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passed to the buyer except for the fact that an invoice for the goods had been sent to the buyer stating that the goods were shipped at his risk and that the throwing of the risk on the buyer indicated an intent to pass the title to him. By way of illustrating the effect of evidence on different courts and demonstrating that the decision is one of individual conclusion, not a rule, in Martineau v. Kitching, 98 where the question of intent as to passing of title was in issue, there was an express stipulation that the risk of loss should remain in the seller. The court held this to indicate an intent that title should be in the buyer because if the seller had been intended to retain title the risk would have been in him without stipulation.

In Dows v. Natl. Ex. Bk.94 the sending of an invoice to the buyer, without any provision in it as to risk, was held not to rebut the “almost conclusive presumption” of intent to retain title raised by taking the bill of lading in the shipper's own name.95

Subsequent dealing with the bill of lading itself as passing the title is discussed hereafter.

Other Circumstances.—Just as the presumption, that intent to pass title is evidenced by delivery of goods to a carrier, may be rebutted by the taking of a bill of lading in the shipper's own name, so it may be rebutted by other circumstances. It would be of no purpose to point out many of the various circumstances which have been held in one case or another to rebut such presumption of intent, but for particular precedents which may possibly have persuasive effect upon a court reference must be made to the digests.96

93-L. R. 7 Q. B. 436.

94–91 U. S. 618, 630.

95—In Ogle v. Atkinson, 5 Tauton 759, it was held that title passed on delivery to the carrier, despite the fact that the bill of lading was taken in the seller's Tiame, because of statements and

actions on the part of the seller 80 indicating. In Golightly V. Texas, 49 Tex. Cr. Ap. 44, 2 L. R. A. (n. 8.) 383, an oral stipulation that buyer should assume no risk of loss in transit was held not to rebut presumption that title passed on shipment.

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-Conflicting Intents:The rule of evidence that a presumption of intent existing at the time of certain acts can not be rebutted by a showing of subsequent acts or declarations, or other subsequent evidence, prevails of course in this relation. The delivery of goods to a carrier and the taking out of a bill of lading, or giving other directions as to shipment, are all a part of the one transaction of shipment. It is not the deposit of goods in the carrier's freight house that demonstrates the parties' intent as to title, but the "shipment” which shows it. But when the presumptive intent has been shown by this shipment, it can not thereafter be rebutted by the subsequent acts of the parties, although, of course, they may if they choose actually alter their prior intent.97

It follows also that if title has already presumptively passed to a specific chattel, the way in which the seller deals with it on shipment will not serve to revest title in him nor to rebut the already existing presumption.

-Partial Delivery.-In cases where the contract is for the sale of a quantity of unspecified goods and a part of them have been specified and accepted by the buyer the question sometimes arises whether title has passed to so much as has been specified. If the contract is decided to be a "severable" one, so that title to the various parts and amounts of the goods contracted for may be treated separately from that of the whole, the issue would properly be determined just as it would be in any contract for the sale of the particular goods actually delivered, without considering the fact that they were part of a larger amount. But if the contract be looked upon as an entirety, a different state of facts is present. It is highly probable that the buyer and seller did not contemplate the passing of title to part only, but rather that no real ownership to any part should pass until the ownership of the whole should be transferred. The authority on this point is extremely limited. In Thompson v. Conover,98 it was explicitly held that title would pass. Conover had sold to Petty certain corn, to be shelled by the seller and delivered. A part of it was so delivered and accepted, and the rest, upon subsequent delivery, was refused by the buyer. That which had been delivered was levied upon by the sheriff as the property of the buyer. Conover then rescinded the contract and brought his action in trover. The court held the contract to be entire and the seller to have a right to rescind for the buyer's non-performance. But it held also that the action of trover could not be maintained because the title had passed from Conover to the buyer.99

96—Moakes v. Nicholson, 34 L. J. R. C. P. 273; not rebutted by bill "on account of whom may concern" but invoice to buyer. The Carlos F. Roses, 177 U. S. 655, 662.

97-Alderman Bros. Co. v. Westinghouse, etc., Co., 92 Conn. 419.

A contrary dictum is found in Presley Fruit Co. v. St. Louis, etc. R. R., 130 Minn. 121, 153 N. W. 115, to the effect that seller's retention of a bill of lading in the buyer's name might show an intent to retain title.

