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meaning to understand some statements by the courts. In this book “appropriation” will be used only of the specification and assent together.

-May be Implied. It is not essential that the specification be in express words. It may be deduced by the court as a clear implication from the circumstances. Any act of the seller, or of the buyer if he is the one to act first, which points out the particular goods to which he intends the contract to apply will be accepted by the courts as a sufficient specification on his part. No particular formality is required. It is the intention of the party, that certain goods shall be the ones affected by the contract, which counts. Anything that clearly demonstrates such an intention is sufficient.

Thus, marking particular goods, conforming to the description of the contract, with the buyer's name is enough to show the seller's intent that those goods shall be operated on by the contract.66 A tender to the buyer of certain goods will show it,57 or putting goods in the buyer's bottles or sacks.68 More often than in any other way, the specification is shown by the seller's delivering certain goods conforming to the contract to a common carrier for transportation to the buyer. 69

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Assent to Specification.-But, as has already been said, the seller can not thrust upon the buyer title to whichever goods he, the seller, may choose. No title will be held to have passed until the buyer has assented to

56—Andrews V. Cheney, 62 N. It would hardly seem to have H. 404; Mitchell v. LeClair, 165 required a judicial decision to the Mass. 308.

effect that removal from a mass 57–Rider v. Kelley, 32 Vt. 268.

of all goods not sold specifies the

ones which were sold as clearly 58—Langton v. Higgins, 4 Hurl.

as would removal from the mass & Norm. 402.

of those which were sold. This 59-See authorities in subse- was the decision in Valentine v. quent paragraphs.

Brown, 18 Pic. (Mass.) 549. *See Uniform Sales Act, Section 19, Rule 4, (2).

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the specification. The necessity of this assent is shown by the case of Andrews v. Cheney.60 The parties had contracted for the sale of a certain quantity of goods described as being like a sample. Subsequently the seller set apart by themselves certain goods conforming to the description and signified an intent to pass title to them by marking them with the buyer's name. The buyer did not call for them at the time agreed upon and they were subsequently destroyed by fire. The buyer who had paid for them in advance, sued to recover the amount of his payment. The court denied a recovery, on the ground that the seller might still perform his contract by delivering to the buyer other goods conforming to the contract. As to those of which the seller had theretofore shown his intention of passing the ownership according to the contract, the court held title had not passed. “The property in the goods”, said the court, "did not pass to the plaintiff by virtue of the contract, for they were not then ascertained, and may not have been in existence. The agreement on the part of the defendant was executory. * * * A contract of sale is not complete until the specific goods upon which it is to operate are agreed upon. Until that is done the contract is not a sale but an agreement to sell goods of a particular description. It is performed on the part of the seller by furnishing goods which answer the description. If, as in the case of a sale of goods by sample, the specific goods are not ascertained by the agreement, the property does not pass until an appropriation of specific goods to the contract is made with the assent of both parties. If the plaintiff authorized the defendant to make the selection, the property immediately on the selection vested in the plaintiff. It not appearing that the plaintiff gave such authority, the goods at the time of the fire were the property of the defendant and their destruction was his loss."

60-62 N. H. 404.

In another case6i the defendant had agreed to buy from the plaintiff a certain quantity of hops of a described quality to be grown the following year. In due time the hops were raised and tendered to the defendant in conformity with the agreement. He, however, refused to accept them. The plaintiff stored them on the defendant's account and sued to recover the contract price. The court held that he might recover the amount of his damage through the defendant's breach of contract in refusing to accept, but that he could not recover the full amount of the purchase price. On this latter point the court said: “The (lower) court decided that the rule of damages was the contract price which the defendants were to pay for the hops. This rule of damages must stand upon the principle that the vendor in this case, by offering to deliver and tendering to the defendants the hops contracted to be delivered, thereby passed the title to the vendees, so that the hops so tendered became the property of the vendees, and the vendor's title to them ceased, although the vendees refused to accept and did not accept of them. It is to be observed that this is not the case of the sale of the specific article and the tender of it to the vendee.

But it is a contract to deliver at a future day property not then in esse; property which is to be thereafter produced by the cultivation of the earth, and which is to be of a specified character and description. It comes by analogy within the class of contracts for the manufacture of goods, and for their delivery at a future day. In such cases, the authorities have abundantly established the general rule that the article must not only be made and offered to the vendee, but that he must accept of it, or it must be set apart for him by his consent, before the title to it will vest in him.”

