thereupon lodged the order at the warehouse and it was accepted. The plaintiffs then advanced the money to Clarke, who subsequently absconded without paying the defendants. for the flour; the defendants, as unpaid sellers, refused to deliver the flour to the plaintiffs. The plaintiffs brought trover. The Court held that they were entitled to recover; the question being, had the defendants acknowledged that they held the flour on behalf of the plaintiffs; if so, they were bound to deliver it or pay damages (a).

The case of Knights v. Wiffen (b), in 1870, very closely resembles Woodley v. Coventry (c). The facts are set out in Mr. Justice Blackburn's judgment, of which the following is an extract: "The defendant Wiffen had in his own warehouse "a large quantity of barley, and he sold to Maris, 80 qrs., "which on the contract between him and Maris, remained in "his possession as unpaid vendor. No particular sacks of the "barley were appropriated as between Maris and Wiffen; "but at the time the contract was made Maris had a right to "have 80 qrs. out of that barley appropriated to him; and at "the same time Wiffen, as the unpaid vendor, had a right to "insist on the payment of the price before any part of the 'grain was given up. Maris afterwards entered into a contract with the plaintiff, Knights, by which he sold him 60 qrs. "of the barley, and Knights paid for them. A document "was given by Maris to Knights, in the shape of a delivery "order addressed to a station-master of the Great Eastern "Railway, instructing him to deliver to Knights' order "60 qrs. of the barley on his, Maris's, account. Knights "forwarded it to the station-master, enclosed in a letter "authorizing the station-master to hold for him. The station"master went to Wiffen and showed him the delivery order "and letter, and Wiffen said, 'All right; when you receive "the forwarding note, I will place the barley on the line.' "What does that mean? It amounts to this, that Maris

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(a) Stoveld v. Hughes, 14 East, 308; and McEwan v. Smith, 2 H. L. R. 309;

13 Jur. 265.

(b) Knights v. Wiffen, L. R. 5 Q. B. 660; 40 L. J. Q. B. 51. (c) Woodley v. Coventry, 2 H. & C. 164; 32 L. J. Ex 185.

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having given the order to enable Knights to obtain the barley, Wiffen recognized Knights as the person entitled to "the possession of it. . . . The defendant knew that when "he assented to the delivery order, the plaintiff, as a reason"able man, would rest satisfied. would rest satisfied. If the plaintiff had been "met by a refusal on the part of the defendant, he could "have gone to Maris and have demanded back his money;

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very likely he might not have derived much benefit if he "had done so, but he had a right to do it. The plaintiff did "rest satisfied in the belief, as a reasonable man, that the property had been passed to him. If once the fact is "established, that the plaintiff's position is altered by relying "on the statement and taking no steps further, the case "becomes identical with Woodley v. Coventry (a), and "Hawes v. Watson (b)."

In Coventry v. Great Eastern Railway Co. (c), in 1883, the defendants negligently gave two delivery orders for the same consignment. The plaintiff in good faith made advances on both, and the Court of Appeal held that the defendants were estopped from denying that they held two consignments.

It is evident that those cases are not authorities that the property had in reality been transferred, but merely that the plaintiffs had a right as against the defendants to treat it as if it had been transferred. A warehouseman may make himself responsible to both parties to one because he has rendered himself incapable of denying that the property belongs to that party, though in truth it does not; and to the other, because the property in truth is his. This may at times be very hard upon the warehouseman, who has by mistake represented that the property has been transferred, when in fact it has not, but it behoves him to see that his representations are not merely bona fide but accurate, or to abide the consequences of his inaccuracy.

(a) Woodley v. Coventry, 32 L. J. Ex. 185; 2 H. & C. 164; ante, p. 206.

(b) Hawes v. Watson, 2 B. & C. 540, ante, p. 204.

(c) Coventry v. G. E. Ry. Co., 52 L. J. Q. B. 694; 11 Q. B. D. 776.

Effect of Express Conditions Precedent.

The parties may indicate an intention by their agreement, to make any condition, precedent to the vesting of the property, and if they do so their intention is fulfilled. Thus if goods are sent for sale on approval or return, no property vests until the buyer's approval, because that was the intention of the parties (a). And, as is said in Comyn's Digest, Condition (B. 13), "if a personal thing be granted on a con"dition precedent, the property does not vest till the condition "performed."

And so also in sales by sample no property will pass unless and until certain conditions, which are now under the Act, to be implied by law have been fulfilled. The question of sales by sample will be dealt with more particularly hereafter in discussing conditions as to quality and condition (b).

