the title in the vendee, the thing sold must not only be in existence. but it must be identified. The contract itself conveyed no present right of property to the defendants. Though Davis agreed that the shingles he was about to make should, as fast as made, become the property of the defendants, still, as it was an agreement to be executed in future, his right was, not to the shingles, but in action for not executing the agreement. Before the title would vest, even after the shingles had been made, something must have been done which would amount at least to a constructive delivery. The shingles must have been in some way designated and set apart, so as to be capable of being identified as the property of the purchasers [citing cases]." Under these authorities, I am unable to find any act of the vendor which constitutes an unconditional appropriation of this oil to the plaintiff's contract. Nothing was done with the oil, except what was necessary to do in the completion of the process of manufacture. The oil that was in these tanks belonged in part to Marden, Orth & Hastings. Company, if they chose to exercise their option to purchase the same. It is stipulated in the case that they did exercise their option, but by the stipulation it is stated that that option was exercised during "that period." That period is the period provided in their contract with the American Phosphate & Oil Corporation, which was one year from the 15th day of December, 1913, so that in August, 1914, it does not appear that Marden, Orth & Hastings Company had exercised their option to take any part of that oil. For aught that appears, their 6,000 barrels provided for in their contract may all have been in those tanks at the time of the alleged conversion, and thereafter taken. It is argued, because by plaintiff's contract a draft might be drawn upon the plaintiff for 25 cents a gallon, while the oil was still in the storage tanks, that this provision indicates an intention that title shall pass at once when the property gets into the storage tanks. It will be noticed, however, that these drafts are to be drawn by Marden, Orth & Hastings Company, which firm had its option to withdraw 6,000 barrels of oil at any time from those tanks, so that this clause of the contract is not sufficient to indicate the intention of the parties that title shall pass at once upon production and storage in these storage tanks. In Comfort v. Kiersted, supra, the opinion discusses this very situation and Judge Harris writes: "Suppose Davis had made, with another person, another contract, in all respects like that under consideration, whereby he had agreed to deliver the same quantity of shingles as fast as made; could it be pretended that the defendants would, by the mere operation of their contract, become the owner of all the shingles made by Davis, as soon as manufactured? It would then need, as now, that in some way the shingles should be designated as delivered in execution of the contract, in order to change the right of property; and they would then have become the property of the one or the other of the parties to whom he had agreed to sell them, according to their designation." So, under the contract here to sell to Marden, Orth & Hastings Company 6,000 barrels of the oil at their option, the placing of the oil in these storage tanks could not in any way be deemed an appropriation to the plaintiff's contract, and much less, with the right of Marden, Orth & Hastings Company to take therefrom 6,000 barrels of oil, could it be deemed to be an unconditional appropriation to the plaintiff's contract, which unconditional appropriation is made by the Personal Prop erty Law a requisite to the passing of title of future goods. If placing this oil in these storage tanks could in any event be deemed a delivery, it was a conditional delivery, conditioned upon the election of Marden, Orth & Hastings Company to take 6,000 barrels thereof for their own purposes. As to the oil which had been placed in the cars of the plaintiff, it seems to me clear that the Atlantic Phosphate & Oil Corporation had so far made an unconditional appropriation of that oil to the plaintiff's contract as to vest title in the plaintff. That the defendant had full knowledge of that contract I have no doubt whatever. It had loaned to the Atlantic Phosphate & Oil Corporation a large amount of money. Confessedly, the contract was shown to one of the officers of the defendant, with every presumption that it was read, as it was to their interest to read the contract and become acquainted with its conditions. Moreover, the defendant discounted drafts drawn by the Atlantic Phosphate & Oil Corporation upon the plaintiff for oil delivered under this contract, and discounted the drafts for the $25,000 advanced by the plaintiff to the Atlantic Phosphate & Oil Corporation, and it is against all probability that this was done without a substantial knowedge of the plaintiff's rights in this oil. In fact, the course of business of the Atlantic Phosphate & Oil Corporation seems, during all this time, to have been dictated by the defendant, which had so large an interest in the company by reason of moneys advanced. Inasmuch as the title to this oil in these cars had passed to the plaintiff, the defendant was guilty of conversion in directing a diversion of this oil from the plaintiff to Swift & Co.; and as to this oil, the exceptions must be sustained, and a new trial ordered, with costs to plaintiff to abide the event. LAUGHLIN, J., delivered the opinion of the majority of the court. At the conclusion the court used the following language: "By virtue of the precise terms of this contract and the uncontroverted facts, the case is, I think, brought clearly within the provisions of the Personal Property Law quoted, and the intention of the parties, which governs as to when title was to pass plainly was, I think, that the title was to pass when the oil was pumped into the storage tanks." BRISTOL MFG. CO. v. ARKWRIGHT MILLS. (Supreme Judicial Court of Massachusetts, 1912. 