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Goods must be ascertained.

S. 16.

for rejection, under s. 35, of the goods after discovery of the defect (b).

ILLUSTRATIONS [Warranty or not].

1. A. sells to B. a horse for 107., and gives him a receipt as follows: "Received 107. for a grey four year colt, warranted sound in every respect. This is a warranty only of soundness, as appears by the collocation of the words, and not of age, which is merely represented by A. Budd v. Fairmaner (1831), 8 Bing. 48 (c).

2. A. sells to B. by a bill of parcels "four pictures, Views in Venice, Canaletti." It is a question for the jury whether A. merely expressed his opinion as to the authorship, or warranted it. Power v. Barham (1836), 4 A. & E. 473.

ILLUSTRATIONS [General warranty].

1. A. sells to B. two horses, one of which is known to B. at the time to be suffering from a cough, and the other from a swelled leg; but A. warrants their soundness on delivery at the end of a fortnight. This is an express warranty by A. of the horses' soundness at the time of delivery, notwithstanding the patent defect. Liddard v. Kain (1824), 2 Bing. 183.

2. A. sells to B. a horse which, to the knowledge of both, is suffering from a splint, and warrants him then sound. Some splints cause lameness, and others do not; and no inspection could show the particular character of this splint. The horse thereby becomes lame. A. is liable to B. on the warranty, as B. could not tell that the particular splint would cause lameness. Margetson v. Wright (1832), 8 Bing. 454.

PART II.

EFFECTS OF THE CONTRACT.

Transfer of Property as between Seller and Buyer.

16. Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.

"Where the specific goods to which the bargain is to attach are not agreed on, it is clear that the parties can only contemplate an executory agreement [i.e., 'an agreement to sell ']. If A. buys from B. ten sheep, to be delivered hereafter, or ten sheep out of a flock of fifty, whether A. is to select them, or B. is to choose which he will deliver, or any other mode of separating the ten sheep from the remainder be agreed on, it is plain that no ten sheep in the flock can have changed owners by

(b) Upton Man. Co. v. Huiske, 69 Iowa, 557.

(c) See also Anthony v. Halstead (1877), 37 L. T. N. S. 433.

the mere contract; that something more must be done before it can be true that any particular sheep can be said to have ceased to belong to B., and to have become the property of A." (d).

"When the agreement for sale is of a thing not specified, as of an article to be manufactured, or of a certain quantity of goods in general, without a specific identification of them, or an 'appropriation' of them to the contract, as it is technically termed, the contract is an executory agreement, and the property does not pass" (e).

In such a case "the contract can be no more than a contract to supply goods answering a particular description. It is clear there can be no intention to transfer the property in any particular lot of goods more than another till it is ascertained which are the very goods sold. . . . It makes no difference, although the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. In such a case the reason still applies: the parties did not intend to transfer the property in one portion of the stock more than in another " (ƒ). The rule is as old as the Y. B., 18 Edw. 4, 14.

The only English case which conflicts with the above principles is Whitehouse v. Frost (g), where, as between the buyer and second buyer, the property was held to pass in an undivided portion of a larger bulk of oil. Le Blanc, J., in Busk v. Davis (h), explained the case as one of a sale specifically of an undivided quantity, and good at all events as between a buyer and second buyer. But, though the case has been followed in America, it has been much doubted in England (i), and may be considered not to be law.

Unless and until the goods are ascertained. By the terms of this section the ascertainment of the goods is made a condition, "subject to which," under s. 1 (4), "the property in the goods is to be transferred." "Property" is defined in s. 62 (1) as "general property"; and the words "no property" must be taken as meaning that "the property is not transferred."

S. 16.

ment.

There is no express definition in the Act of "ascertainment," Meaning of but the implied definition of "unconditional appropriation " may ascertainbe contemplated by s. 18, Rule 5 (1). If such be the intended definition, ascertainment does not take place till all the conditions to the transfer of the property are fulfilled, whatever may

(d) Benj. p. 274.
(e) Benj. p. 311.
(f) Blackb. p. 125.

(g) (1810), 12 East, 614.

(h) (1814), 2 M. & S. 397.
(i) See the cases in Benj. p. 314.

S. 16.

be the interval between the fixing of the "identity and individuality of the goods" (which was the definition of "ascertainment" previously to the Act) (k), and the performance of such conditions, which interval may, as in the case of a shipment and reservation of the right of disposal under s. 19 (1), amount to months. The previous rule was that ascertainment took place by means of an appropriation mutually assented to (7); but that the seller might still impose further conditions to the transfer of the property (m). It seems a strange result that the goods should not be considered ascertained, however much their identity and individuality was fixed, until every condition precedent to the passing of the property is performed. A way, however, of harmonising the sections with the previous law (as it is probable that no change is intended) is to treat "ascertainment as undefined, but preserved, as a common law rule, by s. 61 (2), and meaning "a final appropriation," though that appropriation may be clogged with further conditions precedent to the passing of the property.

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The question after all is not very material, as the real question in the cases is the transfer of the property, and that is dealt with by ss. 18, Rule 5 (1), and 19 (1).

It is doubtful whether goods, when "ascertained," are dealt with in s. 17, or whether that section is concerned only with specific goods. See the notes to s. 17, post, p. 115.

