If the vendor proves a delivery at the place agreed, and that nothing remains for him to do, he need not show an acceptance by the vendee.80 If the vendee is to designate the place of delivery, having the goods ready at the vendor's shop is sufficient, if the vendee does not designate another place.81

Payment of freight to the point of destination is evidence of

the intention of the parties that delivery should be made there,& but it is not conclusive.83

The foregoing rules of construction, however, yield to the proved intention of the parties.84

DELIVERY TO BAILEE.-Delivery to the servant, agent or other bailee of the vendee is delivery to the vendee, and is a sufficient appropriation of the goods to affect the transfer of the title,85 but delivery to an indifferent third person is not.

The presumption of the transfer of title upon a delivery of the goods to a buyer, a carrier or other bailee is not affected by the fact that the buyer, by the terms of the contract, is to pay the price, before receiving delivery of the goods. The seller waives the condition and title passes in the absence of a contrary intention.87

82. Berger v. State, 50 Ark. 20; Devine v. Edwards, 101 Ill. 138; Suit v. Woodhall, 113 Mass. 391; Havens v. Grand Island, etc., Co., 41 Neb. 153; McLaughlin v. Marston, 78 Wis. 670; Fragano v. Long, 4 B. & C. 219.

83. Orcutt v. Nelson, 67 Mass. (1 Gray) 536; Finch v. Mansfield, 97 Mass. 89; Kline v. Baker, 99 Mass. 253; Mee v. McNider, 109 N. Y. 500; Hobart v. Littlefield, 13 R. I. 341.

Goods shipped from Pennsylvania Freight free to Rhode Island on order taken by agent there; delivery was in Rhode Island and sale completed there. Weil v. Golden, 141 Mass. 364.

.

84. "Undoubtedly the general rule is that if the seller obligates himself as a part of his contract to deliver the goods to the buyer at some specified place, title will not pass until such delivery Slight evidence is, however, accepted as sufficient to show that title passes immediately on the sale, though the seller is to make delivery." McElwee v. Met. Lumber Co., 69 Fed. 302. Even when a place of delivery is specified, it does not necessarily follow that the title does not pass before they reach the designated place, as that may depend upon the intention of the parties; and whether

66

they did or did not intend that the title should vest before that, is a question for the jury, to be determined by the words, acts and conduct of the parties and all the circumstances. Dyer v. Libby, 61 Me. 45." Hatch v. Standard Oil Co., 100 U. S. 124.

"If payment was to be made on or after delivery at a particular place, it might fairly be inferred that the contract was executory until such delivery. But where the sale appears to be absolute, the identity of the thing fixed, and the price for it paid, I see no room for an inference that the property remains the seller's merely because he is engaged to transport it to a given point. I think in such case, the property passes at the time of the contract, and that in carrying it, the seller acts as bailee and not as owner." Terry v. Wheeler, 25 N. Y. 520.

85. Hunter v. Wright, 94 Mass. (12 Allen) 548; Bonner v. Marsh, 10 Smeeds & M. (Miss.) 376.

86. Hart v. Tyler, 32 Mass. (15 Pick.) 171.

87. Magruder v. Gage, 33 Md. 344; Appleman v. Michael, 43 Md. 269; Farmers' Phosphate Co. v. Gill, 69 Md. 537, 1 L. R. A. 767; Sarbecker

This subject seems to belong more appropriately to the next section, q. v.

The Act fixes the law in accordance with the reasoning of the common law.

Section 20. Reservation of Right of Possession or Property When Goods are Shipped.—(1.) Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of possession or property in the goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee for the purpose of transmission to the buyer.

(2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller's property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.

(3.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of his agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods, as against the buyer.

(4.) Where the seller of goods draws on the buyer for the price and transmits the bill of exchange and bill of lading together to the buyer to secure acceptance or payment of the

v. State, 65 Wis. 171; Fragano v. Long, 4 B. & C. 219.

C. O. D.-The following cases hold that title to goods shipped C. O. D. passes upon delivery to the carrier, C. O. D. having the effect of making the carrier the vendor's agent to collect the price: Pilgreen v. State, 71 Ala. 367; State v. Carl, 43 Ark. 353; Brechwald, v. People, 21 Ill. App. 213; State v. Intoxicating Liquors, 73 Me. 278; State v. Peters, 91 Me. 31;

Lane v. Chadwick, 146 Mass. 68; Higgins v. Murray, 73 N. Y. 252; Crook v. Cowan, 64 N. C. 743; Norfolk So. Ry. Co. v. Barnes, 104 N. C. 25; Commonwealth v. Fleming, 130 Pa. St. 138, 5 L. R. A. 470.

