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must one control the legal right of possession in order properly to be called the legal “owner". The courts are agreed, that, whatever he be called, the buyer, even though he does not take possession, has all the customary rights and liabilities of ownership except as to certain third persons who take possession from the seller in good faith.8 Furthermore, the overwhelming majority of opinions speak of him as having acquired the "ownership”. ACcordingly his rights will be called “ownership” in this discussion.

The ownership may pass to the buyer, if the parties so intend, even though by their agreement he has not even the right to possession, without further act, such as payment of the price.

Likewise, certain rights generally appertaining to title will pass to the buyer even though the goods are in the adverse possession of a third person, and the transaction is generally called a “sale”.5

Payment Not Essential.—Payment is not essential to the passing of title when the parties have not intended that it shall be.

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Presumptions of Intent. This rule, that the intention

3-The rights of such third persons are discussed Post, p. 212.

4-Clark v. Greeley, 62 N. H. 394; State v. Mullin, 78 0. S. 358, 125 Am. St. 710; Obery v. Lander, 179 Mass. 125; Lester v. East, 49 Ind. 588; Tarling v. Baxter, 6 Barn. & Cress. 360.

5—Cartland v. Morrison, 32 Me. 190. But compare the decisions, based upon public policy, in O'Keefe v. Kellogg, 15 Ill. 347; McCully V. Hardy, 13 Ill. Ap. 631; Erickson v. Lyon, 26 Ill. Ap. 17; Young v. Ferguson, 11 Ky. 298. See the contention of Mr. Ames, that "title" does not pass, in 3 Harvard L. R. 342.

6—Thompson V. Brannin, 94 Ky. 490; Allen V. Rushfort, 72 Neb. 907; Bayne v. Hard, 79 N. Y. S. 208; Richardson v. Insurance Co., 136 N. C. 314, but compare, Hughes v. Knott, 138 N. C. 105; Parker v. Davis, 13 0. C. C. R. 631; Tarling V. Baxter, 6 Barn. & Cress. 360; see also cases cited above and those referred to in subsequent sections.

By statute of some states pay. ment is made an essential to the passing of title of certain kinds of goods. See the discussion under "conditions precedent”, Post, p. 33. 7-In Graff v. Fitch, 58 Ill. 373, the trial court left the matter with the jury with instructions that, if they found certain facts as alleged, title did not pass. This was held error by the Supreme Court on the ground that such facts only created a presumption that title


of the parties determines when title passes to specific property, is simple and explicit enough, and involves no difficulty when the parties have made their intention clear. Controversy arises only where the parties can not agree as to what their intent was, or had no conscious, no real intent as to title at all.

If the parties had an actual and conscious, although unexpressed, intent, it would properly be the function of a jury to determine what it was, as a question of fact. But, it is common experience that the parties to a sale very seldom have any conscious thought whatever as to the exact point of events at which title is to pass. The ultimate result is all that enters into their calculation. It is impossible in such case to speak of the “fact" of their intent. There is no such fact. Yet there must be some point in the transaction at which title passed, and it becomes the duty of the court to say what this point was. This is not a finding of fact, but rather a decision of what the court thinks would have been the fact if the parties had thought about the matter. In other words, it is a judicial conclusion as to what normal men in like circumstances would probably have intended had their attention been directed to the matter. This distinction between finding the actual fact of intent by a jury, and a conclusion by the court of what might have been the normal intent had there been a conscious one, has not been clearly made by the courts.

Some courts have left the question of intent to the jury, without discussion of reason for so doing, apparently as a matter of course, as though it were a question of fact.? Generally, however, where the matter is left to the jury at all, it is left with specific instructions that a strong presumption of intent arises from certain facts.8

was not intended to pass, and the jury should have been left to de. cide the real intention. In Richardson v. Ins. Co., 136 N. C. 314, it was held that the question of intent should have been left to the jury. See Stewart v. Henningson Produce Co., 88 Kan. 521, 50 L. R. A. (n. s.) 111; Wilkin. son v. Holiday, 33 Mich. 386; Morrow v. Reed, 30 Wis. 81; Cunningham v. Ashbrook, 20 Mo. 553; Weld v. Came, 98 Mass. 152; Burrows v. Whitaker, 71 N. Y. 291; Andrew V. Dieterich, 14 Wend. (N. Y.) 31; Moats v. Strange Bros. Hide Co., 185 Ia. 356, 170 N. W. 456.

The great majority of courts, without specifically saying anything about it, treat this intent as a question to be determined by the court according to established rules of presumption. These rules of presumption are built upon certain factors which are frequently recurrent in transactions of sale, and which, because of their common recurrence, furnish standards that will apply to nearly every case.