In the interval between the making of the agreement and the fulfilment of those conditions on which the property is to vest, the buyer has no interest in the thing itself; and it follows as a necessary consequence that if in the interval a third party has fairly acquired an interest in the chattel, the buyer cannot on the fulfilment of the conditions deprive him. of it. He may have a remedy against the seller for breaking his agreement, by suffering this interest to be created, but he cannot take the property in derogation of a right acquired, whilst the agreement was only executory and he had no interest in the goods but only a chose in action.

Thus in Mires v. Solesby (c), in 1678, the owner of some sheep agreed with Alston that Alston should take the sheep home and pasture them till an agreed time, at so much a week, and if at the end of that time Alston would pay so much for the sheep, he should have them. Before the time was expired the owner sold the sheep to Mires, and in an action of trover by Mires against the servant of a buyer from Alston, the

(a) Swain v. Shepherd, 1 M. & Rob. 223; and Sale of Goods Act, section 18, rule 4, and s. 27.

(b) Post, p. 218.

(c) Mires v. Solesby, 2 Mod. 243.

P

Court decided that the agreement that Alston should have the sheep if he would pay such a sum of money at a future day, did not amount to a sale, and consequently that the sale to the plaintiff before that day was good, and the property of the sheep was in him.

But if the conditions are fulfilled, and the agreement made absolute whilst the seller remains owner of the goods, it seems that the agreement has the same effect as if it were then for the first time made without any condition, and consequently that the property passes at once. In Evans v. Thomas (a), in 1608, it is said: "If one "covenants with another, that if he will marry his daughter "he shall have such a flock of sheep. He marries his "daughter, the property of the sheep were presently in him, "for it was but a personal thing, and the covenant is a grant." For this proposition, Fitzherbert (44 Ed. 3) is cited, but no such case is in the Year Book of that date.

In Barrow v. Coles (b), in 1811, Norton and Fitzgerald drew a draft on Voss, and indorsed it to the plaintiff; they at the same time transmitted to him a bill of lading of some goods with an indorsement, making the goods deliverable to Voss, if he should "accept and pay " the draft, if not to the holder of the draft. Both the bill of exchange and the bill of lading were sent to Voss, who accepted the bill of exchange, but did not pay it, and indorsed the bill of lading to the defendant. Lord Ellenborough held, that after the dishonour of the draft, the plaintiff might maintain trover against the indorsee of the bill of lading, who had obtained possession of the goods. It seems, however, probable, that the plaintiffs had some right of property in the goods, independently of being holders of the draft at the time it was dishonoured, though that is not mentioned in the report (c).

In the sale of goods, the parties frequently agree to conditions precedent to other things besides the passing of the property; for example, to the duty of the seller to deliver, or

(a) Evans v. Thomas, Cro. Jac. 172.

(b) Barrow v. Coles, 3 Camp. 92.

(c) See post, p. 291. Chapter on Equitable Assignments.

of the buyer to receive or pay for the goods. The parties are at liberty to import into the contract any terms they may please.

But it may be a question of some difficulty to decide. whether a term or stipulation which forms part of the contract, creates a condition precedent, or is a mere collateral contract of warranty, for the breach of which the remedy is an action for damages. This is a question of law; as Williams, J., said in Behn v. Burness (a), in 1863, where a charter-party stated a ship to be "now in the port of "Amsterdam" when she was not so. "It was no part of "the Judge's duty to leave to the jury any question as to "the construction of the contract, or the materiality of any "of its statements. It was his function to construe the "contract with the aid of the surrounding circumstances "found by the jury, and to decide for himself whether the "statement that the ship was in the port, supposing it to "be untrue, was an essential part of the contract, or a mere "representation."

The meaning of the contract is that which both parties. intended it should have; it is therefore the common intention of the parties which has to be looked for, and where they have reduced their contract into writing, that, if it is not ambiguous, is conclusive evidence of their intention, and to put a meaning on the contract is simply a question of construction for the Judge; but if it is ambiguous, so that the intention cannot be read on the face of the document, then the Judge may look at the surrounding facts and circumstances as found by the jury to assist him in discovering what it was that the parties probably intended. But, as Brett, M. R., said in Sanders v. McLean (b), "The Court has no right to import anything into a contract which it would "not be clear to every reasonable man must have been present to the minds of both contracting parties, and 'agreed to by both."

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(a) Behn v. Burness, 32 L. J. Q. B. 204; 3 B. & S. 756; discussed by C. A. in Bentsen v. Taylor, 63 L. J. Q. B. 15; [1893] 2 Q. B. at p. 281 et seq.; and see Sale of Goods Act, s. 11.

(b) Sanders v. McLean, 52 L. J. Q. B. 481; 11 Q. B. D. 336