ship of personal property may be indicated in various ways, for instance, by a name on a wagon, so that the person in possession of the property is presumed to be the owner. And where the owner has conferred possession of his property on another and apparent right of property, a vendee will take good title.28 And the purchaser in good faith from a fraudulent vendee gets legal title from one clothed by the owner with the indicia or signs of ownership by which a third party has been misled.29 Assignees and creditors of the vendee, however, cannot as a general rule hold the goods against the vendor.30 31 § 51. Place Where Title Passes. Where goods are shipped C. O. D. without any agreement as to vesting of title according to the weight of authority, the title is regarded as passing at the time of the making of the contract and at the place where the goods are to be delivered to the carrier and not at the place where and at the time when they are received by the purchaser. This was so held in the case of Golightly v. State. There are, however, cases to the contrary which hold that title does not pass until delivery by the carrier to the purchaser. In the Golightly case the theory was that the title passes upon delivery to the carrier, who is regarded as the agent of the purchaser, and is the agent of the seller only for the purpose of collecting and returning the purchase price, and that the sender retains only a lien for the price. In the case of U. S. v. Schriver,32 the defendant was indicted for carrying on the business of a retail liquor dealer at Fairfield, Illinois, without having paid the special tax required by the United States laws. Schriver's regular place of business was at Shawneetown, but he went to Fairfield to solicit trade, taking with him samples and procuring orders, which he filled through the express company, who received orders and collected bills for him. A person residing in Fairfield sent to Schriver at Shawnee 28 Salters v. Everett, 20 Wend. 267. 31 90 S. W. Repr. 26. town an order for two gallons of liquor, to be shipped to Fairfield C. O. D., and there delivered by the express company to the purchaser upon payment of the price. In this case, the court said: "By shipping the liquor to Fairfield C. O. D., the defendant made no sale at Shawneetown. The right of property remained in himself and the right of possession, as well as the actual possession, remained in him through his agent. Had it been lost or destroyed in transit the loss would have fallen upon himself." In State v. U. S. Express,33 the facts were that, under a prohibition statute, certain intoxicating liquors in the possession of the U. S. Express Company were seized and destroyed. The case sufficiently appears in the opinion of the court by Rothrock, J.: "There were several packages of liquor. They were carried by the express company and held by it for delivery to the parties for the payment of the purchase price. They were, therefore, the property of the consignors, and the express company was the agent of the consignors, with authority to transfer the title to the property upon payment of the purchase price. § 52. Title to Goods Not in Existence. When goods are made to order, as a suit of clothes, or a contract is entered into for building a machine or a vessel, when does the purchaser receive title, and does part payment as the work progresses affect the question? This point was raised in a New York case involving title to an unfinished boat. The court said, through Denio, J.: "In general, the contract for the building of a vessel or other thing not yet in esse (in being) does not vest any property in the party for whom it is agreed to be constructed during the progress of the work, nor until it is finished and delivered, or at least ready for delivery and approved by such party. The precise question is whether the concurrence of both particulars-the payment 33 70 Ia. 271, 30 N. W. 568. of parts of the price at specified stages of the work, and the intervention of a superintendent to inspect and approve of the work and materials-produces a result which neither of them separately would effect. It is, no doubt, competent for the parties to agree when and upon what conditions the property in the subject of such a contract shall vest in the prospective owner. The present question is, therefore, simply one of construction. The inquiry is whether the parties intended by the provisions which they inserted in their contract, that as soon as the first payment had become payable and had been paid, the property in the unfinished barge should vest in the defendants, so that thereafter it should be at their risk as to casualties and be liable for their debts, and pass to their representatives in case of their death. Such an agreement would be lawful if made, and the doubt only is whether the parties have so contracted." 