title does not pass from the vendor until the special work is completed. For example, if A buys a boat of B upon B's agreement to paint the boat and then deliver it, and, before the painting or the delivery, the boat is burned, the loss would fall upon B, as the title had not yet passed from him. If the boat was painted and ready for delivery, though not delivered, there is diversity of opinion as to whether the title would have passed. If the delivery was made a part of the contract, A would not have to pay for the boat; if delivery was not a part of the contract, the general rule in the United States is that the loss would fall upon the purchaser. In all cases the presumed intention is that the doing of the thing shall be a condition precedent to the transfer of the property. A leading English case on this subject, which went up to the House of Lords for final decision, is Anderson v. Morice.16

The same rule prevails in this country. In Foster v. Grubbs,17 the plaintiff agreed to sell the defendant a specified lot of fish, with the understanding that they were to be dried and weighed by the plaintiff before delivery. In this case, the court said:

"In the sale of personal property, the general rule of law is, that when, by the terms of the contract, the seller agrees to do anything for the purpose of putting the property into a deliverable state in which the buyer is bound to accept it, or in a condition to be delivered, the title will remain in him until he has performed the agreement in this respect."

Fungible Goods. There is a large class of goods known as "fungible" goods, which call for particular notice. By fungible goods are meant movable goods which lack individuality (such as a horse or a piano possesses) which are valued by weight or measure, and may be replaced by others of equal quantity and quality. Grains and coals belong to the class of fungible goods. Where there is a sale of such goods and they are in a deliverable condition, but have not yet been weighed or measured and hence,

16 1 App. Cas. 713.

17 111 Mass. 11.

where the price has not yet been fixed, if the duty of weigh ing or measuring is upon the seller, the title does not pass until this particular thing is done. Hence, if before the weighing or measuring the goods are destroyed, the loss is on the vendor. If, however, the purchaser had agreed to measure and weigh the goods, then the loss would fall upon him, as title passed to him at the time the contract was made. Where the weighing or measuring is solely with a view to ascertaining or affixing the price and not for the purpose of identifying the goods, some States, including New York, hold that the title passes at the time of the sale. Under the Sales Act,18 there may be a sale of an undivided part of a specific mass, although the number, weight, or measure of the goods is still to be determined. Under the act, the buyer becomes the owner in common of the proportion of the mass which his part bears to the whole.

Goods Taken from Larger Mass. Title may pass to goods that are to be taken from a larger specific mass or number, where all the units are substantially alike, if such be the intention. In Brownfield v. Johnson,19 the court said:

"The weight of American authority supports the proposition that when property is sold to be taken out of a specific mass of uniform quality, title will pass at once upon the making of the contract, if such appears to be the intent. Oil in a tank and grain in an elevator may serve as illustrations of this rule. Where, however, the property is sold as part of a mass made up of units of unequal quality or value, such as cattle in a herd, selection is essential to the execution of the contract, and of course the rule cannot apply. The storage of oil in tanks and of grain in elevators, although not universal, is the usual and ordinary means employed by large dealers in those commodities; and whilst no custom of that kind, technically speaking, could be established, the usage of the trade and general course of business in this country is well known. In view of the necessities which grow out of such usage, the American courts have diverged from the rule adhered to in England, and have recognized a rule for the delivery of this class of property more in conformity with the com18 Uniform Sales Act, § 6.

19 128 Pa. St. 254 at 267.

mercial usages of the country. A distinction is made between those cases where the act is burdensome and expensive or involves selection, and those where the article is uniform in bulk and the act of separation throws no additional burden upon the buyer."

§ 48. Things That May Have to Be Done. Delivery, payment, measuring, weighing, cutting, testing, inspecting, any one or more of these things, by agreement of the parties, may have to be done before title can pass.