On the other hand, it has been intimated, without the necessity of so holding, that title to part delivered under a contract for an entire quantity would not pass until the whole amount had been appropriated.100 Other cases, without discussing whether title to the part did pass or not, have held thai it is in the seller after rescission at any rate.101 Of course the facts of the case may be such as to show that the parties intended the risk of loss of so much as had been appropriated to be upon the buyer, regardless of whether or not title had passed to him.102

98–32 N. J. L. 466.

99-Holland v. Cincinnati Co., 97 Ky. 454, title held to have passed and not to revert upon rescission, but it was not definitely held that the contract was entire,

100—Stewart V. Henningsen Produce Co., 88 Kan. 521, 129 Pac. 181; Walti v. Gaba, 160 Cal. 324, 116 Pac. 963.

101-Pope y. Porter, 102 N. Y. 366.

102-Anderson v. Morice, L. R. 10 C. P. 609.

-Dealing with a Bill of Lading.--Although the fact that by taking a bill of lading in the seller's name the carrier is made bailee for the seller raises a presumption that title was not intended to pass, this bill of lading itself may later be so dealt with as to show an intent to pass title to the goods represented by it to the buyer. Dealing with the bill of lading has the same effect that dealing with the goods themselves would have. Therefore when the seller indicates an intent to pass the ownership of the bill of lading to the buyer he manifests also an intent to pass title to the goods represented by the bill of lading. The usual case is an indorsement of the bill of lading and its delivery to the buyer. The fundamental case upon this point is Lickbarrow v. Mason, decided in 1793.108 This case arose out of a sale of unspecified goods by Turing & Son to Freeman. Pursuant to the contract, Turing shipped corn consigned to Freeman and took the bills of lading in his own name. Two of these bills, which were in quadruplicate, Turing indorsed in blank and sent to Freeman. The latter transferred them to the plaintiff as security for an obligation. Freeman having become insolvent before arrival of the goods, Turing, through the defendant as his agent, attempted to retake possession as an unpaid seller. The Exchequer Chamber held that the title to the goods remained in the seller; that the buyer Freeman, having no title, could convey nothing to the plaintiff, even by endorsing to him a bill of lading. On review by the House of Lords it was held that by the assignment of the bill of lading the legal title had passed to Freeman and from him to the plaintiff, and that the plaintiff having an equity in addition to his legal title, the seller's merely equitable right could not prevail. It was further specifically held that the transfer of the bill of lading by an indorsement in blank had the same effect of transferring the legal title, if so intended, as by indorsement to a particular person named. So, it is now consistently held that transfer of a bill of lading has the same effect as transfer of the goods represented by it would have 104

103—2 T. R. 63; 1 H. Blackstone 357, 2 Id. 211; 5 T. R. 683.

This transfer of the bill of lading, like the delivery of goods, may be made upon condition. If it is transferred upon condition and the seller, i. e., the tranferor, does not intend title to pass until the condition is fulfilled, title does not pass—as between the parties-until then.106*

Unspecified Part of Specified Mass.-An agreement to sell property which is itself unidentified, but which is described as part of a definite and specified larger mass of goods, is a common transaction. The question then arises whether the buyer has any of the privileges and liabilities of ownership in respect to the mass before some particular part has been designated. It is obvious, of course, that he can not be the owner of any physically limited or separated part until such particular part has been specified. Even if by the agreement he is bound to accept, or if he has authority to select for himself what part he will take, until such selection has actually been made he is not the owner of any particular part, but has only a legal right to become the owner of some particular part. As we have already pointed out, ownership is not a mere idea, but is the legal connection of certain ideal rights and duties with some particular, definite thing. Until there is a definite thing to be the object of ownership there is no ownership. And while the thing described as sold is still an undetermined part of something else, there is no definite thing to be owned.

It is, however, a legal concept that several persons may have certain rights and duties of ownership in respect to the same one particular thing. When the legal rights

104–See post, p. 219, 221, for

5 H. of L. 116; Godts v. Rose, 25 full discussion.

L. J. R., C. P. 61; Wait v. Baker, 105-Shepherd v. Harrison, L. R. 2 Exch. Rep. 1. *See Uniform Sales Act, Section 34.

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