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tendent, who was injured by reason of a defect which the manufacturer had concealed by the use of paint and grease. Manufacturer held liable to W.45

(c) Article inherently dangerous—manufacturer liable to any one hurt in the use thereof unless he uses care in its preparation. What is reasonable care depends on the facts. Thus the preparer of drugs, poisons, explosives, etc., must take every precaution to safeguard the

user.

Example 18. A manufactured fur coats containing a dye injurious to some persons, although not to all. Held liable for not giving notice of the hidden danger.46

In the case of Johnson v. Cadillac Motor Car Company, 261 Fed. 878, Johnson bought a car from a dealer who bought it from the defendant, and while driving it was injured by the breakage of a defective wheel. Johnson sued in tort for damages and the court held that he could recover upon showing merely negligence on the part of the Cadillac Company, on the ground that an automobile is inherently dangerous if not carefully manufactured, and should be in the same class as drugs or food.

(d) Articles intended for food, drink, medicine, etc. Manufacturer liable to any consumer, unless he uses utmost precaution in preparation.

The above doctrine is qualified by many cases by the statement that the goods must be contained in original packages.

Example 19. M purchased a carton of cold tongue from Seattle Grocery Co. who had purchased it from the

45. Woodward v. Miller, 119 Ga. 618, 64 L. R. A. 932. 46. Gerkin v. Brown, 143 N. W. (Mich.) 48.

producers, A & Co. Alleged that it was unwholesome owing to negligence of producers. A & Co. demurred to the case. Held, that a manufacturer of food who sells it in original packages and is negligent in preparing it is liable to any one who is damaged by its intended use.47

47. Mazetti v. Armour & Co., 135 Pac. (Wash.) 633, 48 L. R. A.

N. S. 213.

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TRANSFER OF TITLE BETWEEN BUYER AND
SELLER, WHEN RIGHTS OF THIRD

PARTIES NOT INVOLVED.

Sec. 53. MEANING OF PHRASE "TRANSFER OF TITLE.” In every complete sale there is a certain moment of time wherein the ownership of the goods by the seller ceases and that of the buyer begins; therein is the transfer of title. When this shall occur depends upon the intention of the parties as determined by rules of construction. But where the rights of third parties as creditors or purchasers are affected by such sale, the positive law may override and defeat such intention.

Goods which are the subject matter of a sale, must belong at each moment of time to buyer or to seller. There must occur a certain definite moment or occasion wherein it can be said that then the title or property passed, defeasibily or absolutely. The goods must be at any given moment either buyer's or seller's (assuming, of course, that no third party has title). Whether this' transition takes place and at what moment, is the subject matter of this present chapter. There is, however, another viewpoint made necessary in cases which concern

the rights of third persons. A person other than the seller, may, unknown to the buyer, really own the goods or he may have rights which may be so prejudiced by such sale or attempted sale, that the law permits him to defeat or ignore it in the proper proceedings. The subject of the transition or title as between the buyer and seller is discussed in the present chapter. In the following chapter the rights of third parties in respect to such transition are considered.

Sec. 54. GOODS UNASCERTAINED. Title to unascertained goods cannot be transferred.

There may be a contract to sell goods which are at the time wholly unascertained, but the transfer of title cannot take place until the ascertainment.48 Thus if A undertakes to sell B a certain kind of threshing machine out of A's stock of such machines, B does not thereby own any machine until one party has, with the express or implied consent of the other party, selected or appropriated a machine to the contract. Whether title would pass at such appropriation depends on other rules. It is true, of course, that before title passes there will be a right to sue for breach of contract. But after title passes there is a right to the property in the buyer.

It is a mooted question whether title can pass, even when that is the intention, to a part of a mass of fungible goods like wheat, oil, or wine, where there has been no separation of the part from the whole. One argument is that title cannot pass, because it could not be said what part was owned by the buyer, and in case of a destruction of a part of the mass, whether it was his part or another's that had been destroyed. But it is really not necessary

48. McLaughlin v. Piatti, 27 Cal. 451; Ellis & Myers Lumber Co. v. Hubbard, 96 S. E. (Va.) 754.

to determine this. For the buyer may be considered as an owner in common with the seller and in case of loss each would sustain his proportionate share and this is the better rule.49

It is every where admitted that if the goods contracted for are not fungible goods, that is, the units are not indistinguishable, title cannot pass until ascertained. Thus if 50 out of 100 logs are sold, it is important both to buyer and seller what particular logs shall be selected as each may differ from the others even though as a matter of fact they may be substantially alike and no title passes unless the sale was intended to be an undivided interest in the whole mass. But where the sale is of wheat in a warehouse, oil in a tank, etc., it ought to be possible to transfer ownership without separation if the parties so intend and that title may be so transferred is now considered the better rule and in accordance with mercantile demands, but the contrary doctrine prevails in some jurisdictions.50

Sec. 55. GOODS ASCERTAINED. Title to ascertained goods passes according to the intention of the parties.

So long as the goods are unascertained, title cannot pass. If ascertained, the time at which property in the goods shall pass depends on the question of the parties' intention. The law will not declare the buyer to be owner of the goods sooner or later than the parties intended he should become such owner. The difficulty is in discovering such mutual intention. For this purpose the law resorts to certain rules of construction. These rules are not arbitrary or final in nature, but indicate primarily, and unless it otherwise appear, the intention of the parties.

49. Kimberly v. Patchin, 19 N. Y. 330.
50. Scudder v. Worster, 11 Cush. (Mass.) 573.

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