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Rather, the courts have simply decided that appropriation is complete on delivery to a carrier and its acceptance of the goods for carriage, without bothering to state just how the buyer's necessary assent to the specification is worked out.67

Passing of Title.—As has already been said, the pointing out of goods as the particular ones to which the contract is to apply, and assent thereto by the other party, has no necessary connection with an intent to pass title. It may happen, and does sometimes happen in fact, that the seller points out the particular goods to which he intends eventually to pass title, without intending to pass it at the time. It is possible also that the buyer may consent to the seller's specification of the particular goods that are to pass, without intending to take the title at

once.68

But it is presumed as a matter of judicial custom unless the contrary appear that by their specification and assent the parties do intend at the same time to pass title. Hence it is said that title is presumed to pass at the instant of complete appropriation. So invariable is this presumption, that courts do not make any verbal distinction between specification and intent to pass title, or between assent and intent to accept title, and frequently use one in the sense of the other.

-Delivery to Carrier.-The delivery of goods to a carrier for transportation to the buyer, therefore, not only constitutes an act of specification, but is presumed also to show an intent to pass the title to the goods so specified. Conversely, the receipt by the carrier demonstrates both the buyer's assent to the specification and his intent to receive the title.

67–See the authorities and discussion in the following paragraphs.

68—Wait v. Baker, 2 Exch. Rep. 1, "The word (appropriation) may mean that both parties have

agreed that a certain article shall be delivered in pursuance of the contract, and yet the property may not pass in either case." Schreyer v. Kimball Lumber Co., 54 Fed. 653.

9)

The theory on which this holding is based is anything but clear. The courts usually dismiss the proposition with the simple statement that the carrier is the buyer's agent to accept the goods, or that delivery to the carrier is delivery to the buyer. If by "delivery” and “acceptance" in this connection the courts mean physical delivery, or acceptance of possession of the tangible chattel, there is an obvious inconsistency with the proposition that by a C. O. D. shipment title passes to the buyer but the possession is retained by the seller.69 Neither does the idea of possession in the buyer, through the carrier as his agent for that purpose, conform to the holdings that delivery to a carrier is not delivery to the buyer so as to satisfy the requirements of the Statute of Frauds.70

If on the other hand they mean delivery of the titlethe concept of ownership as distinct from the tangible thing to which it applies—and its acceptance by the carrier as the buyer's agent, the inconsistency disappears. It is perfectly conceivable that the carrier may be both the buyer's agent to receive title and the seller's agent to hold physical possession. This theory is not contradicted by anything in the cases nor inconsistent with their verbiage, and it comes nearer to harmonizing the various holdings than any other, but it must be pointed out that if it be the underlying principle it is not expressly stated by the courts. The courts, as a matter of fact, appear to accept the rule that receipt of the goods by a carrier constitutes an acceptance of title by the buyer, without feeling called upon to discuss the reason. The case of Johnson v. Hibbard" is characteristic. The court says, “In the sale of articles or goods to be

69—See discussion of C. 0. D. shipments, ante, p. 35.

70—Gatiss v. Cyr, 134 Mich. 233.

See discussion under that subject, post, p. 269.

71-29 Ore. 184, 54 Am. St. 787. 72–Title passes on delivery to Kleine v. Baker, 99 Mass. 253; carrier. Dunn v. Georgia, 82 Ga. 27, Harper v. State, 91 Ark. 422, 25 3 L. R. A. 199; Hill v. Fruita Mer- L. R. A. (n. 8.) 669; State v. J. W. cantile Co., 42 Colo. 491, 126 Am. Kelley & Co., 123 Tenn. 556, 36 St. 172; A. J. Neimeyer Co. v. L. R. A. (n. s.) 171; Loveland v. Burlington R. R., 54 Neb. 321, 40 Dinunan, 81 Conn. 111, 17 L. R. A. L. R. A. 534; Sullivan v. Sullivan, (n. 8.) 1119; Dentzel V. Island 70 Mich. 583; Branch Saw Co. v. Park Assn., 229 Pa. 403, 33 L. R. Bryant, 174 N. C. 355, 93 S. E. 839; A. (n. s.) 54; Tyler Co. v. Ludlow Third Natl. Bk. v. Smith, 107 Mo. Co., 236 U. S. 723; State v. Gruber, 178; Dr. A. P. Sawyer Medicine 116 Minn, 221, 45 L. R. A. (n. 8.) Co. v. Johnson, 178 Mass. 374; 591; Twitchell-Champlin Co. v. Presley Fruit Co. v. St. Louis, etc. Radovsky, 207 Mass. 72; White v. R. R., 130 Minn. 121, 153 N. W. 115; Schweitzer, 132 N. Y. S. 644, 147 The Pennsylvania Co. v. Holder- App. Div. 544, citing Dutton v. man, 69 Ind. 18; Congdon v. Ken- Solomonson, 3 Bos. & Pul. 582. dall, 53 Neb. 282; Hawens v. Grand 72a-91 Ark. 422, 25 L. R. A. (n. Island L. & F. Co., 41 Neb. 153; s.) 669.

72*

manufactured, it is clear that no title passes until their manufacture is completed, and thcy, by the understanding and consent, express or implied, of the parties to the sale, have been selected or designated, and set apart to the purchaser." This statement that mutual consent is necessary to the passing of title is followed by the simple statement, without discussion, that title passed when goods conforming to the contract were delivered to the carrier. Just how delivery to the carrier shows the buyer's necessary consent the court does not say.

