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of real intention. Such evidence may take any conceivable form; it may be of any degree of persuasiveness. The same piece of evidence that persuades the court not to follow the conventional rule in one case, may be treated by another court as quite insufficient. These other matters of possible evidence are not, however, sufficiently recurrent for any custom of decision based on them to have grown up. When, therefore, a particular case presents facts not precisely covered by the few rules of presumption just discussed, the question of title depends upon the influence of these facts, backed by the persuasiveness of counsel, upon the particular judge. If counsel can find some other case in which similar facts have been judicially held to show a certain intention, the later court may choose to follow the earlier decision-or it may choose to form its own independent conclusion of fact. Undoubtedly particular precedents have some influence, but there is no rule, no established judicial custom, other than those few already stated.

Expressed Intent. Whenever the parties have expressed any intention in respect to the passing of title, there is then no doubt of the matter and title will be held to have passed, or not to have passed, strictly in accord with such intention.

-Conditional Sales.-Of this class are those agreements commonly known as "conditional sales”. These are agreements in which the parties have clearly provided that title shall not pass until the performance of some condition upon the part of the buyer. Usually this condition is payment of the purchase price, but it may be anything.

As between the parties, at least, the courts consistently hold that the legal title does not pass until the condition has been performed. This is thoroughly settled. The seller, however, may waive the performance of the condition, and choose to pass title anyhow, or he may lose his retained ownership in other ways. These matters, and the rights of the parties generally will be discussed under the subject of “Seller's Remedies'.61 The rights of third persons toward the goods will be discussed under that subject.52 The point here pertinent, is simply that, as between the parties, the intention to retain title until performance of the condition will be given full effect.

Conversely, since title can not pass except by mutual agreement, it follows that the buyer's intent must be considered as well as that of the seller. If the facts show clearly that the buyer has not intended to take title, it will not be treated as having passed.58


So far we have been considering the passing of title to property which is identified by the terms of the agrecment at the time it is entered into. Many agreements to sell and buy, however, relate to property having no specific individuality at the time. Individuality, as here used, must not be confused with description. A contract to sell which does not describe the property it refers to is of no effect at all as a binding agreement. No court could determine what kind of property the parties had in mind so as to be able to fix damages in case of its breach. But a description of property, sufficiently clear and definite to give a contract validity, does not necessarily point out any particular property. Thus if A agrees to sell to B the watch which he holds in his hand, or the wheat which is in a certain bin, there is no vagueness as to the specific piece of property considered.


Specification. On the other hand, a promise by A to sell and B to buy “an Ingersoll watch”, or “a thousand hushels of A No. 1 hard, Minnesota grown winter wheat”, might be definite enough to form a binding contract. But the particular watch, or the particular mass of wheat, in respect to which they intend to transfer title would not be known. In a strict sense, of course, a description which tells some characteristics of a thing, but does not give enough of its characteristics to delimit it from all other things is not a complete description. Perhaps such a thing is not, precisely speaking, “described”. But, in very common usage, to “describe" a thing is not necessarily to “particularly identify" it. Hence we may properly speak here of “described”, but not “particularized” or “identified” property. In the customary law parlance this particular identification is called specification”, and property described but not delimited from all other property is unspecified”.

51—Post, p. 99 tf. 52—Post, p. 206.

the seller's right to sue for the purchase price in case the buyer refuses to take title as agreed. Post, p. 92.

53–See also the discussion of

The concept of "ownership’ requires not only a person in whom certain rights exist, but a definite and particular object, tangible or intangible, to which those rights relate. There can not be an owner without a thing owned. A thing which is not so described as to have an individuality of its own, apart from all other things of certain like characteristics, has no existence in the eyes of the law. Until there is such a specification as will create individuality of existence there can be no ownership. Consequently, no matter how clearly parties may intend to pass the ownership of something which they describe as “an Ingersoll watch," there is no "ownership” in existence to be passed until they have somehow indicated the particular watch to which they intend the rights of ownership to attach.54*

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54—"That the subject thereof until the particular property which must be specific is essential to the is the subject of the contract bevalidity of every contract of bar- comes ascertained. This is true gain and sale. It inheres in the independently of the intention of very nature of the transaction that the vendor or vendee." Elli & a bargain and sale can not be Myers Lumber Co. v. Hubbard, made of chattels not yet identi- Va. 96 S. E. 754. fied; the ownership cannot change Dunn v. Georgia, 82 Ga. 27, 3 the property or title can not pass, L. R. A. 199. Sale of liquor was

*See Uniform Sales Act, Section 17.