An even more severe application of the rule is illustrated by the case of Greenleaf v. Hamilton.62 The

62–94 Me. 118.

61–Rider v. Kelley, 32 Vt. 268, 76 Am. Dec. 176.

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defendant had ordered from the publishers one copy of a book called “Men of Progress”, for which he agreed

a to pay $35. A copy was brought to his office by the publisher's agent and, the defendant being absent, was left there for him. He refused to pay and the assignee of the publisher brought suit for the agreed price. It was held that the plaintiff could not recover the full contract price unless there was an "acceptance" of the book by the defendant, which issue was ordered submitted to a jury. 68

- Implied Assent.-But the buyer's assent, like the seller's specification, need not be express; it may be implied from acts, or from the circumstances of the case. If he has already seen a larger quantity of goods from which those sold are to be taken, it has been held that he has assented to any selection which the seller may make from that mass, or, in different words, to have made the seller his agent to assent to his, the seller's, own selection.64 By sending containers for the seller to fill


63—Buyer's acceptance of seller's specification is necessary to the passing of title; Moody v. Brown, 34 Me. 107; Crowl v. Good. enburger, 112 Mich. 683; Greenleaf v. Gallagher, 93 Me. 549; River Spinning Co. v. Atlantic Mills, 155 Fed. 466; Tufts Grewer, 83 Me. 407, even though article was especially manufactured according to buyer's plans; Am. Hide Co. v. Chalkley, 101 Vt. 458; Johnson v. Hibbard, 29 Ore. 184, 54 Am. St. 787; Lovell v. Newman & Son, 142 Fed. 753; Hoover v. Maher, 51 Minn. 269; Jones v. Jennins, 168 Pa. 493.

Schneider v. 0. P. R. R. Co., 20
Ore. 172; Colorado Springs L. S.
Co. v. Godding, 20 Colo. 249.

Some confusion has been caused by the holding of a number of courts that upon tender of goods conforming to the contract the entire contract price can be recovered whether title has passed or not. This subject is discussed Post, p. 92 ff.

Contra: Title passes on appropriation and tender by the seller without buyer's consent to accept it, Hyden v. Demets, 53 N. Y. 426; Brigham v. Hibbard, 28 Ore. 386;

64—Aldridge v. Johnson, 7 El. & Bl. 885, "He (the buyer) had inspected and approved the barley in bulk. He sent his sacks to be filled out of that bulk. There can be no doubt of his assent to the appropriation of such bulk as should have been put into the sacks." Sawyer v. Dean, 114 N. Y. 489.

he has been held to have made the seller his agent to assent to the seller's specification. Thus in Langton v. Higgins, 65 the buyer of peppermint oil which was still to be manufactured by the seller had sent his own bottles to be filled with the oil as it should be made. The court held that title passed when sufficient oil according to the contract had been put into the bottles, saying, “The buyer in effect says, 'I will trust you to deliver into my bottles, and by that means to appropriate to me, the article which I have bought of you.' On the other hand, the seller must be taken to say, “You have sent your bottles and I will put the article into them for you.' 1186

-Receipt by Carrier.—The receipt of goods by a carrier for transportation to the buyer is generally held to constitute an assent by the buyer to the seller's specification. The carrier, although it may have contracted for carriage only with the seller, although it may be held not the buyer's agent for purposes of possession, and although it is to be paid by the seller, is nevertheless consistently treated as the buyer's agent to assent to the seller's specification, if that specification does in fact conform to the terms of the contract. It is obvious that there is no real relation of agency between the buyer and the carrier. Although the seller can usually sue for goods sold and delivered, the carrier is not wholly the buyer's agent for purposes of possession, because the seller's right to stop in transitu still exists. The carrier is often under contract only with the seller and is to be paid by the seller. The rule is a purely arbitrary one, established for the sake of convenience. In fact there is hardly authority for speaking of agency even as a fiction.

65-4 Hurl. & Norm. 402.

66—The question whether or not the buyer has consented to take the particular thing which the seller has picked out is occasionally left to the jury to decide.

Greenleaf v. Hamilton, 94 Me. 118, but is in general decided by the court, like all other questions of intent in this subject, as a matter of accepted judicial custom.

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