When the subject-matter of the contract of sale is a chattel to be manufactured (n), or an entire quantity of goods to be supplied, as, e.g., a cargo (when "cargo" bears that meaning) (o), the goods are not ascertained till the completion of the chattel or of the loading and appropriation. These cases are, however, treated of as "future" goods, and dealt with in s. 18, Rule 5 (1), post, p. 130 (p). And the case of a chattel to be made must be distinguished from the case when the chattel is specific, though incomplete. The latter case falls under s. 18, Rule 2, post, p. 119 (q).

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ILLUSTRATIONS.

1. A. contracts to sell B. twenty tons of oil from A.'s cisterns, which contain more than twenty tons. A. does nothing to separate the oil. The oil contracted for has not become the property of B., as there is no ascertainment of any specific portion of the bulk. White v. Wilks (1813), 5 Taunt. 176 (r).

2. A. contracts to sell B. ten tons of hemp out of a bulk of thirty tons then lying on the premises of C. A. gives C. an order to weigh the hemp and deliver to B. This is not done, and, B. then becoming insolvent, A. countermands the order to C. A. can maintain trover against C. if he refuses to deliver the hemp to A., as the property in the hemp is not B.'s. Shepley v. Davis (1814), 5 Taunt. 617 (r).

3. B. orders of A. twenty hogsheads of sugar. A. fills up and delivers four hogsheads, and then fills up the remaining sixteen and asks B. to take them, which B. promises to do. All the twenty hogsheads are ascertained, as there was a separation by A., and a mutual appropriation. Rohde v. Thwaites (1826), 6 B. & C. 388.

4. A. agrees to sell to B. 100 quarters of barley out of the bulk in A.'s granary, B. to send sacks and A. to fill them. B. sends 200 sacks, and A. fills 155. The barley in the 155 sacks is ascertained on the filling of the sacks by A., that being an act of appropriation by A. with B.'s previous authority. For the same reason, there is no ascertainment of the rest of the barley. Aldridge v. Johnson (1857), 7 E. & B. 885 (8).

S. 16.

passes when

17. (1.) Where there is a contract for the sale Property of specific or ascertained goods the property in them intended to is transferred to the buyer at such time as the parties pass. to the contract intend it to be transferred.

(2.) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.

"When there has been no manifestation of intention [i.e., as to the transfer of the property], the presumption of law is that the contract is an actual sale, if the specific thing is agreed on, and it is ready for immediate delivery (t); but that the contract is only executory when the goods have not been specified (u), or if, when specified, something remains to be done to them by the vendor, either to put them into a deliverable shape (x), or to ascertain the price (y). In the former case there is no reason for

(r) Other cases are Wallace v. Breeds (1811), 13 East, 522; Busk v. Davis (1814), 2 M. & S. 397; Austen v. Craven (1812), 4 Taunt. 644; Gabarron v. Kreeft (1867), L. R. 10 Ex. 274.

(s) Approved, per Lord O'Hagan,
in Anderson v. Morice (1876), 1 Ap.
Ca. at p. 740.

(t) s. 18, r. 1, post, p. 117.
(u) s. 16, ante, p. 110.
(x) s. 18, r. 2, post, p. 119.
(y) s. 18, r. 3, post, p. 124.

S. 17 (1).

S. 17 (1). imputing to the parties any intention to suspend the transfer of the property, inasmuch as the thing and the price have been mutually assented to, and nothing remains to be done. In the latter case, where something is to be done to the goods, it is presumed that they intended to make the transfer of the property dependent upon the performance of the things yet to be done as a condition precedent. Of course, these presumptions yield to proof of a contrary intent, and it must be repeated that nothing prevents the parties from agreeing that the property in a specific thing sold and ready for delivery is not to pass till certain conditions are accomplished, or that the property shall pass in a thing which remains in the seller's possession, and is not ready for delivery, as an unfinished ship, or which has not yet been weighed or measured, as a cargo of corn, in bulk, sold at a certain price per pound or per bushel” (z).

Transfer of

property may depend upon fulfilment of a condition by buyer.

(1) E. g., sale for ready money.

The present appears to be the most appropriate occasion to cite a third rule, as to the passing of the property, mentioned by Mr. Benjamin (a), as follows:-"When the buyer is by the contract bound to anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." The latter clause must, however, it is apprehended, be subject to this limitation, viz., that the delivery does not operate as a waiver of the condition, e. g., of payment on delivery (b).

Thus the facts of the case may show, e. g., that the contract of sale of the specific goods was a ready-money bargain, i. e., a contemporaneous exchange of goods and money (c). In this case no property passes except there be payment on delivery. Sales by a tradesman are ordinarily presumed to be such (d).

There is very little authority on this branch of the law in England (e). But the rule appears to be recognized in s. 19 (1) by the statement that, on a contract for the sale of specific goods, the seller may reserve the right of disposal.

(z) Benj. p. 275. See also the judgment in Calcutta, &c. Co. v. De Mattos (1863), 32 L. J. Q. B. at p. 328. (a) pp. 282, 304.

(b) As in Haswell v. Hunt, cited in Tooke v. Hollingworth (1793), 5 T. R. 215; Payne v. Shadbolt (1808), 1 Camp. 427.

(c) See Noy's Maxims, p. 87, and Bussey v. Barnett (1842), 9 M. & W.

312; Cohen v. Foster (1892), 61 L. J. Q. B. 643.

(d) Bussey v. Barnett, supra; Haswell v. Hunt, supra; and case cited in 1 Sm. L. C. (9th ed.) p. 166.

(e) See Loeschman v. Williams (1815), 4 Camp. 181; Payne v. Shadbolt, supra; and cases in note (c). And in America, Upton v. Sturbridge Mills, 111 Mass. 446.

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