In a Kentucky case the plaintiff sold defendant a stock of goods. To ascertain the total sum to be paid, the parties proceeded to inventory and invoice the goods, putting to one side such as were measured or counted. Before the work was completed, a thief entered the premises and stole some of the stock thus inventoried and some not yet invoiced. In an action brought by the seller for the value of the goods stolen, it was held that he was entitled to recover only for the goods set aside by the parties, as this was a condition precedent to the passing of title.20

So where A sold B a number of bales of cotton not yet weighed, and before all were weighed and set aside fire destroyed part of them, it was held no title had passed.21

But the mere detail of measuring will not of itself postpone passing of title, as was laid down in Huff v. Hires.22 There the court said:

"That the parties contemplated the corn should be measured before it left the vendor's possession, will not, of itself, prevent the property passing. Nor will the fact that the vendor was required to deliver it when the time for delivery arrived, accomplish that result. Where the goods sold have been selected and designated, and the price paid, the property will pass by the contract of sale, though it was, one of the terms of the contract that the vendor should transport them to a place named for delivery.”

When the parties agree that goods are to be measured or tested by a third party, or are to be weighed on a par

20 Crawford v. Smith, 37 Ky. 59. 21 Rapeleve v. Mackie, 6 Caro. 250.

22 40 N. J. L. 581.

ticular scales, title will not pass until the condition is fulfilled.23

Where there is a sale of wood to be cut into a certain length and sold at so much a cord, no title passes till the number of cords is ascertained.24

In a Michigan case involving the sale of a quantity of lumber there was a provision in the contract to the effect that sorting and inspection should be final when loaded in cars. Before inspection part of the lumber was burned in the yard. It was held that title to this had not passed and that the loss was on the seller.

A contract of sale of goods to arrive by a particular boat vests no title till the arrival of the goods.25

§ 49. Bill of Lading. As Passing Title. It is an old and well-established practice in the case of a sale of goods to be delivered at a distant place to transmit to the vendee a bill of sale or a bill of lading as evidence of ownership and right to possession. Such an instrument is, under the custom of merchants, regarded as a bill or promissory note, and is negotiable, and is so recognized by the Sales Act, section 27 of which provides: "A document of title in which it is stated that the goods referred to therein will be delivered to the bearer, or to the order of any person named in such document, is a negotiable document of title." A bill of lading is treated as a symbol of property, and hence, may be dealt with the same as the property itself. As Evidencing Intention. A bill of lading may evidence intention to pass title to the vendee. In Krulder v. Ellison,2 ,26 the facts were that the plaintiff sold to a firm in Rochester a barrel of shellac and delivered the same to the defendants who were common carriers. The goods were to be shipped via canal by defendant's boat. The plaintiff sent to the purchaser a bill of sale of the goods. The goods were lost in transit, and the plaintiff, the shipper, sued the common carrier for loss of the goods. It was held that he

23 Rosenthal v. Kahn, 19 Or. 571, 24 Pac. 989 24 Gibbs v. Benjamin, 45 Vt. 124.

25 Benedict v. Field, 11 N. Y. Sup. Ct. 154.

26 47 N. Y. 36.

was not entitled to recover, not being the proper party to sue, as the title had passed to the consignee. The court said:

"The order being positive and in writing, and stating the mode of conveyance, where the goods were delivered to the carrier pursuant to that order, the title passed absolutely to the vendee, subject to the right of stoppage in transitu; and it gave no right of action to the vendor to sue for the loss of the vendee's goods, though the vendor, as agent for vendee, paid the carriage, or in like character, specially contracted with the carrier to transport. Had the consignor agreed with the consignees to deliver the goods to them at Rochester, the rule would be different. Then the consignees would not be the owners till delivery at Rochester. But upon what principle a vendor can sue for the loss of another's goods, it is difficult to see."

Or the bill of lading may evidence intention to retain the title. "We agree that where a bill of lading has been taken containing a stipulation that the goods shipped shall be delivered to the order of the shipper or to some person designated by him other than the one on whose account they have been shipped, the inference that it was not intended that property in the goods should pass except by subsequent order of the person holding the bill, may be rebutted, though it is held to be almost conclusive; and we agree, that where there are circumstances pointing both ways, some indicating an intent to pass the ownership immediately notwithstanding the bill of lading; in other words, where there is anything to rebut the effect of the bill, it becomes a question for the jury whether the property has passed. But in this case there are no circumstances to rebut the intent to retain ownership exhibited in the bills of lading, and confirmed throughout by the endorsements on the bills, and by the written instructions to hold the wheat till payment of the drafts. Nothing in the evidence received or offered tended to show any other intent.", 27

§ 50. Indicia of Ownership. Roughly speaking, owner

27 Dows v. Nat. Exch. Bank of Mil., 91 U. S. 618.