-Form of Agreement.—The tense of the words used does not have any material weight with the court. In Tarling v. Baxter, for instance, it was held that title had passed, although the form of the agreement was to pass title in the future, being, “I have

agreed to sell” and “ I have

agreed to buy”. In Sherwin v. Mudge the words were “A sells and B buys”, but the court held that there was no intent to pass the title at that time.11


Nothing Remaining to be Done by Seller. — In general, 'if nothing remains to be done, under the terms of the contract, except for the buyer to pay the agreed price and take possession, the courts assume, in the absence of any showing of contrary intention, that title has passed. The presumption is that the parties intended the title to pass as soon as everything else was done according to contract, regardless of the physical possession, or of actual payment.12*'- But if parties clearly intend that title shall not pass until payment, the courts will give effect to that intention.

8-Cunningham v. Ashbrook, 20 Mo. 553; Burrows V. Whitaker, 71 N. Y. 291; Lingham v. Eggleston, 27 Mich. 324. In Cassinelli v. Humphrey Supp. Co., 43 Nev. 208, 183 Pac. 523, it was held to be a question for the court if it involved the construction of a written contract, or if the facts

were undisputed-thus leaving for
the jury only the finding of the
overt facts from which the court
might deduce the intent. Accord,
Miller Milling Co. v. Butterfield,
etc., Co., 32 Idaho 265, 181 Pac.
703; Pittsburgh etc. Co., v. Cudahy
Co., 260 Pa. 135.

946 Barn. & Cress. 360.
10-127 Mass. 547.

11—Walti v. Gaba, 160 Cal. 324; Hanson v. Meyer, 6 East 614, “I have bought”-title held not to have passed. Piano Co. v. Piano Co., 85 0. S. 196, “I hereby transfer my full right of ownership" held not indicative that title was passed.

-Something Remaining to be Done by Seller.-On the other hand, it may be said broadly that whenever the parties have agreed that the seller is to do some act before the buyer could logically and naturally, according to the agreement, take possession, a strong legal presumption arises that they did not intend title to pass until that act should be done.

The reason for this presumption is variously stated, and is not definitely ascertainable. But, although the courts which follow this rule do not themselves state the reason for it, there is a possible reason which very logically justifies this presumption of intent. Ownership carries with it the risk of loss. It is a fair presumption that a buyer would not intend to take title to goods and to assume this risk of loss, unless he could have also the right to protect his goods from loss without violating the terms of the agreement. In cases where the seller is to

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12-Tarling v. Baxter, 6 Barn. fine this presumption to cases in & Cress. 360; VanBrocklin V. which it positively appears that Smeallie, 140 N. Y. 70; Baker v. payment was not to be immedi. McDonald, 74 Neb. 595, 1 L. R. A. ate, as where a term of credit (n. s.) 474. Piano Co. v. Piano Co.,

is expressly given. See the dis85 0. S. 196.

cussion under “Cash Sale”, Post, Oontra, dictum only, that pay.

p. 33. Paul v. Reed, 52 N. H. 136; ment is a prerequisite to passing

Mich. Cent. Ry. v. Phillips, 60 Ill. of title, Hanson v. Meyer, 6 East

190. 614.

See also cases cited ante, that A number of decisions, particu- title may pass before payment and larly the very earlier ones, con- delivery.

*See Uniform Sales Act, Section 19, Rule 1.

weigh or otherwise measure the goods in order to determine the total price, it is presumable that the agreement contemplates the seller's keeping possession until he does do such weighing. If, then, the buyer should, without the seller's permission, take possession of the goods before the seller had weighed them, he would violate the implied terms of the agreement. It is not reasonable to assume that the buyer intended to take title to goods at a time when he could not physically protect them from loss without violating his agreement with the seller. To say that legally he could take possession without violation of the contract, because he has title, is begging the question. By the terms of the agreement he can not take possession until the seller has done the weighing and therefore can not act freely to protect the goods. The presumption that he does not intend to take title under such circumstances has, therefore, a thoroughly sound reason for its existence.

In accordance with this general rule, if goods whose total measurement is unknown are sold at a stipulated price per unit, and it is the duty, or the privilege, of the seller, with or without the buyer's aid, to weigh or otherwise measure the mass in order to determine the total price, it is presumed that title was not intended to pass until that should be done. In the cases coming within this rule it may be observed that the agreed control of possession is in the seller. The buyer is not entitled to take possession until the seller shall have exercised his privilege, or performed his duty, by determining the total price. On the action of the seller therefore depends the agreed, as possibly distinct from the legal, right to possession. The buyer can not tender payment and take possession-and so protect himself from loss—until the seller has determined what the total price is. The same thing is true when the seller is to ascertain the quality of the goods in order to fix the actual price, and, in general, when the seller is the one who is to do anything whatever that is necessary to a determination of the

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