The following cases hold that title did not pass until payment and delivery to the buyer: People v. Shriever, 23 Fed. 134; O'Neil v. Vermont, 144 U. S. 323; State v. Wingfield, 115 Mo. 428; State v. O'Neill, 58 Vt. 140.

bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading he acquires no added right thereby. If, however, the bill of lading provides that the goods are deliverable to the buyer, or to the order of the buyer, or is endorsed in blank, or to the buyer by the consignee named therein, one who purchases in good faith, for value, the bill of lading or goods from the buyer will obtain the property in the goods, although the bill of exchange has not been honored: Provided that such purchaser has received delivery of the bill of lading endorsed by the consignee named therein, or of the goods, without notice of the facts making the transfer wrongful.

JUS DISPONENDI.-The provisions of this section are rules of construction of the express or implied reservation of title or right of possession in contracts to sell. They deal only with the effect of the contract upon the transfer of title or possession between the vendor and vendee, and do not affect the rights or remedies of third persons. They apply to contracts for the sale of both specific goods and unascertained goods subsequently appropriated.

The English Act does not relate to present executed sales, but only to executory contracts to sell. This Act, however, which is said to "follow with some changes of expression the English Act," has so widely departed from the wording of the English Act, that its language is undoubtedly comprehensive enough to include contracts under which the title has passed,' and to reserve the right of possession.

The reservation of jus disponendi by the vendor is for his protection against the non-performance of the conditions of the contract by the vendee. These conditions may be anything on which the parties may expressly or impliedly agree. The most common

1. Cahn v. Pockett's Bristol Channel Co. (1899), 1 Q. B. 643 C. A.

2. Mirabita v. Imperial Ottoman Bank (1878), 3 Exch. D. 164.

3. Commissioners on Uniform State Laws, Draft of Sales Act, page 41.

4. "Where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropria

In

tion, reserve the right of disposal until certain conditions are fulfilled. such case notwithstanding the deliv ery of the goods to the buyer, or to a carrier, or other bailee, for the pur pose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled." (Eng.) Sale of Goods Act (1893),

19.

stipulations are the payment of the price and, in cases of deferred payment, security therefor."

The question to be considered is what acts sufficiently indicate an intention to reserve the title or right to possession, after the performance of the acts which, but for them, would imply an intention to transfer the title and possession absolutely.

The statute, in addition to the statement of the general principle, specifies three particular classes:

(1.) "Where goods are shipped and by the bill of lading the goods are deliverable to the seller or his agent, or to the order of

5. 1 Mechem on Sales, § 533. Armsby Co. v. Blum, 137 Cal. 552; Hilmer v. Hills, 138 Cal. 134; Furst v. Com. Bank, 117 Ga. 475: Starr Mach. Co. v. McLeod, 122 Ky. 564; Witt v. Dirsham, 146 Mich. 68; Lamb v. Utley, 146 Mich. 654; French v. Lewis, 218 Pa. St. 141; Austin v. Welch, 31 Tex. Civ. App. 526; Paulson v. Lyon, 26 Utah, 438; Kitson Mach. Co. v. Holden, 74 Vt. 104; Racine Shoe Mfg. Co. v. Badger Mfg. Co., 123 Wis. 94.

46

V.

Payment of the contract price is one of the most usual conditions on which the transfer of title depends. It is generally a condition to be performed simultaneously with delivery. If such be the contract, a waiver of the condition may be presumed from an unconditional delivery without exacting payment, and, in the absence of explanatory proof, the property will vest in the purchaser. Smith Lynes, 5 N. Y. (1 Seld.) 41; Carleton v. Sumner, 4 Pick. 516; Smith v. Dennie, 6 Pick. 262, 266; Farlow v. Ellis, 15 Gray, 229. But where the delivery is conditional as where the parties have stipulated that, notwithstanding delivery, the title shall not pass until the contract price be paid, property in the chattel will not pass to the vendee until payment be made. The vendor's title is not divested, by a conditional delivery if the terms of sale with respect to payment be not complied with. D'Wolf

v. Babbett, 4 Mason, 289; Copland v. Bosquet, 4 Wash. C. C. 588; The Oriole, 1 Sprague, 31." Cole v. Berry, 42 N. J. L. (13 Vroom) 308, 310, 311. The retention or possession of property by the seller until and as security for the payment of the price, is not inconsistent with an actual sale by which the title passed to the buyer. Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69.

Where the contract is that title remains in the vendor until the goods are paid for, the sale is conditional and title will not livery, unless the formed or waived. 66 N. H. 396, 398. Greeley, 62 N. H. 394, 396.

pass, even on decondition is perTowne v. Davis, Citing Clark v.

"The vendor may retain his hold upon the goods to secure payment of the price, although he puts them in the course of transportation, to the place of destination, by delivery to a carrier. The appropriation which he then makes is said to be provisional or conditional. He may take the bill of lading or carrier's receipt in his own name or some agent's name to be transferred on payment of the price by his own or agent's endorsement to the purchaser, and in all cases when he manifests his intention to retain this jus disponendi the property will not pass to the vendee." Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295.

6. 1 Mechem on Sales, § 770 et seq.