213 Mass. 172, 100 N. E. 55.) Action by the Bristol Manufacturing Company against the Arkwright Mills. There was a verdict for plaintiff, and defendant brings exceptions. RUGG, C. J. This is an action of contract to recover for goods sold and delivered and for damages for breach of contract for the sale of goods. There was evidence tending to show that the plaintiff agreed, by a broker's "sale note," to make and deliver to the defendant 1.500,000 yards of cotton cloth. The quality, weight, price, terms and rate of delivery were fixed, and the note further contained these provisions: "No marks of any kind on bales except bale numbers. Arkwright will let you know what bale number to begin with." The defendant gave to the plaintiff the bale number with which to begin numbering the bales. After about 500,000 yards were delivered according to the contract, which the defendant resold without examination, it began selling to the Merrimac Manufacturing Company. The cloth was rejected by it as not being of the required quality. Thereafter examinations were made, and negotiations were carried on between the defendant, the plaintiff and the Merrimac Manufacturing Company, to the end that the goods might be accepted under the contract between the defendant and the Merrimac Manufacturing Company, which continued for about six weeks, beginning with March 16th. These efforts failed, and on or about the 1st of May the Merrimac Manufacturing Company canceled its contract with the defendant, and the defendant in turn its contract with the plaintiff, on the ground that the goods were not of the required quality. While these negotiations were pending and while it was in doubt whether the Merrimac Manufacturing Company would continue to accept the goods, the defendant wrote to the plaintiff on April 1st the following: "Please hold shipments of 28" goods, covered by insurance, subject to our order. Will let you know the result of our examination as soon as completed;" and on April 28th: "Please ship at once 1,200 pieces billed April 7 held for our account. They are going over the goods at the Merrimac Mfg. Co.'s and expect to let you know the result in a day or two." After April 1st the plaintiff continued its manufacture of the goods according to its contract, baled them and numbered the bales according to the previous directions of the defendant, stored them in its storehouse, insured them, and held them according to the instructions contained in the defendant's letter of April 1st, notifying the defendant in each instance and submitting an invoice. There was no difference in the insurance on these goods and other goods in the plaintiff's storehouse. The case was sent to an auditor. His report and the verdict of the jury were for the plaintiff. The inquiry is whether this evidence was sufficient to show a delivery of the goods between April 1st and the time when the defendant canceled the contract. * * The sale note required a delivery by the plaintiff to a common carrier for shipment to the defendant. It is admitted that no such delivery was made. The first question is whether the defendant's letter of April 1st, which was received and accepted by the plaintiff, constituted a modification of the contract as to delivery. The contract between the plaintiff and the defendant was in no wise dependent upon the relations between the defendant and the Merrimac Manufacturing Company. A breach by the latter of its contract with the defendant affords no justification for a cancellation by the defendant of its contract with the plaintiff. The letter of April 1st should be read in the light of all the conditions then known to the plaintiff and defendant. The defendant contends that so read it should be construed to mean a request to withhold or to hold back shipments pending the negotiations with the Merrimac Manufacturing Company and that the contract should remain in abeyance meanwhile. But the letter is something more than a mere request to suspend shipments. It is a direction that the goods be covered by insurance. This was an act of proprietorship under all the circumstances. If title remained in the plaintiff, there was no occasion for the defendant to be concerned about the insurance. It is only on the theory that the defendant expected title to vest in it that its reference to insurance becomes reasonable. * * * The defendant's further request that 997 the goods be held subject to its order looks in the same direction. Its letter of April 28th directing shipment of certain goods previously billed "held for our [its] account" tends to indicate a reference to goods owned by it. The fair meaning of the letter of April 1st is a request for a modification of the original contract as to delivery of the goods to a common carrier with an additional stipulation as to insurance. When accepted by the plaintiff, the contract was changed to that extent. The precise form in which the insurance was carried by the plaintiff does not appear, but no exception is taken on this point, and after