34 § 53. Sales of Non-Specific Goods. When there is an agreement for the sale of a thing not specified, as an article to be manufactured, or for goods in general, without a specific identification or appropriation of them to the contract, the contract is an executory agreement and title does not immediately pass. Even upon the completion of an article manufactured for a purchaser, the title does not ordinarily vest until after notice to the vendee, or some act on the part of the vendor setting off the property as the property of the vendee. However, when an article has been completed and notice has been sent to the buyer, if the vendor is obliged to do nothing else, then the title passes. Where a purchase is part of a general stock of goods, or of a mass, as of grain, and where the intention of the parties does not appear, it is generally held that no title passes to any particular goods until they have been appropriated to the contract by being set apart or marked, or in some way designated for the buyer. Just how much must be done by way of appropriation is not a matter in which any rule can be laid down, but must be determined largely by the circumstances in each case. 84 Andrews v. Durant, 11 N. Y. 35, 62 Am. Dec. 55. Under the Sales Act,35 where the contract is to sell unascertained future goods by description and such goods are unconditionally appropriated to the contract with mutual assent of the parties, the property passes to the buyer. And when in such a contract the seller delivers the goods to the buyer or to a carrier or other bailee for the purpose of transmitting the goods or keeping them for the buyer, the vendor is presumed to have unconditionally appropriated the goods to the contract, although the buyer is to pay the price before receiving delivery of the goods and in some cases although the goods are sent C. O. D. If the seller is obliged to deliver the goods at a particular place, or pay the freight or cost of transportation to a particular place, the property does not pass until the goods have been delivered to the buyer at the place agreed upon. The seller, however, may reserve right of possession or property in the goods until certain conditions have been fulfilled, so that ownership may remain with the vendor, although delivery has been made to the vendee. This may be done by having the bill of lading to the goods made out in the name of the seller or his agent, or having the bill made out in the name of the buyer but retaining possesion of the bill of lading. Cases Illustrating Governing Principle. In Dayman v. Osborn,36 the plaintiff sold two thousand brick, out of forty thousand in his yard, at four dollars per thousand. The defendant took away a few hundred of the brick and left the others in the kiln with the rest to be taken whenever called for. The kiln and contents were destroyed by fire and Dayman sued to recover the price. It was held that as nothing remained for him to do under the contract, he was entitled to recover for goods bargained and sold on the ground that title had vested in Osborn, and with the title went the risk. In Waldron v. Chase,37 the plaintiff bought five hundred 35 Uniform Sales Act, § 19. 36 1 Pick. 476. 37 37 Maine 414. bushels of corn out of a mass of fifteen thousand bushels and paid for them. He took away part and by custom had the right to take away the balance as he might wish from day to day without any other act by the vendor. All the rest was destroyed by fire. The buyer sued to recover for the part not received, and it was held that the title and hence the risk had passed to him, and that he was not entitled to recover. In a leading New York case, Kimberly v. Patchin,38 the facts were, that a man named Dickinson, living and doing business in the State of Wisconsin, had in his warehouse in that State, two piles of wheat, containing, as subsequently appeared, more than 6,200 bushels. Dickinson sold 6,000 bushels of the wheat to one Shuttelworth at 70 cents per bushel and gave him a bill of sale of the same. He also gave Shuttelworth a receipt to the effect that he held in store 6,000 bushels of wheat to the order of Shuttelworth, free of all charge on board. Shuttelworth sold the wheat to the defendant in this case, Patchin, assigning to him the bill of sale, and the receipt he had received from Dickinson. Before Patchin could remove the wheat, Dickinson sold the whole mass in the two piles, including Shuttelworth's, to a party who sold to Kimberly, the plaintiff in this action. Kimberly shipped all the wheat to Buffalo, where Patchin replevined from the master of the vessel the 2,000 bushels he claimed to be the owner of. Kimberly, claiming to be the owner, sued him for its value in an action of trover and conversion. The case turned on the point whether there could be a sale of a portion of a mass without separation of the portion from the mass and some form of delivery to the vendee. In delivering the opinion of the court, Comstock, Judge, said: "It is a rule asserted in many legal authorities, but which may be quite as fitly called a rule of reason and logic as of law, that in order to constitute an executed sale, so as to transfer a title from one party to another, the thing sold must be ascertained. This is a self-evident 38 19 N. Y. 330. |