or the statutory substitutes therefor such as an action of claim and delivery, on the wrongful refusal of the seller to deliver possession.11 And ordinarily where no further act remains to be done to identify the property sold or to ascertain the quality or quantity, and the price has been paid and the buyer entitled to take immediate possession, the title will be deemed to have passed though there has been no actual taking of possession by the buyer.12 Under the civil law delivery is necessary to transfer the title.18

299. Property in Hands of Third Person.—If the property sold is in the hands of the seller's agent or bailee, undoubtedly as between the parties the title will pass as soon as the bailee is notified of the sale and consents to hold for the buyer.14 When the seller delivers to the buyer or to his authorized agent an order on the seller's bailee to deliver the goods sold to the buyer or his agent, there is a constructive delivery of the property, and the delivery of the order vests the buyer with the indicia of ownership, and has the same effect in transferring the title to the property as the delivery of the property; and it has been held that property so situated may be sold so as to transfor the title without any necessity for special notice of the sale to the agent or bailee or consent on his part to hold for the buyer.16 The fact that the bailee has a lien on the property sold does not affect the

Dec. 90; 10 L.R.A. 314; 17 L.R.A. 177; 26 L.R.A. (N.S.) 10, 21; 23 Eng. Rul. Cas. 294.

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

11. Ferguson v. Northern Bank, 14 Bush (Ky.) 555, 29 Am. Rep. 418; Woods v. Nixon, Add. (Pa.) 131, 1 Am. Dec. 364.

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

13. Ramsey v. Stevens, 5 Mart. O. S. (La.) 23, 12 Am. Dec. 468; Thuret v. Jenkins, 7 Mart. O. S. (La.) 318, 12 Am. Dec. 508; Peabody v. Carrol,

15

9 Mart. O. S. (La.) 295, 13 Am. Dec. 305.

14. De Wolf v. Gardner, 12 Cush. (Mass.) 19, 59 Am. Dec. 165; Sahlman v. Mills, 3 Strob. L. (S. C.) 384, 51 Am. Dec. 630.

Note: 26 L.R.A.(N.S.) 47.

15. Union Stock Yards, etc., Co. v. Mallory, etc., Co., 157 IlI. 554, 41 N. E. 888, 48 A. S. R. 341.

16. Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A 1103; Pleasants v. Pendleton, 6 Rand. (Va.) 473, 18 Am. Dec. 726.

power of the parties to sell and pass the title subject to the lien,17 and if it is the custom of the warehousemen to deliver the goods stored on the order of the storer without regard to their lien or claim for storage the fact that storage charges are due will not prevent the title passing.18

300. Effect of Delivery Generally.-The actual delivery of the goods is of the greatest importance as evincing an intention to pass the property so as to complete the sale. Delivery is often said to be the primary and immediate duty of a seller after the contract of sale is completed. The chief purpose is generally to effect a transmutation of property, and if unaccompanied by explanation the buyer generally has a right to regard it as absolute. If there be accompanying declarations, showing an intention to pass the property to the buyer immediately and not at some future time, the fact of delivery, as evidence of intention, becomes manifestly the most cogent of all legal proofs where the good faith of the transaction is not impugned for fraud.19 As a general rule irrespective of whether the contract was for the sale of specific or unidentified property the delivery and acceptance of the subject matter will vest the title in the buyer,20 and as the parties may waive or modify the provision in the contract as to the time of delivery, delivery and acceptance before the time fixed is effective to pass the title. So ordinarily a barter is complete so as to operate as a change of title when the terms of exchange have been finally settled, and each party has relinquished possession of the property traded by him and acquired possession of that of the other.2 Where there is a sale of goods generally no property in them passes until delivery, because until then the very goods sold are not ascertained. On the other hand neither the actual delivery, nor the absence of such delivery, will control the case, where the intent of the parties is clear and manifest that the matter of delivery was not

17. Tuxworth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479.

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

19. Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 A. S. R. 531.

20. Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; National Bank v. Dayton, 102 U. S. 59, 26 U. S. (L. ed.) 77; Van Winkle v. Crowell, 146 U. S. 42, 13 S. Ct. 18, 36 U. S. (L. ed.) 880; Delaware, etc., R. Co. v. United States, 231 U. S. 363, 34 S. Ct. 65, 58 U. S. (L. ed.) 269; Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec.

439; Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779; Nash v. Brewster, 39 Minn. 530, 41 N. W. 105, 2 L.R.A. 409; Blow v. Spear, 43 Mo. 496, 97 Am. Dec. 412; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Scott v. Wells, 6 Watts & S. (Pa.) 357, 40 Am. Dec. 568.

Note: 26 L.R.A. (N.S.) 22. 1. Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439.

2. Cook v. Pinkerton, 81 Ga. 89, 7 S. E. 171, 12 A. S. R. 297.

3. State v. Wernwag, 116 N. C. 1061, 21 S. E. 683, 47 A. S. R. 873, 28 L.R.A. 297. See supra, par. 279, as to identification of property sold generally.

a condition precedent to the passing of the title, or that the delivery did not carry with it the absolute title. The title may pass, if the parties so agree, where the statute of frauds does not interpose, without delivery, and property may be delivered with the understanding that the title shall not pass until some condition is performed.+

301. Effect of Mistake in Character of Property Delivered.-Where parties to a contract of sale agree to sell and purchase a certain kind or description of property not yet ascertained, distinguished, or set apart, and subsequently a delivery is made, by mistake, of articles differing in their nature from those agreed to be sold, no title passes by such delivery, because the seller did not agree to sell nor the buyer to purchase them. It is a case where, through mutual misapprehension, the contract of sale is incomplete. Delivery of itself can pass no title; it can be effective and operative only when made as incidental to and in pursuance of a previous contract of sale. Thus where a certain number of barrels of No. 1 mackerel were sold, and by mistake some barrels of No. 3 mackerel and some barrels of salt were delivered, it was held that no title to the articles thus delivered by mistake passed to the buyer and that therefore though they were in the possession of the buyer they were subject to levy at the instance of the seller's creditors. A distinction is made between a mistake of this character and a mistake concerning the quality or the like of a specific article sold and delivered; in the latter case if the article is not such as the seller has agreed to deliver or such as his warranty calls for, the title passes at the election of the buyer. And according to what appears to be the better view, the buyer is bound by his acceptance of the article tendered as in compliance with the terms of the contract in the absence of fraud or express warranty.

302. Conditional Delivery.-A sale of property may be on condition that the buyer shall do some other act; and a delivery of the property, if also conditional, does not vest the property in the buyer, but on nonperformance of the condition the seller may reclaim it. Such condition may be waived by the parties; but a delivery, without anything being said as to the condition, is not necessarily absolute. It is evidence of a waiver, and, in connection with other circum

4. Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 A. S. R. 531. See supra, par. 298, as to the necessity for delivery to pass title as between the parties. And as to conditional sale generally, see infra, par. 739 et

seq.

5. Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779. See also Sherwood v. Walker, 66 Mich. 568, 33 N. W. 919, 11 A. S. R. 531,

Note: 26 L.R.A. (N.S.) 23.

As to the effect of mistake generally upon the validity of the contract of sale, see supra, par. 108 et seq.

6. Gardner V. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779.

7. Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779.

8. See supra, par. 264, as to the effect of acceptance as a waiver of defects in the absence of fraud or express warranty.