verdict it must be assumed that it conformed to the letter of April 1st. The question remains whether there was sufficient evidence of a separation and an appropriation by the plaintiff of the goods to constitute a constructive delivery. The cloth seems to have been a common grade well known in the general market, and such as the defendant also manufactured. It was not a unusual kind made upon special order. The manufacture was completed, and nothing remained in order to execute the contract on both sides, except for the buyer to take the goods and pay for them. A definite quantity of goods was to be shipped or ready for shipment each week. Under these circumstances as between the immediate parties nothing was necessary in order to pass title to the buyer beyond a setting apart of the goods for the buyer. It might have been found that the seller was impliedly authorized to make such appropriation by the buyer. Title may pass although the goods remain in the actual possession of the vendor. * * The evidence was that the plaintiff placed numbers upon the bales in accordance with the requirement of the sale note and put them in its storehouse. Any visible marks which are sufficient for identification are enough to show an appropriation. Each bale was a physical entity. When it was stamped or marked with a serial number conforming to an initial number furnished by the defendant, it could be identified readily in a storehouse where there were other bales. It was not necessary that all the bales should be set apart in a group by themselves. The appropriation was complete without it. * * * It follows that the defendant's requests for rulings were refused rightly, and that there was no error in the charge. Exceptions overrued. SECTION 3.-ACTS OF UNCONDITIONAL APPROPRIA- A. goes into B.'s grocery store and calls for a dozen oranges. B. takes a paper sack and places one orange in the sack. Who owns that orange at that instant of time? To present a real situation, suppose at that moment a dog seized the sack containing the orange and ran away with it. B. takes another sack, puts in eleven oranges, and tenders them to A., and demands the price of a dozen oranges. A. claims he is entitled to twelve oranges. Let us see: In the beginning there was a contract to sell one dozen oranges. The oranges were unascertained at the moment the agreement was made. It would be possible for the rule as to fungible goods to apply here, but it is decidedly unlikely that the parties intend to become tenants in common of all the oranges owned by B.; therefore an act of unconditional appropriation assented to by A. and B. would be necessary to pass the title. The act of putting one orange in the sack, so far as the physical character of the act is concerned, is an act of unconditional appropriation, and since it is done by the seller, the seller very likely assents to the act, and expects the normal legal effect to follow, and expects that title should pass to this one orange. But where is the assent by the buyer? There is clearly no express assent to take title, nor is it at all reasonable to suppose that A. is impliedly consenting to take title to that orange. A. wants one dozen oranges. If, at that instant, something should cause the complete loss to all of B.'s oranges, except the one in the sack, it could not be contended that A. is under any duty to take and pay for one orange. Therefore A. does not assent impliedly to this act as an act having the legal effect of passing title to him. Partial appropriations, or, rather, appropriations as to a portion only of all the goods contracted to be sold, do not pass title. Notice, however, that if there is evidence showing an assent by the buyer title will pass. Suppose that, just as B. put the orange in the sack, B. said: "It is understood that this is your orange." A. replies: "I agree to that." Then, of course, title to that orange has passed. To avoid the difficulty of forcing A. to pay for this one orange, if something should then prevent B. from placing eleven more oranges in the sack, we need but say that the title which then passed to A. was a defeasible title; that is, the title was accompanied by a condition subsequent, that, in the event that the contract was not completely performed by B., the title to the one orange would, upon B.'s default, revert to B. Would this result ever be reached where the evidence of B.'s assent to take title lay solely in the circumstances of the case? There are such cases, and sometimes they are of considerable business importance. Suppose that, in the above case, instead of B. placing the orange in the sack, B. had handed the orange to A.. and A. took it in his hand. Would title pass then? Probably so, because the act of appropriation by B. has been assented to by A., evidenced by A.'s willingness to take it in his hand. Of course, if A. does not receive the other eleven oranges, A. is under no obligation to pay for the one orange, and he must, upon B.'s default, return the orange. But while he has it in his hands it is A.'s orange, and the risk of loss is on A., and if at that instant A. were adjudicated a bankrupt title to the orange would pass to A.'s trustee in bankruptcy. B. could not recover possession of the orange, but, on the contrary, would be required to file his claim in the bankruptcy proceedings, where he would get less, as a general rule, than the price of the orange. As commonly expressed, an act of unconditional appropriation of part of the goods will not pass title, unless the act is of such |