It follows, therefore, that, under the frequent contracts to buy and sell described, but not then specified, property, no title can possibly pass until the parties shall particularly point out the property in respect to which they are dealing. It logically follows also that the parties must agree in thus specifying the particular thing whose ownership one intends to sell and the other to receive.

The cases show a number of settled customs of the courts in deciding whether there has been a specification of property by the seller and an agreement in that specification by the buyer.

-Specification as Passing Title.—When the parties have agreed in specifying the particular property which their contract of sale is to affect, there still remains the question of when they intended title to pass. Whatever their intention, it could not have passed until specification. By making the specification did they intend it then to pass? These are two distinct issues, subsequent one to the other, to be sure, but independent. Nevertheless

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prohibited in D county, but not in F county. The appellant, who had a stock of liquor in F county, agreed with a resident of D county, while both parties were in D county, to sell him a gallon of whiskey. No particular gallon was specified. Appellant was prosecuted for selling whiskey in D county. The court held that the transaction could be nothing but an "executory contract," and not a "sale," until the subject matter of the agreement was identified and that as the identification did not take place in the prohibition county the defendant not guilty of a sale therein. Warren v. Buckminster, 24 N. H. 336, "Where the goods sold are mixed with others, and are not separated from the general stock of the

seller, the sale is incomplete. They must be ascertained, desig. nated or separated from the stock or quantity with which they are mixed, before the property can pass.” Joseph v. Braudy, 112 Mich. 579; Mitchell v. Abernathy, L. R. A. 1917 C. 6; First Natl. Bank v. Cazort & McGehee Co., 123 Ark. 605, 186 S. W. 86; Taylor v. Fall River Iron Works, 124 Fed. 826; Gardiner v. Suydam, 7 N. Y. 357; Conrad v. Penna. R. R. Co., 214 Pa. 98; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; Cassinelli v. Humphrey Supply Co., 43 Nev. 208, 183 Pac. 523. “It is common sense that a man can not presently convey title to property which is not in existence,” Gile V. Lasalle, 89 Ore. 107, 171 Pac. 741.


the courts seldom made a distinction in utterance, and “specification” as meaning “particular delimitation” is much confused with “specification” as meaning “an intent to pass title” to the property then pointed out. As a broad proposition, it may be said that mutual specification of the property to which a contract of sale is meant to apply is taken by the courts as showing a mutual intention to pass title to it at the time of the specification.*

We shall here discuss the matter of mutual specification of the particular property which is to be affected by the contract as a proposition quite apart from the mutual intention to pass title. The former, necessarily, comes first.

How Made.-The natural sequence of events is for the seller to determine upon, and to demonstrate in some way, the particular chattels to which he intends the contract to apply and for the buyer then to express his consent that the contract shall apply to the goods so pointed out. Hence it is usually said that the seller “specifies” the goods and the buyer “assents” thereto. As we have already said, the specification and assent are both necessary before the court can hold that title was intended to pass. This mutuality of intent as to the property to be affected by the contract, that is to say, this specification and assent, together, are usually called the "appropriation” of the goods to the contract. In this sense of the word, to say that goods have been “appropriated" to the contract means that the seller and buyer have agreed in the matter of identification. The word appropriation is, however, quite often used of the act of the seller only, and leaves the assent of the buyer still to be ascertained.56 It is necessary to know of this double

55--Cyc. Sales; Andrews v. Du- is used in both senses; Wait v. rant, 11 N. Y. 35; In Atkinson v. Baker, 2 Exch. Rep. 1, Bell, 8 Barn. & Cress. 277, the term

*See Uniform Sales Act, Section 19, Rule 4, (1).

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