In Harper v. State, 27a the facts were that a minor living outside the state had written Harper, a resident of Arkansas, to send him a gallon of whiskey. Harper shipped it consigned to the buyer, who duly received it. An Arkansas statute made it unlawful to sell liquor to a minor and Harper was indicted thereunder. He defended on the ground that there was no such statute in the buyer's state and that title had not passed until delivery by the carrier to the buyer, which had occurred outside of Arkansas. The court held the indictment to be good because the sale had been executed, that is, title had passed, when the liquor was shipped, consigned to the buyer.725

*See Uniform Sales Act, Section 19, Rule 4, (2).

A repudiation of the contract by the buyer is held to be a revocation of the carrier's authority to receive the goods for him. Consequently a subsequent specification of goods by the seller and delivery of them to a carrier for transportation to the buyer does not vest title in the buyer. As one court puts it78 “the direction not to ship was a revocation of the carrier's agency to receive, and the plaintiffs (sellers) thereby had notice of the revocation. The delivery of the goods to the carrier, therefore, was unauthorized, and the carrier's receipt would not charge the defendant”.74

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72b-Hill v. Fruita Mercantile Co., 42 Colo. 491, 126 Am. St. Rep. 172; A. J. Neimeyer Co. v. Burling. ton R. R., 54 Neb. 321, 40 L. R. A. 534; Sullivan v. Sullivan, 70 Mich. 583; Branch Saw Co. v. Bryant, N. C., 93 S. E. 839; Third Natl. Bk. v. Smith, 107 Mo. 178; Kleine V. Baker, 99 Mass. 253; State v. J. W. Kelley & Co., 123 Tenn. 556, 36 L. R. A. (n. 8.) 171; Loveland v. Dinnan, 81 Conn. 111, 17 L. R. A. (n. s.) 1119; Dentzel v. Island Park Assn., 229 Pa. 403, 33 L. R. A. (n. s.) 54, in the absence of any countervailing evidence trial court should give binding instructions to this effect to jury. Tyler Co. v. Ludlow Co., 236 U. S. 723, infringement of patent by sale of articles occurs in the district in which the articles are shipped to buyer and in no other; State v. Gruber, 116 Minn, 221, 45 L. R. A. (n. s.) 591.

ply provides that the place of delivery of intoxicating liquor within the state "shall be construed and held to be the place of sale thereof”. A similar statute was enacted in Texas-Acts of 1901, p. 262—providing that when intoxicating liquor was shipped with a collection on delivery provision the sale should be deemed to have occurred at the place of destination. This act was held unconstitutional the ground that by the common law presumption the sale took place at point of shipment and the legislature could not, even indirectly, prevent the owner from bringing into a dry county liquor of which he had acquired title in another county. Keller v. State, Tex. Crim. Ap., 1 L. R. A. (n. s.) 489.

on

The presumption has been changed by statute in South Carolina so far as shipments of intoxi. cating liquor are concerned and an arbitrary rule as to the place of sales substituted for it. Sec. 2080, Revisal of 1905. This statute sim.

73—Unexcelled Fire-works Co. v. Polites, 130 Pa. 536.

74–Lincoln v. Chas. Alshuler Mfg. Co., 142 Wis. 475; Lipper Mfg. Co. v. Morris & Co., 58 Pa. Superior Court 611, but holding that buyer's acceptance of them from the carrier and unexplained *See Uniform Sales Act, Section 44, (1), (2), (3), (4).

The authority of the carrier or other agent to assent for the buyer to the passing of title, or to accept delivery of the goods so as to pass the title (whichever theory be chosen) is limited to cases where goods conforming to the contract are offered. This "agency” of the carrier to receive the goods or the title is of course a mere fiction. As a matter of fact a carrier would receive any goods that the seller might deliver to it for transportation to the buyer. There is no pretense that the carrier examines them to see whether they conform or not to the terms of some contract of sale. The agency of the carrier is merely a legal construction apparently based on expediency and operating to avoid conflict with the rule that title can not be forced upon the buyer without his consent to accept title in the particular chattel to which the seller has chosen to pass title.

This constructive agency, however, extends only to the acceptance of goods which conform to the contract. Delivery by the seller to a carrier and its receipt of goods which do not conform to the terms of the contract do not suffice to pass the title. Before title will pass in such case there must be some further evidence of acceptance by the buyer of the particular goods presented.75*

The delivery to a carrier of goods which the seller asserts conformed to the description in the contract is prima facie evidence of specification and assent and consequent passing of title. The burden is then upon the

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retention amounted in itself to livery to carrier of a greater quan. acceptance of title; Acme Food tity than called for by the conCo. v. Older, 64 W. Va. 255, 17 tract; but same case, 6 Hill 208, to L. R. A. (n. s.) 807.

effect that an actually intended 75-Johnson v. Hibbard, 29 Ore. gift of the excess would pass title 184, 54 Am. St. 787; Nomordust to the whole; compare,' The Iron Co. v. Eberts & Co., 59 Pa. Sup Cliffs Co. v. Buhl, 42 Mich. 86. Ct. 295; Fogel v. Brubaker, 122 Pa. Hoover v. Maher, 51 Minn. 269, 7; Skinner v. Griffiths, 80 Wash. delivery to carrier before the time 291, 141 Pac. 693; Downer stipulated by the buyer for shipThompson, 2 Hill (N. Y.) 137, de- ment does not pass the title.

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